FORM 10-Q EXECUTION COPY
Exhibit 2.1(l)
_________________________________________________________________
PURCHASE AGREEMENT
between
CONE XXXXX CORPORATION,
as Originator,
and
CONE RECEIVABLES LLC,
as Buyer,
Dated as of March 25, 1997
_________________________________________________________________
Page 36
FORM 10-Q
Exhibit 2.1(1) (continued)
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Cross Reference to Receivables Purchase
Agreement . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Certain Defined Terms . . . . . . . . . . . . . 1
SECTION 1.3. Interpretation and Construction . . . . . . . . 5
ARTICLE II
SALES AND TRANSFERS; SETTLEMENTS
SECTION 2.1. General Terms . . . . . . . . . . . . . . . . . 6
SECTION 2.2. Purchase and Sale . . . . . . . . . . . . . . . 6
SECTION 2.3. Transfers and Assignments . . . . . . . . . . . 7
SECTION 2.4. Protection of Ownership of the Buyer. . . . . . 9
SECTION 2.5. Payment of Collections and Deemed
Collections . . . . . . . . . . . . . . . . . . 10
SECTION 2.6. Mandatory Repurchase Under Certain
Circumstances . . . . . . . . . . . . . . . . . 10
SECTION 2.7. Dilution. . . . . . . . . . . . . . . . . . . . 10
SECTION 2.8. Deemed Collections. . . . . . . . . . . . . . . 10
SECTION 2.9. Transfers by Buyer. . . . . . . . . . . . . . . 11
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of
Originator. . . . . . . . . . . . . . . . . . . 11
SECTION 3.2. Representations and Warranties of the
Originator With Respect to Each Sale of
Receivables . . . . . . . . . . . . . . . . . . 15
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. Conditions to Closing . . . . . . . . . . . . . 16
SECTION 4.2. Conditions to Purchases . . . . . . . . . . . . 18
Page 37
FORM 10-Q
Exhibit 2.1(l) (continued)
ARTICLE V
COVENANTS
SECTION 5.1. Covenants of the Originator . . . . . . . . . . 19
SECTION 5.2. Negative Covenants of the Originator. . . . . . 24
ARTICLE VI
TERMINATION
SECTION 6.1. Term. . . . . . . . . . . . . . . . . . . . . . 25
SECTION 6.2. Effect of Termination . . . . . . . . . . . . . 26
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. Indemnification . . . . . . . . . . . . . . . . 26
SECTION 7.2. Tax Indemnification . . . . . . . . . . . . . . 27
SECTION 7.3. Additional Costs. . . . . . . . . . . . . . . . 28
SECTION 7.4. Other Costs and Expenses. . . . . . . . . . . . 28
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Survival. . . . . . . . . . . . . . . . . . . . 29
SECTION 8.2. Waivers; Amendments . . . . . . . . . . . . . . 29
SECTION 8.3. Notices . . . . . . . . . . . . . . . . . . . . 29
SECTION 8.4. Governing Law; Submission to Jurisdiction;
Integration . . . . . . . . . . . . . . . . . . 30
SECTION 8.5. Records . . . . . . . . . . . . . . . . . . . . 30
SECTION 8.6. No Implied Waiver; Cumulative Remedies. . . . . 30
SECTION 8.7. No Discharge. . . . . . . . . . . . . . . . . . 31
SECTION 8.8. Prior Understandings. . . . . . . . . . . . . . 31
SECTION 8.9. Successors and Assigns. . . . . . . . . . . . . 31
SECTION 8.10. No Petition . . . . . . . . . . . . . . . . . . 31
SECTION 8.11. No Recourse . . . . . . . . . . . . . . . . . . 31
SECTION 8.12. Severability; Counterparts, Waiver of
Setoff. . . . . . . . . . . . . . . . . . . . . 31
SECTION 8.13. Confidentiality . . . . . . . . . . . . . . . . 32
Exhibit A Form of Subordinated Note
Exhibit B Description of Qualifying Receivables
Exhibit C Officer's Certificate pursuant to Section 4.01(f)
Page 38
FORM 10-Q
Exhibit 2.1(l) (continued)
PURCHASE AGREEMENT
This PURCHASE AGREEMENT, dated as of March 25,
1997 (as amended, supplemented or otherwise modified and in
effect from time to time, this "Agreement"), made by and between
CONE RECEIVABLES LLC, a Delaware limited liability company, as
buyer (the "Buyer") and CONE XXXXX CORPORATION, a North Carolina
corporation, as originator (the "Originator").
R E C I T A L S:
WHEREAS, subject to the terms and conditions of
this Agreement, the Originator desires to sell from time to time
to the Buyer, and the Buyer desires to purchase from time to time
from the Originator, certain trade receivables resulting from the
sale of goods or services by the Originator to its customers (the
"Receivables"), subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises
and mutual covenants contained herein, and for good and
sufficient consideration, the parties hereto, intending to be
legally bound, do hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Cross Reference to Receivables
Purchase Agreement. Terms used herein and not defined herein
shall have the meanings assigned to such terms in the Receivables
Purchase Agreement.
SECTION 1.2. Certain Defined Terms. As used in
this Agreement, the following capitalized terms shall have the
following meanings:
"Additional Costs" shall have the meaning
specified in Section 7.3(a).
"Adverse Claim" shall mean a Lien or other right
or claim in, of or on any Person's assets or properties in favor
of any other Person.
"Charge-Off" shall mean a Receivable (or any
portion thereof): (i) which has been identified by the Originator
as uncollectible, or (ii) which, in accordance with the Credit
and Collection Policy, should be written off the Originator's
books as uncollectible.
Page 39
FORM 10-Q
Exhibit 2.1(l) (continued)
"Chief Executive Office" shall mean, with respect
to the Originator or the Buyer, the place where the Originator or
the Buyer, as the case may be, is located, within the meaning of
Section 9-103(3)(d), or any analogous provision, of the UCC, in
effect in the jurisdiction whose Law governs the perfection of
the Buyer's ownership of any Purchased Asset.
"Closing Date" shall mean March 26, 1997.
"Collections" shall mean, for any Receivable as of
any date, (i) the sum of all amounts, whether in the form of wire
transfer, cash, checks, drafts, or other instruments, received by
the Originator or by the Servicer or in a Permitted Lockbox or
otherwise in payment of, or applied to, any amount owed by an
Obligor on account of such Receivable (including but not limited
to all amounts received on account of any Defaulted Receivable)
on or before such date, including, without limitation, all
amounts received on account of such Receivable, all Finance
Charges, if any, and all other fees and charges, (ii) cash
proceeds of Related Security with respect to such Receivable, and
(iii) all amounts deemed to have been received by the Originator
or the Servicer as a Collection pursuant to Section 2.8(a)
hereof.
"Consolidated Subsidiary" shall mean, at any date,
any subsidiary or other entity the accounts of which would be
consolidated under GAAP with those of the Originator in its
consolidated financial statements as of such date.
"Expense and Tax-Sharing Agreement" shall mean the
Office Space, Administrative and Office Support Services, and Tax
Agreement, dated the date of this Agreement, between the
Originator and the Buyer.
"Foreign Receivable" shall mean all receivables
arising from the sale by the Originator of goods or services to
Obligors located outside of the United States. For the purposes
of this definition, a sale of goods or services shall be deemed
to have been made to an Obligor located outside of the United
States if (i) the goods are shipped by the Originator or at the
Originator's direction to a facility of such Obligor which is not
located within the fifty states of the United States or (ii) such
Obligor is an entity existing under the laws of a jurisdiction
other than the fifty states of the United States and the
principal place of business of such Obligor is not located in any
of the fifty states of the United States.
"Indemnified Amounts" shall have the meaning
specified in Section 7.1.
Page 40
FORM 10-Q
Exhibit 2.1(l) (continued)
"Initial Purchase Date" means the date the first
Purchase is made pursuant to this Agreement.
"Material Adverse Effect" shall mean, with respect
to the Originator, a material adverse effect on (i) the financial
condition or operations of the Originator and its Affiliates,
taken as one enterprise, (ii) the ability of the Originator to
perform its obligations under this Agreement, (iii) the legality,
validity or enforceability of this Agreement, (iv) the Buyer's
ownership of the Receivables or (v) the collectibility of the
Receivables or of any significant portion of the Receivables,
other than, in the case of clauses (i) through (v), such Material
Adverse Effects which are the direct result of actions or
omissions of the Buyer.
"Permitted Lien" shall mean (i) a Lien imposed by
any governmental agency or authority for taxes, assessments or
charges not yet due or that are being contested in good faith and
by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Originator in
accordance with GAAP, or (ii) a carriers', warehousemen's,
mechanics' or other like Lien arising in the ordinary course of
business for amounts that are not overdue for a period of more
than 30 days or that are being contested in good faith and by
appropriate proceedings and for payment of which the Originator
has adequately bonded or provided adequate reserves on its books
in accordance with GAAP.
"Purchase" means a purchase of Receivables
together with the Related Security and Collections with respect
thereto by the Buyer from the Originator pursuant to Sections 2.1
and 2.2.
"Purchase Date" means the Initial Purchase Date
and thereafter, each Business Day on which a Purchase occurs.
"Purchase Price" shall have the meaning specified
in Section 2.2(c).
"Purchased Assets" shall mean, (i) each and every
Receivable purchased hereunder, (ii) all Related Security with
respect to each such Receivable, (iii) all Collections, including
all cash collections and other cash proceeds, with respect
thereto, and (iv) all cash and non-cash Proceeds of the
foregoing.
"Receivable" shall mean, all indebtedness owed to
the Originator by any Obligor (without giving effect to any
purchase under this Agreement by the Buyer at any time) under a
Page 41
FORM 10-Q
Exhibit 2.1(l) (continued)
Contract, whether or not constituting an account or a general
intangible and whether or not evidenced by chattel paper or an
instrument, whether now existing or hereafter arising and
wherever located, arising in connection with the sale of goods or
the rendering of services by the Originator and satisfying the
descriptions set forth on Exhibit B to this Agreement, all monies
due and to become due under such Contracts and including the
right to payment of any Finance Charges and other obligations of
the Obligor with respect thereto, but excluding any amount of
sales tax, excise tax or other similar tax or charge incurred in
connection with the sale of the goods or services which gave rise
to such indebtedness; provided that the term Receivable shall not
mean and shall not include any Foreign Receivables and shall not
mean and shall not include receivables arising from the sale of
goods or services to Levi Xxxxxxx & Co. Notwithstanding the
foregoing, once a Receivable has been deemed collected pursuant
to Section 2.8(a), and the Originator has complied with all of
its' obligations in respect of such deemed Collections pursuant
to Section 2.8(c), it will no longer constitute a Receivable
hereunder.
"Receivables Purchase Agreement" shall mean the
Receivables Purchase Agreement dated the date of this Agreement
by and among the Originator, as Servicer and the Buyer, as seller
thereunder and Delaware Funding Corporation, as buyer thereunder
as the same may be from time to time amended, modified or
supplemented.
"Regulation D" shall mean Regulation D of the
Board of Governors of the Federal Reserve System, as the same may
be amended, supplemented or otherwise modified, in effect from
time to time.
"Regulatory Change" shall mean any change after
the date of this Agreement in United States (federal, state or
municipal) or foreign laws or regulations (including Regulation
D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of
banks of or under any United States (federal, state or municipal)
or foreign, laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority
charged with the interpretation or administration thereof.
"Related Security" shall mean with respect to any
Receivable:
(a) all of the Originator's interest, if any, in
the goods, merchandise (including returned merchandise) or
equipment, if any, the sale of which by the Originator gave rise
to such Receivable;
Page 42
FORM 10-Q
Exhibit 2.1(l) (continued)
(b) all other security interests or liens and
property subject thereto from time to time, if any, purporting to
secure payment of such Receivable, whether pursuant to the
Contract related to such Receivable or otherwise, together with
all financing statements signed by an Obligor describing any
collateral securing such Receivable;
(c) all guarantees, insurance or other agreements
or arrangements of any kind from time to time supporting or
securing payment of such Receivable whether pursuant to the
Contract related to such Receivable or otherwise; and
(d) all Records relating to, and all service
contracts and any other contracts associated with, such
Receivable or the Contracts or the Obligors relating thereto.
"Relevant UCC" shall mean the Uniform Commercial
Code as in effect from time to time in all applicable
jurisdictions.
"Responsible Officer" shall mean, with respect to
any Person, the chief executive officer, chief financial officer,
president, treasurer or assistant treasurer of such Person.
"Servicer" shall mean, initially, the Originator,
and any successor Servicer designated pursuant to the Receivables
Purchase Agreement.
"Subordinated Loan" shall have the meaning
specified in Section 2.2(d) hereof.
"Subordinated Note" shall have the meaning
specified in Section 2.2(d) hereof.
"Termination Date" shall have the meaning ascribed
to such term in Section 6.1.
SECTION 1.3. Interpretation and Construction.
Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular, the singular the
plural and the part the whole. References in this Agreement to
"determination," "determine" and "determined" by the Buyer shall
be conclusive absent manifest error and include good faith
estimates by the Buyer (in the case of quantitative
determinations), and the good faith belief of the Buyer (in the
case of qualitative determinations). The words "hereof,"
"herein," "hereunder" and similar terms in this Agreement refer
to this Agreement as a whole and not to any particular provision
of this Agreement. Unless otherwise stated in this Agreement, in
Page 43
FORM 10-Q
Exhibit 2.1(l) (continued)
the computation of a period of time from a specified date to a
later specified date, the word "from" means "from and including"
and the words "to" and "until" each means "to but excluding."
The section and other headings contained in this Agreement are
for reference purposes only and shall not control or affect the
construction of this Agreement or the interpretation hereof in
any respect. Section, subsection and exhibit references are to
this Agreement unless otherwise specified. As used in this
Agreement, the masculine, feminine or neuter gender shall each be
deemed to include the others whenever the context so indicates.
All accounting terms not specifically defined herein shall be
construed in accordance with GAAP. Terms not otherwise defined
herein which are defined in the Uniform Commercial Code as in
effect in the State of New York on the date hereof shall have the
respective meanings ascribed to such terms therein unless the
context otherwise clearly requires.
ARTICLE II
SALES AND TRANSFERS; SETTLEMENTS
SECTION 2.1. General Terms. On the terms and
conditions hereinafter set forth, from the date the conditions
precedent to the initial Purchase in Section 4.1 are satisfied to
the Expiration Date under the Receivables Purchase Date, the
Originator shall sell to the Buyer on each Purchase Date, without
recourse, except as specifically set forth herein, all right,
title and interest of the Originator in, to and under those
Receivables that the Originator determines to sell hereunder on
such date, along with Related Security with respect to such
Receivables and Collections with respect thereto, and the Buyer
agrees to purchase such Receivables, Related Security and
Collections from the Originator.
SECTION 2.2. Purchase and Sale. (a) The
Originator hereby irrevocably sells, sets over, assigns,
transfers and conveys to the Buyer and its successors and
assigns, without recourse, except as specifically set forth
herein, and the Buyer hereby accepts, purchases and receives, all
of the Originator's right, title, and interest in and to the
Purchased Assets, whether such Purchased Assets are now owned or
hereafter created or acquired by the Originator, along with all
monies, instruments, securities, documents and other property
from time to time on deposit in or credited to the Lockbox
Accounts relating to the Purchased Assets.
(b) The consideration to the Originator for the
initial Purchase shall be the execution and delivery by the Buyer
of the Receivables Purchase Agreement on the Closing Date and the
Page 44
FORM 10-Q
Exhibit 2.1(l) (continued)
making by the Buyer thereunder of the "Initial Purchase" (as
defined thereunder). The initial Purchase hereunder shall be
made subject to the satisfaction of the conditions to purchase
specified in Section 4.2.
(c) The "Purchase Price" for the Purchased Assets
which came into existence on or prior to the Closing Date
conveyed to the Buyer under this Agreement shall be payable on
the Closing Date and shall be an amount equal to 100% of the
Outstanding Balance of the Receivables so conveyed, adjusted to
reflect such factors as the Originator and the Buyer mutually
agree will result in a Purchase Price determined to approximate
the fair market value of such Purchased Assets. Such computation
of the initial Purchase Price shall assume no reinvestment in new
Purchased Assets. The "Purchase Price" for the Purchased Assets
to be conveyed to the Buyer under this Agreement that come into
existence after the Closing Date shall be payable on the Purchase
Date in an amount equal to 100% of the Outstanding Balance of the
Receivables so conveyed (the "New Purchased Assets"), adjusted to
reflect such factors as the Originator and the Buyer mutually
agree will result in a Purchase Price determined to approximate
the fair market value of such New Purchased Assets.
(d) The Purchase Price to be paid by the Buyer on
the Closing Date and on each subsequent Purchase Date shall be
paid (i) in cash, (ii) with the consent of the Originator, by
means of capital contributed by the Originator to the Buyer in
the form of a contribution of the Purchased Assets, (iii) if
consented to by the Originator and in the sole discretion of the
Originator, by means of a loan by the Originator to the Buyer
(each a "Subordinated Loan" and collectively, the "Subordinated
Loans") evidenced by the subordinated note (the "Subordinated
Note") in the form attached hereto as Exhibit A. The
Subordinated Loans shall be made on a revolving basis from time
to time during the term of this Agreement as the Buyer may from
time to time request and the Originator shall agree for the sole
purpose of purchasing Receivables from the Originator. Interest
on and principal of the Subordinated Note shall be payable in the
amounts and at the times specified in the Subordinated Note. The
Originator shall maintain records of the date and amounts of each
Subordinated Loan and payments thereon on the grid attached to
the Subordinated Note.
(e) The sale of the Purchased Assets by the
Originator hereunder shall be made without recourse except as
specifically provided herein.
(f) No obligation or liability of the Originator
to any Obligor or any third party under any Receivable or
Page 45
FORM 10-Q
Exhibit 2.1(l) (continued)
Contract purchased by the Buyer shall be assumed by the Buyer,
and any assumption is hereby expressly disclaimed. The Buyer
shall be indemnified by the Originator in accordance with Section
7.1 hereof in respect of any losses, claims, damages,
liabilities, costs or expenses arising out of or incurred in
connection with any Obligor's assertion of such obligation or
liability against the Buyer.
SECTION 2.3. Transfers and Assignments. (a) It
is the intention of the parties hereto that each Purchase made
hereunder shall constitute a sale and assignment, which sales and
assignments are absolute, irrevocable and without recourse except
as specifically provided herein and shall provide the Buyer with
the full benefits of ownership of the Receivables and the other
related Purchased Assets. In the event that such Purchase is
deemed to constitute a pledge rather than a sale and assignment
of the aforementioned property, then (i) this Agreement also
shall be deemed to be and hereby is a security agreement within
the meaning of the UCC and (ii) the Originator does hereby grant
to the Buyer a first priority perfected security interest in and
to and lien on all of the Originator's right, title and interest
in, to and under the Purchased Assets. The Originator and the
Buyer shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the
Receivables, such security interest would be deemed to be a
perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this
Agreement. The possession by the Buyer or its transferee or
agent of notes and such other goods, letters of credit, advices
of credit, money, documents, instruments, chattel paper or
certificated securities related thereto shall be deemed to be
"possession by the secured party" for purposes of perfecting such
security interest pursuant to the Relevant UCC (including,
without limitation, Section 9-305 thereof). Notifications to
persons holding such property, and acknowledgments, receipts or
confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or
confirmations from, bailees or agents (as applicable) of, the
Buyer or its transferee for the purpose of perfecting such
security interest under the Relevant UCC and other applicable
laws. The sale and conveyance hereunder of the Purchased Assets
does not constitute an assumption by the Buyer or its successors
and assigns of any obligations of the Originator to Obligors or
to any other Person in connection with Receivables or under any
agreement or instrument relating to the Receivables.
(b) In connection with the sale and transfer
under Section 2.2(a), the Originator agrees to record and file,
Page 46
FORM 10-Q
Exhibit 2.1(l) (continued)
at its own expense, financing statements, with respect to the
Purchased Assets now existing and hereafter created or acquired,
suitable to reflect the transfer of chattel paper, amounts and
general intangibles (each as defined in Article 9 of the Relevant
UCC) and meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect the
sale, transfer and assignment of the Purchased Assets to the
Buyer, and to deliver a file-stamped copy of such financing
statements or other evidence of such filing satisfactory to the
Buyer on or prior to the applicable Purchase Date. In addition
to, and without limiting the foregoing, the Originator shall,
upon the request of the Buyer, in order to accurately reflect
this transaction, execute and file such financing or continuation
statements or amendments thereto or assignments thereof (as
permitted pursuant to Section 8.9 hereof) as may be reasonably
requested by the Buyer.
(c) The Originator shall maintain its books and
records so that such records that refer to a Receivable shall
indicate clearly that the Originator's right, title and interest
in such Receivable has been sold to the Buyer and xxxx its master
data processing records with a notation describing the
acquisition (or assignment) by, the Buyer of the Purchased
Assets, as the Buyer may reasonably request. Indication of the
Buyer's interest in a Receivable shall be deleted from or
modified on the Originator's records when, and only when, the
Receivable shall have been paid in full or the Buyer's interest
in such Receivable shall have been repurchased or repaid by the
Originator hereunder. In addition, the Originator shall maintain
its computer systems so that the Originator's master computer
records (including any back-up archives) that refer to a
Receivable shall indicate clearly that such Receivable has been
sold to the Buyer pursuant to this Agreement and that an interest
in such Receivable has been transferred and assigned by the Buyer
hereunder to Delaware Funding Corporation as Buyer under the
Receivables Purchase Agreement. The Originator will at all times
keep or cause to be kept at its Chief Executive Office or at an
office of the Servicer designated in advance to the Buyer, each
writing or Record which evidences, and which is necessary or
desirable to establish or protect, including such books of
account and other Records as will enable the Buyer or its
designee to determine at any time the status of, the Purchased
Assets of the Buyer in each Receivable. The Originator shall at
its own expense prepare and maintain machine-readable magnetic
tapes in such format as the Originator customarily maintains its
records; provided, however, that upon a upon the request of the
Buyer, the Originator shall, within 15 days of such request,
prepare such records in such format as may be required to permit
or facilitate the needs of the Buyer.
Page 47
FORM 10-Q
Exhibit 2.1(l) (continued)
SECTION 2.4. Protection of Ownership of the
Buyer.
(a) The Originator will, on or prior to each
Purchase, and with respect to all Receivables that are sold
pursuant to Section 2.1 hereof after the initial Purchase, on
each respective date such Receivables are sold, place an
appropriate code or notation in its Records to indicate that each
such Receivable has been sold to the Buyer hereunder.
(b) The Originator agrees that from time to time,
at its expense, it shall promptly execute and deliver all
additional instruments and documents and take all additional
action that the Buyer may reasonably request in order to perfect
the interests of the Buyer in and to, or to protect, the
Purchased Assets or to enable the Buyer to exercise or enforce
any of its rights hereunder. To the fullest extent permitted by
applicable law, the Buyer shall be permitted to sign and file
continuation statements and amendments thereto and assignments
thereof without the Originator's signature in such cases where
the Originator is obligated hereunder or under the Relevant UCC
to sign such statements, amendments or assignments if, after
written notice to the Originator, the Originator shall have
failed to sign such continuation statements, amendments or
assignments within ten (10) Business Days after receipt of such
notice from the Buyer. Carbon, photographic or other
reproduction of this Agreement or any financing statement shall
be sufficient as a financing statement.
(c) At any reasonable time and from time to time
at the Buyer's reasonable request and upon seven days prior
notice to the Originator, the Originator shall permit such Person
as the Buyer may designate, at such Person's expense, to conduct
audits or visit and inspect any of the properties of the
Originator to examine the Records, internal controls and
procedures maintained by the Originator with respect to the
Receivables and take copies and extracts therefrom, and to
discuss the Originator's affairs with its officers, employees
and, upon notice to the Originator, independent accountants. The
Originator hereby authorizes such officers, employees and
independent accountants to discuss with the Buyer the affairs of
the Originator. Any audit provided for herein shall be conducted
in accordance with Originator's rules respecting safety and
security on its premises and without materially disrupting
operations.
SECTION 2.5. Payment of Collections and Deemed
Collections. If the Originator shall receive any Collections
with respect to Receivables which have been sold to the Buyer
Page 48
FORM 10-Q
Exhibit 2.1(l) (continued)
pursuant to this Agreement or shall be deemed to have received
any Collections under the provisions of Section 2.8 hereof, the
Originator shall hold such Collections or cash in an amount equal
to the deemed Collection in trust for the Buyer and shall pay
such amounts to the Buyer as soon as practicable, but in no event
more than two Business Days after receipt thereof or the deemed
Collection thereof.
SECTION 2.6. Mandatory Repurchase Under Certain
Circumstances. The Originator shall repurchase from the Buyer
(i) all Receivables constituting Purchased Assets if at any time,
as determined by written advice of counsel, the Buyer or its
assignee shall cease to have a perfected ownership interest or a
first priority perfected security interest in all of the
Purchased Assets, free and clear of any Lien and (ii) any
Receivables that the Buyer determines were not, at the time of
their Purchase hereunder, Eligible Receivables, in each case
within five days of notice by the Buyer of its exercise of a
repurchase right under this Section 2.6. The Repurchase Amount
shall be paid upon the repurchase by the Originator to the Buyer
under this Section 2.6 shall be an amount equal to the Aggregate
Unpaids.
SECTION 2.7. Dilution. If the Outstanding
Balance of a Receivable is either (i) reduced or cancelled as a
result of any (a) refunded item, (b) defective or rejected goods
or services, any cash discount or of any adjustment by the
Originator, or (ii) reduced or cancelled as a result of a set off
in respect of any claim by any Person (whether such claim arises
out of the same or a related transaction or an unrelated
transaction), the Originator shall pay to the Buyer on such day
the amount of such reduction or, if such transferred Receivable
is cancelled, the amount of the Outstanding Balance thereof,
together with the Finance Charges accrued thereon through such
day.
SECTION 2.8. Deemed Collections.
(a) If on any day the Outstanding Balance of a
Receivable is (w) reduced or canceled as a result of any
defective or rejected goods or services, any cash discount or any
adjustment by the Originator, or (x) reduced or canceled as a
result of a set-off in respect of any claim by any Person
(whether such claim arises out of the same or a related
transaction or an unrelated transaction) or (y) reduced or
canceled as a result of any forgiveness of the obligation or of
any adjustment by the Originator, or (z) otherwise reduced or
canceled as a result of any Dilution Factor with respect to such
Receivable, the Originator shall be deemed to have received on
such day a Collection of such Receivable in the amount of such
Page 49
FORM 10-Q
Exhibit 2.1(l) (continued)
reduction or cancellation. If on any day any of the
representations or warranties in Section 3.1 or 3.2 hereof is no
longer true or was not true when made with respect to a
Receivable, the Originator shall be deemed to have received on
such day a Collection of such Receivable in full.
(b) If the Buyer determines that any Receivable,
on the date of its Purchase was not an Eligible Receivable, the
Originator shall, on the date of discovery by or notice to the
Originator of such fact, be deemed to have received on such day a
Collection of such Receivable in full.
(c) Any Collections deemed to be received by the
Originator pursuant to Section 2.8(a) or (b) hereof shall be held
and distributed, as provided in Section 2.5, and shall be used to
make calculations and determinations hereunder, to the same
extent as if such Collections had actually been received. So
long as the Originator shall hold any Collections or deemed
Collections required to be paid to the Buyer or its agent, it
shall hold such Collections in trust for such Person.
SECTION 2.9. Transfers by Buyer. The Originator
acknowledges and agrees that (a) the Buyer may, pursuant to the
Receivables Purchase Agreement, sell the Purchased Assets and
assign its rights under this Agreement to Delaware Funding
Corporation as Buyer under the Receivables Purchase Agreement and
(b) the representations and warranties contained in this
Agreement and the rights of the Buyer under this Agreement are
intended to benefit the Buyer under the Receivables Purchase
Agreement. The Originator hereby consents to all such sales and
assignments.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of
Originator. The Originator represents and warrants to the Buyer
on and as of the Closing Date and as of each Purchase Date that:
(a) Organization and Qualification. The
Originator is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of
incorporation. The Originator is duly qualified to do business
as a foreign corporation in good standing in each jurisdiction in
which the ownership of its properties or the nature of its
activities (including transactions giving rise to Receivables),
or both, requires it to be so qualified or, if not so qualified,
Page 50
FORM 10-Q
Exhibit 2.1(l) (continued)
the failure to so qualify would not have a material adverse
effect on its financial condition or results of operations.
(b) Authorization. The Originator has the
corporate power and authority to execute and deliver the Purchase
Documents, to make the sales provided for herein and to perform
its obligations hereunder and thereunder.
(c) Execution and Binding Effect. Each of the
Purchase Documents to which the Originator is a party has been
duly and validly executed and delivered by the Originator and
(assuming the due and valid execution and delivery thereof by the
other parties thereto), constitutes a legal, valid and binding
obligation of the Originator enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws of
general application relating to or affecting the enforcement of
creditors, rights or by general principles of equity, and will
vest absolutely and unconditionally in the Buyer a valid
undivided ownership interest in the Receivables purported to be
assigned thereby, subject to no Liens whatsoever. Upon the
filing of the necessary financing statements under the Relevant
UCC, the Buyer's ownership interest in the Receivables will be
perfected under Article Nine of such UCC, prior to and
enforceable against all creditors of and purchasers from the
Originator and all other Persons whatsoever (other than the Buyer
and its successors and assigns).
(d) Authorizations and Filings. No
authorization, consent, approval, license, exemption or other
action by, and no registration, qualification, designation,
declaration or filing with, any governmental body, agency or
official is or will be necessary or, in the opinion of the
Originator, advisable in connection with the execution and
delivery by the Originator of the Purchase Documents, the
consummation by the Originator of the transactions herein or
therein contemplated or the performance by the Originator of or
the compliance by the Originator with the terms and conditions
hereof or thereof, to ensure the legality, validity or
enforceability hereof or thereof, or to ensure that the Buyer
will have an undivided ownership interest in and to the
Receivables which is perfected and prior to all other Liens
(including competing ownership interests), other than the filing
of financing statements under the UCC in the jurisdiction of the
Originator's Chief Executive Office.
(e) Absence of Conflicts. Neither the execution
and delivery by the Originator of the Purchase Documents, nor the
Page 51
FORM 10-Q
Exhibit 2.1(l) (continued)
consummation by the Originator of the transactions herein or
therein contemplated, nor the performance by the Originator of or
the compliance by the Originator with the terms and conditions
hereof or thereof, will (i) violate any Law or (ii) conflict with
or result in a breach of or a default under (A) the Articles of
Incorporation or By-laws of the Originator or (B) any agreement
or instrument, including, without limitation, any and all
indentures, debentures, loans or other agreements to which the
Originator is a party or by which it or any of its properties
(now owned or hereafter acquired) may be subject or bound, which
would have a material adverse effect on the financial position or
results of operations of the Originator or result in rendering
any debt evidenced thereby due and payable prior to its maturity
or result in the creation or imposition of any Lien pursuant to
the terms of any such instrument or agreement upon any property
(now owned or hereafter acquired) of the Originator. The
Originator has not entered into any agreement with any Obligor
prohibiting, restricting or conditioning the assignment of any
portion of the Receivables.
(f) Location of Chief Executive Office, etc. As
of the date hereof: (i) the Originator's Chief Executive Office
is located at the address for notices set forth in Section 8.3
hereof; (ii) the Originator has only the Subsidiaries and
divisions listed on Exhibit L to the Receivables Purchase
Agreement; (iii) the offices where the Originator keeps all of
its Records are listed on Exhibit L to the Receivables Purchase
Agreement; and (iv) the Originator has, within the last 5 years,
operated only under the trade names identified in Exhibit L to
the Receivables Purchase Agreement; and, within the last 5 years,
has not changed its name, merged or consolidated with any other
corporation or been the subject of any proceeding under Xxxxx 00,
Xxxxxx Xxxxxx Code (Bankruptcy), except as disclosed in Exhibit L
to the Receivables Purchase Agreement.
(g) Accurate and Complete Disclosure. No
information furnished in writing by the Originator to the Buyer
pursuant to or in connection with this Agreement or any
transaction contemplated hereby is false or misleading in any
material respect as of the date as of which such information was
furnished (including by omission of material information
necessary to make such information not misleading).
(h) No Proceedings. There are no proceedings or
investigations pending, or to the knowledge of the Originator,
threatened, before any Official Body (A) asserting the invalidity
of the Purchase Documents, (B) seeking to prevent the ,
consummation of any of the transactions contemplated by the
Purchase Documents, or (C) seeking any determination or ruling
Page 52
FORM 10-Q
Exhibit 2.1(l) (continued)
that might materially and adversely affect (i) the performance by
the Originator or the Buyer of its obligations under the Purchase
Documents or (ii) the validity or enforceability of the Purchase
Documents, the Contracts or any material amount of the
Receivables.
(i) Bulk Sales Act. No transaction contemplated
hereby requires compliance with any bulk sales act or similar
law.
(j) Financial Condition. (x) The consolidated
balance sheet of the Originator and its Consolidated Subsidiaries
as at December 29, 1996 and the related statements of operations
and cash flows of the Originator and its Consolidated
Subsidiaries for the fiscal year then ended, certified by
McGladrey & Xxxxxx LLP, independent accountants, copies of which
have been furnished to the Buyer, fairly present the consolidated
financial position of the Originator and its Consolidated
Subsidiaries as at such date and the consolidated results of the
operations of and changes in consolidated cash flows of the
Originator and its Consolidated Subsidiaries for the period ended
on such date, all in accordance with GAAP and (y) since December
29, 1996, there has been no material adverse change in any such
financial condition or results of operations or in the
Originator's ability to perform its obligations under the
Purchase Documents, except as set forth on Schedule 2 of the
Disclosure Schedule attached to the Receivables Purchase
Agreement.
(k) Litigation. No injunction, decree or other
decision has been issued or made by any Official Body that
prevents, and to the knowledge of the Originator, no threat by
any Person has been made to attempt to obtain any such decision
that would have a material adverse impact on, the conduct by the
Originator of a significant portion of the Originator's business
operations or any portion of its business operations affecting
the Receivables, and no litigation, investigation or proceeding
of the type referred to in Section 5.1(i) exists except as set
forth on Schedule 3 of the Disclosure Schedule attached to the
Receivables Purchase Agreement.
(l) Margin Regulations. The use of all funds
acquired by the Originator under this Agreement will not conflict
with or contravene any of Regulations G, T, U and X of the Board
of Governors of the Federal Reserve System, as the same may from
time to time be amended, supplemented or otherwise modified.
(m) ERISA. No event or condition is occurring or
exists with respect to any Plan or Multiemployer Plan concerning
Page 53
FORM 10-Q
Exhibit 2.1(l) (continued)
which the Originator would be under an obligation to furnish a
report to the Buyer in accordance with Section 5.1(n) hereof.
(n) Taxes. All United States Federal income tax
returns of the Originator and its Consolidated Subsidiaries have
been examined and closed through the Fiscal Year ended January 2,
1994. The Originator and its Consolidated Subsidiaries have
filed all United States Federal income tax returns and all other
material tax returns which are required to be filed by them and
have paid all taxes due pursuant to such returns or pursuant to
any assessment received by the Originator or any of its
Consolidated Subsidiaries. The charges, accruals and reserves on
the books of the Originator and its Consolidated Subsidiaries in
respect of taxes and other governmental charges are, in the
opinion of the Originator, adequate.
(o) Books and Records. The Originator has
indicated on its books and records (including any computer files)
that the Purchased Assets are the property of the Buyer.
(p) Permitted Lockbox Banks. The names and
addresses of all Permitted Lockbox Banks, together with the
numbers of all Lockbox Accounts at such Permitted Lockbox Banks
and the addresses of all related Permitted Lockboxes, as are
specified in Schedule 4 of the Disclosure Schedule attached to
the Receivables Purchase Agreement (or such other Permitted
Lockbox Banks, Lockbox Accounts and/or Permitted Lockboxes as
have been notified by the Originator to the Buyer.)
(q) Investment Company. The Originator is not an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of
1940, as amended.
(r) Separate Existence. The Originator is
entering into the transactions contemplated by this Agreement in
reliance on the Buyer's identity as a separate legal entity from
the Originator and each of its Affiliates, and acknowledges that
the Buyer and the other parties to the Purchase Documents are
similarly entering into the transactions contemplated by the
other Purchase Documents in reliance on the Buyer's identity as a
separate legal entity from the Originator and each such other
Affiliate.
SECTION 3.2. Representations and Warranties of
the Originator With Respect to Each Sale of Receivables. By
selling Receivables to the Buyer on each Purchase Date, the
Originator represents and warrants to the Buyer as of each such
Purchase Date and only as to Receivables sold by the Originator
Page 54
FORM 10-Q
Exhibit 2.1(l) (continued)
to the Buyer hereunder on such Purchase Date (in addition to its
other representations and warranties contained herein or made
pursuant hereto) that:
(a) Assignment. This Agreement vests in the
Buyer all the right, title and interest of the Originator in and
to the Purchased Assets, and constitutes a valid sale of the
Purchased Assets enforceable against all creditors of and
purchasers from the Originator.
(b) No Liens. Each Receivable, together with the
related Contract and all purchase orders and other agreements
related to such Receivable, is owned by the Originator free and
clear of any Lien (other than any Permitted Liens), and when the
Buyer makes a purchase of Purchased Assets it shall have acquired
and shall continue to have maintained an undivided percentage
ownership interest in such Receivable and in the Related Security
and the Collections with respect thereto free and clear of any
Lien (other than (x) the Lien arising in connection with this
Agreement, (y) any Permitted Liens). The Originator has not and
will not have sold, pledged, assigned, transferred or subjected
to a Lien any of the Receivables, other than the assignment of
the Purchased Assets to the Buyer.
(c) Filings. On or prior to each Purchase Date,
all financing statements and other documents required to be
recorded or filed in order to perfect and protect the Purchased
Assets against all creditors of and purchasers from the
Originator and all other Persons whatsoever have been duly filed
in each filing office necessary for such purpose and all filing
fees and taxes, if any, payable in connection with such filings
have been paid in full.
(d) Credit and Collection Policy. The Originator
has complied in all material respects with the Credit and
Collection Policy in regard to each Receivable and related
Contract.
(e) Nature of Receivables. Each Receivable is,
or will be, an account receivable or other obligation
representing all or part of the sales price of merchandise,
insurance and services within the meaning of Section 3(c)(5)(A)
promulgated under the Investment Company Act of 1940, as amended
from time to time, and a purchase of each Receivable with the
proceeds of Commercial Paper would constitute a "current
transaction" within the meaning of Section 3(a)(3) of the
Securities Act of 1933, as amended from time to time.
(f) Eligible Receivables. Each Receivable
Page 55
FORM 10-Q
Exhibit 2.1(l) (continued)
classified as an "Eligible Receivable" by the Originator in any
document or report delivered pursuant to any Program Document
satisfies the requirements of eligibility contained in the
definition of Eligible Receivable.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. Conditions to Closing. On or prior
to the Closing Date, the Originator shall deliver to the Buyer
the following documents and instruments, all of which shall be in
form and substance acceptable to the Buyer:
(a) A copy of the resolutions of the Board of
Directors of the Originator certified by the Originator's
secretary authorizing the execution, delivery and performance of
this Agreement and the other documents to be delivered by the
Originator approving the transactions contemplated hereby and
thereby;
(b) The Articles of Incorporation of the
Originator certified as of a date reasonably near the date hereof
by the Secretary of State or other similar official of the
Originator's jurisdiction of incorporation;
(c) A good standing certificate for the
Originator issued by the Secretary of State or other similar
official of the state of the Originator's jurisdiction of
incorporation, certificates of qualification as a foreign
corporation issued by the Secretaries of State or other similar
officials of each jurisdiction where such qualification is
material to the transactions contemplated by this Agreement and
certificates of the appropriate state official in each
jurisdiction specified by the Buyer as to the absence of any tax
Liens against the Originator under the Laws of such jurisdiction,
each such certificate to be dated a date reasonably near the date
hereof;
(d) A certificate of the secretary of the
Originator certifying (i) the names and signatures of the
officers authorized on its behalf to execute, and the officers
and other employees authorized to perform, this Agreement and any
other documents to be delivered by the Originator hereunder (on
which certificate the Buyer may conclusively rely until such time
as the Buyer shall receive from the Originator a revised
certificate meeting the requirements of this clause (d)(i)) and
(ii) a copy of the Originator's By-laws;
Page 56
FORM 10-Q
Exhibit 2.1(l) (continued)
(e) Acknowledgment copies of proper financing
statements (Form UCC-1) dated a date reasonably near to the date
of the initial Purchase hereunder (i) the Originator as the
debtor of Receivables and the Buyer as the secured party or other
similar instruments or documents as may be necessary or, in the
opinion of the Buyer, desirable under the UCC of all appropriate
jurisdictions to evidence or perfect the Buyer's ownership
interest in all Receivables;
(f) Acknowledgment copies of proper financing
statements (Form UCC-3) necessary to release all security
interests and other rights of any person in Receivables
previously granted by the Originator;
(g) Certified copies of requests for information
or copies (Form UCC-11) (or a similar search report certified by
parties acceptable to Buyer) dated a date reasonably near the
date of the initial Purchase listing all effective financing
statements which name the Originator (under its present name and
any previous name) as debtor and which are filed in jurisdictions
in which the filings were made pursuant to item (e) above,
together with copies of such financing statements;
(h) Copies of Lockbox Servicing Instructions (to
the extent available) and all other agreements previously given
or entered into with each of the Permitted Lockbox Banks;
(i) Undated duly executed letters (a "Lockbox-
Transfer Letter") from the Originator as Servicer under the
Receivables Purchase Agreement, addressed to each Permitted
Lockbox Bank substantially in the form of Exhibit H to the
Receivables Purchase Agreement;
(j) Favorable opinions of Xxxxx Xxxx Xxxxxx
counsel for the Originator dated the Closing Date as to
corporate, enforceability, perfection, tax and other matters, in
form and substance acceptable to the Buyer;
(k) An opinion of counsel acceptable to the
Originator and which specifically allows reliance thereon by the
Originator's outside auditors with respect to the treatment of
the transfer of the Receivables from the Originator to the Buyer
as provided in this Agreement as a true sale;
(l) Officer's certificate executed by a
Responsible Officer of the Originator in form and substance
acceptable to the Buyer;
(m) Executed copies of the Subordinated Note and
of the Officer's Certificate attached hereto as Exhibit C;
Page 57
FORM 10-Q
Exhibit 2.1(l) (continued)
(n) An executed copy of the Expense and Tax-
Sharing Agreement;
(o) An executed copy of the Omnibus Termination
and Release and Reconveyance dated the Closing Date, by an
between the Originator and Delaware Funding Corporation; and
(p) Such other documents as the Buyer may
reasonably request.
SECTION 4.2. Conditions to Purchases. The
Buyer's obligation to make a Purchase on any Purchase Date shall
be subject to satisfaction of the following applicable conditions
precedent:
(a) the truth and correctness of:
(i) the representations and warranties in Section
3.1 hereof as of such Purchase Date, as though
made on and as of such date, and
(ii) the representations and warranties in
Section 3.2 of this Agreement, as though made on
and as of such date;
(b) the Originator shall have taken all actions
necessary or advisable to maintain a perfected first priority
security interest of the Buyer in and to the Purchased Assets
(including in and to the Receivables purchased on such Purchase
Date);
(c) the satisfactory completion by the Buyer of
any due diligence determined necessary by the Buyer with respect
to the Receivables and the related Obligors and Contracts being
Purchased on such date;
(d) the receipt by the Buyer of all approvals,
opinions or other documents as the Buyer shall have reasonably
requested.
ARTICLE V
COVENANTS
SECTION 5.1. Covenants of the Originator. At all
times during the term of this Agreement, unless the Buyer shall
otherwise consent in writing:
(a) Notice of Material Adverse Change. Promptly
Page 58
FORM 10-Q
Exhibit 2.1(l) (continued)
upon becoming aware thereof, the Originator shall give the Buyer
notice of any material adverse change in the business, operations
or financial condition of the Originator, as the case may be,
which reasonably could affect adversely the collectibility of the
Receivables or the ability to service such Receivables in order
to verify compliance with this Section 5.1(a) and otherwise
verify compliance with this Agreement, the Originator shall mail
the following to the Buyer:
(i) as soon as practicable and in any event
within 45 days following the close of each fiscal
quarter, excluding the last fiscal quarter, of
each Fiscal Year during the term of this
Agreement, an unaudited consolidated balance sheet
of the Originator as at the end of such quarter
and unaudited consolidated statements of income
and cash flows of the Originator for such quarter
and for the fiscal year through such quarter,
setting forth in comparative form the
corresponding figures for the corresponding
quarter of the preceding fiscal year, together
with notes thereto as are required to be included
therein in accordance with GAAP or applicable
Securities and Exchange Commission requirements,
all in reasonable detail and certified by the
chief financial officer of the Originator, subject
to adjustments of the type which would occur as a
result of a year-end audit, as having been
prepared in accordance with GAAP; and
(ii) as soon as practicable and in any event
within 90 days after the close of each Fiscal Year
during the term of this Agreement, a consolidated
balance sheet of the Originator as at the close of
such fiscal year and consolidated statements of
income and cash flows of the Originator for such
fiscal year, setting forth in comparative form the
corresponding figures for the preceding fiscal
year, all in reasonable detail and certified (with
respect to the consolidated financial statements)
by independent certified public accountants of
recognized standing selected by the Originator and
reasonably satisfactory to the Buyer (which shall
include McGladrey & Xxxxxx LLP), whose certificate
or opinion accompanying such financial statements
shall not contain any qualification, exception or
scope limitation not satisfactory to the Buyer.
Page 59
FORM 10-Q
Exhibit 2.1(l) (continued)
(b) Preservation of Corporate Existence. The
Originator shall preserve and maintain its corporate existence,
rights, franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified in good standing
as a foreign corporation in each jurisdiction where the failure
to preserve and maintain such existence, rights, franchises,
privileges and qualification would materially adversely affect
(i) the interests of the Buyer hereunder or (ii) the ability of
the Originator to perform its obligations under the Purchase
Documents.
(c) Compliance with Laws. The Originator shall
comply in all material respects with all Laws applicable to it,
its business and properties, and all Receivables related to the
Purchased Assets.
(d) Enforceability of Obligations. The
Originator shall take such actions as are reasonable and within
its power to ensure that, with respect to each Receivable, the
obligation of any related Obligor to pay the unpaid balance of
such Receivable in accordance with the terms of the related
Contract remains legal, valid, binding and enforceable against
such obligor.
(e) Books and Records. The Originator shall, to
the extent practicable, maintain and implement administrative and
operating procedures (including, without limitation, an ability
to recreate records evidencing Receivables in the event of the
destruction of the originals thereof), and keep and maintain or
obtain, as and when required, all documents, books, records and
other information reasonably necessary or advisable for the
collection of all Receivables (including, without limitation,
records adequate to permit the daily identification of all
Related Security and Collections of and adjustments to each
existing Receivable).
(f) Fulfillment of Obligations. The Originator
will duly observe and perform, or cause to be observed or
performed, all material obligations and undertakings on its part
to be observed and performed under or in connection with the
Receivables, will duly observe and perform all material
provisions, covenants and other promises required to be observed
by it under the Contracts related to the Receivables, will do
nothing to impair the rights, title and interest of the Buyer in
and to the Purchased Assets and will pay or cause to be paid when
due any taxes, including without limitation any sales tax, excise
tax or other similar tax or charge, payable in connection with
the Receivables and their creation and satisfaction.
Page 60
FORM 10-Q
Exhibit 2.1(l) (continued)
(g) Customer List. The Originator shall at all
times maintain a current list (which may be stored on magnetic
tapes or disks) of all Obligors under Contracts related to
Receivables, including the name, address, telephone number and
account number of each such Obligor. The Originator shall within
five Business Days after the Closing Date deliver a list
containing all of such information as of the Closing Date to the
Buyer and shall in connection with each Monthly Report provide
updated information as provided in the Receivables Purchase
Agreement. The Originator shall also deliver or cause to be
delivered a copy of such list to the Buyer as soon as practicable
following the Buyer's request.
(h) Copies of Reports, Filings, Opinions, etc.
The Originator and the Guarantor shall furnish to the Buyer, as
soon as practicable after the issuance, sending or filing
thereof, copies of all proxy statements, financial statements,
reports and other communications, if any, which the Originator
sends to its security holders, and copies of all regular,
periodic and special reports, if any, which the Originator files
with the Securities and Exchange Commission or with any
securities exchange on Forms 10-K, 10-Q, 8-K or any successor
forms thereto.
(i) Litigation. As soon as possible, and in any
event within ten Business Days of the Originator's knowledge
thereof, the Originator shall give the Buyer notice of (i) any
litigation, investigation or proceeding against the Originator
which may exist at any time which, in the reasonable judgment of
the Originator, could have a material adverse effect on the
financial condition or results of operations of the Originator or
impair the ability of the Originator to perform its obligations
under the Purchase Documents and (ii) any material adverse
development in any such previously disclosed litigation.
(j) Notice of Relocation. The Originator shall
give the Buyer 45 days' prior written notice of any relocation of
its respective Chief Executive Office if, as a result of such
relocation, the applicable provisions of the UCC of any
applicable jurisdiction or other applicable Laws would require
the filing of any amendment of any previously filed financing
statement or continuation statement or of any new financing
statement. The Originator will at all times maintain its Chief
Executive Office within a jurisdiction in the United States in
which Article Nine of the UCC (1972 or later revision) is in
effect as of the date hereof or the date of any such relocation.
(k) Further Information. The Originator shall
furnish or cause to be furnished to the Buyer such other
Page 61
FORM 10-Q
Exhibit 2.1(l) (continued)
information as promptly as practicable, and in such form and
detail, as the Buyer may reasonably request.
(l) Treatment of Purchase. For accounting
purposes, the Originator shall treat each Purchase hereunder as a
sale of Purchased Assets. The Originator shall also maintain its
records and books of account in a manner which clearly reflects
each such sale to the Buyer and the Buyer's investment therein.
(m) Fees, Taxes and Expenses. The Originator
shall pay all filing fees, stamp taxes, other taxes (other than
taxes imposed directly on the overall net income of the Buyer)
and expenses, including the fees and expenses set forth in
Section 7.4 hereof, if any, which may be incurred on account of
or arise out of the Purchase Documents and transactions entered
into pursuant to the Purchase Documents.
(n) Administrative and Operating Procedures. The
Originator shall maintain and implement administrative and
operating procedures adequate to permit the identification of the
Receivables and all collections and adjustments attributable
thereto and shall comply in all material respects with the Credit
and Collection Policy in regard to each Receivable and related
Contract.
(o) ERISA Events.
(i) Promptly on becoming aware of the occurrence
of any Event of Termination which together with
all other Events of Termination occurring within
the prior 12 months involve a payment of money by
or a potential aggregate liability of the
Originator or any ERISA Affiliate or any
combination of such entities in excess of
$5,000,000, the Originator shall give the Buyer a
written notice specifying the nature thereof, what
action the Originator or any ERISA Affiliate has
taken and, when known, any action taken or
threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect
thereto.
(ii) Promptly upon receipt thereof, the
Originator shall furnish to the Buyer copies of
(i) all notices received by the Originator or any
ERISA Affiliate of the PBGC's intent to terminate
any Plan or to have a trustee appointed to
administer any Plan; (ii) all notices received by
the Originator or any ERISA Affiliate from the
Page 62
FORM 10-Q
Exhibit 2.1(l) (continued)
sponsor of a Multiemployer Plan pursuant to
Section 4202 of ERISA involving a withdrawal
liability in excess of $5,000,000; and (iii) all
funding waiver requests filed by the Originator or
any ERISA Affiliate with the Internal Revenue
Service with respect to any Plan, the accrued
benefits of which exceed the present value of the
plan assets as of the date the waiver request is
filed by more than $5,000,000, and all
communications received by the Originator or any
ERISA Affiliate from the Internal Revenue Service
with respect to any such funding waiver request.
(p) Collections. The Originator shall instruct
all Obligors to cause all Collections to be mailed to a Permitted
Lockbox.
(q) Notice of Ratings Change. The Originator
shall give the Buyer prompt notice of any change in the ratings
of the Originator's commercial paper or long term debt securities
by Xxxxx'x or S&P.
(r) Insurance. The Originator shall, and shall
cause each of its Consolidated Subsidiaries to maintain insurance
with financially sound and reputable insurers on all property, in
such amount and covering such risks, as are adequate and
reasonable for the businesses in which the Originator and its
Consolidated Subsidiaries are engaged.
(s) Compliance with Credit and Collection Policy.
The Originator shall comply in all material respects with the
Credit and Collection Policy with respect to each Receivable and
related Contract.
(t) Software. The Originator shall use its
reasonable efforts to enable each of the Buyer, any agent of the
Buyer and the Servicer (whether by license, sublicense,
assignment or otherwise) to use all of the computer software used
to account for the Receivables to the extent necessary to
administer the Receivables.
(u) Separate Identity. The Originator shall take
all actions required to maintain the Buyer's status as a separate
legal entity, including, without limitation, (i) not holding the
Buyer out to third parties as other than an entity with assets
and liabilities distinct from the Originator and the Originator's
Affiliates; (ii) not holding itself out to be responsible for the
debts of the Buyer or, other than by reason of being the sole
Member of the Buyer, for any decisions or actions relating to the
Page 63
FORM 10-Q
Exhibit 2.1(l) (continued)
Buyer; (iii) prepare separate financial statements for the Buyer
(which shall disclose the effect of the transaction between the
Originator and the Buyer hereunder in accordance with GAAP);
(iv) cause any financial statements consolidated with those of
the Buyer to state that the Buyer is a separate legal entity with
its own separate creditors which, in any liquidation of the
Buyer, will be entitled to be satisfied out of the Buyer's assets
prior to any value in the Buyer becoming available to the Buyer's
equity holders; (v) taking such other actions as are necessary on
its part to ensure that all corporate procedures required by its
certificate of incorporation and by-laws and by the Operating
Agreement of the Buyer are duly and validly taken; (vi) keeping
correct and complete records and books of account; and (vii) not
acting in any other manner that could foreseeable mislead others
with respect to the Buyer's separate identity.
(v) Subordinated Note. The Originator shall not
transfer the Subordinated Note to any Person.
SECTION 5.2. Negative Covenants of the
Originator. During the term of this Agreement, unless the Buyer
shall otherwise consent in writing (which consent the Buyer
agrees will not be unreasonably withheld) the Originator shall
not:
(a) Statement for and Treatment of the Sales.
Prepare any financial statements for financial accounting or
reporting purposes which shall account for the transactions
contemplated hereby in any manner other than as a sale of the
Purchased Assets to the Buyer.
(b) No Rescissions or Modifications. Rescind or
cancel any Receivable or related Contract or modify any terms, or
provisions thereof or grant any Dilution Factors to an Obligor,
except in accordance with the Credit and Collection Policy or
otherwise with the prior written consent of the Buyer.
(c) No Liens. Cause any of the Receivables or
related Contracts, or any inventory or goods the sale of which
may give rise to a Receivable, or any Permitted Lockbox or
Lockbox Account or any right to receive any payments received
therein or deposited thereto, to be sold, pledged, assigned or
transferred or to be subject to a Lien, other than the sale and
assignment of the Purchased Assets therein to the Buyer and the
Liens created in connection with the transactions contemplated by
this Agreement; provided, that the Originator may cause
inventory, the sale of which may give rise to a Receivable, to be
subject to a Lien if (i) the security agreement, related
financing statements and any other related documents specifically
Page 64
FORM 10-Q
Exhibit 2.1(l) (continued)
exclude from such Lien the proceeds of such inventory and
(ii),the Buyer has reviewed such security agreement, financing
statements and related documents and found such documents to be
reasonably satisfactory to exclude from such Lien the proceeds of
any such inventory.
(d) Consolidations, Mergers and Sales of Assets.
(i) Consolidate or merge with or into any other Person or (ii)
sell, lease or otherwise transfer all or substantially all of its
assets to any other Person; provided that the Originator may
merge with another Person if (A) the Originator is the
corporation surviving such merger and (B) immediately after and
giving effect to such merger, no Termination Event or Potential
Termination Event shall have occurred and be continuing.
(e) No Changes. Make any change in the
character of its business or in the Credit and Collection Policy,
which change would, in either case, impair the collectibility of
any Receivable, or make any material change in the Credit and
Collection Policy which would impair the collectibility of any
Receivable or would have a material adverse effect on the
Originator without prior written notification to and consent of
the Buyer, or change its name, identity or corporate structure in
any manner which would make any financing statement or
continuation statement filed in connection with this Agreement or
the transactions contemplated hereby seriously misleading within
the meaning of Section 9-402(7) of the UCC of any applicable
jurisdiction or other applicable Laws unless it shall have given
the Buyer at least 45 days' prior written notice thereof and
unless prior thereto it shall have caused such financing
statement or continuation statement to be amended or a new
financing statement to be filed such that such financing
statement or continuation statement would not be seriously
misleading.
(f) Change in Payments or Deposits of Payments.
Add or terminate any Person as a Permitted Lockbox Bank from
those Persons listed in Schedule 4 of the Disclosure Schedule
attached to the Receivables Purchase Agreement, or permit any
change in the location of any Permitted Lockbox or the location
or account number of any Lockbox Account, or make any change in
the instructions, to its Obligors regarding payments to be made
to the Originator or payments to be made to any Permitted
Lockbox.
(g) ERISA Matters. Permit any event or condition
which is described in any of clauses (i) through (vi), clause
(viii) or clause (x) of the definition of Event of Termination to
occur or exist with respect to any Plan or Multiemployer Plan if
Page 65
FORM 10-Q
Exhibit 2.1(l) (continued)
such event or condition, together with all other events or
conditions described in the definition of Event of Termination
occurring within the prior 12 months involve the payment of money
by or an incurrence of liability of the Originator or any ERISA
Affiliate in an amount in excess of $10,000,000.
(h) No Resignation or Assignment of Membership.
Resign as the Member of the Buyer or assign its interest in the
Buyer or any portion thereof to any other entity or take any
action seeking to amend the Operating Agreement or any of the
Originator's rights, interests or obligations thereunder.
(i) No Action for Dissolution. Take any action
to dissolve the Buyer so long as this Agreement is in effect.
ARTICLE VI
TERMINATION
SECTION 6.1. Term. This Agreement shall commence
as of the date of execution and delivery hereof and shall
continue in full force and effect until the earlier of (a) the
termination of the Receivables Purchase Agreement unless extended
by the Seller in its sole discretion and (b) upon the occurrence
of any of the following events: the Buyer or the Originator
shall (i) become insolvent, (ii) experience an Event of
Bankruptcy, or (iii) become unable for any reason to convey or
reconvey Receivables in accordance with the provisions of this
Agreement (any such date set forth in clause (a) or (b) hereof
being a "Termination Date"); provided, however, that (i) the
termination of this Agreement pursuant to this Section 6.1 shall
not discharge any Person from any obligations incurred prior to
such termination, including, without limitation, any obligations
to repurchase Receivables sold prior to such termination pursuant
to Section 2.6, 2.7 or 2.8 hereof and (ii) the indemnification
and payment provisions set forth in Article VII hereof and the
provisions and agreement set forth in Section 8.10 hereof shall
be continuing and shall survive termination of this Agreement.
Neither the Originator nor the Buyer will extend the term of this
Agreement with an intent to mitigate losses on the Receivables
previously sold by the Originator to the Buyer hereunder.
SECTION 6.2. Effect of Termination. No
termination or rejection or failure to assume the executory
obligations of this Agreement in the Event of Bankruptcy of the
Originator or the Buyer shall be deemed to impair or affect the
obligations pertaining to any executed sale or executed
obligations, including, without limitation, pretermination
breaches of representations and warranties by the Originator or
the Buyer.
Page 66
FORM 10-Q
Exhibit 2.1(l) (continued)
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. Indemnification. Without limiting
any other rights which the Buyer may have hereunder or under
applicable law, the Originator hereby agrees to indemnify the
Buyer and its officers, directors, agents, successors and assigns
(the "Indemnified Parties"; each, an "Indemnified Party") from
and against any and all damages, losses, claims, liabilities,
costs and expenses (other than in respect of taxes, which shall
be governed by Section 7.2), including reasonable attorneys' fees
and disbursements (all of the foregoing being collectively
referred to as "Indemnified Amounts") awarded against or incurred
by any Indemnified Party arising out of or as a result of any of
the circumstances described below, provided, however, that in no
event shall the Originator indemnify any Indemnified Party for
(i) Indemnified Amounts resulting from the gross negligence or
willful misconduct on the part of such Indemnified Party or (ii)
recourse for uncollectible Receivables. The Originator shall
indemnify the Indemnified Parties for Indemnified Amounts
relating to or resulting from:
(a) reliance on any representation or warranty
made by the Originator (or any officers of the Originator) under
or in connection with this Agreement, any Purchase Document or
any other information or report delivered by the Originator
pursuant hereto, which shall have been false or incorrect in any
material respect when made or deemed made;
(b) any failure of the Originator to perform its
duties or obligations in accordance with the provisions of this
Agreement or the transactions contemplated by this Agreement,
including without limitation, the failure by the Originator to
comply in all material respects with any applicable Law with
respect to any Receivable or the related Contract, or the
nonconformity of any Receivable or the related Contract with any
such applicable Law; or
(c) the failure as a result of acts or failures
to act on the part of the Originator to vest and maintain vested
in the Buyer or its assignee, the Purchased Assets free and clear
of any Adverse Claim, including, without limitation, the failure
to file, or delay in filing, financing statements or other
similar instruments or documents under the Relevant UCC or other
applicable laws with respect to any Receivable; or
(d) the failure to pay when due any taxes
required to be paid by the Originator hereunder, including
Page 67
FORM 10-Q
Exhibit 2.1(l) (continued)
without limitation, any sales tax, excise tax or other similar
tax or charge payable in connection with the creation or
satisfaction of the Receivables; or
(e) any dispute, suit, action, claims, proceeding
or governmental investigation, pending or threatened whether
based on statute, regulation or order, on tort or contract or
otherwise, before any Official Body asserted by an Obligor which
arises out of or relates to obligations of the Originator under
or with respect to the Contracts, or the use of the proceeds of
the sale of the Purchased Assets.
SECTION 7.2. Tax Indemnification.
(a) The Originator hereby agrees to pay, and to
indemnify the Indemnified Parties from and against, any taxes
which may at any time be asserted in respect of this transaction
or the subject matter hereof (including, without limitation, any
sales, gross receipts, general corporation, personal property,
privilege or license taxes, but not including any federal or
(except as provided below) other income or franchise taxes
imposed upon an Indemnified Party, with respect to its net income
or profits arising out of the transactions contemplated hereby
(all such excluded taxes, the "Excluded Taxes")), whether arising
by reason of the acts to be performed by the Originator or the
Buyer hereunder or imposed against the Originator or any
Indemnified Party, the property involved or otherwise. If any
tax, fee or similar charge is imposed or with respect to any
payment for the account of any Indemnified Party provided for in
this Agreement by any state or political subdivision thereof
(other than Excluded Taxes), the Originator shall, upon demand by
such Indemnified Party, pay an amount necessary to make such
Indemnified Party whole, taking into account any tax consequences
to such Indemnified Party of the payment of such tax and the
receipt of the indemnity provided for by this Section 7.2,
including the effect of such tax or refund on the amount of tax
measured by net income or profits which is or was payable by such
Indemnified Party in the jurisdiction in which its principal
executive office is located.
SECTION 7.3. Additional Costs.
(a) The Originator shall pay to the Buyer, from
time to time on demand of the Buyer, such amounts as the Buyer
may reasonably determine to be necessary to compensate it for any
increase in costs which the Buyer determines are attributable to
its acquiring and funding the Receivables under this Agreement or
the Receivables Purchase Agreement, or any reduction in any
amount receivable by the Buyer in respect of any such acquisition
Page 68
FORM 10-Q
Exhibit 2.1(l) (continued)
or funding (such increases in costs, payments and reductions in
amounts receivable being herein called "Additional Costs")
resulting from any Regulatory Change which (i) changes the method
or basis of taxation of any amounts payable to the Buyer under
this Agreement or payable by the Buyer in connection with the
financing of the purchase of the Receivables, or (ii) imposes any
other condition affecting this Agreement (or any such extensions
of credit or liabilities). The Buyer shall notify the Originator
of any event that will entitle Buyer to compensation pursuant to
this Section 7.3(a) no later than fifteen (15) Business Days
after it obtains knowledge thereof.
(b) Determinations and allocations by the Buyer
for purposes of this Section 7.3 shall be conclusive, provided
that such determinations and allocations are made in good faith
and on a reasonable basis, reasonable evidence (including an
explanation of the applicable Regulatory Change and an accounting
for any amounts demanded) of which shall be provided to the
Originator upon request.
(c) The Buyer agrees to promptly notify the
Originator if the Buyer receives notice of any potential tax
liability for which the Originator may be liable pursuant to
Sections 7.2 or 7.3 hereof. The Buyer further agrees that the
Originator shall bear no cost (including costs relating to
penalties and interest) relating to the failure of the Buyer to
file in a timely manner any tax returns required to be filed by
the Buyer in accordance with applicable statutes and regulations.
SECTION 7.4. Other Costs and Expenses. The
Originator shall pay on demand all costs and expenses in
connection with the preparation, execution, delivery and
administration of this Agreement and any other documents
delivered hereunder or contemplated hereby, including, without
limitation, reasonable fees and expenses of legal counsel for the
Buyer (which such counsel may be employees of the Buyer) with
respect thereto and with respect to advising the Buyer as to its
rights and remedies under this Agreement or the Receivables
Purchase Agreement, and all costs and expenses, if any, including
reasonable counsel fees and expenses in connection with the
enforcement or amendment of this Agreement and the other
documents delivered hereunder or contemplated hereby. The
Originator shall reimburse the Buyer on demand for all other
costs and expenses incurred by the Buyer or any agent or assign
of the Buyer ("Other Costs"), including, without limitation, the
cost of the Buyer's auditors auditing the Originator's books,
records and procedures, and the reasonable fees and out-of-pocket
expenses of counsel for the Buyer or any counsel for any agent or
assign of the Buyer with respect to advising the Buyer or such
agent or assign as to matters relating to the Buyer's operation.
Page 69
FORM 10-Q
Exhibit 2.1(l) (continued)
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Survival. The indemnification and
payment provisions of Article VII shall be continuing and shall
survive any termination of this Agreement, subject to applicable
statutes of limitation; provided, however, that any such
indemnification or payment claim must be presented to the
Originator within ten (10) Business Days after the Buyer receives
notice or otherwise becomes aware of such claim.
SECTION 8.2. Waivers; Amendments. No failure or
delay on the part of the Buyer in exercising any power, right or
remedy under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right
or remedy preclude any other further exercise thereof or the
exercise of any other power, right or remedy. The rights and
remedies herein provided shall be cumulative and nonexclusive of
any rights or remedies provided by law. Any provision of this
Agreement may be waived or amended in writing by the parties
hereto, with the consent of the Delaware Funding Corporation as
Buyer under the terms of the Receivables Purchase Agreement.
SECTION 8.3. Notices. Except as provided below,
all communications and notices provided for hereunder shall be in
writing (including bank wire, telecopy or electronic facsimile
transmission or similar writing) and shall be given to the other
party at its address or telecopy number set forth hereunder or at
such other address or telecopy number as such party may hereafter
specify for the purposes of notice to such party. Each such
notice or other communication shall be effective if given by
facsimile, when such facsimile is transmitted to the facsimile
number specified in this Section 8.3 and the appropriate written
confirmation is received or, if given by any other means, when
received at the address specified in this Section 8.3. The
Originator further agrees to deliver promptly to the Buyer a
written confirmation of each telephonic notice signed by an
authorized officer of the Originator. However, the absence of
such confirmation shall not affect the validity of such notice.
If to the Buyer:
Cone Receivables LLC
0000 Xxxxx Xxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000-0000
Telephone: (000) 000-0000
Attention: Xxxxx X. Xxxx
Page 70
FORM 10-Q
Exhibit 2.1(l) (continued)
If to the Originator:
Cone Xxxxx Corporation
0000 Xxxxx Xxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxx, Treasurer
and, in each case, with a copy to:
Xxxxx X. Xxxxxx
Director, Treasury Services
Cone Xxxxx Corporation
0000 Xxxxx Xxx Xxxxxx
Xxxxxxxxxx, X.X. 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 8.4. Governing Law; Submission to
Jurisdiction; Integration. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. The Originator hereby submits to the nonexclusive
jurisdiction of the courts of the State of New York and the
courts of the United States located in the State of New York for
the purpose of adjudicating any claim or controversy arising in
connection with any of the Purchase Documents or any of the
transactions contemplated thereby, and for such purpose, to the
extent it may lawfully do so, waives any objection which it may
now or hereafter have to such jurisdiction or to venue therein
and any claim of inconvenient forum with respect thereto.
Nothing in this Section 8.4 shall affect the right of the Buyer
to bring any action or proceeding against the Originator or the
property of the Originator the courts of other jurisdictions.
SECTION 8.5. Records. All amounts calculated or
due hereunder shall be determined from the records of the Buyer,
which determinations shall be conclusive absent manifest error.
SECTION 8.6. No Implied Waiver; Cumulative
Remedies. No course of dealing and no delay or failure of the
Buyer in exercising any right, power or privilege under the
Purchase Documents shall affect any other or future exercise
thereof or the exercise of any other right, power or privilege;
nor shall any single or partial exercise of any such right, power
or privilege or any abandonment or discontinuance of steps to
enforce such a right, power or privilege preclude any further
exercise thereof or of any other right, power or privilege. The
rights and remedies of the Buyer under the Purchase Documents are
Page 71
FORM 10-Q
Exhibit 2.1(l) (continued)
cumulative and not exclusive of any rights or remedies which the
Buyer would otherwise have.
SECTION 8.7. No Discharge. The obligations of
the Originator under this Agreement shall be absolute and
unconditional and shall remain in full force and effect without
regard to, and shall not be released, discharged or in any way
affected by (a) any exercise or nonexercise of any right, remedy,
power or privilege under or in respect of this Agreement or
applicable law, including, without limitation, any failure to
set-off or release in whole or in part by the Buyer of any
balance of any deposit account or credit on its books in favor of
the Buyer or any waiver, consent, extension, indulgence or other
action or inaction in respect of any thereof, or (b) any other
act or thing or omission or delay to do any other act or thing
which would operate as a discharge of the Buyer as a matter of
law.
SECTION 8.8. Prior Understandings. This
Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof, and supersedes all prior
understandings and agreements, whether written or oral.
SECTION 8.9. Successors and Assigns. This
Agreement shall be binding on the parties hereto and their
respective successors and assigns; provided, however, that the
Originator may not assign any of its rights or delegate any of
its duties hereunder without the prior written consent of the
Buyer and prior written notice to the Administrative Agent. No
provision of this Agreement shall in any manner restrict the
ability of the Buyer to assign, participate, grant security
interests in, or otherwise transfer any portion of the Purchased
Assets owned by the Buyer. The Originator hereby agrees and
consents to the complete assignment by the Buyer of all of its
rights under, interest in, title to and obligations under this
Agreement to the Buyer under and as defined in the Receivables
Purchase Agreement.
SECTION 8.10. No Petition. The Originator agrees
that, prior to the date which is one year and one day after the
date upon which all obligations of the Buyer to the Originator
hereunder and under the Subordinated Note are paid in full and
all other indebtedness of the Buyer are paid in full, it will not
institute against, or join any other Person in instituting
against, the Buyer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other similar proceeding
under the laws of the United States or any state of the United
States.
Page 72
FORM 10-Q
Exhibit 2.1(l) (continued)
SECTION 8.11. No Recourse. The obligations of
the Originator and the Buyer under this Agreement are solely the
obligations of the Originator and the Buyer, each as a separate
legal entity.
SECTION 8.12. Severability; Counterparts, Waiver
of Setoff. This Agreement may be executed in any number. of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall
constitute one and the same Agreement. Any provisions of this
Agreement which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable any other provision in such
jurisdiction or such provision in any other jurisdiction. The
Originator hereby agrees to waive any right of setoff which it
may have or to which it may be entitled against the Buyer and its
assets.
SECTION 8.13. Confidentiality. The Buyer and
the Originator shall hold all non-public information obtained
pursuant to this Agreement and the transactions contemplated
hereby or effected in connection herewith in accordance with
customary procedures for handling confidential information of
this nature and in any event may make disclosure (a) reasonably
required by a bona fide transferee, (b) necessary in order to
obtain any consents, approvals, waivers or other arrangements
required to permit the execution, delivery and performance by the
Originator of this Agreement, or (c) as required or requested by
any governmental body, agency or instrumentality, regulatory
authority, court, tribunal or arbitrator or pursuant to legal
process or required by applicable Law.
Page 73
FORM 10-Q
Exhibit 2.1(l) (continued)
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed and delivered by their duly
authorized officers as of the date first above set forth.
CONE RECEIVABLES LLC,
as Buyer
By: CONE XXXXX CORPORATION,
its sole Member
By:/s/ Xxxx X. Xxxxxx
Title: Vice President
CONE XXXXX CORPORATION,
as Originator
By: /s/ Xxxxx X. Xxxx
Title: Treasurer
Page 74
FORM 10-Q
Exhibit 2.1(l) (continued)
ADDENDUM TO PURCHASE AGREEMENT
AS FILED WITH FORM 10-Q DATED MARCH 30, 1997
The following exhibits and schedules to the Purchase
Agreement have been omitted from the filed document pursuant to
Regulation S-K (17 CFR 229), Item 601(b)(2):
Exhibits
Exhibit A Form of Subordinated Note
Exhibit B The Description of Qualifying Receivables
Exhibit C Officer's Certificate pursuant to Section 4.1(m)
Schedules
Schedule A Calculation of Minimum Initial Capital
Contribution
The Registrant does hereby agree to furnish supplementally a
copy of any omitted exhibit or schedule to the Commission upon
request.
CONE XXXXX CORPORATION
By:/s/ Xxxxx X. Xxxxxxxxxxx
Title: Secretary
Page 75
