115
Exhibit 2.1(i)
RECEIVABLES TRANSFER AGREEMENT
Dated as of September 1, 1999,
by and among
CONE ▇▇▇▇▇ CORPORATION,
ANY OTHER ORIGINATORS PARTY HERETO,
and
CONE RECEIVABLES II LLC
118
117
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INTERPRETATION......................................1
SECTION 1.01 Definitions.......................................................1
SECTION 1.02 Rules of Construction.............................................1
ARTICLE II TRANSFERS OF RECEIVABLES...........................................2
SECTION 2.01 Agreement to Transfers............................................2
(a) Receivables Transfers....................................................2
(b) Determination of Sold Receivables........................................2
(c) Payment of Purchase Price................................................2
(d) Determination of Contributed Receivables.................................2
(e) Ownership of Transferred Receivables......................................2
(f) Reconstruction of General Trial Balance...................................3
(g) Servicing of Receivables..................................................3
SECTION 2.02 Grant of Security Interest........................................3
SECTION 2.03 Parent Agreement; Addition of Originators.........................3
SECTION 2.04 Termination of Status as an Originator............................4
SECTION 2.05 Transfers of Levi ▇▇▇▇▇▇▇ Europe Receivables......................5
ARTICLE III CONDITIONS PRECEDENT..............................................5
SECTION 3.01 Conditions to Initial Transfer...................................5
(a) Transfer Agreement; Other Documents........................................5
(b) Governmental and Other Approvals...........................................5
(c) Compliance with Laws.......................................................5
(d) Purchase Agreement Conditions..............................................5
SECTION 3.02 Conditions to all Transfers.......................................6
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS..........................6
SECTION 4.01 Representations and Warranties of the Originators.................6
(a) Corporate Existence; Compliance with Law...................................6
(b) Executive Offices; Collateral Locations; Corporate or Other Names; FEIN....7
(c) Corporate Power, Authorization, Enforceable Obligations....................7
(d) No Litigation..............................................................7
(e) Solvency...................................................................7
(f) Material Adverse Effect....................................................8
(g) Ownership of Receivables; Liens............................................8
(h) Ventures, Subsidiaries and Affiliates; Outstanding Stock...................8
(i) Taxes......................................................................8
(j) Intellectual Property......................................................9
(k) Full Disclosure...........................................................9
(l) Notices to Obligors.......................................................9
(m) ERISA.....................................................................9
(n) Brokers..................................................................10
(o) Margin Regulations.......................................................10
(p) Nonapplicability of Bulk Sales Laws......................................10
(q) Securities Act and Investment Company Act Exemptions.....................10
(r) Government Regulation....................................................10
(s) Books and Records; Minutes...............................................11
(t) Deposit and Disbursement Accounts........................................11
(u) Representations and Warranties in Other Related Documents................11
(v) Receivables..............................................................11
(w) Nonavoidability of Transfers.............................................12
(x) Years 2000 Problems.....................................................12
SECTION 4.02 Affirmative Covenants of the Originators........................12
(a) Offices and Records......................................................12
(b) Access...................................................................12
(c) Communication with Accountants...........................................13
(d) Compliance With Credit and Collection Policies...........................13
(e) Assignment...............................................................13
(f) Compliance with Agreements and Applicable Laws...........................14
(g) Maintenance of Existence and Conduct of Business.........................14
(h) Notice of Material Event.................................................14
(i) Use of Proceeds..........................................................15
(j) Separate Identity........................................................15
(k) ERISA....................................................................16
(l) Payment, Performance and Discharge of Obligations........................16
(m) Deposit of Collections...................................................16
(n) Accounting Changes.......................................................16
(o) Adjustments to Sale Price................................................17
(p) Year 2000 Compliance.....................................................17
SECTION 4.03 Negative Covenants of the Originators...........................17
(a) Sale of Assets...........................................................17
(b) Liens....................................................................17
(c) Modifications of Receivables or Contracts................................17
(d) Sale Characterization....................................................17
(e) Capital Structure and Business...........................................18
(f) Actions Affecting Rights.................................................18
(g) ERISA....................................................................18
(h) Change to Credit and Collection Policies.................................18
(i) Adverse Tax Consequences.................................................18
(j) No Proceedings...........................................................18
(k) Debt 18
(l) Mergers, Acquisitions, Etc...............................................19
4.04 Breach of Representations, Warranties or Covenants......................20
ARTICLE V INDEMNIFICATION....................................................21
SECTION 5.01 Indemnification..................................................21
ARTICLE VI [Intentionally Omitted]...........................................23
ARTICLE VII [Intentionally Omitted]..........................................23
ARTICLE VIII MISCELLANEOUS...................................................23
SECTION 8.01 Notices..........................................................23
SECTION 8.02 No Waiver; Remedies..............................................24
SECTION 8.03 Successors and Assigns...........................................24
SECTION 8.04 Termination; Survival of Obligations.............................24
SECTION 8.05 Complete Agreement; Modification of Agreement....................25
SECTION 8.06 Amendments and Waivers...........................................25
SECTION 8.07 Governing Law; Consent To Jurisdiction;Waiver Of Jury Trial......25
SECTION 8.08 Counterparts.....................................................27
SECTION 8.09 Severability.....................................................27
SECTION 8.10 Section Titles...................................................27
SECTION 8.11 No Setoff........................................................27
SECTION 8.12 Confidentiality..................................................27
SECTION 8.13 Further Assurances..............................................28
SECTION 8.14 Fees and Expenses................................................28
119
INDEX OF APPENDICES
Exhibit 2.01(a) Form of Receivables Assignment
Exhibit 2.03 Form of Parent Agreement
Exhibit 2.05 Form of Levi ▇▇▇▇▇▇▇ Europe Notice and Acknowledgment
Exhibit 3.01(a) Form of Officer' Certificate to Solvency (Originator)
Schedule 2.01(c) Originator Accounts
Schedule 4.01(b)Executive Offices; Collateral Locations;Corporate or other Names
Schedule 4.01(d) Litigation
Schedule 4.01(h) Ventures, Subsidiaries and Affiliates; Outstanding Stock
Schedule 4.01(i) Tax Matters
Schedule 4.01(j) Intellectual Property Infringements
Schedule 4.01(m) ERISA Plans
Schedule 4.01(t) Deposit and Disbursement Accounts
Schedule 4.03(b) Existing Liens
Schedule 4.03(k) Existing Debt
Annex X Definitions
Annex Y Schedule of Documents
122
121
THIS RECEIVABLES TRANSFER AGREEMENT ("Agreement") is entered into as of
September 1, 1999, by and among Cone ▇▇▇▇▇ Corporation, a North Carolina
corporation ("Cone ▇▇▇▇▇"), any other Originators that are or may hereafter
become a party to this Agreement (Cone ▇▇▇▇▇ and such other Originators herein
individually called an "Originator" and collectively the "originators"), and
Cone Receivables II LLC, a North Carolina limited liability company ("CRLLC").
RECITALS
A. CRLLC is a special purpose limited liability company owned by the
Independent Member, Cone ▇▇▇▇▇ and one or more Subsidiaries of Cone ▇▇▇▇▇.
B. CRLLC has been formed for the sole purpose of purchasing, or otherwise
acquiring by capital contribution, and reselling to the Purchaser, all or
substantially all of the trade receivables originated by each Originator.
C. Each Originator intends to sell, and CRLLC intends to purchase, such
trade receivables, from time to time, as described herein.
D. In addition, Cone ▇▇▇▇▇ or any other Originator that is a Stockholder of
CRLLC (Cone ▇▇▇▇▇ and any such Originator individually a "Stockholder
Originator" and collectively the "Stockholder Originators") may, from time to
time, contribute capital to CRLLC in the form of Contributed Receivables or
cash.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01 Definitions. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to them in Annex X.
SECTION 1.02 Rules of Construction. For purposes of this Agreement, the
rules of construction set forth in Annex X shall govern. All Appendices hereto,
or expressly identified to this Agreement, are incorporated herein by reference
and, taken together with this Agreement, shall constitute but a single
agreement.
ARTICLE II
TRANSFERS OF RECEIVABLES
SECTION 2.01 Agreement to Transfer.
(a) Receivables Transfers. Subject to the terms and conditions hereof, each
Originator agrees to sell (without recourse except to the extent specifically
provided herein) or, in the case of any Stockholder Originator, sell or
contribute, to CRLLC on the Closing Date and on each Business Day thereafter
(each such date, a "Transfer Date") all Approved Receivables owned by it on each
such Transfer Date, and CRLLC agrees to purchase or acquire as a capital
contribution all such Approved Receivables on each such Transfer Date. All such
Transfers by any Originator shall be evidenced by a certificate of assignment
from such Originator to CRLLC substantially in the form of Exhibit 2.01(a)
(each, a "Receivables Assignment," and collectively, the "Receivables
Assignments"), and each Originator and CRLLC shall execute and deliver a
Receivables Assignment on or before the Closing Date.
(b) Determination of Sold Receivables. On and as of each Transfer Date,
those Approved Receivables sold to, and purchased by, CRLLC shall consist of (i)
all Approved Receivables owned by each Restricted Originator and (ii) those
Approved Receivables owned by each Stockholder Originator and identified by the
Servicer for sale to CRLLC (each such Receivable individually, a "Sold
Receivable," and collectively, the "Sold Receivables"). The Sale Price of all
Sold Receivables shall not exceed the amount of cash available to CRLLC for the
payment thereof.
(c) Payment of Purchase Price. In consideration for each Sale of Sold
Receivables hereunder, CRLLC shall pay to the Originator thereof on the Transfer
Date therefor the Sale Price therefor in Dollars in immediately available funds.
Each payment by CRLLC under this Section 2.01(c) shall be effected by means of a
wire transfer not later than 12:00 p.m. (New York time) on the day when due to
the Originator Account or Accounts specified by Cone ▇▇▇▇▇ to CRLLC for such
payment.
(d) Determination of Contributed Receivables. With respect to any
Stockholder Originator and on and as of any Transfer Date, those Approved
Receivables contributed to CRLLC as a capital contribution shall consist of all
Approved Receivables owned by such Stockholder Originator as of such Transfer
Date (i) that have not been identified as Sold Receivables pursuant to Section
2.01(b) and (ii) with respect to which an Election Notice has not been delivered
to CRLLC (each such contributed Receivable individually, a "Contributed
Receivable," and collectively, the "Contributed Receivables"). Any Stockholder
Originator electing not to contribute Receivables to CRLLC on any Transfer Date
shall deliver to CRLLC not later than 5:00 p.m. (New York time) on the Business
Day immediately preceding such Transfer Date a notice of such election (each
such notice, an "Election Notice").
(e) Ownership of Transferred Receivables. On and after each Transfer Date
and after giving effect to the Transfers to be made on each such date, CRLLC
shall own the Transferred Receivables and no Originator shall take any action
inconsistent with such ownership nor shall any Originator claim any ownership
interest in such Transferred Receivables.
(f) Reconstruction of General Trial Balance. If at any time any Originator
fails to generate its General Trial Balance, CRLLC shall have the right to
reconstruct such General Trial Balance so that a determination of the Sold
Receivables and Contributed Receivables can be made pursuant to Sections 2.01(b)
and 2.01(d). Each Originator agrees to cooperate with such reconstruction,
including by delivery to CRLLC, upon CRLLC's request, of copies of all Contracts
and Records.
(g) Servicing of Receivables. So long as no Event of Servicer Termination
shall have occurred and be continuing and no Successor Servicer has assumed the
responsibilities and obligations of the Servicer pursuant to Section 11.02 of
the Purchase Agreement, the Servicer shall (i) conduct the servicing,
administration and collection of the Transferred Receivables and shall take, or
cause to be taken, all such actions as may be necessary or advisable to service,
administer and collect the Transferred Receivables, all in accordance with (A)
the terms of the Purchase Agreement, (B) customary and prudent servicing
procedures for trade receivables of a similar type and (C) all applicable laws,
rules and regulations, and (ii) hold all Contracts and other documents and
incidents relating to the Transferred Receivables in trust for the benefit of
CRLLC, as the owner thereof, and for the sole purpose of facilitating the
servicing of the Transferred Receivables in accordance with the terms of the
Purchase Agreement.
SECTION 2.02 Grant of Security Interest. The parties hereto intend that
each Transfer shall constitute a purchase and sale or capital contribution, as
applicable, and not a loan. Notwithstanding anything to the contrary set forth
in this Section 2.02, if a court of competent jurisdiction determines that any
transaction provided for herein constitutes a loan and not a purchase and sale
or capital contribution, as applicable, then the parties hereto intend that this
Agreement shall constitute a security agreement under applicable law and that
each Originator shall be deemed to have granted, and each Originator does hereby
grant, to CRLLC a first priority Lien in and to all of such Originator's right,
title and interest in, to and under all Transferred Receivables.
SECTION 2.03 Parent Agreement; Addition of Originators. Cone ▇▇▇▇▇ hereby
undertakes and agrees, to and for the benefit of CRLLC, to cause the due and
punctual performance and observance by each Selling Subsidiary of all of the
terms, conditions, agreements and undertakings on the part of such Selling
Subsidiary to be performed or observed by it hereunder or under any other
Related Document and, prior to or concurrently with the first Selling Subsidiary
becoming an Originator, shall execute and deliver to CRLLC an agreement
substantially in the form of Exhibit 2.03 (the "Parent Agreement") to more fully
evidence such undertaking. Any Subsidiary or Affiliate of Cone ▇▇▇▇▇ may become
an Originator hereunder upon satisfaction of the Rating Agency Condition with
respect thereto. Cone ▇▇▇▇▇ and any such Subsidiary or Affiliate shall give
prior written notice of any such proposed addition to CRLLC and the Operating
Agent. Upon provision of such notice, any addition of a Subsidiary or Affiliate
of Cone ▇▇▇▇▇ as an Originator pursuant to this section shall become effective
on the first Business Day following the date on which (a) the Rating Agency
Condition has been satisfied with respect thereto, (b) such new Originator and
the parties hereto shall have executed and delivered, at such new Originator's
sole cost and expense, such further agreements, instruments and other documents,
each in form and substance satisfactory to CRLLC and the Operating Agent, that
CRLLC or the Operating Agent reasonably determines are necessary or appropriate
to effect such addition, and (c) CRLLC and the Operating Agent shall have given
their prior written consent to any such proposed addition. From and after the
effective date of any such addition, any reference to an "Originator" in this
Agreement shall include any Subsidiary or Affiliate of Cone ▇▇▇▇▇ added as an
Originator pursuant to this Section 2.03.
SECTION 2.04 Termination of Status as an Originator.
(a) At any time when two or more Originators are parties hereto, an
Originator may terminate its obligations as an Originator hereunder (each such
Originator, a "Terminating Originator") if:
(i) such Terminating Originator shall have given CRLLC and the Operating
Agent not less than 60 days' prior written notice of its intention to terminate;
(ii) (A) an Authorized Officer of the Terminating Originator shall have
certified to CRLLC, and (B) an Authorized Officer of CRLLC shall have certified
to the Operating Agent, that the termination by the Terminating Originator of
its status as an Originator will not have a Material Adverse Effect;
(iii) both immediately before and after giving effect to the termination by
the Terminating Originator, no Incipient Termination Event or Termination Event
shall have occurred and be continuing or shall reasonably be expected to occur
as a result of such termination;
(iv) both immediately before and after giving effect to the termination by
the Terminating Originator, no Purchase Excess shall exist; and
(v) CRLLC shall have consented, in writing, to the termination of the
obligations of such Terminating Originator hereunder and delivered to the
Operating Agent the Officer's Certificate of such Terminating Originator
identified in clause (a)(ii)(A) above.
Any termination by a Terminating Originator shall become effective on the
first Business Day following the day on which the requirements of clauses (a)(i)
through (a)(v) above shall have been satisfied (or such later date specified in
any notice or certificate referred to in such clauses). Any termination by a
Terminating Originator shall terminate its rights and obligations hereunder;
provided, that any such termination shall not relieve such Terminating
Originator of obligations that relate to Transferred Receivables originated by,
or obligations of, such Terminating Originator prior to the effective date of
such termination, including any and all obligations of such Terminating
Originator to CRLLC under Sections 4.02(o), 4.04, 5.01 and 8.14.
(b) An Originator's right and obligation to sell its Receivables to CRLLC
shall terminate immediately if such Originator ceases to be a Subsidiary or
Affiliate of Cone ▇▇▇▇▇; provided, that any such termination shall not relieve
such Originator of obligations that relate to Transferred Receivables originated
by, or obligations of, such Originator prior to the effective date of such
termination, including any and all obligations of such Originator to CRLLC under
Sections 4.02(o), 4.04, 5.01 and 8.14.
SECTION 2.05 Transfers of Levi ▇▇▇▇▇▇▇ Europe Receivables. Receivables owed
by Levi ▇▇▇▇▇▇▇ Europe shall not be transferred hereunder unless and until the
Foreign Receivable Election Date has occurred and the owner of such Receivables
(if not already an Originator) becomes an Originator pursuant to Section 2.03
hereof. In addition, prior to any Receivable owed by Levi ▇▇▇▇▇▇▇ Europe to any
Originator becoming an Eligible Foreign Receivable, such Originator shall send
to Levi ▇▇▇▇▇▇▇ Europe a one-time written notice of such Originator's transfer
of such Receivable to CRLLC and of CRLLC's re-transfer of such Receivable to
Purchaser and such Originator shall obtain Levi ▇▇▇▇▇▇▇' written acknowledgment
of its receipt of such notice. Each such notice shall be in the form of Exhibit
2.05 (properly completed). No later than the fifteenth (15th) Business Day of
each fiscal month, each such Originator shall provide the Operating Agent with a
detailed report of all Receivables owed by Levi ▇▇▇▇▇▇▇ Europe that were
outstanding as of the end of the immediately preceding fiscal month (including
invoice numbers).
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01 Conditions to Initial Transfer. The initial Transfer hereunder
shall be subject to satisfaction of each of the following conditions precedent
(any one or more of which may be waived in writing by each of CRLLC and the
Operating Agent):
(a) Transfer Agreement; Other Documents. This Agreement or counterparts
hereof shall have been duly executed by, and delivered to, each Originator and
CRLLC, and CRLLC shall have received such documents, instruments, agreements and
legal opinions as CRLLC shall request in connection with the transactions
contemplated by this Agreement, including all those identified in the Schedule
of Documents, each in form and substance satisfactory to CRLLC.
(b) Governmental and Other Approvals. CRLLC shall have received
(i)satisfactory evidence that the Originators have obtained all required
consents and approvals of all Persons, including the Credit Facility Lender and
all requisite Governmental Authorities, to the execution, delivery and
performance of this Agreement and the other Related Documents and the
consummation of the transactions contemplated hereby and thereby or (ii)an
Officer's Certificate from each Originator in form and substance satisfactory to
CRLLC affirming that no such consents or approvals are required.
(c) Compliance with Laws. Each Originator shall be in compliance in all
material respects with all applicable foreign, federal, state and local laws and
regulations, including those specifically referenced in Section 4.02(f).
(d) Purchase Agreement Conditions. Each of those conditions precedent set
forth in Article III of the Purchase Agreement shall have been satisfied or
waived in writing as provided therein.
SECTION 3.02 Conditions to all Transfers. Each Transfer hereunder
(including the initial Transfer) shall be subject to satisfaction of the
following further conditions precedent as of the Transfer Date therefor:
(a) the representations and warranties of each Originator contained herein
or in any other Related Document shall be true and correct as of such Transfer
Date, both before and after giving effect to such Transfer and to the
application of the Sale Price therefor, except to the extent that any such
representation or warranty expressly relates to an earlier date and except for
changes therein expressly permitted by this Agreement;
(b) no Incipient Termination Event or Termination Event shall have occurred
and be continuing or would result after giving effect to such Transfer or the
application of the Sale Price therefor;
(c) each Originator shall be in compliance with each of its covenants and
other agreements set forth herein; and
(d) each Originator shall have taken such other action, including delivery
of approvals, consents, opinions, documents and instruments to CRLLC as CRLLC
may request.
The contribution by any Originator of any Contributed Receivable or the
acceptance by any Originator of the Sale Price for any Sold Receivables on any
Transfer Date shall be deemed to constitute, as of any such Transfer Date, a
representation and warranty by such Originator that the conditions in this
Section 3.02 have been satisfied.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.01 Representations and Warranties of the Originators. To induce
CRLLC to purchase the Sold Receivables and to acquire the Contributed
Receivables, each Originator makes the following representations and warranties
to CRLLC, each and all of which shall survive the execution and delivery of this
Agreement.
(a) Corporate Existence; Compliance with Law. Each Originator (i) is a
corporation or limited liability company duly organized and validly existing
under the laws of its jurisdiction of incorporation or organization; (ii) is
duly qualified to conduct business in each other jurisdiction where its
ownership or lease of property or the conduct of its business requires such
qualification; (iii) has the requisite corporate or other power and authority
and the legal right to own, pledge, mortgage or otherwise encumber and operate
its properties, to lease the property it operates under lease, and to conduct
its business as now, heretofore and proposed to be conducted; (iv) has all
licenses, permits, consents or approvals from or by, and has made all filings
with, and has given all notices to, all Governmental Authorities having
jurisdiction, to the extent required for such ownership, operation and conduct;
(v) is in compliance with its charter and its bylaws or operating agreement (as
the case may be); and (vi) subject to specific representations set forth herein
regarding ERISA, Environmental Laws, tax laws and other laws, is in compliance
with all applicable provisions of law, except where the failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
(b) Executive Offices; Collateral Locations; Corporate or Other Names;
FEIN. As of the Closing Date, the current location of each Originator's chief
executive office, principal place of business, and other offices are set forth
in Schedule 4.01(b) and none of such locations have changed within the past 12
months. During the prior five years (or such shorter time as such Originator has
been in existence), except as set forth in Schedule 4.01(b), no Originator has
been known as or used any corporate, fictitious or trade name. In addition,
Schedule 4.01(b) lists the federal employer identification number of each
Originator.
(c) Corporate Power, Authorization, Enforceable Obligations. The execution,
delivery and performance by each Originator of this Agreement and the other
Related Documents to which it is a party and the creation of all Liens provided
for herein and therein and, solely with respect to clause (vii) below, the
exercise by CRLLC, the Purchaser, the Operating Agent or the Collateral Agent of
any of its rights and remedies under any Related Document to which it is a
party: (i)are within such Person's corporate or other power; (ii) have been
duly authorized by all necessary or proper corporate or other action; (iii) do
not contravene any provision of such Person's charter, bylaws or operating
agreement (as the case may be); (iv)do not violate any law or regulation, or
any order or decree of any court or Governmental Authority; (v) do not conflict
with or result in the breach or termination of, constitute a default under or
accelerate or permit the acceleration of any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which such Person is a party or by which such Person or any of its property is
bound; (vi)do not result in the creation or imposition of any Adverse Claim
upon any of the property of such Person; and (vii)do not require the consent or
approval of any Governmental Authority or any other Person, except those
referred to in Section 3.01(b), all of which will have been duly obtained, made
or complied with prior to the Closing Date. On or prior to the Closing Date,
each of the Related Documents shall have been duly executed and delivered by
each Originator that is a party thereto and each such Related Document shall
then constitute a legal, valid and binding obligation of such Originator
enforceable against it in accordance with its terms.
(d) No Litigation. No Litigation is now pending or, to the knowledge of any
Originator, threatened against any Originator that (i)challenges any
Originator's right or power to enter into or perform any of its obligations
under the Related Documents to which it is a party, or the validity or
enforceability of any Related Document or any action taken thereunder, (ii)
seeks to prevent the Transfer, Purchase or pledge of any Receivable or the
consummation of any of the transactions contemplated under this Agreement or the
other Related Documents or (iii)has a reasonable risk of being determined
adversely to any Originator and that, if so determined, could have a Material
Adverse Effect. Except as set forth on Schedule 4.01(d), as of the Closing Date
there is no Litigation pending or threatened that seeks damages in excess of
$500,000 or injunctive relief against, or alleges criminal misconduct by, any
Originator.
(e) Solvency. Both before and after giving effect to (i) the transactions
contemplated by this Agreement and the other Related Documents and (ii) the
payment and accrual of all transaction costs in connection with the foregoing,
each Originator is and will be Solvent.
(f) Material Adverse Effect. Between January 3, 1999 and the Closing Date,
(i)no Originator has incurred any obligations, contingent or non-contingent
liabilities, liabilities for charges, long-term leases or unusual forward or
long-term commitments that, alone or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, (ii) no contract, lease or other
agreement or instrument has been entered into by any Originator or has become
binding upon any Originator's assets and no law or regulation applicable to any
Originator has been adopted that has had or could reasonably be expected to have
a Material Adverse Effect on such Originator, and (iii) no Originator is in
default and no third party is in default under any material contract, lease or
other agreement or instrument to which any Originator is a party that alone or
in the aggregate could reasonably be expected to have a Material Adverse Effect.
Between January 3, 1999 and the Closing Date no event has occurred that alone or
together with other events could reasonably be expected to have a Material
Adverse Effect.
(g) Ownership of Receivables; Liens. Each Originator owns each Receivable
originated by it free and clear of any Adverse Claim (other than Permitted
Encumbrances) and, from and after each Transfer Date, CRLLC will acquire valid
and properly perfected title to and the sole record and beneficial ownership
interest in each Transferred Receivable purchased or otherwise acquired on such
date, free and clear of any Adverse Claim or restrictions on transferability. As
of the Closing Date, none of the properties and assets of any Originator are
subject to any Adverse Claims other than Permitted Encumbrances, and there are
no facts, circumstances or conditions known to any Originator that may result in
any Adverse Claims (including Adverse Claims arising under Environmental Laws)
other than Permitted Encumbrances. Each Originator has received all assignments,
bills of sale and other documents, and has duly effected all recordings, filings
and other actions necessary to establish, protect and perfect such Originator's
right, title and interest in and to the Receivables originated by it and its
other properties and assets.
(h) Ventures, Subsidiaries and Affiliates; Outstanding Stock. Except as set
forth in Schedule 4.01(h), no Originator has any Subsidiaries, is engaged in any
joint venture or partnership with any other Person, or is an Affiliate of any
other Person. All of the issued and outstanding Stock of each Originator which
is a Subsidiary of Cone ▇▇▇▇▇ is owned by Cone ▇▇▇▇▇ in the amounts set forth on
Schedule 4.01(h). Except as set forth on Schedule 4.01(h), there are no
outstanding rights to purchase, options, warrants or similar rights or
agreements pursuant to which any Originator may be required to issue, sell,
repurchase or redeem any of its Stock or other equity securities or any Stock or
other equity securities of its Subsidiaries.
(i) Taxes. All tax returns, reports and statements, including information
returns, required by any Governmental Authority to be filed by any Originator
have been filed with the appropriate Governmental Authority and all charges have
been paid prior to the date on which any fine, penalty, interest or late charge
may be added thereto for nonpayment thereof (or any such fine, penalty,
interest, late charge or loss has been paid), excluding charges or other amounts
being contested in accordance with Section 4.02(l). Proper and accurate amounts
have been withheld by each Originator from its respective employees for all
periods in full and complete compliance with all applicable federal, state,
local and foreign laws and such withholdings have been timely paid to the
respective Governmental Authorities. Schedule 4.01(i) sets forth as of the
Closing Date (i) those taxable years for which any Originator's tax returns are
currently being audited by the IRS or any other applicable Governmental
Authority and (ii) any assessments or threatened assessments in connection with
such audit or otherwise currently outstanding. Except as described on Schedule
4.01(i), no Originator has executed or filed with the IRS or any other
Governmental Authority any agreement or other document extending, or having the
effect of extending, the period for assessment or collection of any charges.
None of the Originators and their respective predecessors are liable for any
charges: (A) under any agreement (including any tax sharing agreements) or
(B) to the best of each Originator's knowledge, as a transferee. As of the
Closing Date, no Originator has agreed or been requested to make any adjustment
under IRC Section 481(a), by reason of a change in accounting method or
otherwise, that would have a Material Adverse Effect.
(j) Intellectual Property. As of the Closing Date, each Originator owns or
has rights to use all intellectual property necessary to continue to conduct its
business as now or heretofore conducted by it or proposed to be conducted by it.
Each Originator conducts its business and affairs without infringement of or
interference with any intellectual property of any other Person. Except as set
forth in Schedule 4.01(j), no Originator is aware of any infringement or claim
of infringement by others of any intellectual property of any Originator.
(k) Full Disclosure. No information contained in this Agreement, any of the
other Related Documents, or any written statement furnished by or on behalf of
any Originator to CRLLC, the Purchaser, the Operating Agent or the Collateral
Agent pursuant to the terms of this Agreement or any of the other Related
Documents (other than Projections) contains any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were made. The Projections are based upon the
estimates and assumptions stated therein, all of which Cone ▇▇▇▇▇ believes to be
reasonable and fair in light of current conditions and current facts known to
Cone ▇▇▇▇▇ and, as of the Closing Date, reflect Cone ▇▇▇▇▇' good faith and
reasonable estimate of the future financial condition and performance of Cone
▇▇▇▇▇ and its Subsidiaries and of the other information projected therein for
the period covered thereby.
(l) Notices to Obligors. Each Originator has directed all Obligors of
Transferred Receivables originated by it to remit all payments with respect to
such Receivables for deposit in a Lockbox or Lockbox Account. (m) ERISA. (i)
Schedule 4.01(m) lists all Plans and separately identifies all Pension Plans,
including all Title IV Plans, Multi-employer Plans, ESOPs and Welfare Plans,
including all Retiree Welfare Plans. Each Qualified Plan has been determined by
the IRS to qualify under Section 401 of the IRC, the trusts created thereunder
have been determined to be exempt from tax under the provisions of Section 501
of the IRC, and nothing has occurred that would cause the loss of such
qualification or tax-exempt status. Each Plan is in compliance with the
applicable provisions of ERISA and the IRC, including the timely filing of all
reports required under the IRC or ERISA. No Originator or ERISA Affiliate has
failed to make any contribution or pay any amount due as required by either
Section 412 of the IRC or Section 302 of ERISA or the terms of any such Plan. No
Originator or ERISA Affiliate has engaged in a "prohibited transaction," as
defined in Section 4975 of the IRC, in connection with any Plan that would
subject any Originator to a material tax on prohibited transactions imposed by
Section 4975 of the IRC. (ii) Except as set forth in Schedule 4.01(m): (A) no
Title IV Plan has any Unfunded Pension Liability; (B) no ERISA Event or event
described in Section 4062(e) of ERISA with respect to any Title IV Plan has
occurred or is reasonably expected to occur; (C) there are no pending or, to the
knowledge of any Originator, threatened claims (other than claims for benefits
in the normal course), sanctions, actions or lawsuits, asserted or instituted
against any Plan or any Person as fiduciary or sponsor of any Plan which if
adversely determined could have a Material Adverse Effect; (D) no Originator or
ERISA Affiliate has incurred or reasonably expects to incur any liability as a
result of a complete or partial withdrawal from a Multi-employer Plan;
(E) within the last five years no Title IV Plan with Unfunded Pension
Liabilities has been transferred outside of the "controlled group" (within the
meaning of Section 4001(a)(14) of ERISA) of any Originator or ERISA Affiliate;
(F) Stock of all Originators and their ERISA Affiliates makes up, in the
aggregate, no more than 10% of the assets of any Plan, measured on the basis of
fair market value as of the last valuation date of any Plan; and (G) no
liability under any Title IV Plan has been satisfied with the purchase of a
contract from an insurance company that is not rated AAA by S&P or an equivalent
rating by another nationally recognized rating agency. (n) Brokers. No broker or
finder acting on behalf of any Originator was employed or utilized in connection
with this Agreement or the other Related Documents or the transactions
contemplated hereby or thereby and no Originator has any obligation to any
Person in respect of any finder's or brokerage fees in connection therewith. (o)
Margin Regulations. No Originator is engaged, nor will it engage, principally or
as one of its important activities, in the business of extending credit for the
purpose of "purchasing" or "carrying" any "margin security" as such terms are
defined in Regulation U of the Federal Reserve Board as now and from time to
time hereafter in effect (such securities being referred to herein as "Margin
Stock"). No Originator owns any Margin Stock, and no portion of the proceeds of
the Sale Price for any Sale will be used, directly or indirectly, for the
purpose of purchasing or carrying any Margin Stock, for the purpose of reducing
or retiring any Debt that was originally incurred to purchase or carry any
Margin Stock or for any other purpose that might cause any portion of such
proceeds to be considered a "purpose credit" within the meaning of Regulations
T, U or X of the Federal Reserve Board. No Originator will take or permit to be
taken any action that might cause any Related Document to violate any regulation
of the Federal Reserve Board. (p) Nonapplicability of Bulk Sales Laws. No
transaction contemplated by this Agreement or any of the other Related Documents
requires compliance with any bulk sales act or similar law. (q) Securities Act
and Investment Company Act Exemptions. Each purchase of Transferred Receivables
under this Agreement will constitute (i) a "current transaction" within the
meaning of Section 3(a)(3) of the Securities Act and (ii) a purchase or other
acquisition of notes, drafts, acceptances, open accounts receivable or other
obligations representing part or all of the sales price of merchandise,
insurance or services within the meaning of Section 3(c)(5) of the Investment
Company Act. (r) Government Regulation. No Originator is an "investment company"
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act.
No Originator is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, or any other federal or state statute that
restricts or limits its ability to incur Debt or to perform its obligations
hereunder. The purchase or acquisition of the Transferred Receivables by CRLLC
hereunder, the application of the Sale Price therefor and the consummation of
the transactions contemplated by this Agreement and the other Related Documents
will not violate any provision of any such statute or any rule, regulation or
order issued by the Securities and Exchange Commission. (s) Books and Records;
Minutes. The bylaws or the certificate or articles of incorporation of each
Originator require it to maintain (i) books and records of account and
(ii) minutes of the meetings and other proceedings of its Stockholders and board
of directors. (t) Deposit and Disbursement Accounts. Schedule 4.01(t) lists all
banks and other financial institutions at which each Originator maintains
deposit or other bank accounts as of the Closing Date, including any Lockbox
Accounts, and such schedule correctly identifies the name, address and telephone
number of each depository, the name in which the account is held, a description
of the purpose of the account, and the complete account number therefor. (u)
Representations and Warranties in Other Related Documents. Each of the
representations and warranties of each Originator contained in the Related
Documents (other than this Agreement) is true and correct in all material
respects and such Originator hereby makes each such representation and warranty
to, and for the benefit of, the Purchaser, the Operating Agent and the
Collateral Agent as if the same were set forth in full herein. (v) Receivables.
With respect to each Transferred Receivable designated as an Eligible Receivable
in any Investment Base Certificate delivered on or after the Transfer Date of
such Transferred Receivable: (i) such Receivable satisfies the criteria for an
Eligible Receivable; (ii) prior to its Transfer to CRLLC such Receivable was
owned by the Originator thereof free and clear of any Adverse Claim (other than
Permitted Encumbrances), and such Originator had the full right, power and
authority to sell, contribute, assign, transfer and pledge its interest therein
as contemplated under this Agreement and the other Related Documents and, upon
such Transfer, CRLLC will acquire valid and properly perfected title to and the
sole record and beneficial ownership interest in such Receivable, free and clear
of any Adverse Claim and, following such Transfer, such Receivable will not be
subject to any Adverse Claim as a result of any action or inaction on the part
of such Originator; (iii) the Transfer of each such Receivable by the Originator
thereof pursuant to the Receivables Assignment executed by such Originator and
this Agreement constitutes, as applicable, a valid sale, contribution, transfer,
assignment, setover and conveyance to CRLLC of all right, title and interest of
such Originator in and to such Receivable; and (iv) the Originator of such
Receivable has no knowledge of any fact (including any defaults by the Obligor
thereunder on any other Receivable) that would cause it or should have caused it
to expect that any payments on such Receivable will not be paid in full when due
or to expect any other Material Adverse Effect. (w) Nonavoidability of
Transfers. Each Originator shall, as applicable, (i) have transferred each
Contributed Receivable originated by it as a contribution to the capital of
CRLLC and (ii) (A) have sold each Sold Receivable originated by it for cash
consideration and (B) have transferred any Eligible Receivables pursuant to
clause (b) of Section 4.04, in each case in an amount that constitutes fair
consideration and reasonably equivalent value therefor. Each Sale of a Sold
Receivable effected pursuant to the terms of this Agreement shall not have been
made for or on account of an antecedent debt owed by the Originator thereof to
CRLLC and no such Sale is or may be avoidable or subject to avoidance under any
bankruptcy laws, rules or regulations. (x) Year 2000 Problems. Each Originator
has completed a Year 2000 Assessment and has prepared a Year 2000 Corrective
Plan, and on or before October 31, 1999 each Originator shall have completed all
Year 2000 Corrective Actions and Year 2000 Implementation Testing and shall have
eliminated all Year 2000 Problems except where the failure to eliminate the same
could not reasonably be expected to have a Material Adverse Effect. The
representations and warranties described in this Section 4.01 shall survive the
Transfer of the Transferred Receivables to CRLLC, any subsequent assignment of
the Transferred Receivables by CRLLC, and the termination of this Agreement and
the other Related Documents and shall continue until the indefeasible payment in
full of all Transferred Receivables. SECTION 4.02 Affirmative Covenants of the
Originators. Each Originator covenants and agrees that, unless otherwise
consented to by CRLLC and the Operating Agent, from and after the Closing Date
and until the Termination Date: (a) Offices and Records. Each Originator shall
maintain its principal place of business and chief executive office and the
office at which it keeps its Records at the respective locations specified in
Schedule 4.01(b) or, upon 30 days' prior written notice to CRLLC, at such other
location in a jurisdiction where all action requested by CRLLC, the Purchaser,
the Operating Agent or the Collateral Agent pursuant to Section 8.13 shall have
been taken with respect to the Transferred Receivables. Each Originator shall at
its own cost and expense, for not less than three years from the date on which
each Transferred Receivable was originated, or for such longer period as may be
required by law, maintain adequate Records with respect to such Transferred
Receivable, including records of all payments received, credits granted and
merchandise returned with respect thereto. (b) Access. Each Originator shall,
during normal business hours, from time to time upon five Business Day's prior
notice and as frequently as CRLLC or the Servicer determines to be appropriate:
(i) provide CRLLC or the Servicer and any of their respective officers,
employees and agents access to its properties (including properties of such
Originator utilized in connection with the collection, processing or servicing
of the Transferred Receivables), facilities, advisors and employees (including
officers) of each Originator, (ii) permit CRLLC or the Servicer and any of their
respective officers, employees and agents, to inspect, audit and make extracts
from such Originator's books and records, including all Records maintained by
such Originator, (iii) permit CRLLC or the Servicer and their respective
officers, employees and agents, to inspect, review and evaluate the Transferred
Receivables of any Originator, and (iv) permit CRLLC or the Servicer and their
respective officers, employees and agents to discuss matters relating to the
Transferred Receivables or such Originator's performance under this Agreement or
the affairs, finances and accounts of such Originator with any of its officers,
directors, employees, representatives or agents (in each case, with those
Persons having knowledge of such matters) and with its independent certified
public accountants. If (A) an Incipient Termination Event or a Termination Event
shall have occurred and be continuing, or (B) the Operating Agent, in good
faith, believes that an Incipient Termination Event or a Termination Event is
imminent or deems the Purchaser's rights or interests in the Transferred
Receivables or the Seller Collateral insecure, each such Originator shall
provide such access to CRLLC, the Servicer, the Operating Agent or the
Collateral Agent and their respective officers, employees and agents at all
times and without advance notice and shall provide CRLLC, the Servicer, the
Operating Agent or the Collateral Agent with access to its suppliers and
customers. Each Originator shall make available to CRLLC or the Servicer, and,
if an Incipient Termination Event or a Termination Event shall have occurred and
be continuing, or the Operating Agent, in good faith, believes that an Incipient
Termination Event or a Termination Event is imminent or deems the Purchaser's
rights or interests in the Transferred Receivables or the Seller Collateral
insecure, the Operating Agent or the Collateral Agent, and their respective
counsel, as quickly as is possible under the circumstances, originals or copies
of all books and records, including Records maintained by such Originator, that
CRLLC, the Servicer, the Operating Agent or the Collateral Agent, as applicable,
may request. Each Originator shall deliver any document or instrument necessary
for CRLLC, the Servicer, the Operating Agent or the Collateral Agent, as they
may from time to time request, to obtain records from any service bureau or
other Person that maintains records for such Originator, and shall maintain
duplicate records or supporting documentation on media, including computer tapes
and discs owned by such Originator. (c) Communication with Accountants. Each
Originator authorizes CRLLC, the Servicer, the Operating Agent and the
Collateral Agent to communicate directly with its independent certified public
accountants, and authorizes and shall instruct those accountants and advisors to
disclose and make available to CRLLC, the Servicer, the Operating Agent and the
Collateral Agent any and all financial statements and other supporting financial
documents, schedules and information relating to any Originator (including
copies of any issued management letters) with respect to the business, financial
condition and other affairs of any Originator. Each Originator agrees to render
to CRLLC, the Servicer, the Operating Agent and the Collateral Agent at such
Originator's own cost and expense, such clerical and other assistance as may be
reasonably requested with regard to the foregoing. If any Termination Event
shall have occurred and be continuing, each Originator shall, promptly upon
request therefor, assist CRLLC in delivering to the Operating Agent and the
Collateral Agent Records reflecting activity through the close of business on
the Business Day immediately preceding the date of such request. (d) Compliance
With Credit and Collection Policies. Each Originator shall comply in all
material respects with the Credit and Collection Policies applicable to each
Transferred Receivable and the Contracts therefor, and with the terms of such
Receivables and Contracts. (e) Assignment. Each Originator agrees that, to the
extent permitted under the Purchase Agreement, CRLLC may assign all of its
right, title and interest in, to and under the Transferred Receivables and this
Agreement, including its right to exercise the remedies set forth in Section
4.04. Each Originator agrees that, upon any such assignment, the assignee
thereof may enforce directly, without joinder of CRLLC, all of the obligations
of such Originator hereunder, including any obligations of such Originator set
forth in Sections 4.02(o), 4.04, 5.01 and 8.14. (f) Compliance with Agreements
and Applicable Laws. Each Originator shall perform each of its obligations under
this Agreement and the other Related Documents and comply with all federal,
state and local laws and regulations applicable to it and the Receivables,
including those relating to truth in lending, retail installment sales, fair
credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices, privacy, licensing, securities, margin regulations,
taxation, ERISA and labor matters and Environmental Laws and Environmental
Permits, except to the extent that the failure to so comply, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect. (g) Maintenance of Existence and Conduct of Business. Each Originator
shall: (i) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and its rights and franchises;
(ii) continue to conduct its business substantially as now conducted or as
otherwise permitted hereunder and in accordance with the terms of its
certificate or articles of incorporation and bylaws; (iii) at all times
maintain, preserve and protect all of its assets and properties used or useful
in the conduct of its business, including all licenses, permits, charters and
registrations, and keep the same in good repair, working order and condition in
all material respects (taking into consideration ordinary wear and tear) and
from time to time make, or cause to be made, all necessary or appropriate
repairs, replacements and improvements thereto consistent with industry
practices; and (iv) transact business only in such corporate and trade names as
are set forth in Schedule 4.01(b). (h) Notice of Material Event. Each Originator
shall promptly inform CRLLC in writing of the occurrence of any of the
following, in each case setting forth the details thereof and what action, if
any, such Originator proposes to take with respect thereto: (i) any Litigation
commenced or threatened against any Originator or with respect to or in
connection with all or any portion of the Transferred Receivables that (A) seeks
damages or penalties in an uninsured amount in excess of $500,000, (B) seeks
injunctive relief, (C) is asserted or instituted against any Plan, its
fiduciaries or its assets or against any Originator or ERISA Affiliate in
connection with any Plan, (D) alleges criminal misconduct by any Originator, or
(E) would, if determined adversely, have a Material Adverse Effect; (ii) the
commencement of a case or proceeding by or against any Originator seeking a
decree or order in respect of any Originator (A) under the Bankruptcy Code or
any other applicable federal, state or foreign bankruptcy or other similar law,
(B) appointing a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or similar official) for any Originator or for any substantial
part of such Person's assets, or (C) ordering the winding-up or liquidation of
the affairs of any Originator; (iii) the receipt of notice that (A) such
Originator is being placed under regulatory supervision, (B) any license,
permit, charter, registration or approval necessary for the conduct of such
Originator's business is to be, or may be, suspended or revoked, or (C) such
Originator is to cease and desist any practice, procedure or policy employed by
such Originator in the conduct of its business if such cessation may have a
Material Adverse Effect; (iv) (A) any Adverse Claim made or asserted against any
of the Transferred Receivables of which it becomes aware or (B) any
determination that a Transferred Receivable designated as an Eligible Receivable
in an Investment Base Certificate or otherwise was not an Eligible Receivable at
the time of such designation; or (v) any other event, circumstance or condition
that has had or could reasonably be expected to have a Material Adverse Effect.
(i) Use of Proceeds. Each Originator shall utilize the proceeds of the Sale
Price obtained by it for each Sale made by it hereunder solely for general
corporate purposes (including the retirement or repayment of third party debt)
and to pay any related expenses payable by such Originator under this Agreement
and the other Related Documents in connection with the transactions contemplated
hereby and thereby and for no other purpose. (j) Separate Identity. (i) Each
Originator shall maintain corporate records and books of account separate from
those of CRLLC. (ii) The financial statements of Cone ▇▇▇▇▇ and its consolidated
Subsidiaries shall disclose the effects of each Originator's transactions in
accordance with GAAP and, in addition, disclose that (A) CRLLC's sole business
consists of the purchase or acceptance through capital contribution of the
Receivables from the Originators and the subsequent resale of such Receivables
to the Purchaser, (B) CRLLC is a separate business entity with its own separate
creditors who will be entitled, upon its liquidation, to be satisfied out of
CRLLC's assets prior to any value in CRLLC becoming available to CRLLC's
equityholders and (C) the assets of CRLLC are not available to pay creditors of
any Originator or any other Affiliate of such Originator. (iii) The resolutions,
agreements and other instruments underlying the transactions described in this
Agreement shall be continuously maintained by each Originator as official
records. (iv) Each Originator shall maintain an arm's-length relationship with
CRLLC and shall not hold itself out as being liable for the Debts of CRLLC. (v)
Each Originator shall keep its assets and its liabilities wholly separate from
those of CRLLC. (vi) Each Originator shall conduct its business solely in its
own name through its duly Authorized Officers or agents and in a manner designed
not to mislead third parties as to the separate identity of such Originator.
(vii) Each Originator shall not mislead third parties by conducting or appearing
to conduct business on behalf of CRLLC or expressly or impliedly representing or
suggesting that such Originator is liable or responsible for the Debts of CRLLC
or that the assets of such Originator are available to pay the creditors of
CRLLC. (viii) Each Originator shall cause operating expenses and liabilities of
CRLLC to be paid from CRLLC's own funds. (ix) Each Originator shall at all times
have stationery and other business forms and a mailing address and telephone
number separate from those of CRLLC. (x) Each Originator shall at all times
limit its transactions with CRLLC only to those expressly permitted hereunder or
under any other Related Document. (xi) Each Originator shall comply with (and
cause to be true and correct) each of the facts and assumptions pertaining to
such Originator contained in the opinion of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
P.L.L.C. delivered pursuant to the Schedule of Documents. (k) ERISA. Each
Originator shall give CRLLC and the Operating Agent prompt written notice of any
event that could result in the imposition of a Lien under Section 412 of the IRC
or Section 302 or 4068 of ERISA. (l) Payment, Performance and Discharge of
Obligations. (i) Subject to Section 4.02(l)(ii), each Originator shall pay,
perform and discharge or cause to be paid, performed and discharged all of its
obligations and liabilities, including all taxes, assessments and governmental
charges upon its income and properties and all lawful claims for labor,
materials, supplies and services, promptly when due. (ii) Each Originator may in
good faith contest, by appropriate proceedings, the validity or amount of any
charges or claims described in Section 4.02(l)(i); provided, that (A) adequate
reserves with respect to such contest are maintained on the books of such
Originator in accordance with GAAP if and to the extent determined to be
material under GAAP, (B) such contest is maintained and prosecuted continuously
and with diligence, (C) no Lien may be imposed to secure payment of such charges
or claims other than inchoate tax liens and (D) CRLLC has advised Originators in
writing that CRLLC reasonably believes that nonpayment or nondischarge thereof
could not reasonably be expected to have or result in a Material Adverse Effect.
(m) Deposit of Collections. Each Originator shall deposit and cause its
Subsidiaries to deposit or cause to be deposited promptly into a Lockbox
Account, and in any event no later than the first Business Day after receipt
thereof, all Collections it may receive in respect of Transferred Receivables.
(n) Accounting Changes. If any Accounting Changes occur and such changes result
in a change in the standards or terms used herein, then the parties hereto agree
to enter into negotiations in order to amend such provisions so as to equitably
reflect such Accounting Changes with the desired result that the criteria for
evaluating the financial condition of such Persons and their Subsidiaries shall
be the same after such Accounting Changes as if such Accounting Changes had not
been made. If the parties hereto agree upon the required amendments to this
Agreement, then after appropriate amendments have been executed and the
underlying Accounting Change with respect thereto has been implemented, any
reference to GAAP contained herein shall, only to the extent of such Accounting
Change, refer to GAAP consistently applied after giving effect to the
implementation of such Accounting Change. If such parties cannot agree upon the
required amendments within 30 days following the date of implementation of any
Accounting Change, then all financial statements delivered and all standards and
terms used herein shall be prepared, delivered and used without regard to the
underlying Accounting Change. (o) Adjustments to Sale Price. If on any day the
Billed Amount of any Transferred Receivable is reduced as a result of any
Dilution Factors, and the amount of such reduction exceeds the amount, if any,
of Dilution Factors taken into account in the calculation of the Sale Price for
such Transferred Receivable, the Originator thereof shall make a cash payment to
CRLLC in the amount of such excess by remitting such amount to the Collection
Account in accordance with the terms of the Purchase Agreement. (p) Year 2000
Compliance. On or prior to October 31, 1999, each Originator shall complete Year
2000 Corrective Actions and Year 2000 Implementation Testing and shall eliminate
all Year 2000 Problems except where the failure to eliminate the same could not
reasonably be reported to have a Material Adverse Effect. SECTION 4.03 Negative
Covenants of the Originators. Each Originator covenants and agrees that, without
the prior written consent of CRLLC and the Operating Agent, from and after the
Closing Date and until the Termination Date: (a) Sale of Assets. No Originator
shall sell, transfer, convey, assign (by operation of law or otherwise) or
otherwise dispose of, or assign any right to receive income in respect of, any
of its properties or other assets, including any Transferred Receivable or
Contract therefor, any of its rights with respect to any Lockbox or Lockbox
Account (except (i) the sale or other disposition of properties or assets (other
than any Transferred Receivables or Contract therefor) in the ordinary course of
business and (ii) as otherwise expressly permitted by this Agreement or any of
the other Related Documents). (b) Liens. No Originator shall create, incur,
assume or permit to exist any Adverse Claim on or with respect to its
Receivables or any of its other properties or assets (whether now owned or
hereafter acquired) except for (i) the Liens set forth in Schedule 4.03(b), (ii)
other Permitted Encumbrances, and (iii) other Liens permitted by Section
4.03(l)(5)(y). (c) Modifications of Receivables or Contracts. No Originator
shall extend, amend, forgive, discharge, compromise, cancel or otherwise modify
the terms of any Transferred Receivable, or amend, modify or waive any term or
condition of any Contract therefor. (d) Sale Characterization. No Originator
shall make statements or disclosures or prepare any financial statements for any
purpose, including for federal income tax, reporting or accounting purposes,
that shall account for the transactions contemplated by this Agreement in any
manner other than (i) with respect to the Sale of each Sold Receivable
originated by it, as a true sale or absolute assignment of its full right, title
and ownership interest in such Transferred Receivable to CRLLC and (ii) with
respect to the Transfer of each Contributed Receivable originated by it, as a
contribution to the stated capital of CRLLC. (e) Capital Structure and Business.
No Originator shall (i) make any changes in any of its business objectives,
purposes or operations that could have or result in a Material Adverse Effect,
(ii) make any change in its capital structure as described on Schedule 4.01(h),
including the issuance of any shares of Stock, warrants or other securities
convertible into Stock or any revision of the terms of its outstanding Stock, in
any or all such cases that could have or result in a Material Adverse Effect or
(iii) amend, supplement or otherwise modify its certificate or articles of
incorporation or bylaws in a manner that could have or result in a Material
Adverse Effect. No Originator shall engage in any business other than the
businesses currently engaged in by it. (f) Actions Affecting Rights. No
Originator shall (i) take any action, or fail to take any action, if such action
or failure to take action may interfere with the enforcement of any rights
hereunder or under the other Related Documents, including rights with respect to
the Transferred Receivables; (ii) waive or alter any rights with respect to the
Transferred Receivables (or any agreement or instrument relating thereto); or
(iii) fail to pay any tax, assessment, charge, fee or other obligation of such
Originator with respect to the Transferred Receivables, or fail to defend any
action, if such failure to pay or defend may adversely affect the priority or
enforceability of the perfected title of CRLLC to and the sole record and
beneficial ownership interest of CRLLC in the Transferred Receivables or, prior
to their Transfer hereunder, such Originator's right, title or interest therein.
(g) ERISA. No Originator shall, or shall cause or permit any ERISA Affiliate to,
cause or permit to occur an event that could result in the imposition of a Lien
under Section 412 of the IRC or Section 302 or 4068 of ERISA. (h) Change to
Credit and Collection Policies. No Originator shall fail to comply with, and no
material change shall be made to, the Credit and Collection Policies without the
prior written consent of CRLLC and the Operating Agent. (i) Adverse Tax
Consequences. No Originator shall take or permit to be taken any action (other
than with respect to actions taken or to be taken solely by a Governmental
Authority), or fail or neglect to perform, keep or observe any of its
obligations hereunder or under the other Related Documents, that would have the
effect directly or indirectly of subjecting any payment to CRLLC, the Purchaser
or holders of the Commercial Paper who are residents of the United States of
America to withholding taxation. (j) No Proceedings. From and after the Closing
Date and until the date one year plus one day following the date on which the
Commercial Paper allocable to CRLLC with the latest maturity has been
indefeasibly paid in full in cash, no Originator shall, directly or indirectly,
institute or cause to be instituted against CRLLC any proceeding of the type
referred to in Sections 9.01(c) and 9.01(d) of the Purchase Agreement. (k) Debt.
No Originator shall create, incur, assume or permit to exist any Debt (other
than Debt of a type described in parts (f) or (g) of the definition of such term
in Annex X) except (i) Debt of such Originator to CRLLC, any Affected Party, any
Purchaser Indemnified Person, or any other Person expressly permitted by this
Agreement or any other Related Document, (ii) deferred taxes, (iii) unfunded
pension fund and other employee benefit plan obligations and liabilities to the
extent permitted under applicable law, (iv) endorser liability in connection
with the endorsement of negotiable instruments for deposit or collection in the
ordinary course of business, (v) unsecured Debt arising out of the Credit
Facility, (vi) existing Debt described on Schedule 4.03(k), (vii) Debt incurred
or assumed for the purpose of financing all or any part of such Originator's
cost of acquiring any fixed asset provided that the aggregate outstanding
principal amount of all such Debt for any and all Originator's combined shall
not exceed $1,000,000 at any one time; (viii) any other unsecured Debt,
non-recourse Debt and Capital Lease Obligations (all such unsecured Debt,
non-recourse Debt and Capital Lease Obligations being herein collectively
referred to as the "New Debt") provided that (x) the aggregate allocated
principal amount of such Capital Lease Obligations does not exceed $10,000,000
at any one time and (y) after giving effect to the incurrence of any New Debt,
the ratio (expressed as a percentage) of (1) the total consolidated Debt
(including without limitation New Debt) of Cone ▇▇▇▇▇ and its Subsidiaries to
(2) the sum of the total consolidated Debt (including without limitation New
Debt) of Cone ▇▇▇▇▇ and its Subsidiaries plus the consolidated Net Worth of Cone
▇▇▇▇▇ and its Subsidiaries shall not exceed 65%, and (ix) any refinancings,
amendments or modifications of any of the Debt permitted pursuant to clause (vi)
or (vii) above which does not have the effect of increasing the principal amount
thereof (other than to add accrued interest, fees or related expenses to such
principal amount). (l) Mergers, Acquisitions, Etc. No Originator shall merge or
consolidate with or into, convey, transfer, lease or otherwise dispose of all or
substantially all of its assets (whether now owed or hereafter acquired) to, or
acquire all or substantially all of the assets or Stock of, any other Person
(whether in one transaction or in a series of transactions), except that (i) any
Originator may merge or consolidate with another Originator (ii) any Subsidiary
of Cone ▇▇▇▇▇ may merge or consolidate with any Originator so long as such
Originator is the surviving entity from such transaction, (iii) any Originator
may convey, lease, transfer or otherwise dispose of any of its assets to any
other Originator, (iv) any Originator may acquire all or substantially all of
the assets or Stock of any other Person which is a Subsidiary of Cone ▇▇▇▇▇
immediately prior to such acquisition, and (v) any Originator may acquire all or
substantially all of the assets or Stock of any other Person (the "Target") in
any transaction (a "Permitted Acquisition") which satisfies each and every of
the following conditions: (1) The Operating Agent shall have received not less
than ten (10) days' prior written notice of such Permitted Acquisition; (2) The
Target shall be engaged in a business of the same type as is engaged in by such
Originator; (3) Such Permitted Acquisition shall be consensual and shall have
been approved by the Target's Board of Directors (or other comparable governing
body); (4) The aggregate consideration paid or payable in connection with all
Permitted Acquisitions consummated during any particular Fiscal Year shall not
exceed $30,000,000; (5) Upon the consummation of such Permitted Acquisition, the
business and assets being acquired in such Permitted Acquisition shall be free
and clear of all Liens other than (x) Permitted Encumbrances and (y) other Liens
on assets (other than Receivables) of the Target granted to secure Debt having
an aggregate outstanding principal balance of not more than $5,000,000; (6) Such
Originator shall be the surviving entity from the Permitted Acquisition; (7) Not
less than ten (10) days prior to the consummation of such Permitted Acquisition,
(x) the Operating Agent shall have received a pro forma balance sheet, income
statement and cash flow statement of Cone ▇▇▇▇▇ and its Subsidiaries
(collectively, the "Acquisition Pro Forma") based on the most recent quarterly
financial statements of Cone ▇▇▇▇▇ and its Subsidiaries delivered to the
Operating Agent pursuant to Annex 5.02(a) of the Purchase Agreement, which
Acquisition Pro Forma shall be complete and shall fairly present the financial
condition of Cone ▇▇▇▇▇ and its Subsidiaries after giving effect to such
Permitted Acquisition and the Acquisition Pro Forma for such Permitted
Acquisition shall reflect that the Seller's and the Originators' average daily
aggregate borrowing or other credit availability under the Purchase Agreement
and the Credit Facility for the 90-day period immediately preceding the
consummation of such Permitted Acquisition would have exceeded $25,000,000 on a
pro forma basis taking into account such Permitted Acquisition, and (y) the
Operating Agent also shall have received balance sheet, income statement and
cash flow statement projections for Cone ▇▇▇▇▇ and its Subsidiaries for the
12-month period immediately following such Permitted Acquisition (collectively,
the "Acquisition Projections"), which Acquisition Projections shall be based on
reasonable assumptions and shall reflect that the Seller's and the Originators'
average daily aggregate borrowing or other credit availability under the
Purchase Agreement and the Credit Facility for the 90-day period immediately
following the consummation of such Permitted Acquisition shall not be less than
$25,000,000; (8) Prior to the consummation of such Permitted Acquisition, the
Operating Agent shall have received a copy of all of the final definitive
agreements for such Permitted Acquisition; and (9) At the time of and after
giving effect to the consummation of such Permitted Acquisition, no Termination
Event or Incipient Termination Event shall have occurred and be continuing;
provided that, in the case of any Permitted Acquisition in which the aggregate
consideration paid or payable by the applicable Originator is less than
$2,500,000, the conditions specified in items (1) and (7) above shall not apply
and the conditions specified in item (8) above may be satisfied within a
reasonable time after such Permitted Acquisition is consummated. SECTION 4.04
Breach of Representations, Warranties or Covenants. Upon discovery by any
Originator or CRLLC of any breach of any representation, warranty or covenant
described in Sections 4.01, 4.02 or 4.03 (other than a representation, warranty
or covenant relating to the absence of Dilution Factors), which breach is
reasonably likely to have a material adverse effect on the value of a
Transferred Receivable or the interests of CRLLC therein, the party discovering
the same shall give prompt written notice thereof to the other parties hereto.
The Originator that breached such representation, warranty or covenant shall, if
requested by notice from CRLLC, on the first Business Day following receipt of
such notice, take one of the following actions with respect to such Transferred
Receivable (it being specifically understood and agreed that, while such
Originator shall be obligated to take one of the following actions if requested
by notice from CRLLC, such Originator shall have the right to elect which of
such actions shall be taken by such Originator) (a) repurchase such Transferred
Receivable from CRLLC for cash, (b) transfer ownership of a new Eligible
Receivable or new Eligible Receivables to CRLLC on such Business Day, or (c) in
the case of any Stockholder Originator, make a capital contribution in cash to
CRLLC by remitting the amount (the "Rejected Amount") of such capital
contribution to the Collection Account in accordance with the terms of the
Purchase Agreement, in each case in an amount equal to the Billed Amount of such
Transferred Receivable minus the sum of (A) Collections received in respect
thereof and (B) the amount of any Dilution Factors taken into account in the
calculation of the Sale Price therefor. Notwithstanding the foregoing, if any
Receivable is not paid in full on account of any Dilution Factors, the
Originator's repurchase obligation under this Section 4.04 with respect to such
Receivable shall be reduced by the amount of any such Dilution Factors taken
into account in the calculation of the Sale Price therefor. ARTICLE V
INDEMNIFICATION SECTION 5.01 Indemnification. Without limiting any other rights
that CRLLC, any of its assigns, or any of their respective Stockholders
(excluding Stockholder Originators), officers, directors, employees, attorneys,
agents or representatives (each, an "CRLLC Indemnified Person") may have
hereunder or under applicable law, each Originator hereby agrees to indemnify
and hold harmless each CRLLC Indemnified Person from and against any and all
Indemnified Amounts that may be claimed or asserted against or incurred by any
such CRLLC Indemnified Person in connection with or arising out of the
transactions contemplated under this Agreement or under any other Related
Document, any actions or failures to act in connection therewith, including any
and all reasonable legal costs and expenses arising out of or incurred in
connection with disputes between or among any parties to any of the Related
Documents, or in respect of any Transferred Receivable or any Contract therefor
or the use by such Originator of the Sale Price therefor; provided, that no
Originator shall be liable for any indemnification to an CRLLC Indemnified
Person to the extent that any such Indemnified Amounts result from (a) such
CRLLC Indemnified Person's gross negligence or willful misconduct, as finally
determined by a court of competent jurisdiction, (b) recourse for uncollectible
or uncollected Transferred Receivables, or (c) any income tax or franchise tax
incurred by any CRLLC Indemnified Person, except to the extent that the
incurrence of any such tax results from a breach of or default under this
Agreement or any other Related Document. Without limiting the generality of the
foregoing, each Originator shall pay on demand to each CRLLC Indemnified Person
any and all Indemnified Amounts relating to or resulting from: (a) reliance on
any representation or warranty made or deemed made by such Originator (or any of
its officers) under or in connection with this Agreement or any other Related
Document or on any other information delivered by such Originator pursuant
hereto or thereto that shall have been incorrect in any material respect when
made or deemed made or delivered; (b) the failure by such Originator to comply
with any term, provision or covenant contained in this Agreement, any other
Related Document or any agreement executed in connection herewith or therewith,
any applicable law, rule or regulation with respect to any Transferred
Receivable or Contract therefor, or the nonconformity of any Transferred
Receivable or the Contract therefor with any such applicable law, rule or
regulation; (c) the failure to vest and maintain vested in CRLLC, or to Transfer
to CRLLC, valid and properly perfected title to and sole record and beneficial
ownership of the Receivables that constitute Transferred Receivables, together
with all Collections in respect thereof, free and clear of any Adverse Claim;
(d) any dispute, claim, offset or defense of any Obligor (other than its
discharge in bankruptcy) to the payment of any Receivable that is the subject of
a Transfer hereunder (including a defense based on such Receivable or the
Contract therefor not being a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms but excluding
discounts to, or other Dilution Factors that reduce, the Billed Amount thereof),
or any other claim resulting from the sale of the merchandise or services giving
rise to such Receivable or the furnishing or failure to furnish such merchandise
or services or relating to collection activities with respect to such Receivable
(if such collection activities were performed by Cone ▇▇▇▇▇ acting as the
Servicer), except to the extent that such dispute, claim, offset or defense
results solely from any action or inaction on the part of CRLLC; (e) any
products liability claim or other claim arising out of or in connection with
merchandise, insurance or services that is the subject of any Contract; (f) any
failure by such Originator to cause the filing of, or any delay in filing,
financing statements or other similar instruments or documents under the UCC of
any applicable jurisdiction or any other applicable laws with respect to any
Receivable that is the subject of a Transfer hereunder, whether at the time of
any such Transfer or at any subsequent time; (g) any failure by any Originator
or the Servicer to perform, keep or observe any of their respective duties or
obligations hereunder, under any other Related Document or under any Contract
related to a Transferred Receivable, including the commingling of Collections
with respect to Transferred Receivables by any Originator or the Servicer at any
time with the funds of any other Person; (h) any investigation, Litigation or
proceeding related to this Agreement or the use of the Sale Price obtained in
connection with any Sale or the ownership of Receivables or Collections with
respect thereto or in respect of any Receivable or Contract, except to the
extent any such investigation, Litigation or proceeding relates to a matter
involving an CRLLC Indemnified Person for which neither such Originator nor any
of its Affiliates is at fault, as finally determined by a court of competent
jurisdiction; or (i) any claim brought by any Person other than an CRLLC
Indemnified Person arising from any activity by such Originator or any of its
Affiliates in servicing, administering or collecting any Transferred
Receivables. NO CRLLC INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY
OTHER PARTY TO THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT, ANY SUCCESSOR,
ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING
CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION
CONTEMPLATED HEREUNDER OR THEREUNDER. ARTICLE VI [Intentionally Omitted] ARTICLE
VII [Intentionally Omitted] ARTICLE VIII MISCELLANEOUS SECTION 8.01 Notices.
Except as otherwise provided herein, whenever it is provided herein that any
notice, demand, request, consent, approval, declaration or other communication
shall or may be given to or served upon any of the parties by any other parties,
or whenever any of the parties desires to give or serve upon any other parties
any communication with respect to this Agreement, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and shall be deemed to have been validly served, given or delivered
(a)upon the earlier of actual receipt and three Business Days after deposit in
the United States Mail, registered or certified mail, return receipt requested,
with proper postage prepaid, (b) upon transmission, when sent by telecopy or
other similar facsimile transmission (with such telecopy or facsimile promptly
confirmed by delivery of a copy by personal delivery or United States Mail as
otherwise provided in this Section 8.01), (c) one Business Day after deposit
with a reputable overnight courier with all charges prepaid or (d) when
delivered, if hand-delivered by messenger, all of which shall be addressed to
the party to be notified and sent to the address or facsimile number set forth
under its name on the signature page hereof or to such other address (or
facsimile number) as may be substituted by notice given as herein provided;
provided, that each such declaration or other communication shall be deemed to
have been validly delivered to the Collateral Agent under this Agreement upon
delivery to the Operating Agent in accordance with the terms of this Section
8.01. The giving of any notice required hereunder may be waived in writing by
the party entitled to receive such notice. Failure or delay in delivering copies
of any notice, demand, request, consent, approval, declaration or other
communication to any Person (other than CRLLC) designated in any written
communication provided hereunder to receive copies shall in no way adversely
affect the effectiveness of such notice, demand, request, consent, approval,
declaration or other communication. Notwithstanding the foregoing, whenever it
is provided herein that a notice is to be given to any other party hereto by a
specific time, such notice shall only be effective if actually received by such
party prior to such time, and if such notice is received after such time or on a
day other than a Business Day, such notice shall only be effective on the
immediately succeeding Business Day. SECTION 8.02 No Waiver; Remedies. CRLLC's
failure, at any time or times, to require strict performance by the Originators
of any provision of this Agreement or any Receivables Assignment shall not
waive, affect or diminish any right of CRLLC thereafter to demand strict
compliance and performance herewith or therewith. Any suspension or waiver of
any breach or default hereunder shall not suspend, waive or affect any other
breach or default whether the same is prior or subsequent thereto and whether
the same or of a different type. None of the undertakings, agreements,
warranties, covenants and representations of any Originator contained in this
Agreement or any Receivables Assignment, and no breach or default by any
Originator hereunder or thereunder, shall be deemed to have been suspended or
waived by CRLLC unless such waiver or suspension is by an instrument in writing
signed by an officer of or other duly authorized signatory of CRLLC and directed
to such Originator specifying such suspension or waiver. CRLLC's rights and
remedies under this Agreement shall be cumulative and nonexclusive of any other
rights and remedies that CRLLC may have under any other agreement, including the
other Related Documents, by operation of law or otherwise. SECTION 8.03
Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of each Originator and CRLLC and their respective successors and
permitted assigns, except as otherwise provided herein. No Originator may
assign, transfer, hypothecate or otherwise convey its rights, benefits,
obligations or duties hereunder without the prior express written consent of
CRLLC, the Purchaser, the Operating Agent and the Collateral Agent. Any such
purported assignment, transfer, hypothecation or other conveyance by any
Originator without the prior express written consent of CRLLC, the Purchaser,
the Operating Agent and the Collateral Agent shall be void. Each Originator
acknowledges that, to the extent permitted under the Purchase Agreement, CRLLC
may assign its rights granted hereunder, including the benefit of any
indemnities under Article V, and upon such assignment, such assignee shall have,
to the extent of such assignment, all rights of CRLLC hereunder and, to the
extent permitted under the Purchase Agreement, may in turn assign such rights.
Each Originator agrees that, upon any such assignment, such assignee may enforce
directly, without joinder of CRLLC, the rights set forth in this Agreement. All
such assignees, including parties to the Purchase Agreement in the case of any
assignment to such parties, shall be third party beneficiaries of, and shall be
entitled to enforce CRLLC's rights and remedies under, this Agreement to the
same extent as if they were parties hereto. The terms and provisions of this
Agreement are for the purpose of defining the relative rights and obligations of
each Originator and CRLLC with respect to the transactions contemplated hereby
and, except for the Purchaser, the Operating Agent and the Collateral Agent, no
Person shall be a third party beneficiary of any of the terms and provisions of
this Agreement. SECTION 8.04 Termination; Survival of Obligations. (a)This
Agreement shall create and constitute the continuing obligations of the parties
hereto in accordance with its terms, and shall remain in full force and effect
until the Termination Date. (b)Except as otherwise expressly provided herein or
in any other Related Document, no termination or cancellation (regardless of
cause or procedure) of any commitment made by CRLLC under this Agreement shall
in any way affect or impair the obligations, duties and liabilities of any
Originator or the rights of CRLLC relating to any unpaid portion of any and all
recourse and indemnity obligations of such Originator to CRLLC, including those
set forth in Sections 4.02(o), 4.04, 5.01 and 8.14, due or not due, liquidated,
contingent or unliquidated or any transaction or event occurring prior to such
termination, or any transaction or event, the performance of which is required
after the Facility Termination Date. Except as otherwise expressly provided
herein or in any other Related Document, all undertakings, agreements,
covenants, warranties and representations of or binding upon each Originator,
and all rights of CRLLC hereunder, all as contained in the Related Documents,
shall not terminate or expire, but rather shall survive any such termination or
cancellation and shall continue in full force and effect until the Termination
Date. On the Termination Date, this Agreement shall terminate (except to the
extent otherwise expressly provided herein), all ownership interests or Liens of
CRLLC in and to all Transferred Receivables shall be released by CRLLC and CRLLC
shall promptly return any and all of the Transferred Receivables then in its
possession to the appropriate Originators and shall execute such documents
(including without limitation UCC-3=s) as the Originator may reasonably request
to evidence such releases and terminations (provided that such documents shall
be prepared and recorded at the Originator's expense); provided, that the rights
and remedies pursuant to Sections 4.02(o), 4.04, the indemnification and payment
provisions of Article V, and the provisions of Sections 4.03(j), 8.03, 8.12 and
8.14 shall be continuing and shall survive the Termination Date and any
termination of this Agreement. SECTION 8.05 Complete Agreement; Modification of
Agreement. This Agreement and the other Related Documents constitute the
complete agreement between the parties with respect to the subject matter hereof
and thereof, supersede all prior agreements and understandings relating to the
subject matter hereof and thereof, and may not be modified, altered or amended
except as set forth in Section 8.06. SECTION 8.06 Amendments and Waivers. No
amendment, modification, termination or waiver of any provision of this
Agreement or any of the other Related Documents, or any consent to any departure
by any Originator therefrom, shall in any event be effective unless the same
shall be in writing and signed by each of the parties hereto and the Purchaser,
the Operating Agent and the Collateral Agent. No consent or demand in any case
shall, in itself, entitle any party to any other consent or further notice or
demand in similar or other circumstances. SECTION 8.07GOVERNING LAW; CONSENT TO
JURISDICTION; WAIVER OF JURY TRIAL. (a)THIS AGREEMENT AND EACH RELATED DOCUMENT
(EXCEPT TO THE EXTENT THAT ANY RELATED DOCUMENT EXPRESSLY PROVIDES TO THE
CONTRARY) AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF)
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. (b)EACH PARTY HERETO
HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE
BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT
OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED
DOCUMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE CRLLC FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON ANY SECURITY FOR THE
OBLIGATIONS OF THE ORIGINATORS ARISING HEREUNDER, OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF CRLLC. EACH PARTY HERETO SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH
BENEATH ITS NAME ON THE SIGNATURE PAGES HEREOF AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR
THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. (c)BECAUSE DISPUTES ARISING
IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY RELATED DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. SECTION 8.08 Counterparts. This Agreement may be
executed in any number of separate counterparts, each of which shall
collectively and separately constitute one agreement. SECTION 8.09 Severability.
Wherever possible, each provision of this Agreement shall be interpreted in such
a manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the remaining
provisions of this Agreement. SECTION 8.10 Section Titles. The section titles
and table of contents contained in this Agreement are provided for ease of
reference only and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
SECTION 8.11 No Setoff. Each Originator's obligations under this Agreement shall
not be affected by any right of setoff, counterclaim, recoupment, defense or
other right such Originator might have against CRLLC, the Purchaser, the
Operating Agent or the Collateral Agent, all of which rights are hereby
expressly waived by such Originator. SECTION 8.12 Confidentiality. (a)Except to
the extent otherwise required by applicable law, as required to be filed
publicly with the Securities and Exchange Commission, or unless each Affected
Party shall otherwise consent in writing, each Originator and CRLLC agree to
maintain the confidentiality of this Agreement (and all drafts hereof and
documents ancillary hereto) in its communications with third parties other than
any Affected Party or any CRLLC Indemnified Person and otherwise and not to
disclose, deliver or otherwise make available to any third party (other than its
directors, officers, employees, accountants or counsel) the original or any copy
of all or any part of this Agreement (or any draft hereof and documents
ancillary hereto) except to an Affected Party or an CRLLC Indemnified Person.
(b)Each Originator agrees that it shall not (and shall not permit any of its
Subsidiaries to) issue any news release or make any public announcement
pertaining to the transactions contemplated by this Agreement and the Related
Documents without the prior written consent of CRLLC and each Affected Party
(which consent shall not be unreasonably withheld) unless such news release or
public announcement is required by law, in which case such Originator shall
consult with CRLLC and each Affected Party prior to the issuance of such news
release or public announcement. Any Originator may, however, disclose the
general terms of the transactions contemplated by this Agreement and the Related
Documents to trade creditors, suppliers and other similarly-situated Persons so
long as such disclosure is not in the form of a news release or public
announcement. (c)CRLLC agrees to use commercially reasonable efforts (equivalent
to the efforts CRLLC applies to maintaining the confidentiality of its own
confidential information) to maintain as confidential for a period of two (2)
years following receipt thereof all confidential information provided to it by
the Originators and designated as confidential, except that CRLLC may disclose
such information (a) to Persons employed or engaged by CRLLC in evaluating,
approving, structuring or administering the transactions contemplated by this
Agreement; (b) to the Purchaser, the Operating Agent, the Collateral Agent or
any other bona fide assignee or participant or potential assignee or participant
of CRLLC that has agreed to comply with the covenant contained in this paragraph
(c) (and the Purchaser, the Operating Agent, the Collateral Agent and any such
bona fide assignee or participant or potential assignee or participant may
disclose such information to Persons employed or engaged by them as described in
clause (a) above); (c) as required or requested by any Governmental Authority or
reasonably believed by CRLLC to be compelled by any court decree, subpoena or
legal or administrative order or process; (d) as, on the advice of CRLLC's
counsel, required by law; (e) in connection with the exercise of any right or
remedy under the Related Documents or in connection with any Litigation to which
CRLLC is a party; or (f) which ceases to be confidential through no fault of
CRLLC. SECTION 8.13 Further Assurances. (a)Each Originator shall, at its sole
cost and expense, upon request of CRLLC, the Purchaser, the Operating Agent or
the Collateral Agent, promptly and duly execute and deliver any and all further
instruments and documents and take such further actions that may be necessary or
desirable or that CRLLC, the Purchaser, the Operating Agent or the Collateral
Agent may request to carry out more effectively the provisions and purposes of
this Agreement or any other Related Document or to obtain the full benefits of
this Agreement and of the rights and powers herein granted, including (i) using
its best efforts to secure all consents and approvals necessary or appropriate
for the assignment to or for the benefit of CRLLC of any Transferred Receivable
held by such Originator or in which such Originator has any rights not
heretofore assigned and (ii) filing any financing or continuation statements
under the UCC with respect to the ownership interests or Liens granted hereunder
or under any other Related Document. Each Originator hereby authorizes CRLLC,
the Purchaser, the Operating Agent or the Collateral Agent to file any such
financing or continuation statements without the signature of such Originator to
the extent permitted by applicable law. A carbon, photographic or other
reproduction of this Agreement or of any notice or financing statement covering
the Transferred Receivables or any part thereof shall be sufficient as a notice
or financing statement where permitted by law. (b)If any Originator fails to
perform any agreement or obligation under this Section 8.13, CRLLC, the
Purchaser, the Operating Agent or the Collateral Agent may (but shall not be
required to) itself perform, or cause performance of, such agreement or
obligation, and the reasonable expenses of CRLLC, the Purchaser, the Operating
Agent or the Collateral Agent incurred in connection therewith shall be payable
by such Originator upon demand of CRLLC, the Purchaser, the Operating Agent or
the Collateral Agent. SECTION 8.14 Fees and Expenses. In addition to its
indemnification obligations pursuant to Article V, Each Originator agrees,
jointly and severally, to pay on demand all costs and expenses incurred by CRLLC
in connection with the negotiation, preparation, execution and delivery of this
Agreement and the other Related Documents, including the reasonable fees and
out-of-pocket expenses of CRLLC's counsel, advisors, consultants and auditors
retained in connection with the transactions contemplated thereby and advice in
connection therewith, and each Originator agrees, jointly and severally, to pay
all costs and expenses of CRLLC, if any (including reasonable attorneys' fees
and expenses but excluding any costs of enforcement or collection of the
Transferred Receivables), in connection with the enforcement of this Agreement
and the other Related Documents. (remainder of page intentionally left blank)
54 1 IN WITNESS WHEREOF, the parties have caused this Receivables Transfer
Agreement to be executed by their respective duly authorized representatives, as
of the date first above written.executed by their respective duly
authorized representatives, as of the date first above written.
Cone ▇▇▇▇▇ Corporation
By ___/s/ ▇▇▇▇▇ ▇. Bray____
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Cone Receivables II LLC
By __Brandon Carrey__
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
c/o AMACAR Group, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
