Receivables Purchase Agreement Dated as of December 30, 2004 among SELCO Service Corporation, as Lessor, Key Corporate Capital Inc., as Administrative Agent, and Key Corporate Capital Inc., as Purchaser
Exhibit 10.51
Dated as of December 30, 2004
among
SELCO Service Corporation,
as Lessor,
as Lessor,
Key Corporate Capital Inc.,
as Administrative Agent,
as Administrative Agent,
and
Key Corporate Capital Inc.,
as Purchaser
as Purchaser
Table
of Contents
SECTION |
HEADING | PAGE |
ARTICLE I DEFINITIONS |
1 | |||
Section 1.1. Definitions; Interpretation |
1 | |||
ARTICLE II AMOUNT AND TERMS OF PURCHASERS’ COMMITMENTS |
2 | |||
Section 2.1 Purchase Facility |
2 | |||
Section 2,2 Purchases |
2 | |||
Section 2.3. Certificates |
2 | |||
Section 2.4. Mandatory Prepayments |
2 | |||
Section 2.5. Return on Capital; Payment Dates |
2 | |||
Section 2.6. Pro Rata Treatment and Payments |
3 | |||
Section 2.7. Computation of ROC |
3 | |||
Section 2.8. Mutilated, Destroyed, Lost or Stolen Certificates |
3 | |||
Section 2.9. Security |
4 | |||
ARTICLE III CONDITIONS PRECEDENT |
4 | |||
Section 3.1. Conditions to Effectiveness |
4 | |||
Section 3.2. Conditions to each Purchase |
4 | |||
ARTICLE IV PAYMENTS AND DISTRIBUTIONS |
4 | |||
Section 4.1. Payments and Distributions |
4 | |||
ARTICLE V RECEIVABLES PURCHASE AGREEMENT EVENTS OF DEFAULT |
5 | |||
Section 5.1. Receivables Purchase Agreement Events of Default |
5 | |||
Section 5.2. Remedies |
6 | |||
ARTICLE VI CERTAIN REMEDIAL MATTERS; RELEASE |
7 | |||
Section 6.1. Certain Remedial Matters |
7 | |||
Section 6.2. Release of Property, etc. |
7 | |||
ARTICLE VII THE ADMINISTRATIVE AGENT |
8 | |||
Section 7.1. Appointment |
8 | |||
Section 7.2. Delegation of Duties |
8 | |||
Section 7.3. Exculpatory Provisions |
8 | |||
Section 7.4. Reliance on Communications |
9 | |||
Section 7.5. Notice of Default |
9 | |||
Section 7.6. Non-Reliance on Administrative Agent and Other Purchasers |
10 |
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Section 7.7. [Intentionally Reserved] |
10 | |||
Section 7.8. Administrative Agent in its Individual Capacity |
10 | |||
Section 7.9. Successor Administrative Agent |
10 | |||
ARTICLE VIII MISCELLANEOUS |
11 | |||
Section 8.1. Amendments and Waivers |
11 | |||
Section 8.2. Notices |
11 | |||
Section 8.3. No Waiver; Cumulative Remedies |
11 | |||
Section 8.4. Survival of Representations and Warranties |
11 | |||
Section 8.5. Successors and Assigns; Assignment by Lessor |
11 | |||
Section 8.6. Adjustments |
11 | |||
Section 8.7. Counterparts |
12 | |||
Section 8.8. Severability |
12 | |||
Section 8.9. Intention |
12 | |||
Section 8.10. Governing Law |
12 | |||
Section 8.11. Limitations on Recourse to Lessor |
12 |
Attachments to Receivables Purchase Agreement:
Exhibit A
— Form of Certificate
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This Receivables Purchase Agreement dated as of December 30, 2004 (as amended,
supplemented, amended and restated or otherwise modified from time to time, this “Receivables
Purchase Agreement”)is entered into by and among SELCO Service Corporation, an Ohio
corporation, as Lessor (the “Lessor”), Key Corporate Capital Inc., as Administrative
Agent (the “Administrative Agent”), and
Key Corporate Capital Inc., and each other
purchaser from time to time of the undivided percentage ownership interests in the Purchased
Interests, as Purchasers (individually, a “Purchaser”
and, collectively, the “Purchasers”)
W
i t n e s s e t h :
Whereas, pursuant to the Participation Agreement, dated as of even date
herewith (as amended, supplemented, amended and restated or otherwise modified from time to time,
the “Participation Agreement”), among the Lessee, the Guarantor, the Lessor, the Purchasers and
the Administrative Agent, the Purchasers and the Lessor have agreed to finance the acquisition by
the Lessor of the Properties;
Whereas, each Purchaser, upon receipt of a Funding Request, on the terms and subject
to the conditions set forth herein (including Article III), shall make available to the Lessor
such Purchaser’s Pro Rata Share of the undivided ownership interests in the Purchased Interests to
be acquired in connection with the requested Advance;
Whereas, the Lessor desires to lease the Properties to the Lessee and the Lessee
desires to lease the Properties from the Lessor;
Whereas, the Lessor is willing to provide a portion of the funding of the costs of the
acquisition of the Properties;
Whereas, the Purchasers are willing to provide the remaining portion of the funding of the
costs of the acquisition of the Properties by purchasing undivided percentage ownership interests
in the Purchased Interests; and
Now Therefore, in consideration of the mutual agreements contained in this
Receivables Purchase Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
Article
I
Definitions
Definitions
Section 1.1. Definitions; Interpretation. Capitalized terms used but not otherwise
defined in this Receivables Purchase Agreement have the respective meanings specified in Appendix
A to the Participation Agreement; and the rules of interpretation set forth in Appendix A to the
Participation Agreement shall apply to this Receivables Purchase Agreement.
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Article II
Amount and Terms of
Purchasers’ Commitments
Section 2.1.
Purchase Facility. On the terms and conditions set forth herein and in the
Participation Agreement (including, without limitation, Section 15.15 thereof), from the date
hereof until the Maturity Date, each Purchaser hereby agrees to purchase its Pro Rata Share of the
Purchased Interests from time to time offered by the Lessor. Under no circumstances shall the
Purchasers make any such purchase if, after giving effect to such purchase, (i) the aggregate
outstanding Capital would exceed the aggregate of all Purchaser Commitments or (ii) such
Purchaser’s outstanding Capital would exceed its Purchaser Commitment.
Section 2.2.
Purchases. Upon receipt by the Administrative Agent of the Funding Request in
accordance with Section 3.4(a) of the Participation Agreement, the Lessor shall be deemed to have
requested of each Purchaser a purchase by such Purchaser of its Pro Rata Share of Purchased
Interests related to the aggregate Capital portion of the Advance requested by the Funding
Request. On the terms and subject to the conditions of this Receivables Purchase Agreement and the
Participation Agreement (including the satisfaction of the applicable conditions precedent set
forth in Article VI of the Participation Agreement), each Purchaser will purchase from the Lessor
on the Acquisition Date set forth in the Funding Request its Pro Rata Share of such Purchased
Interests.
Section 2.3.
Certificates. Each purchase by a Purchaser of its Pro Rata Share of the Purchased
Interests shall be evidenced by a certificate of the Lessor substantially in the form of Exhibit A
hereto, with appropriate insertions as to date, Pro Rata Share and Capital equal to the Purchaser
Commitment of such Purchaser as set forth on Schedule I to the Participation Agreement. Each
Purchaser is hereby authorized to record the date and amount of each purchase made by such
Purchaser, the date and amount of each payment or prepayment of Capital thereof on the schedule
annexed to and constituting a part of the Certificates payable to it and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded absent manifest
error; provided, that the failure to make any such recordation or any error in such recordation
shall not affect the Lessor’s obligations hereunder or under such Certificate. Each Certificate
shall (i) be dated the Acquisition Date, (ii) be stated to mature on the Maturity Date and (iii)
provide for the payment of ROC in accordance with this Receivables Purchase Agreement.
Section 2.4.
Mandatory Prepayments. All amounts payable by the Lessee pursuant to Article XV,
XVI, XVIII or XX of the Master Lease shall be used to prepay and be applied to the Purchaser
Balance in the manner set forth in Section 4.3 and
Article VII of the Participation Agreement.
Section 2.5.
Return on Capital; Payment Dates. (a) The Capital shall earn a return
(hereinafter the “ROC”) for each day during each Rent Period with respect thereto at a rate per
annum equal to the Adjusted Eurodollar Rate applicable to Capital for such day.
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(b) If all or any portion of the Purchaser Balance shall not be paid when due (whether at
the Expiration Date, by acceleration or otherwise), such overdue amount shall bear interest at
a rate per annum which is equal to the Overdue Rate. Amounts accruing pursuant to this clause
(b)shall be payable from time to time on demand. Upon the occurrence and during the continuance of an Event of Default, the Capital and, to the extent permitted by law, ROC thereon and any
other amounts owing hereunder or under the other Operative Documents shall bear interest,
payable on demand, at the Overdue Rate.
(c) During the Lease Term, ROC on outstanding Capital shall be payable in arrears on
each Scheduled Payment Date.
(d) The Capital shall be repaid in full on the Expiration Date. Prior thereto, a portion of
the aggregate amount of Capital outstanding shall be repaid on each Fixed Rent Payment Date in
the amount set forth opposite such Fixed Rent Payment Date under the
heading “Amount Applied to Capital” on Schedule VI to the Participation Agreement.
(e) Each prepayment of the Capital shall be accompanied by accrued ROC the date of
such prepayment on the amount prepaid, plus any applicable
Break Costs.
Section 2.6. Pro Rata Treatment and Payments. Except as otherwise provided in Article VII of
the Participation Agreement, each payment (including each prepayment) by the Lessor relating to
the Purchased Interests shall be made pro rata among the Purchasers according to their respective
Pro Rata Shares. Subject to Article IV and Section 8.6 herein, all payments (including
prepayments) relating to the Purchased Interests to be made by the Lessor hereunder and under the
Certificates, whether on account of principal, ROC otherwise, shall be made without setoff or
counterclaim and shall be made by the Lessor (or pursuant to the Master Lease, by the Lessee) to
the Administrative Agent, for the benefit of the Purchasers, prior to 11:00 a.m., New York City
time, to the Account (or to such other office as may be designated by the Administrative Agent
from time to time in a written notice pursuant to Section 15.3 of the Participation Agreement) in
funds consisting of Dollars which shall be immediately available on the scheduled date when such
payment is due. Payments received after 11:00 a.m., New York City time, on the date due shall be
deemed received on the next succeeding Business Day and shall be subject to ROC the Overdue Rate
as provided in Section 2.5(b) above.
Section 2.7.
Computation of ROC. ROC shall be calculated on the basis of a 360-day year for
the actual days elapsed. The Administrative Agent shall, as soon as practicable, notify the
Lessee, the Lessor and the Purchasers of each determination of the Adjusted Eurodollar Rate. The
Administrative Agent shall, monthly during the Lease Term, notify the Lessee, the Lessor and the
Purchasers of the effective date and the amount of each such change in interest rate.
Section 2.8.
Mutilated, Destroyed, Lost or Stolen Certificates. (a) If any Certificate shall
become mutilated, destroyed, lost or stolen, then upon the written request of the affected
Purchaser, the Lessor shall execute and deliver to the affected
Purchaser, a new Certificate. Such
new Certificate shall be: (i) recorded in the name in which such mutilated, destroyed, lost or
stolen Certificate was recorded; (ii) in the same original face amount as such mutilated,
destroyed, lost or stolen Certificate; and (iii) dated the date of such mutilated, destroyed, lost
or
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stolen
Certificate. If the Certificate being replaced has become mutilated, it shall be
surrendered to the Lessor. If the Certificate being replaced has been destroyed, lost or stolen,
the affected Purchaser shall furnish to the Lessor such security or indemnity as reasonably may be
required by it to save the Lessor harmless from any loss and evidence satisfactory to the Lessor
of the destruction, loss or theft of such Certificate and the ownership thereof. Upon request, the
Administrative Agent shall advise the affected Purchaser, of: (i) the aggregate principal amount
of, and the aggregate accrued ROC on, such mutilated, destroyed, lost or stolen Certificate that
was paid to the affected Purchaser, thereof at any time prior to the delivery of such new
Certificate; and (ii) the date to which ROC on such mutilated, destroyed, lost or stolen
Certificate had been paid to the affected Purchaser, thereof at the time of such delivery.
(b) Any duplicate Certificate issued pursuant to this Section 2.8 shall constitute complete
and indefeasible evidence of ownership of such Certificate, as if originally issued, whether or
not the lost, stolen or destroyed Certificate shall be found at any time.
Section 2.9. Security. The obligations and duties of the Lessor under this Receivables
Purchase Agreement are secured by the Mortgage and the Assignment of
Lease and Rent. Upon a
Receivables Purchase Agreement Event of Default, the Administrative Agent (for the ratable benefit
of the Purchasers) shall have all rights and remedies available as provided herein, in the
Mortgage and in the Assignment of Lease and Rent.
Article III
Conditions Precedent
Section 3.1.
Conditions to Effectiveness. This Receivables Purchase Agreement shall be
effective on the Acquisition Date upon satisfaction of the conditions precedent set forth in
Sections 2.1 and 6.1 of the Participation Agreement.
Section 3.2.
Conditions to each Purchase. The obligation of each Purchaser to make any
purchase requested to be made by it on any date with respect thereto is subject to the
satisfaction of the applicable conditions precedent thereto set forth in Sections 2.1 and 6.1 of
the Participation Agreement.
Article IV
Payments and Distributions
Section 4.1 Payments and Distributions. All payments to be made by the Lessor
hereunder, and all payments due and payable to the Purchasers pursuant to any other Operative
Document, shall be paid to the Account and distributed by the Administrative Agent to the
Participants in accordance with Article VII of the Participation Agreement.
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Article V
Receivables Purchase Agreement Events of Default
Section 5.1. Receivables Purchase Agreement Events of Default. The occurrence of any one
or more of the following events (whether such event shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in compliance with any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body)
shall constitute a “Receivables Purchase Agreement Event of Default”:
(a) Any (i) default in the payment when due of Capital or (ii) default, and
such default shall continue unremedied for a period of five (5) Business Days, in the
payment when due of any ROC on the Capital or (iii) default, and such default shall
continue unremedied for a period of twenty (20) days after the Lessor’s receipt of
notice of such default, in the payment of any other amounts owing by the Lessor hereunder or
under any other Operative Document to which it is a party; or
(b) The Lessor shall default in the due performance or observance by it of any
term, covenant or agreement contained in this Receivables Purchase Agreement or the Certificates or any other Operative Document to which it is a party (other than those
referred to in clause (a) above), and such default shall have continued unremedied for
a period of at least thirty (30) days after the Lessor’s receipt of notice of such
default, or if such default cannot reasonably be cured within such thirty (30) day period, such additional period as is necessary to remedy such default, not to exceed ninety (90)
days; or
(c) Any representation, warranty or statement made or expressly deemed made by the Lessor herein or in any other Operative Document, or in any statement or
certificate delivered pursuant hereto or thereto, shall prove to be untrue in any
material respect on the date as of which made or expressly deemed made and such default shall
have continued unremedied for a period of at least thirty (30) days after the
Lessor’s receipt of notice of such default, or if such default cannot reasonably be cured
within such thirty (30) day period, such additional period as is necessary to remedy such
default, not to exceed ninety (90) days; or
(d) Any Lease Event of Default shall have occurred and be continuing; or
(e) The Lessor shall commence a voluntary case concerning itself under the
Bankruptcy Code; or an involuntary case is commenced against the Lessor and the
petition is not dismissed within ninety (90) days after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of,
all or substantially all of the property of the Lessor and is not removed within ninety (90)
days; or the Lessor commences any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction whether now or hereafter in effect relating to the Lessor; or
there is commenced against the Lessor any such proceeding which remains undismissed for a
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period of ninety (90) days; or the Lessor is adjudicated insolvent or bankrupt which
adjudication is not withdrawn or reversed within ninety (90) days; or any order for relief
or other order approving any such case or proceeding is entered which order is not withdrawn
or reversed within ninety (90) days; or the Lessor suffers any appointment of any custodian
or the like for it or any substantial part of its property to continue undischarged or
unstayed for a period of ninety (90) days; or the Lessor makes a general assignment for the
benefit of creditors; or any corporate action is taken by the Lessor for the purpose of
effecting any of the foregoing and in the case of any of the foregoing, there is a delay or
disruption whether prior to or following the expiration of any of the foregoing time periods
of any amounts payable to the Purchasers and the Administrative Agent under this Receivables
Purchase Agreement or any of the other Operative Documents.
Section 5.2. Remedies. (a) To the maximum extent permitted by law, upon the occurrence of any
Receivables Purchase Agreement Event of Default, (i) if such event is a Receivables Purchase
Agreement Event of Default specified in clause (e) of
Section 5.1 above or arises out of a Lease
Event of Default specified in Section 16.1(i) of the Master Lease, the Commitments of all
Purchasers shall automatically and immediately terminate and the Purchaser Balance shall
immediately become due and payable, and (ii) if such event is any other Receivables Purchase
Agreement Event of Default, any or all of the following actions may be taken: (x) the Required
Purchasers may, by notice to the Lessor, declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate and (y) with the consent of the Required
Purchasers, the Administrative Agent may, or upon the request of the Required Purchasers, the
Administrative Agent shall, by notice to the Lessor, declare the Purchaser Balance to be due and
payable forthwith, whereupon the Purchaser Balance shall immediately become due and payable (any
of the foregoing occurrences or actions referred to in clause (i) or (ii) above, an
“Acceleration”). Except as expressly provided above in this Article V, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
(b) Upon the occurrence of any Receivables Purchase Agreement Event of Default and
at any time thereafter so long as any Receivables Purchase Agreement Event of Default shall be
continuing, the Administrative Agent shall, upon the written instructions of the Required Purchasers, exercise any or all of the rights and powers and pursue any and all of the
remedies available to it hereunder and (subject to the terms thereof) under the other Receivables
Documents and the Master Lease and shall have any and all rights and
remedies available under the Uniform Commercial Code or any other provision of law.
(c) Upon the occurrence of any Receivables Purchase Agreement Event of Default and
at any time thereafter so long as any Receivables Purchase Agreement Event of Default shall be
continuing, the Administrative Agent (upon written direction from the Required Purchasers) may
proceed to protect and enforce the Receivables Documents and the other Operative Documents,
as applicable, by suit or suits or proceedings in equity, at law or in bankruptcy, and whether
for: (i) the specific performance of any covenant or agreement herein or therein contained, (ii) in
execution or aid of any power herein or therein granted, (iii) foreclosure hereunder or
thereunder, (iv) the appointment of a receiver or receivers for any Property, (v) the recovery of judgment
for
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the obligations secured hereby or thereby or (vi) the enforcement of any other proper,
legal or equitable remedy available under Applicable Law.
(d) With respect to the occurrence and continuance of any Lease Event of Default, the Lessor
agrees that the Administrative Agent or any Purchaser may give notice of such Lease Event of
Default on behalf of the Lessor to the Lessee.
(e) Notwithstanding the foregoing provisions of this Section 5.2, the Administrative Agent shall
not have the right to exercise any of its rights or remedies under this Section 5.2 against the
Lessor unless it shall also, at the written direction of the Required Purchasers, exercise a remedy
(as then permitted and as the Required Purchasers shall direct) under the Master Lease.
Article VI
Certain Remedial Matters; Release
Section 6.1. Certain Remedial Matters. Notwithstanding any other provision of this
Receivables Purchase Agreement, any other Receivables Document or the Assignment of Lease and
Rent, the Lessor shall at all times retain the right, but not to the exclusion of the
Administrative Agent, (A) to receive from the Lessee all notices, certificates and other documents
and all information that the Lessee is permitted or required to give or furnish to the “Lessor”
pursuant to the Lease, the Participation Agreement or any other Operative Document, (B) to provide
such insurance as the Lessee shall have failed to maintain and (C) subject to the other applicable
provisions of this Receivables Purchase Agreement, to perform for the Lessee under Article XVII of
the Master Lease.
Section 6.2.
Release of Property, etc. (a) If the Lessee shall at any time purchase any
Property pursuant to Article XV or XVIII of the Master Lease, or if any Property shall be sold in
accordance with, and the Lessee otherwise satisfies each of the obligations and conditions set
forth in, Article XX of the Master Lease, then, upon application of such amounts to repay the
Capital pursuant to Article II and the Administrative Agent’s and the Purchasers’ receipt of all
accrued ROC and any other payments due and owing from the Lessee to the Administrative Agent and
the Purchasers on such date, including without limitation pursuant to Article XIII of the
Participation Agreement, such Property shall be released from the Lien in favor of the Purchasers
created by the Assignment of Lease and Rent to the extent relating to such Property and the
applicable Mortgage without delivery of any instrument or performance of any act by any party.
(b) Upon the termination of the Purchasers’ Commitments and the payment in full of the Capital
and all other amounts owing by the Lessor hereunder or under any other Receivables Document, the
Properties shall be released from the Lien in favor of the Purchasers created by the Assignment of
Lease and Rent and the Mortgage without delivery of any instrument or performance of any act by any
party.
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(c) Upon request of the Lessor or the Lessee following a release of any Property described in
clause (a) or (b) above, the Administrative Agent shall at the Lessee’s sole cost and expense
execute and deliver to the Lessor or the Lessee such documents as the Lessor or the Lessee shall
reasonably request to evidence such release.
Article VII
The Administrative Agent
Section 7.1. Appointment. Each Purchaser hereby designates and appoints the
Administrative Agent as agent and servicer of such Purchaser to act as specified herein and in the
other Operative Documents, and each such Purchaser hereby authorizes the Administrative Agent as
the agent and servicer for such Purchaser, to take such action on its behalf under the provisions
of this Receivables Purchase Agreement and the other Operative Documents and to exercise such
powers and perform such duties as are expressly delegated by the terms hereof and of the other
Operative Documents, together with such other powers as are reasonably incidental thereto. Such
delegation of authority shall include the execution and delivery by the Administrative Agent of
release instruments in recordable form releasing the Lien of the Mortgage and the Assignment of
Lease and Rent in accordance with the Operative Documents. Notwithstanding any provision to the
contrary elsewhere herein and in the other Operative Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Purchaser, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Receivables Purchase Agreement or any of
the other Operative Documents, or shall otherwise exist against the Administrative Agent. The
provisions of this Article VII are solely for the benefit of the Administrative Agent and the
Purchasers and no other Person shall have any rights as a third party beneficiary of the provisions
hereof. In performing its functions and duties under this Receivables Purchase Agreement and the
other Operative Documents, the Administrative Agent shall act solely as Administrative Agent of the
Purchasers and does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for the Lessor, the Lessee or
any other Person.
Section 7.2.
Delegation of Duties. The Administrative Agent may execute any of its duties
hereunder or under the other Operative Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
Section 7.3.
Exculpatory Provisions. Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in connection herewith or in
connection with any of the other Operative Documents (except for its or such Person’s own gross
negligence or willful misconduct), or (ii) responsible in any manner to any of the Purchasers for
any recitals, statements, representations or warranties contained herein or in any of the other
Operative Documents or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in connection
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herewith or in connection with the other Operative Documents, or enforceability or sufficiency of
any of the other Operative Documents, or for any failure of any party (not including the
Administrative Agent) to any Operative Document to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be responsible to any Purchaser for the
effectiveness, genuineness, validity, enforceability, collectibility or sufficiency of this
Receivables Purchase Agreement, or any of the other Operative Documents or for any
representations, warranties, recitals or statements made herein or therein or made by the Lessee
or the Lessor in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents in connection herewith or therewith
furnished or made by the Administrative Agent to the Purchasers or by or on behalf of the Lessee
or the Lessor to the Administrative Agent or any Purchaser or be required to ascertain or inquire
as to the performance or observance of any of the terms, conditions, provisions, covenants or
agreements contained herein or therein or as to the use of the proceeds of the purchases or of the
existence or possible existence of any Default or Event of Default or to inspect the properties,
books or records of the Lessee or the Lessor.
Section 7.4.
Reliance on Communications. The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Lessee), independent accountants and
other experts selected by the Administrative Agent with reasonable care. The Administrative Agent
may deem and treat the Purchasers as the owner of their respective interests hereunder for all
purposes unless a written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent in accordance with Section 12.1 of the Participation
Agreement. The Administrative Agent, acting in its capacity as Administrative Agent, shall be
fully justified in failing or refusing to take any action under this Receivables Purchase
Agreement or under any of the other Operative Documents unless it shall first receive such advice
or concurrence of the Required Purchasers as it deems appropriate or it shall first be indemnified
to its satisfaction by the Purchasers against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting, hereunder or under
any of the other Operative Documents in accordance with a request of the Required Purchasers and
such request, and any action taken or failure to act pursuant thereto shall be binding upon all
the Purchasers (including their successors and assigns).
Section 7.5. Notice of Default. The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has
received notice from a Purchaser, the Lessor or the Lessee referring to the Operative Document,
describing such Default or Event of Default and stating that such
notice is a “notice of default.”
In the event that the Administrative Agent receives such a notice, the Administrative Agent shall
give prompt notice thereof to the Purchasers. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be directed by the Required Purchasers.
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Section 7.6.
Non-Reliance on Administrative Agent and Other Purchasers. Each Purchaser
expressly acknowledges that neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to
it and that no act by the Administrative Agent or any affiliate thereof hereafter taken, including
any review of the affairs of the Lessee or the Lessor shall be deemed to constitute any
representation or warranty by the Administrative Agent to any
Purchaser. Each Purchaser represents
to the Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Purchaser, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the business, assets,
operations, property, financial and other conditions, prospects and creditworthiness of the Lessee
and the Lessor and made its own decision to make its purchases hereunder and enter into this
Receivables Purchase Agreement. Each Purchaser also represents that it will, independently and
without reliance upon the Administrative Agent or any other Purchaser, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this Receivables
Purchase Agreement, and to make such investigation as it deems necessary to inform itself as to
the business, assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Lessee and the Lessor. Except for notices, reports and other documents
expressly required to be furnished to the Purchasers by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any Purchaser with any
credit or other information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of the Lessee or the Lessor which may come into
the possession of the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
Section 7.7.
[Intentionally Reserved].
Section 7.8. Administrative Agent in its Individual Capacity. The Administrative Agent and
its Affiliates may make loans to, accept deposits from and generally engage in any kind of business
with the Lessee and the Lessor as though the Administrative Agent were not Administrative Agent
hereunder. With respect to the purchases made and all Obligations owing to it, the Administrative
Agent shall have the same rights and powers under this Receivables Purchase Agreement as any
Purchaser and may exercise the same as though it were not Administrative Agent, and the terms
“Purchaser” and “Purchasers” shall include the Administrative Agent in its individual capacity.
Section 7.9. Successor Administrative Agent. The Administrative Agent may, at any time,
resign upon twenty (20) days’ written notice to the Purchasers and the Lessee and be removed with
cause by the Purchasers upon thirty (30) days’ written notice to the Administrative Agent. Upon
any such resignation or removal, the Required Purchasers shall have the right (which shall, so
long as no Default or Event of Default shall have occurred, be subject to the Lessee’s prior
approval, which shall not be unreasonably withheld or delayed) to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so appointed by such
Purchasers, and shall have accepted such appointment, within thirty (30) days after the notice of
resignation or notice of removal, as appropriate, then the retiring Administrative Agent shall
select a successor Administrative Agent provided such successor is a
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| Tandem Health Care of Ohio, Inc. | Receivables Purchase Agreement |
Purchaser hereunder or a commercial bank organized under the laws of the United States of America
or of any State thereof and has a combined capital and surplus of at least $100,000,000 or an
Affiliate of any such commercial bank. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations as
Administrative Agent under this Receivables Purchase Agreement and the other Operative Documents.
Notwithstanding the foregoing, the provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative Agent under this
Receivables Purchase Agreement.
Article VIII
Miscellaneous
Section 8.1. Amendments and Waivers. Neither this Receivables Purchase Agreement, any
other Operative Document, nor any terms hereof or thereof may be amended, supplemented or modified
except in accordance with the provisions of Section 15.5 of the Participation Agreement.
Section 8.2. Notices. All notices, requests and demands to or upon the respective parties
hereto shall be given in accordance with Section 15.3 of the Participation Agreement.
Section 8.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Purchaser, any right, remedy, power or
privilege hereunder or under the other Receivables Documents shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by
law.
Section 8.4.
Survival of Representations and Warranties. All representations and warranties
made hereunder, in the other Receivables Documents and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution and delivery of
this Receivables Purchase Agreement and the Certificates and the
making of the purchases hereunder.
Section 8.5.
Successors and Assigns; Assignment by Lessor. This Receivables Purchase
Agreement shall be binding upon and inure to the benefit of the Lessor, each Purchaser, the
Administrative Agent, each future holder of a Certificate and their respective successors and
permitted assigns; provided that the Lessor may not assign its rights or obligations hereunder
except in accordance with Article XII of the Participation
Agreement. All assignments and
participations by the Purchasers shall be subject to Article XII
of the Participation Agreement.
Section 8.6 Adjustments. If any Purchaser (a “Benefited Purchaser”) shall at any time receive
any payment of all or part of its Capital, or ROC thereon, or receive any of the Collateral
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| Tandem Health Care of Ohio, Inc. | Receivables Purchase Agreement |
in respect thereof (whether voluntarily or involuntarily, by setoff, or otherwise), in a greater
proportion than any such payment to or Collateral received by any other Purchaser entitled
thereto, if any, in respect of such other Purchaser’s Capital, or ROC thereon, such Benefited
Purchaser shall purchase for cash from the other Purchasers such portion of each such other
Purchaser’s Capital, or shall provide such other Purchaser with the benefits of any such
Collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Purchaser to
share the excess payment or benefits of such Collateral or proceeds ratably with the other
Purchasers; provided, however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefited Purchaser, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but without ROC.
Section 8.7.
Counterparts. This Receivables Purchase Agreement may be executed by one or
more of the parties to this Receivables Purchase Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. A set of the copies of this Receivables Purchase Agreement signed by
all the parties shall be lodged with the Administrative Agent.
Section 8.8. Severability. Any provision of this Receivables Purchase Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 8.9. Intention. This Receivables Purchase Agreement and the other Operative Documents
represent the agreement of the Lessor, the Administrative Agent and the Purchasers with respect to
the subject matter hereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any Purchaser relative to subject matter hereof not expressly set
forth or referred to herein or in the other Operative Documents.
Section 8.10. Governing Law. This Receivables Purchase Agreement and the
Certificates and the rights and obligations of the parties under this Receivables Purchase
Agreement and the Certificates shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of Ohio.
Section 8.11.
Limitations on Recourse to Lessor. The parties hereto agree that except as
specifically set forth herein or in any other Operative Document, the Lessor shall not have any
personal liability whatsoever to the Administrative Agent or any Purchaser or their respective
successors and assigns for any claim based on or in respect hereof or any of the other Operative
Documents or arising in any way from the transactions contemplated hereby or thereby and recourse,
if any, shall be solely had against the Collateral, including the Properties but excluding the
Excepted Payments payable to the Lessor and the Supplemental Collateral; provided, however, that
the Lessor shall be liable (a) for its own willful misconduct or gross negligence, (b) breach of
any of its representations, warranties or covenants under the Operative Documents, or (c) any
Lessor Liens attributable to it. It is understood and agreed that, except as provided in the
preceding sentence: (i) the Lessor shall not have any personal liability under any of the Operative
Documents as a result of acting pursuant to and consistent with any of the Operative
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| Tandem Health Care of Ohio, Inc. | Receivables Purchase Agreement |
Documents; and (ii) all such personal liability of the Lessor is expressly waived and released as a
condition of, and as consideration for, the execution and delivery of the Operative Documents by
the Lessor.
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In Witness Whereof, the parties hereto have caused this Receivables Purchase
Agreement to be duly executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
| SELCO Service Corporation, as Lessor |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx | ||||
| Its Vice President | ||||
| Key Corporate Capital Inc., as Administrative Agent |
||||
| By: | /s/ Xxxxxxxxxx Xxxxxxxxx | |||
| Xxxxxxxxxx Xxxxxxxxx | ||||
| Its Vice President | ||||
| Key Corporate Capital Inc., as Purchaser |
||||
| By: | /s/ Xxxxxxxxxx Xxxxxxxxx | |||
| Xxxxxxxxxx Xxxxxxxxx | ||||
| Its Vice President | ||||
(Receivables Purchase Agreement)
Exhibit A
to Receivables Purchase Agreement
to Receivables Purchase Agreement
Form of Certificate
| $ | , 2004 |
For Value Received, the undersigned, SELCO Service Corporation, an
Ohio corporation, as Lessor (the “Lessor”), has sold (subject to the penultimate paragraph
of this Certificate) to (the “Purchaser”) on the date hereof, an undivided
percentage ownership interest in the Purchased Interests, the Capital
amount of
Dollars ($ ) pursuant to that certain Receivables Purchase
Agreement dated as of December 30, 2004 (together with all amendments, supplements,
amendments and restatements and other modifications, if any, from time to time thereafter
made thereto, the “Receivables Purchase Agreement”), among the Lessor, Key Corporate
Capital Inc., as Administrative Agent, and the various financial institutions (including
the Purchaser) as are, or may from time to time become, parties thereto.
ROC shall be paid on the outstanding amount of Capital from time to time outstanding
from the date hereof until the Expiration Date (whether by acceleration or otherwise) and,
after the Expiration Date, until paid, in the amount and on the dates specified in the
Receivables Purchase Agreement.
Payments of both Capital and ROC are to be made without setoff or counterclaim in
Dollars in same day or immediately available funds to the Account specified in Schedule II
to the Participation Agreement (or to such other account as the Administrative Agent may
from time to time designate in a written notice to the Lessor).
This Certificate is one of the Certificates referred to in, and evidences the
undivided percentage ownership interests in the Purchased Interests purchased under, the
Receivables Purchase Agreement and the Participation Agreement, to which reference is made
for a description of the Collateral for this Certificate and for a statement of the terms
and conditions on which the Lessor is permitted and required to make prepayments and
repayments of the Capital evidenced by this Certificate and on which such Capital may be
declared to be or automatically become immediately due and payable.
Transfer, assignment or pledge of this Certificate or any ROC herein is subject to the
provisions of the Participation Agreement.
Capitalized terms used but not otherwise defined herein have the respective meanings
specified in the Receivables Purchase Agreement.
The liability of the Lessor under this Certificate is subject, without limitation, to
the restrictions on recourse set forth in Section 8.11 of the Receivables Purchase
Agreement, all of which, by acceptance of this Certificate, the Purchaser hereby consents.
| Tandem Health Care of Ohio, Inc. | Receivables Purchase Agreement |
This Certificate shall be deemed to be a contract made under and governed by
the internal laws of the State of Ohio.
| SELCO Service Corporation, as Lessor |
||||
| By: | ||||
| Xxxxxx X. Xxxxx | ||||
| Its Vice President | ||||
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