Exhibit 10.50
EXECUTION COPY
GENERAL CABLE CAPITAL FUNDING, INC.,
as Purchaser,
GENERAL CABLE INDUSTRIES, INC.,
as Master Servicer
and
GENERAL CABLE INDUSTRIES, INC.
AND THE OTHER WHOLLY OWNED SUBSIDIARIES OF
GENERAL CABLE CORPORATION NAMED HEREIN,
as Sellers
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RECEIVABLES SALE AGREEMENT
Dated as of May 9, 2001
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.....................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Other Definitional Provisions...................................................................4
ARTICLE II PURCHASE AND SALE OF RECEIVABLES................................................................5
2.1 Purchase and Sale of Receivables................................................................5
2.2 Purchase Price..................................................................................6
2.3 Payment of Purchase Price.......................................................................6
2.4 No Right to Repurchase..........................................................................8
2.5 Rebates, Adjustments, Returns and Reductions, Modifications.....................................8
2.6 Limited Repurchase Remedy; Special Indemnification..............................................8
2.7 Obligations Unaffected.........................................................................10
2.8 Certain Charges................................................................................10
2.9 Certain Allocations............................................................................10
ARTICLE III CONDITIONS TO PURCHASE AND SALE................................................................11
3.1 Conditions Precedent to the Company's Initial Purchase of Receivables..........................11
3.2 Conditions Precedent to All the Company's Purchases of Receivables.............................12
3.3 Conditions Precedent to Sellers' Obligations...................................................13
3.4 Conditions Precedent to the Addition of a Seller...............................................13
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................................................................14
4.1 Representations and Warranties of the Sellers Relating to the Sellers..........................14
4.2 Representations and Warranties of the Sellers Relating to the
Agreement and the Receivables..................................................................18
ARTICLE V AFFIRMATIVE COVENANTS..........................................................................19
5.1 Certificates; Accounting Treatment.............................................................19
5.2 Compliance with Laws, etc......................................................................20
5.3 Preservation of Corporate Existence............................................................20
5.4 Visitation Rights..............................................................................20
5.5 Keeping of Records and Books of Account........................................................20
5.6 Location of Records............................................................................21
5.7 Master Record..................................................................................21
5.8 Policies.......................................................................................21
5.9 Obligations....................................................................................21
5.10 Collections....................................................................................21
5.11 Furnishing Copies, etc.........................................................................22
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TABLE OF CONTENTS (Continued)
5.12 Obligations with Respect to Obligors and Receivables...........................................22
5.13 Responsibilities of the Sellers................................................................22
5.14 Further Action.................................................................................22
5.15 Certain Procedures.............................................................................24
5.16 ERISA; Taxes...................................................................................24
ARTICLE VI NEGATIVE COVENANTS.............................................................................25
6.1 Liens..........................................................................................25
6.2 Extension or Amendment of Receivables..........................................................25
6.3 Change in Payment Instructions to Obligors.....................................................25
6.4 Change in Name.................................................................................26
6.5 Policies.......................................................................................26
6.6 Modification of Ledger.........................................................................26
6.7 Business of the Sellers........................................................................26
6.8 Accounting of Purchases........................................................................26
6.9 Instruments....................................................................................26
6.10 Ineligible Receivables.........................................................................26
ARTICLE VII PURCHASE TERMINATION EVENTS...........................................................27
7.1 Termination Events.............................................................................27
ARTICLE VIII THE SUBORDINATED NOTE...............................................................................29
8.1 Subordinated Note..............................................................................30
8.2 Restrictions on Transfer of Subordinated Note..................................................30
ARTICLE IX MISCELLANEOUS..................................................................................30
9.1 Further Assurances.............................................................................30
9.2 Payments.......................................................................................31
9.3 Costs and Expenses.............................................................................31
9.4 Successors and Assigns.........................................................................32
9.5 Governing Law..................................................................................32
9.6 No Waiver; Cumulative Remedies.................................................................32
9.7 Amendments and Waivers.........................................................................32
9.8 Severability...................................................................................33
9.9 Notices........................................................................................33
9.10 Counterparts...................................................................................34
9.11 Construction of Agreement as Security Agreement................................................34
9.12 Waivers of Jury Trial..........................................................................34
9.13 Jurisdiction; Consent to Service of Process....................................................34
9.14 Addition of Sellers............................................................................35
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9.15 Optional Termination of a Seller...............................................................35
9.16 No Bankruptcy Petition.........................................................................37
9.17 Termination....................................................................................37
9.18 Confidentiality................................................................................37
SCHEDULES
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Schedule 1 Executive Offices/Rev. Art. 9 Location
Schedule 2 Lock Boxes/Lockbox Accounts/Concentration Account
Schedule 3 Discounted Percentage
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EXHIBITS
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Exhibit A Additional Seller Supplement
Exhibit B Trade Names
Exhibit C Form of Subordinated Note
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RECEIVABLES SALE AGREEMENT, dated as of May 9, 2001, among GENERAL
CABLE INDUSTRIES, INC., a Delaware corporation (the "Parent"), and each of the
other subsidiaries of General Cable Corporation from time to time parties to
this Agreement (together with Parent, the "Sellers"), GENERAL CABLE INDUSTRIES,
INC., as master servicer (in such capacity, the "Master Servicer"), and GENERAL
CABLE CAPITAL FUNDING, INC., a Delaware corporation (the "Company").
BACKGROUND
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A. Each Seller generates accounts receivable in the ordinary course of
its business.
B. On the terms and conditions set forth in this Agreement, each Seller
desires to sell to the Company, and the Company is willing to purchase from each
Seller, all of such Seller's right, title and interest in, to and under the
Receivables (as defined in the Pooling Agreement referred to below) now existing
or from time to time created hereafter.
C. The Master Servicer, the Company and The Chase Manhattan Bank, as
Trustee, have entered into a Master Pooling and Servicing Agreement, dated as of
May 9, 2001 (as amended, modified or supplemented from time to time, the
"Pooling Agreement") in order to create a master trust into which the Company
will transfer to the Trustee, all of the Company's right, title and interest in,
to and under the Receivables (as defined in the Pooling Agreement) and certain
other assets now or hereafter owned by the Company.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties to this Agreement agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings assigned to such terms in ARTICLE I of the
Pooling Agreement; and the following terms shall have the following meanings:
"Additional Seller Supplement" shall mean an agreement substantially in
the form of Exhibit A by which an additional Subsidiary of General Cable
Corporation becomes a Seller party to this Agreement.
"Adjusted Discount Rate" shall have the meaning specified in Schedule 3
to this
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Agreement.
"AGREEMENT" shall mean this Receivables Sale Agreement, as amended,
supplemented or otherwise modified from time to time.
"BASE RATE" shall mean for any day, a rate per annum equal to the
"PRIME RATE" as published in the WALL STREET JOURNAL on the following Business
Day under the heading "MONEY RATES".
"CAPITAL STOCK" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, options or other rights to purchase or
acquire any of the foregoing.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"DILUTION ADJUSTMENT" shall have the meaning specified in Section 2.5.
"DISCOUNTED PERCENTAGE" shall have the meaning specified in SCHEDULE 3.
"DOCUMENTS" shall have the meaning specified in subsection
5.14(d)(iii).
"EARLY TERMINATION" shall have the meaning specified in Article VII.
"EFFECTIVE DATE" shall mean the date hereof or, with respect to any
Seller other than Parent, such later date on which all of the conditions in
Section 3.4 and Section 9.14 of this Agreement and any applicable condition to
the addition of any additional Seller in any Supplement have been satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA AFFILIATE" shall mean with respect to any Person, any trade or
business (whether or not incorporated) that is a member of a group of which such
Person is a member and which is treated as a single employer under Section 414
of the Internal Revenue Code.
"INDEMNIFICATION EVENT" shall have the meaning specified in subsection
2.6(b).
"INDEMNIFIED LIABILITIES" shall have the meaning specified in Section
9.3.
"LIABILITIES" shall have the meaning specified in Section 9.3
"MAJORITY-OWNED" shall mean, as to any Person, the ownership of a
majority in economic interest and voting control of such Person's equity or
similar ownership
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interests.
"MULTI-EMPLOYER PLAN" shall mean with respect to any Person, a
multi-employer plan as defined in Section 4001(a)(3) of ERISA to which such
Person or any ERISA Affiliate of such Person (other than one considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Internal
Revenue Code) is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions.
"PAYMENT DATE" shall have the meaning specified in subsection 2.3(a).
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
"PLAN" shall mean, with respect to any Person, any pension plan (other
than a Multi- Employer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Internal Revenue Code which is maintained for employees of
such Person or any ERISA Affiliate of such Person.
"POOLING AGREEMENT" shall have the meaning specified in the preamble
hereto.
"POTENTIAL PURCHASE TERMINATION EVENT" shall mean any condition or act
specified in Article VII that, with the giving of notice or the lapse of time or
both, would become a Purchase Termination Event.
"PURCHASE PRICE" shall have the meaning specified in Section 2.2.
"PURCHASE TERMINATION EVENT" shall have the meaning specified in
Article VII.
"PURCHASED RECEIVABLE" shall mean any Receivable sold to the Company by
any Seller pursuant to, and in accordance with the terms of, this Agreement and
not resold to such Seller pursuant to Section 2.6.
"REPORTABLE EVENT" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Internal Revenue Code).
"REPURCHASE EVENT" shall have the meaning specified in Section 2.6(a).
"SALE DOCUMENTS" shall mean this Agreement and the Subordinated Note.
"SALES TERMINATION DATE" shall have the meaning specified in Section
9.15(b).
"SELLER ADJUSTMENT PAYMENT" shall have the meaning specified in Section
2.5.
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"SELLER INDEMNIFICATION PAYMENT" shall have the meaning specified in
Section 2.6(b).
"SELLER REPURCHASE PAYMENT" shall have the meaning specified in Section
2.6(a).
"SERIES 2001-1 SUPPLEMENT" shall mean the Series 2001-1 Supplement,
dated as of the date hereof, among the Company, the Master Servicer and The
Chase Manhattan Bank, as Trustee, as amended, supplemented or otherwise modified
from time to time.
"SUBORDINATED NOTE" shall have the meaning specified in Section 8.1.
"WITHDRAWAL LIABILITY" shall mean liability to a Multi-Employer Plan as
a result of a complete or partial withdrawal from such Multi-Employer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
1.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement or the Pooling
Agreement shall have the defined meanings when used in any notes, certificates
or other document made or delivered pursuant to this Agreement unless otherwise
defined therein.
(b) As used herein and in any note, certificate or other
document made or delivered pursuant to this Agreement or thereto, accounting
terms not defined in Section 1.1, and accounting terms partly defined in Section
1.1 to the extent not defined, shall have the respective meanings given to them
under GAAP. To the extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under GAAP, the definitions
contained herein shall control.
(c) The words "HEREOF", "HEREIN" and "HEREUNDER" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection, Schedule and Exhibit references contained in this Agreement are
references to Sections, subsections, Schedules and Exhibits in or to this
Agreement unless otherwise specified.
(d) The definitions contained in Section 1.1 are applicable to
the singular as well as the plural forms of such terms and to the masculine, the
feminine and the neuter genders of such terms.
(e) Where reference is made in this Agreement or the Pooling
Agreement to the principal amount of Receivables, such reference shall, unless
explicitly stated otherwise, be deemed a reference to the Principal Amount (as
such term is defined in Section 1.1 of the Pooling Agreement) of such
Receivables.
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(f) Any reference herein or in any other Transaction Document
to a provision of the Internal Revenue Code or ERISA shall be deemed a reference
to any successor provision thereto.
(g) All references herein to any agreement or instrument shall
be deemed references to such agreement or instrument as amended or modified from
time to time, subject to compliance with any restrictions herein on the
amendment or modification of such agreement or instrument.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 PURCHASE AND SALE OF RECEIVABLES.
(a) Subject to the terms and conditions of this Agreement,
each of the Sellers, on the related Effective Date does hereby sell, transfer,
assign, set over and otherwise convey, without recourse (except as expressly
provided herein), to the Company, all of its respective right, title and
interest, in, to and under: (i) in the case of such Effective Date, all
Receivables and Related Property in respect of such Receivables of such Seller
existing on such Effective Date, (ii) all Receivables created by such Seller
thereafter but prior to the close of business on the day immediately preceding
any termination under Article VII or Section 9.15 with respect to such Seller
and all Related Property in respect of such Receivables, (iii) all payment and
enforcement rights (but none of the obligations) with respect to such
Receivables, (iv) all Collections with respect to (i), (ii) and (iii), and (v)
each Lock Box, Lock Box Account (including each related Lock Box Agreement) and
each Concentration Account (including each related Concentration Account
Agreement), all immediately and automatically and without any further action on
the part of any Seller or any other Person (it being understood that the
Purchase Price for such Receivables is not being transferred by the Seller to
the Company). If any Seller shall not have received payment from the Company of
the Purchase Price for any Receivable on the Payment Date therefor in accordance
with the terms of subsection 2.3(c), such Receivable, Related Property, payment
and enforcement rights and Collections with respect thereto shall, upon receipt
of notice from the applicable Seller of such failure to receive payment,
immediately and automatically be sold, transferred, assigned and reconveyed by
the Company to such Seller without any further action by the Company or any
other Person.
(b) Subject to the terms and conditions set forth herein, the
Company does hereby purchase from each of the Sellers such Receivables and
Related Property of each Seller.
(c) All sales of Receivables and Related Property by any
Seller hereunder shall be without recourse to, or representation or warranty of
any kind (express or implied) by, any Seller, except as otherwise specifically
provided herein.
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The foregoing sale, assignment, transfer and conveyance does not constitute and
is not intended to result in a creation or assumption by the Company of any
obligation of any Seller or any other Person in connection with the Receivables,
the Related Property or any agreement or instrument relating thereto, including
any obligation to any Obligor.
(d) In connection with the foregoing conveyances, each Seller
agrees to record and file, or cause to be recorded and filed, at its own
expense, financing statements (and continuation statements with respect to such
financing statements when applicable), and any other similar instruments, with
respect to the Receivables, Related Property and Collections now existing and
hereafter acquired by the Company from the Sellers meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary to
perfect the interests of the Company in the Receivables, Related Property and
Collections, and to deliver evidence of such filings to the Company on or prior
to the related Effective Date. It is the express intent of the parties to this
Agreement that the transfer of such Receivables and Related Property by the
Sellers to the Company, as contemplated by this Agreement be, and be treated as,
sales. It is, further, expressly not the intention of the parties that such
transfer be deemed a pledge of such Receivables, Related Property and
Collections by the Sellers to the Company to secure a debt or other obligation
of the Sellers.
(e) In connection with the foregoing conveyances, each Seller
agrees at its own expense, as agent of the Company, that it will (i) indicate or
cause to be indicated on the computer files and other listings relating to the
Receivables that all Receivables and Related Property have been sold to the
Company in accordance with this Agreement and (ii) deliver or cause to be
delivered to the Company computer files, microfiche lists or typed or printed
lists containing true and complete lists of all such Receivables, identified by
Obligor and by the Receivables balance as of a date no later than five Business
Days prior to the related Effective Date.
2.2 PURCHASE PRICE. The amount payable by the Company to a Seller (the
"PURCHASE PRICE") for Receivables and Related Property on any Payment Date under
this Agreement shall be equal to the product of (a) the aggregate outstanding
Principal Amount of such Receivables as set forth in the applicable Daily Report
and (b) the Discounted Percentage with respect to such Seller.
2.3 PAYMENT OF PURCHASE PRICE.
(a) Upon fulfillment of the conditions set forth in Article
III, the Purchase Price for Receivables and Related Property shall be paid or
provided for in the manner provided below on each day for which a Daily Report
is prepared and delivered to the Company (each such day, a "PAYMENT DATE"). Each
Seller hereby appoints the Master Servicer as its agent to receive payment of
the Purchase Price for Receivables and Related Property sold by it to the
Company and hereby authorizes the Company to make all payments due to such
Seller directly to, or as directed by, the Master Servicer. The Master Servicer
hereby accepts and agrees to such appointment.
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(b) The Purchase Price for Receivables and the Related
Property with respect thereto shall be paid by the Company on each Payment Date
as follows:
(i) by netting the amount of any Seller Adjustment
Payments, Seller Indemnification Payments or Seller Repurchase Payments pursuant
to Section 2.5 or 2.6 against such Purchase Price;
(ii) to the extent available for such purpose, in
cash from Collections distributed to the Company by the Trust;
(iii) to the extent available for such purpose, in
cash from the net proceeds of the sale of Investor Certificates received by the
Company in consideration for the transfer of such Purchased Receivables by the
Company pursuant to the Pooling Agreement;
(iv) at the option of the Company, by means of an
addition to the principal amount of the Subordinated Note in an aggregate amount
equal to the remaining portion of the Purchase Price; PROVIDED, however, that
with respect to any Seller, the outstanding principal amount of such Seller's
interest in the Subordinated Note (exclusive of accrued and unpaid interest
thereon which has been capitalized pursuant to the terms thereof) shall not at
any time exceed fifteen percent (15%) of the aggregate Purchase Price received
by such Seller from the Company with respect to the outstanding balance of the
Purchased Receivables; and PROVIDED FURTHER that, on the Closing Date, the
Company may pay by means of additions to the principal amount of the
Subordinated Note only if, at the time of such payment and after giving effect
thereto, the Aggregate Receivables Amount, after giving effect for this purpose
to any Dilution Adjustments with respect to the Purchased Receivables, less the
amount of its liabilities, including (i) the principal balance of the Investor
Certificate and all interest and premium thereon; (ii) its liabilities on the
Subordinated Note; and (iii) all interest and other fees payable under the
Pooling Agreement and the other Transaction Documents must not be less than the
product of the Aggregate Receivables Amount and the Loss Reserve Ratio for the
Series 2001-1 Class B Certificates (or, if Certificates are no longer
outstanding, the Loss Reserve Ratio that would have been in effect) for such
date. Any such addition to the principal amount of the Subordinated Note shall
be allocated among the Sellers by the Master Servicer in accordance with the
provisions of subsection 2.3(c). The Master Servicer may evidence such payments
by means of additions to the principal amount of the Subordinated Note by
recording the date and amount thereof on the books and records of the Master
Servicer for the account of the Sellers or on the grid attached to such
Subordinated Note; PROVIDED that the failure to make any such recordation or any
error in such grid shall not adversely affect any Seller's rights; and
(v) in cash from the proceeds of any capital
contributed by Parent to the Company, if any, in respect of its equity interest
in the Company.
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(c) The Master Servicer shall be responsible, in its sole
discretion but in accordance with the preceding subsection, for allocating among
the Sellers the payment of the Purchase Price for Receivables and any amounts
netted therefrom pursuant to subsection 2.3(b)(i) which allocation shall be,
subject to the first proviso contained in subsection 2.3(b)(iv), either in the
form of the cash received from the Company or as an addition to the principal
amount of the Seller's interest in the Subordinated Note. The Company shall be
entitled to pay all amounts in respect of the Purchase Price of Receivables and
Related Property to an account of the Master Servicer without regard to whether
or how such payments are allocated by the Master Servicer among the Sellers. All
payments under this Agreement (i) shall be made on the date specified therefor
in U.S. Dollars in same day funds or by check, as the Master Servicer shall
elect, (ii) in all cases, shall be made not later than 3:00 p.m., New York City
time, and (iii) shall be made to the bank account designated in writing by the
Master Servicer to the Company.
(d) Whenever any payment to be made under this Agreement shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day. Amounts not paid when due in
accordance with the terms of this Agreement shall bear interest at a rate per
annum equal at all times to the Base Rate PLUS 2%, payable on demand, PROVIDED
that the Company shall make all payments hereunder from funds available to the
Company which are not otherwise needed to be applied to the payment of any
amounts by the Company pursuant to the Pooling Agreement (including any
Supplement).
2.4 NO RIGHT TO REPURCHASE. Except to the extent expressly set forth
herein, no Seller shall have any right or obligation under this Agreement, by
implication or otherwise, to repurchase from the Company any Purchased
Receivables or Related Property or to rescind or otherwise retroactively affect
any purchase of any Purchased Receivables or Related Property after the Payment
Date relating thereto.
2.5 REBATES, ADJUSTMENTS, RETURNS AND REDUCTIONS, MODIFICATIONS. From
time to time a Seller may make Dilution Adjustments (as defined below) to
Receivables in accordance with this Section 2.5 and Section 6.2. The Sellers,
jointly and severally, agree to pay to the Company, on the Payment Date
immediately succeeding the date of the grant of any Dilution Adjustment
(regardless of which Seller shall have granted such Dilution Adjustment), the
amount of any such Dilution Adjustment (a "SELLER ADJUSTMENT PAYMENT");
PROVIDED, that, prior to any Purchase Termination Event, any such payments to
the Company shall be netted against the Purchase Price payable on such Payment
Date of newly created Receivables in accordance with subsection 2.3(b)(i). A
"DILUTION ADJUSTMENT" shall mean any rebate, discount, allowance, refund or
adjustment (including, without limitation, as a result of the application of any
special or other discounts or any reconciliations) of any Receivable, the amount
owing for any returns or cancellations and the amount of any other reduction of
any payment under any Receivable in each case granted or made by the applicable
Seller to the related Obligor, PROVIDED that a Dilution Adjustment does not
include any reduction resulting
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from a Charged-Off Receivable. The amount of any Dilution Adjustment shall be
set forth on the first Daily Report prepared after the date of the grant
thereof.
2.6 LIMITED REPURCHASE REMEDY; SPECIAL INDEMNIFICATION.
(a) In the event that any of the representations or warranties
contained in Section 4.2 in respect of any Receivable shall be or have been
incorrect as of the date made or deemed made (a "REPURCHASE EVENT"), such
Receivable shall cease to be an Eligible Receivable on the date on which such
Repurchase Event occurs. In addition, if a Repurchase Event shall occur with
respect to any Receivable, then the Sellers, jointly and severally, agree to pay
to the Company an amount equal to the Purchase Price of such Receivable (whether
the Company paid such Purchase Price in cash or otherwise) less Collections
received by the Company in respect of such Receivable, regardless of which
Seller shall have been responsible for such Repurchase Event, such payment to
occur on or prior to the 30th day after the day such Repurchase Event becomes
known to any Seller (except that if such 30th day is not a Business Day, such
payment shall be made on the Business Day immediately succeeding such 30th day)
unless such Repurchase Event shall have been cured on or before such 30th day;
PROVIDED that in the event that (x) a Purchase Termination Event has occurred
and is continuing with respect to any Seller or (y) the Company shall be
required to repurchase such Receivable pursuant to Section 2.5 of the Pooling
Agreement and the Company has insufficient funds to make such a repurchase, the
Sellers shall make such payment immediately pursuant to the repurchase
obligation hereunder; PROVIDED FURTHER, that, prior to the occurrence of any
Purchase Termination Event, any such payments to the Company shall be netted
against the Purchase Price of newly created Receivables, payable on or after the
date such Repurchase Event occurs, in accordance with subsection 2.3(b)(i). Any
payment by any Seller pursuant to this Section 2.6(a) is referred to as a
"SELLER REPURCHASE PAYMENT." If, on or prior to such 30th day (or the Business
Day immediately succeeding such 30th day, as applicable, or any earlier date
specified above), any Seller shall have made the Seller Repurchase Payment and
so reacquired any such Receivable, then the Company shall have no further remedy
against the Sellers in respect of the Repurchase Event with respect to such
reacquired Receivable. Upon a Seller Repurchase Payment, the Company shall
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the applicable Seller, without recourse,
representation or warranty, all the right title and interest of the Company in,
to and under such Receivable and the Related Property with respect thereto
(other than Collections received by the Company and applied in determining the
Seller Repurchase Payment). The Company shall execute such documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by such Seller to effect the conveyance of such
Receivable pursuant to this Section 2.6(a).
(b) In addition to their obligations under Section 9.3, the
Sellers, jointly and severally, agree to pay, indemnify and hold the Company
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions,
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judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against
the Company in any way relating to or arising out of (i) any Eligible Receivable
becoming subject to any defense, dispute, offset or counterclaim of any kind
(other than as expressly permitted by this agreement) or (ii) any Seller
breaching any covenant contained in Section 5.2, 5.8, 6.1, 6.2, 6.3, 6.4, 6.5,
6.8 or 6.9 with respect to any Receivable (each of the foregoing events or
circumstances, an "INDEMNIFICATION EVENT"), and such Receivable shall cease to
be an Eligible Receivable on the date on which such Indemnification Event
occurs. The amount of such indemnification shall be equal to the Purchase Price
of such Receivable (whether the Company paid such purchase price in cash or
otherwise) plus the amount of any losses, or expenses incurred, less Collections
received by the Company in respect of such Receivable, regardless of which
Seller shall have been responsible for such Indemnification Event, such payment
to occur on or prior to the 30th day after the day such Indemnification Event
becomes known to any Seller (except that if such 30th day is not a Business Day,
such payment shall be made on the Business Day immediately succeeding such 30th
day) unless such Indemnification Event shall have been cured on or before such
30th day; PROVIDED that in the event that (x) a Purchase Termination Event has
occurred and is continuing with respect to any Seller or (y) the Company shall
be required to repurchase such Receivable pursuant to Section 2.5 of the Pooling
Agreement and the Company has insufficient funds to make such a repurchase, the
Sellers shall make such payment immediately pursuant to the indemnification
obligation hereunder; PROVIDED FURTHER, that, prior to the occurrence of any
Purchase Termination Event, any such payments to the Company shall be netted
against the Purchase Price of newly created Receivables, payable on or after the
date such Repurchase Event occurs, in accordance with subsection 2.3(b)(i). Any
payment by any Seller pursuant to this Section 2.6(b) is referred to as a
"SELLER INDEMNIFICATION PAYMENT." If, on or prior to such 30th day (or the
Business Day immediately succeeding such 30th day, as applicable, or any earlier
date specified above), any Seller shall make such Seller Indemnification Payment
with respect to any such Receivable, then the Company shall have no further
remedy against the Sellers in respect of the Indemnification Event with respect
to such Receivable.
2.7 OBLIGATIONS UNAFFECTED. The obligations of the Sellers to the
Company under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable or any sale of a Receivable.
2.8 CERTAIN CHARGES. Each of the Sellers and the Company agrees that
late charge revenue, reversals of discounts, other fees and charges and other
similar items, whenever created, accrued in respect of Purchased Receivables
shall be the property of the Company notwithstanding the occurrence of an Early
Termination and all Collections with respect thereto shall continue to be
allocated and treated as Collections in respect of Purchased Receivables.
2.9 CERTAIN ALLOCATIONS. Each of the Sellers hereby agrees that all
10
Collections and other proceeds received from an Obligor shall be applied in
respect of the Receivables of such Obligor as specified in the Pooling
Agreement.
ARTICLE III
CONDITIONS TO PURCHASE AND SALE
3.1 CONDITIONS PRECEDENT TO THE COMPANY'S INITIAL PURCHASE OF
RECEIVABLES. The obligation of the Company to purchase the Receivables and the
Related Property hereunder on the related Effective Date from any Seller is
subject to the conditions precedent, which may be waived by the Company, that:
(i) each of the Sale Documents shall be in full force and effect and (ii) the
conditions set forth below shall have been satisfied on or before such Effective
Date:
(a) the Company shall have received copies of duly adopted
resolutions of the Board of Directors of such Seller as in effect on such
Effective Date and in form and substance reasonably satisfactory to the Company,
authorizing this Agreement, the documents to be delivered by such Seller
hereunder and the transactions contemplated hereby, certified by the Secretary
or Assistant Secretary of such Seller;
(b) the Company shall have received duly executed certificates
of the Secretary or an Assistant Secretary of such Seller, dated such Effective
Date and in form and substance reasonably satisfactory to the Company,
certifying the names and true signatures of the officers authorized on behalf of
such Seller to sign this Agreement and any instruments or documents in
connection with this Agreement;
(c) one or more Lockbox Accounts with respect to Receivables
to be sold by such Seller shall have been established in the name of the
Company;
(d) such Seller shall have filed and recorded or will file and
record on such Effective Date, at its own expense, UCC-1 financing statements
(and registered assignments, verification statements or other similar statements
or instruments) with respect to the Receivables and the Related Property in such
manner and in such jurisdictions as are necessary or desirable to perfect the
Company's interest therein under the UCC of all applicable jurisdictions; and
all other action necessary or desirable, in the reasonable judgment of the
Company, to perfect the Company's interests in the Receivables and Related
Property shall have been duly taken;
(e) each Seller shall have delivered to the Company a
microfiche, typed or printed list, computer file or other tangible evidence
reasonably acceptable to the Company showing as of a date no later then five
Business Days preceding such Effective Date, the Obligors whose Receivables are
to be transferred to the Company on such Effective Date and the balance of the
Receivables with respect to each such Obligor as of such preceding date;
11
(f) the Company shall have received reports of UCC-1s and
other searches of such Sellers with respect to the Receivables and the Related
Property reflecting the absence of Liens thereon, except Liens created in
connection with the sale by the Company of such Purchased Receivables pursuant
to the Pooling Agreement and except for Liens as to which the Company has
received UCC termination statements to be filed on or promptly following such
Effective Date;
(g) the Company shall have received (A) legal opinions on
behalf of such Seller as to general corporate matters of such Seller (including,
without limitation, an opinion as to the perfection of the Company's interest in
the Purchased Receivables and Related Property) and (B) confirmation (i) as to
the "true sale" of the Purchased Receivables hereunder, and (ii) as to the
likelihood of the substantive consolidation of such Seller, on the one hand, and
the Company, on the other hand, all in form and substance reasonably
satisfactory to the Company; and
(h) an Officers Certificate in form acceptable to the Company
certifying that each of the other conditions precedent in this Section have been
satisfied.
3.2 CONDITIONS PRECEDENT TO ALL THE COMPANY'S PURCHASES OF RECEIVABLES.
The obligation of the Company to purchase from and pay a Seller for any
Receivable and the Related Property with respect thereto on each Payment Date
(including the related Effective Date) shall be subject to the further
conditions precedent that on such Payment Date:
(a) the following statements shall be true (and the acceptance
by such Seller of the Purchase Price for any Receivables on any Payment Date
shall constitute a representation and warranty by such Seller that on such
Payment Date such statements are true):
(i) the representations and warranties of such Seller
contained in Section 4.1 shall be true and correct in all material respects and
the representations and warranties of such Seller in Section 4.2 shall be true
and correct, in each case, on and as of such Payment Date as though made on and
as of such date, except insofar as such representations and warranties are
expressly made only as of another date (in which case they shall be true and
correct in all material respects or true and correct, respectively, as of such
other date); and
(ii) no Purchase Termination Event with respect to
such Seller or Potential Purchase Termination Event under Section 7.1 (d)(i)
with respect to such Seller shall have occurred and be continuing;
(b) the Company shall be satisfied that such Seller's systems,
procedures and record keeping relating to the Purchased Receivables are
sufficient and satisfactory in order to permit the purchase and administration
of the Purchased Receivables in accordance with the terms and intent of this
Agreement (it being
12
understood and agreed that as of the date hereof, the systems, procedures and
record-keeping relating to the Receivables of the Sellers party to this
Agreement as of the Closing Date are sufficient and satisfactory);
(c) the Company shall have received payment in full of all
amounts for which payment is due from such Seller pursuant to Sections 2.5, 2.6
and 9.2;
(d) the Company shall have received such other approvals,
opinions or documents as the Company may reasonably request; and
(e) such Seller shall have complied with all of its covenants
and satisfied all of its obligations under this Agreement required to be
complied with or satisfied as of such date; PROVIDED, HOWEVER, that the failure
of any Seller to satisfy any of the foregoing conditions shall not prevent such
Seller from subsequently selling Receivables upon satisfaction of all such
conditions.
3.3 CONDITIONS PRECEDENT TO SELLERS' OBLIGATIONS.
(a) The obligations of each Seller on the related Effective
Date shall be subject to the conditions precedent that the Master Servicer shall
have received on or before such Effective Date the following, each dated on or
before such Effective Date and in form and substance satisfactory to the Master
Servicer:
(i) a copy of duly adopted resolutions of the Board
of Directors of the Company authorizing this Agreement, the documents to be
delivered by the Company hereunder and the transactions contemplated hereby,
certified by the Secretary or Assistant Secretary of the Company; and
(ii) a duly executed certificate of the Secretary or
Assistant Secretary of the Company certifying the names and true signatures of
the officers authorized on its behalf to sign this Agreement and the other
documents to be delivered by it hereunder.
(b) The obligations of each Seller on each Payment Date shall
be subject to the condition precedent that no Early Amortization Event set forth
in paragraph (a) of Section 7.1 of the Pooling Agreement with respect to the
Company shall have occurred and be continuing.
3.4 CONDITIONS PRECEDENT TO THE ADDITION OF A SELLER. No Subsidiary of
General Cable Corporation approved by the Company as an additional Seller
pursuant to Section 9.14 shall be added as a Seller hereunder unless the
conditions set forth below shall have been satisfied on or before the related
Effective Date:
(a) the Company shall have received an Additional Seller
Supplement duly executed and delivered by such Seller;
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(b) each of the conditions set forth in Section 3.1 with
respect to the addition of such Seller on the applicable Effective Date shall
have been satisfied;
(c) the addition of such additional Seller shall satisfy the
Rating Agency Condition and written consent of each Agent shall have been
received; and
(d) the other conditions set forth in any Supplement with
respect to the addition of Sellers shall be satisfied.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE SELLERS RELATING TO THE
SELLERS. Each Seller hereby represents and warrants to the Company, as to
itself, as of the related Effective Date and each Payment Date:
(a) EXISTENCE; COMPLIANCE WITH LAW. It (i) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation or organization, (ii) has the requisite power and authority, and the
legal right to own and operate its property, or lease the properties it operates
as lessee and to conduct its business as now conducted and as proposed to be
conducted, except to the extent that the failure to have such legal right would
not have a Material Adverse Effect, (iii) is duly qualified to do business and
is in good standing (or is exempt from such requirements) under the laws of each
jurisdiction in which its chief executive office is located or performance of
its obligations under this Agreement requires such qualification and (iv) is in
compliance with all Requirements of Law, except, in the case of clauses (iii)
and (iv) to the extent that a failure to qualify or comply, as the case may be,
would not have a Material Adverse Effect.
(b) ORGANIZATIONAL POWER; AUTHORIZATION. It has the requisite
power and authority, and the legal right, to execute, deliver and perform this
Agreement and each of the other Sale Documents to which it is a party, the sale
of Receivables by it hereunder and the consummation of the other transactions
contemplated by any of the foregoing, and it has taken all necessary action to
authorize the execution, delivery and performance of this Agreement and the
other Sale Documents to which it is a party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the sales hereunder
or with the execution, delivery, performance, validity or enforceability of this
Agreement and the other Sale Documents to which it is a party by or against such
Seller other than (i) those consents which have duly been obtained or made and
are in full force and effect on such date, (ii) any filings of UCC-1 financing
statements necessary to perfect the Company's ownership interest in the
Receivables and the Related Property and (iii) any such consent, authorization,
filing, notice or other act the
14
absence of which would not have a Material Adverse Effect. This Agreement and
each other Sale Documents to which it is a party have been duly executed and
delivered on behalf of such Seller.
(c) ENFORCEABILITY. This Agreement and each other Sale
Document to which it is a party constitutes the legal, valid and binding
obligation of such Seller enforceable against it in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
affecting the enforcement of creditors' lights in general and except as
enforceability may be limited by general principles of equity (whether
considered in a proceeding in equity or at law).
(d) NO LEGAL BAR. The execution, delivery and performance of
this Agreement and each other Sale Document to which it is a party will not
violate any Requirement of Law or Contractual Obligation of such Seller in any
respect that would have a Material Adverse Effect, and will not result in the
creation, or require, the creation or imposition of any Lien (other than
Permitted Liens) on any of its properties or revenues pursuant to any
Requirement of Law or Contractual Obligation.
(e) MATERIAL LITIGATION.
(i) There are no actions, suits or proceedings at law
or in equity or by or before any arbitrator, court or Governmental Authority now
pending or, to the knowledge of such Seller, threatened against it or any of its
properties, revenues or rights as to which there is a reasonable possibility of
an adverse determination which (A) if adversely determined, could individually
or in the aggregate result in a Material Adverse Effect, or (B) involve this
Agreement, any of the other Sale Documents, any other Transaction Document to
which such Seller is a party or any of the transactions contemplated hereby or
thereby.
(ii) The transactions hereunder and the use of the
proceeds thereof will not violate any Requirement of Law that would have a
Material Adverse Effect.
(f) NO DEFAULT. It is not in default under or with respect to
any of its Contractual Obligations in any respect or in violation of any
Requirement of Law which would have a Material Adverse Effect. No Purchase
Termination Event with respect to such Seller or Potential Purchase Termination
Event under (or relating to) Section 7.1(d)(i) with respect to it has occurred
and is continuing.
(g) TAX RETURNS. It has filed or caused to be filed all
material tax returns (including without limitation U.S. Form 1120 (U.S.
Corporation Income Tax Return)) required to have been filed by it and has paid
or caused to be paid all taxes and assessments shown thereon to be due and
payable, except (i) any taxes or assessments with respect to which the failure
to pay, in the aggregate, would not have
15
a Material Adverse Effect or (ii) any taxes or assessments the amount and
validity of which are currently being contested in good faith by appropriate
proceedings diligently conducted and with respect to which reserves in
conformity with GAAP have been recorded in or otherwise provided for in its
books. For purposes of this paragraph, "taxes" shall mean any present or future
tax, levy, impost, duty, charge, assessment or fee of any nature (including
interest, penalties and additions thereto) that is imposed by any Governmental
Authority.
(h) CAPITALIZATION. All of its Capital Stock is owned directly
or indirectly by General Cable Corporation.
(i) EMPLOYEE BENEFIT PLANS. Each of such Seller and each of
its ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the regulations and published interpretations
thereunder with respect to each Plan of such Seller or any of its ERISA
Affiliates except for such noncompliance which could not reasonably be expected
to result in a Material Adverse Effect. No Reportable Event has occurred as to
which such Seller or any of its ERISA Affiliates was required to file a report
with the PBGC, other than reports for which the 30 day notice requirement is
waived, reports that have been filed and reports the failure of which to file
would not result in a Material Adverse Effect and the present value of all
benefit liabilities under each Plan of such Seller or any of its ERISA
Affiliates (on a termination basis and based on those assumptions used to fund
such Plan) did not, as of the last annual valuation report applicable thereto,
exceed the value of the assets of such Plan by any amount which could reasonably
be expected to have a Material Adverse Effect. Neither such Seller nor any of
its ERISA Affiliates has incurred or could reasonably be expected to incur any
Withdrawal Liability that could reasonably be expected to result in a Material
Adverse Effect. Neither such Seller nor any of its ERISA Affiliates has received
any notification that any Multi- Employer Plan is either insolvent or in
reorganization or has been terminated within the meaning of Title IV of ERISA,
and no Multi-Employer Plan is reasonably expected to be in reorganization or to
be terminated where such reorganization or termination has resulted or could
reasonably be expected to result, through increases in the contributions
required to be made to such Plan or otherwise, in a Material Adverse Effect.
(j) FRAUDULENT TRANSFER. Such Seller is not entering into this
Agreement with the intent to hinder, delay, or defraud its present or future
creditors and is receiving reasonably equivalent value for the Receivables being
transferred hereunder.
(k) SOLVENCY. The fair salable value of the assets of such
Seller exceeds the amount that will be required to be paid on or in respect of
the existing debts and other liabilities (including contingent liabilities) of
such Seller. The assets of such Seller do not constitute unreasonably small
capital to carry out its business as conducted or as proposed to be conducted.
Such Seller does not intend to, or believe that it will, incur debts beyond its
ability to pay such debts as they mature. Such Seller
16
is solvent.
(l) ABSENCE OF CERTAIN RESTRICTIONS. No Contractual Obligation
of such Seller or any of its Subsidiaries will prohibit or restrain, or have the
effect of prohibiting or restraining, or imposing adverse conditions upon, the
sale of Receivables and Related Property or the granting of Liens thereon except
for any such Contractual Obligation the effect of which would not have a
Material Adverse Effect and except as contemplated by the Transaction Documents.
(m) INDEBTEDNESS TO COMPANY. It had no outstanding
Indebtedness to the Company other than amounts permitted by the Sale Documents.
(n) LOCKBOXES. Set forth in SCHEDULE 2 is a complete and
accurate description of each Lockbox Account and Concentration Account currently
maintained by such Seller. Each of the Lockbox Agreements and Concentration
Account Agreements ,once entered into, shall be the legal, valid and binding
obligation of each Seller party thereto, enforceable against such Seller in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in equity).
(o) SECURITY. On or prior to such Effective Date, all filings
and other acts necessary or advisable (including but not limited to all filings
and other acts necessary or advisable under the UCC of each relevant
jurisdiction) shall have been made or performed in order to grant the Company a
first priority perfected security interest in respect of all Receivables as
contemplated by Section 9.11 hereof.
(p) RECEIVABLES DOCUMENTS. Upon the delivery, if any, by such
Seller to the Company of licenses, rights, computer programs, related materials,
computer tapes, disks, cassettes and data relating to the administration of the
Purchased Receivables pursuant to subsection 5.14(d)(v), the Company shall have
been furnished with all materials and data necessary to permit immediate
collection of the Purchased Receivables without the participation of any Seller
in such collection.
(q) CHIEF EXECUTIVE OFFICE. At all times during the period of
four calendar months ending on the Effective Date and at all times thereafter,
the principal place of business and chief executive office of such Seller is
maintained at the address listed opposite such Seller's name on SCHEDULE 1,
which office is the place where such Person is "located" for the purposes of
Section 9-103 (3)(d) of the applicable UCC in effect on the date hereof, and the
offices of such Seller where such Seller keeps its records concerning the
Receivables are also located at the respective addresses listed in such Schedule
opposite its name (or in each case at such other locations, notified to the
Company in accordance with Section 5.6, in jurisdictions where all actions
required
17
by subsection 5.14(a) have been taken and completed). Schedule 1 also sets forth
for such Seller the jurisdiction in which such Seller is "located" for purposes
of section 9- 301 of the applicable UCC as it is expected to be revised on or
about July 1, 2001 in most jurisdictions.
(r) BULK SALES ACT. No transaction contemplated hereby with
respect to such Seller requires compliance with, or will be subject to avoidance
under, any bulk sales act or similar law.
(s) TRADE NAMES. Such Seller does not use any trade name,
fictitious name, assumed name, or doing-business-as names other than its actual
corporate name and those names set forth in EXHIBIT B to this Agreement. Except
as set forth in EXHIBIT B to this Agreement, during the six-year period
commencing on the date that fell six years before the date hereof, such Seller
has not been known by any legal name other than its corporate name as of the
date hereof, nor has it been the subject of any merger or other corporate
reorganization.
(t) PURPOSE. Each Seller has found that the sale of
Receivables on the terms and conditions specified in this Agreement is
economically fair and reasonable to such Seller and in the best interest of such
Seller and its creditors and represents a practicable course of action without
impairing the rights and interests of such creditors.
(u) ACCURACY AND COMPLETENESS OF INFORMATION. Each Seller has
disclosed all agreements, instruments and corporate or other restrictions to
which it is subject, and all other matters known to it, that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect.
(v) INVESTMENT COMPANY ACT. Each Seller is not controlled by
or is not an "investment company" as defined in or subject to regulation under,
the Investment Company Act of 1940, as amended.
4.2 REPRESENTATIONS AND WARRANTIES OF THE SELLERS RELATING TO THE
AGREEMENT AND THE RECEIVABLES. Each Seller hereby represents and warrants to the
Company on the related Effective Date and on each Payment Date that with respect
to the Receivables being paid for as of such date:
(a) RECEIVABLES DESCRIPTION. The microfiche, printed or typed
list or computer file delivered pursuant to subsection 3.1(e) or attached to any
Daily Report is a complete listing of all of its Receivables, which list is
accurate in all material respects, as of the date indicated therein and the
information contained therein with respect to the identity of such Receivables
is true and correct in all material respects as of such date.
(b) ELIGIBLE RECEIVABLE. Each Receivable sold by it hereunder
and designated on a Daily Report to be an Eligible Receivable will be, at its
respective
18
Payment Date, an Eligible Receivable. The aggregate outstanding Principal Amount
of Eligible Receivables sold by it on any Payment Date is correctly set forth on
the Daily Report with respect to such Seller and with respect to such Payment
Date.
(c) TITLE; NO LIENS. Other than with respect to Receivables
which such Seller states in writing (in the applicable Daily Report or
otherwise) are not Eligible Receivables on such date, such Seller is the sole
legal and beneficial owner of its Receivables, and upon the sale of each such
Receivable of such Seller, the Company will become the sole legal and beneficial
owner of such Receivable, free and clear of any Liens (except for Permitted
Liens which are described in clause (i) of the definition thereof), and no
effective financing statement or other instrument similar in effect covering all
or any part of such Purchased Receivable, Related Property or Collections with
respect thereto will at such time be on file against such Seller in any filing,
recording office or similar office, except such as have been filed in favor of
the Company in accordance with this Agreement.
ARTICLE V
AFFIRMATIVE COVENANTS
Each Seller hereby agrees that, until the later of (i) the first date
on which there are no amounts outstanding with respect to Purchased Receivables
previously sold by such Seller to the Company and (ii) any termination under
Article VII or Section 9.15 with respect to such Seller, such Seller or the
Master Servicer on behalf of such Seller shall:
5.1 CERTIFICATES; ACCOUNTING TREATMENT. Furnish to the Company not
later than 90 days after the end of each fiscal year and not later than 45 days
after the end of each of the first three fiscal quarters of each fiscal year:
(a) a certificate of a Responsible Officer of the Master
Servicer stating that, to the best of such Responsible Officer's knowledge
(after due inquiry), such Seller during such period has observed or performed
all of its covenants and other agreements in all material respects, and
satisfied every condition, contained in the Sale Documents to which it is a
party and to be observed, performed or satisfied by it in all material respects,
and that such Responsible Officer has obtained no knowledge of any Purchase
Termination Event or Potential Purchase Termination Event except as specified in
such certificate; and
(b) the consolidated financial statements of General Cable
Corporation, which financial statements will disclose the effects of the
transactions contemplated hereby in accordance with generally accepted
accounting principles. The existence of the Company and its ownership of the
Receivables will be disclosed in a footnote to General Cable Corporation
consolidated financial statements and any financial statements distributed by
any Seller.
19
5.2 COMPLIANCE WITH LAWS, ETC. Comply with all Requirements of Law and
Contractual Obligations affecting the collectability of the Purchased
Receivables and the performance by such Seller of its obligations under this
Agreement and the other Transaction Documents to which it is a party, except to
the extent that the failure to so comply would not be reasonably expected to
have a Material Adverse Effect.
5.3 PRESERVATION OF CORPORATE EXISTENCE. Do or cause to be done all
things necessary to (i) preserve, renew and keep in full force and effect its
legal existence and maintain such legal existence separate from that of the
Company and (ii) preserve and maintain its rights, franchises and privileges in
the jurisdiction of its organization, and qualify and remain in good standing in
the jurisdiction where its chief executive office is located and in each other
jurisdiction where the failure to preserve and maintain such rights, franchises,
privileges and qualification would be reasonably likely to have a Material
Adverse Effect; PROVIDED that any Seller may be merged or consolidated with or
into any other Seller or Parent. Nothing contained herein shall restrict in any
manner the ability of any Seller to change the jurisdiction of its organization
or the location of its chief executive office (subject to the provisions of
Section 6.4); PROVIDED, HOWEVER, that no Seller shall change the location of its
chief executive office to a state which is within the Tenth Circuit unless it
delivers an Opinion of Counsel reasonably acceptable to the Rating Agency to the
effect that OCTAGON GAS SYSTEMS, INC. X. XXXXXX, 995 F.2d 948 (10th Cir. 1993),
is no longer controlling precedent in the Tenth Circuit.
5.4 VISITATION RIGHTS. At any reasonable time during normal business
hours and from time to time, in each case upon reasonable notice to such Seller
and the Master Servicer, permit (i) the Company, or any of its agents,
representatives or assignees, (A) to examine and make copies of and abstracts
from the records, books of account and documents (including computer tapes and
disks) of each Seller relating to the Purchased Receivables and Related Property
hereunder and (B) following the termination of the appointment of Parent as
Master Servicer with respect to the Purchased Receivables, to be present at the
offices and properties of such Seller to administer and control the collection
of amounts owing on the Purchased Receivables and (ii) the Company, or any of
its agents, representatives or assignees, to visit the properties of such Seller
for the purpose of examining such records, books of account and documents, and
to discuss the affairs, finances and accounts of such Seller relating to the
Purchased Receivables or such Seller's performance hereunder with any of its
officers or directors and with its independent certified public accountants
(subject to any requirements of confidentiality imposed by law or contract).
5.5 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain and implement, or
cause to be maintained or implemented, administrative and operating procedures
reasonably necessary or advisable for the collection of amounts owing on all
Purchased Receivables, and, until any delivery to the Company, keep and
maintain, or cause to be kept and maintained, all documents, books, records and
other information reasonably necessary or advisable for the collection of
amounts owing on all such Purchased
20
Receivables and the Related Property with respect thereto.
5.6 LOCATION OF RECORDS. So long as the UCC in effect as of the date of
this Agreement is in effect in any applicable jurisdiction, keep its principal
place of business, chief executive office and jurisdiction where it is located,
and the offices where it keeps the records concerning the Purchased Receivables
(and all original documents relating thereto) at the locations referred to for
it on SCHEDULE 1 to this Agreement or after revised Article 9 of the UCC is in
effect in any applicable jurisdiction, keep the jurisdiction in which it is
located referred to in Schedule 1 to this Agreement or, upon 30 days' prior
written notice to the Company, at such other locations in a jurisdiction where
all action required by subsection 5.14(a) shall have been taken and completed
and be in full force and effect; PROVIDED that the Rating Agency shall be
notified of any such changes in location and such location is not in a state
which is within the Tenth Circuit unless such Seller delivers an Opinion of
Counsel reasonably acceptable to the Rating Agency to the effect that OCTAGON
GAS SYSTEMS, INC. X. XXXXXX, 995 F.2d 948 (10th Cir. 1993), is no longer
controlling precedent in the Tenth Circuit.
5.7 MASTER RECORD. At its own cost and expense, retain the ledger used
by such Seller as a master record of the Obligors and retain copies of all
documents relating to each Obligor as custodian and agent for the Company and
other Persons with interests in the Purchased Receivables and xxxx the computer
tape or other physical records of the Purchased Receivables to the effect that
interests in the Purchased Receivables existing with respect to the Obligors
listed thereon have been sold to the Company and that the Company has
transferred an interest therein and, subsidiarily, has granted a security
interest therein.
5.8 POLICIES. Perform its obligations in accordance with and comply in
all material respects with the Policies, in regard to the Purchased Receivables
and the Related Property.
5.9 OBLIGATIONS. Pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where (a) the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on its
books, or (b) the failure to so pay, discharge or satisfy all such obligations
would not, in the aggregate, have a Material Adverse Effect and would not
subject any of its properties to any Lien prohibited by Section 6.1.
5.10 COLLECTIONS. Instruct each Obligor to make payments in respect of
its Receivables to a Lockbox or a Lockbox Account in accordance with the
standard Lockbox procedure of the Lockbox Processor or its agent or by wire
transfer to the applicable Collection Account, except for payments made by any
Obligor, consistent with the Policies, to employees of such Seller who mail or
deposit such payments within one Business Day of receipt to a Lockbox or Lockbox
Account.
21
5.11 FURNISHING COPIES, ETC. Furnish to the Company:
(a) promptly upon a Responsible Officer of such Seller
obtaining knowledge of the occurrence of any Purchase Termination Event or
Potential Purchase Termination Event, written notice thereof;
(b) promptly following request therefor, such other
information, documents, records or reports regarding or with respect to the
Purchased Receivables of the applicable Seller, as the Company may from time to
time reasonably request;
(c) promptly upon a Responsible Officer of such Seller
obtaining knowledge of the occurrence thereof, written notice of any event of
default or default under any other Sale Document;
(d) promptly upon a Responsible Officer of such Seller
obtaining knowledge of the occurrence thereof, written notice of any development
that has resulted in, or could reasonably be expected to result in, a Material
Adverse Effect; and
(e) promptly upon determining that any Purchased Receivable
designated as an Eligible Receivable on the applicable Daily Report or Monthly
Settlement Statement was not an Eligible Receivable as of the date provided
therefor, written notice of such determination.
5.12 OBLIGATIONS WITH RESPECT TO OBLIGORS AND RECEIVABLES. Take all
actions on its part reasonably necessary to maintain in full force and effect
its material rights under all contracts relating to the Purchased Receivables.
5.13 RESPONSIBILITIES OF THE SELLERS. Notwithstanding anything herein
to the contrary, (i) each Seller shall perform or cause to be performed all its
obligations under the Policies related to the Purchased Receivables to the same
extent as if such Purchased Receivables had not been transferred to the Company
hereunder, (ii) the exercise by the Company of any of its rights hereunder shall
not relieve any Seller of its obligations with respect to such Purchased
Receivables and (iii) except as provided by law, the Company shall not have any
obligation or liability with respect to any Purchased Receivables, nor shall the
Company be obligated to perform any of the obligations or duties of any Seller
thereunder.
5.14 FURTHER ACTION. In addition to the foregoing:
(a) Each Seller agrees that from time to time, at its expense,
it will promptly execute and deliver all other instruments and documents, and
take all further action, that may be necessary or desirable in such Seller's
reasonable judgment or that the Company may reasonably request, in order to more
fully effect the purposes of this Agreement and the transfer of the Receivables
hereunder, to protect or more fully evidence the Company's right, title and
interest in the Purchased Receivables, Related
22
Property or Collections thereon, or to enable the Company to exercise or enforce
any of its rights in respect thereof. Without limiting the generality of the
foregoing, each Seller will upon the request of the Company (i) execute and file
such financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or, in the opinion of the Company,
advisable, (ii) indicate on its books and records that the Purchased Receivables
have been purchased by the Company and that the Company has sold an interest
therein and, subsidiarily, has granted a security interest therein in the
Company's retained interest, and provide to the Company, upon request, copies of
any such records, and (iii) obtain the agreement of any Person having a Lien on
any Receivables owned by any Seller (other than any Lien created or imposed
hereunder or under the Pooling Agreement or any Permitted Lien) to release such
Lien upon the purchase of any such Receivables by the Company.
(b) Each Seller hereby irrevocably authorizes the Company and
the Trustee to file one or more financing or continuation statements (and other
similar instruments), and amendments thereto, relative to all or any part of the
Purchased Receivables, the Related Property and Collections sold or to be sold
by such Seller without the signature of such Seller to the extent permitted by
applicable law.
(c) If any Seller fails to perform any of its agreements or
obligations under this Agreement, the Company may (but shall not be required to)
perform, or cause performance of, such agreements or obligations, and the
expenses of the Company incurred in connection therewith shall be payable by
such Seller as provided in Section 9.3.
(d) Each Seller agrees that, upon the occurrence and during
the continuation of a Purchase Termination Event with respect to such Seller or
a Master Servicer Default:
(i) the Company (and its assignees) shall have the
right at any time to notify, or require that any Seller at such Seller's expense
notify, the respective Obligors of the Company's ownership of the Purchased
Receivables and Related Property and may direct that payment of all amounts due
or to become due under the Purchased Receivables be made directly to the Company
or its designee;
(ii) the Company (and its assignees) shall have the
right to (A) xxx for collection on any Purchased Receivables or (B) sell any
Purchased Receivables to any Person for a price that is acceptable to the
Company. If required by the terms of Section 9-504 or 9-505 of the UCC or any
successor provisions, the Company (and its assignees) may offer to sell any
Purchased Receivable to any Person, together, at its option, with all other
Purchased Receivables created by the same Obligor. Any Purchased Receivable sold
hereunder (other than pursuant to the Pooling Agreement) shall cease to be a
Receivable for all purposes under this Agreement as of the effective date of
such sale;
(iii) each Seller shall, upon the Company's (or its
assignee's)
23
written request and at such Seller's expense, (A) assemble all such Seller's
documents, instruments and other records (including credit files and computer
tapes or disks) that (1) evidence or will evidence or record Receivables sold by
such Seller and (2) are otherwise necessary or desirable to effect Collections
of such Purchased Receivables (collectively, the "DOCUMENTS") and (B) deliver
the Documents to the Company or its designee at a place designated by the
Company. In recognition of each Seller's need to have access to any Documents
which may be transferred to the Company (or its assignee) hereunder, whether as
a result of its continuing business relationship with any Obligor for
Receivables purchased hereunder, the Company hereby grants to the applicable
Seller an irrevocable (so long as such Receivables are outstanding) license to
access the Documents transferred by such Seller to the Company (or its assignee)
and to access any such transferred computer software in connection with any
activity arising in the ordinary course of such Seller's business provided that
such Seller shall not disrupt or otherwise interfere with the Company's (or its
assignee's) use of and access to the Documents and its computer software during
such license period; and
(iv) upon written request of the Company, each Seller
will (A) deliver to the Company all licenses, rights, computer programs, related
material, computer tapes, disks, cassettes and data necessary to the immediate
collection of the Purchased Receivables by the Company, with or without the
participation of any Seller (excluding software licenses which by their terms
are not permitted to be so delivered, PROVIDED that such Seller shall use its
best efforts to obtain the consent of the relevant licensor to such delivery)
and (B) make such arrangements with respect to the collection of the Purchased
Receivables as may be reasonably required by the Company.
(e) Each Seller hereby grants to the Company an irrevocable
power of attorney (coupled with an interest) to take any and all steps in such
Seller's name necessary or desirable, in the reasonable opinion of the Company,
to collect all amounts due under the Purchased Receivables, including, without
limitation, endorsing such Seller's name on checks and other instruments
representing Collections, enforcing the Purchased Receivables and exercising all
rights and remedies in respect thereof; PROVIDED that the Company may not
exercise such power of attorney with respect to any Seller unless a Purchase
Termination Event shall have occurred and be continuing with respect to such
Seller or a Master Servicer Default shall have occurred.
5.15 CERTAIN PROCEDURES. Each Seller shall take, or refrain from
taking, as the case may be, all actions that are necessary to be taken or not
taken in order to (a) ensure that the assumptions and factual recitations set
forth in the bankruptcy opinion of the company's counsel remain true and correct
with respect to such Seller and (b) comply with those procedures described in
such provisions which are applicable to such Seller.
5.16 ERISA; TAXES. Pay and discharge promptly: (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in
24
respect of its property, and (ii) all obligations, funding requirements and
other liabilities under ERISA, in each case before the same shall become
delinquent or in default, except to the extent that the validity or amount
thereof shall be contested in good faith by appropriate proceedings and such
Seller shall set aside on its books adequate reserves as required by GAAP with
respect thereto.
ARTICLE VI
NEGATIVE COVENANTS
Each Seller hereby agrees that, until the later of (i) the first date
on which there are no amounts outstanding with respect to Purchased Receivables
previously sold by such Seller to the Company and (ii) any termination under
Article VII or Section 9.15 with respect to such Seller, such Seller shall not,
directly or indirectly:
6.1 LIENS. Except as otherwise herein provided, sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer to
exist any Lien upon or with respect to, any Purchased Receivables or Related
Property, or assign any right to receive proceeds in respect thereof, EXCEPT for
Liens created or imposed hereunder or under the Pooling Agreement, any
Concentration Account Agreement, or any Lockbox Agreement against such
Receivable or the proceeds thereof.
6.2 EXTENSION OR AMENDMENT OF RECEIVABLES. Extend, make any Dilution
Adjustment to, rescind, cancel, amend or otherwise modify, or attempt or purport
to extend, amend or otherwise modify, the terms of any Purchased Receivables,
except (a) in accordance with the terms of the Policies and only to the extent
that such extension, amendment or modification does not adversely affect the
collectability of the Purchased Receivables, (b) as required by any change in
any Requirement of Law since the date of origination or (c) in the case of
Dilution Adjustments, upon making a Seller Adjustment Payment pursuant to
Section 2.5, PROVIDED that the Master Servicer may cause Receivables to become
Charged-Off Receivables in accordance with the terms of the Policies.
6.3 CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Except as otherwise
provided in Section 5.14, and except for payments made by any Obligor,
consistent with the Policies, to employees of such Seller who mail or deposit
such payments within one Business Day of receipt to a Lockbox or Lockbox
Account, instruct any Obligor of any Purchased Receivables to make any payments
with respect to any Receivables other than, in accordance with Section 5.10, to
a Lockbox, a Lockbox Account or by wire transfer to the applicable Concentration
Account; PROVIDED that, in accordance with the Pooling Agreement, (i) it may
terminate any Lockbox Agreements or Lockbox Accounts and (ii) it may execute
additional Lockbox Agreements or Lockbox Accounts and instruct Obligors to make
payments in respect of any Receivables to such additional accounts.
25
6.4 CHANGE IN NAME. Change its name, identity or corporate structure in
any manner which would or might make any financing statement or continuation
statement relating to this Agreement seriously misleading within the meaning of
Section 9-402(7) or any successor provision of the applicable UCC, or impair the
perfection of the Company's interest in any Receivable under any other similar
law, without 30 days' prior written notice to the Company and the Trustee.
6.5 POLICIES. Make any change or modification (or permit any change or
modification to be made) to the Policies, except (i) if such changes or
modifications are necessary under any change in any Requirement of Law, (ii) if
such changes or modifications would not reasonably be expected to have an
adverse effect on the credit quality or collectability of the Receivables or the
interests of the Certificateholders in any material respect or (iii) if the
Rating Agency Condition is satisfied and the consent of any Agent is received
with respect thereto.
6.6 MODIFICATION OF LEDGER. Delete or otherwise modify the marking on
the ledger referred to in Section 5.7.
6.7 BUSINESS OF THE SELLERS.
(a) Engage at any time in any business or business activity
other than the business conducted by it on the Effective Date and business
activities reasonably incidental or related thereto and, in the case of Parent,
such other business activities as Parent may reasonably determine could not be
reasonably expected to have a Material Adverse Effect; or
(b) fail to maintain and operate such business in
substantially the manner in which it is conducted and operated on the Effective
Date if such failure could reasonably be expected to have a Material Adverse
Effect.
6.8 ACCOUNTING OF PURCHASES. Prepare any financial statements which
shall account for the transactions contemplated hereby (other than capital
contributions), in any manner other than as sales of the Purchased Receivables
by such Seller to the Company or in any other respect account for or treat the
transactions contemplated hereby (including for accounting purposes and, where
taxes are not consolidated, for tax reporting purposes, except as required by
law) (other than capital contributions contemplated hereby) in any manner other
than as sales of the Purchased Receivables by such Seller to the Company.
6.9 INSTRUMENTS. Take any action to cause any Purchased Receivable to
be evidenced by any instrument (as defined in the applicable UCC or other
similar statute or legislation) or any title in bearer form except in connection
with the enforcement or collection of a Receivable.
6.10 INELIGIBLE RECEIVABLES. Without the prior written approval of the
26
Company, take any action to cause, or which would permit, an Eligible Receivable
to cease to be an Eligible Receivable, except as otherwise expressly provided by
this Agreement.
ARTICLE VII
PURCHASE TERMINATION EVENTS
7.1 TERMINATION EVENTS. If any of the following events (herein called
"PURCHASE TERMINATION EVENTS"; PROVIDED that the event described in paragraph
(g) below shall only be a Purchase Termination Event or Potential Purchase
Termination Event as described hereinafter) shall have occurred and be
continuing:
(a) any Seller shall fail (i) to pay any amount due pursuant
to Section 2.5 (Dilution Adjustments) or 2.6 (Limited Repurchase and
Indemnification) in accordance with the provisions thereof and such failure
shall continue unremedied for a period of five Business Days or (ii) to pay any
other amount required to be paid by such Seller hereunder and such failure shall
continue unremedied for a period of five Business Days, in each case from the
earlier of (A) the date any Responsible Officer of such Seller or the Master
Servicer (so long as the Master Servicer is an affiliate of such Seller) obtains
knowledge of such failure and (B) the date such Seller receives notice of such
failure from the Company, the Master Servicer or the Trustee;
(b) any Seller shall fail to observe or perform in any
material respect any covenant or agreement applicable to it contained herein
(other than as specified in paragraph (a) of this Section 7.1), PROVIDED that no
such failure shall constitute a Purchase Termination Event under this paragraph
(b) unless such failure shall continue unremedied for a period of thirty (30)
consecutive days from the earlier of (A) the date any Responsible Officer of
such Seller or the Master Servicer (so long as the Master Servicer is an
affiliate of such Seller) obtains knowledge of such failure and (B) the date
such Seller receives notice of such failure from the Company, the Master
Servicer or the Trustee;
(c) any representation, warranty, certification or statement
made or deemed made by any Seller in this Agreement or in any statement, record,
certificate, financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect on or as of
the date made or deemed made, which continues to be incorrect 30 days from the
earlier of (A) the date any Responsible Officer of such Seller or the Master
Servicer (so long as the Master Servicer is an affiliate of such Seller) obtains
knowledge of such failure and (B) the date on which notice of failure, requiring
the same to be remedied, shall have been given by the Company, the Master
Servicer or the Trustee to such Seller, and as a result of such incorrectness, a
Material Adverse Effect with respect to such Seller or the Company has occurred,
PROVIDED, that a Purchase Termination Event shall not be deemed to
27
have occurred under this paragraph (c) based upon a breach of any representation
or warranty set forth in Section 4.2 if the Sellers shall have complied with the
provisions of Section 2.6 in respect thereof;
(d) (i) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction seeking
(x) relief in respect of any Seller or of a substantial part of the property or
assets of any Seller under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (y) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
any Seller or for a substantial part of the property or assets of any Seller or
(z) the winding-up or liquidation of any Seller, and such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(ii) any Seller shall (A) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (B)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in clause (d)(i)
above, (C) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for such Seller or for
a substantial part of the property or assets of such Seller, (D) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (E) make a general assignment for the benefit of creditors, or (F)
take any action for the purpose of effecting any of the foregoing; or
(iii) become unable, admit in writing its inability
or fail generally to pay its debts as they become due.
(e) there shall have occurred an Early Amortization Event set
forth in Section 7.1(a) under the Pooling Agreement;
(f) Parent has been terminated as Master Servicer following a
Master Servicer Default with respect to Parent under the Pooling Agreement;
(g) (i) there shall have been filed against any Seller, the
Company or the Trust (x) a notice of federal tax Lien from the Internal Revenue
Service or (y) a notice of Lien from the PBGC under Section 412(n) of the Code
or Section 302(f) of ERISA for a failure to make a required installment or other
payment to a plan to which Section 412(n) of the Code or Section 302(f) of ERISA
applies, or (ii) a Responsible Officer of any Seller or the Company has received
notice of the existence of any Lien referred to in clause (x) or (y) above; or
(h) there shall have occurred (I) an Early Amortization Event
set forth in Section 7.1(b) or (c) under the Pooling Agreement or (II) the Early
Amortization
28
Period with respect to all Outstanding Series shall have occurred and be
continuing;
then; (1) in the case of any Purchase Termination Event described in paragraphs
(d), (e) and (h)(i) above with respect to any Seller, automatically the
obligation of the Company to purchase Receivables from such Seller shall
thereupon terminate without notice of any kind, which notice is hereby waived by
the Sellers;
(2) in the case of any Purchase Termination Event described in
paragraph (h)(ii) above, automatically the obligation of the Company to purchase
Receivables from such Seller shall thereupon terminate without notice of any
kind, which notice is hereby waived by the Sellers unless both the Company and
the Sellers agree in writing that such event shall not trigger an Early
Termination hereunder,
(3) upon the occurrence of an event described in paragraph (g) above,
the obligation of the Company to pay for Receivables from such Seller shall
thereupon automatically cease without notice of any kind, which notice is hereby
waived by the Sellers, it being provided that (notwithstanding any such
cessation) the event described in paragraph (g) above shall not constitute a
Purchase Termination Event (or Potential Purchase Termination Event) unless and
until such time as such Seller shall have failed to furnish the Company, the
Trustee, any Agent and the Rating Agencies evidence within the 30-day period
immediately following the occurrence of such event described in paragraph (g)
proof of the release of, or payment of amounts secured by, such Lien or there
shall have been provided security for the payment of all amounts secured by such
Lien pursuant to arrangements reasonably satisfactory in form and substance to
the Trustee, any Agent and the Rating Agencies, it being further provided that
if such Seller shall furnish the Company, the Trustee, any Agent and each Rating
Agency any such evidence within such 30-day period, the Company's obligation to
pay for Receivables shall be automatically reinstated as of the date such
evidence is so provided and no Purchase Termination Event (or Potential Purchase
Termination Event) shall have occurred, and
(4) in the case of any Purchase Termination Event (including any event
described in clause (3) above), so long as such Purchase Termination Event shall
be continuing, the Company may terminate its obligation to purchase Receivables
from any or all of the Sellers by written notice to each such Seller (any
termination pursuant to clause (1), (2) or (4) of this Article VII which affects
a Seller is herein called an "EARLY TERMINATION" with respect to such Seller);
PROVIDED, HOWEVER, in the event of an involuntary proceeding or petition as
described in paragraph (d)(i) above, the Company shall not purchase Receivables
from such Seller until such time, if any, as such involuntary petition or
proceeding has been dismissed, PROVIDED that such dismissal shall have occurred
within 60 days of the filing of such petition or the commencement of such
proceeding.
ARTICLE VIII
THE SUBORDINATED NOTE
29
8.1 SUBORDINATED NOTE. On the date hereof, the Company shall issue to
the Master Servicer on behalf of all the Sellers an unsecured subordinated note
substantially in the form of EXHIBIT C (the "SUBORDINATED NOTE"). The aggregate
principal amount of the Subordinated Note at any time shall be equal to the
difference between (a) the aggregate principal amount on the issuance thereof
and each addition to the principal amount of the Subordinated Note with respect
to each Seller pursuant to the terms of Section 2.3 minus (b) the aggregate
amount of all payments made in respect of the principal of the Subordinated
Note. All payments made in respect of the Subordinated Note shall be allocated
among the Sellers by the Master Servicer. Each Seller's interest in the
Subordinated Note shall equal the sum of each addition thereto allocated to such
Seller pursuant to subsection 2.3(c) less the sum of each repayment thereof
allocated to such Seller. Interest on the principal amount of the Subordinated
Note shall accrue at 8.5% PER ANNUM from and including the initial Effective
Date and shall be paid on each Distribution Date with respect to amounts accrued
and not paid as of the last day of the preceding Settlement Period and at the
maturity date thereof, PROVIDED, however, that accrued interest on the
Subordinated Note which is not so paid may be added to the principal amount of
the Subordinated Note. Principal not prepaid pursuant to the terms hereof and of
the other Sale Documents shall be payable on the maturity date thereof. Default
in the payment of principal or interest under the Subordinated Note shall not
constitute a default or event of default or a Purchase Termination Event
hereunder, a Master Servicer Default under the Pooling Agreement or an Early
Amortization Event under the Pooling Agreement or any Supplement thereto.
8.2 RESTRICTIONS ON TRANSFER OF SUBORDINATED NOTE. Neither the
Subordinated Note, nor any right of any Seller to receive payments thereunder,
shall be assigned, transferred, exchanged, pledged, hypothecated, participated
or otherwise conveyed.
ARTICLE IX
MISCELLANEOUS
9.1 FURTHER ASSURANCES.
(a) Each Seller agrees, from time to time, to do and perform
any and all acts and to execute any and all further instruments reasonably
required or requested by the Company more fully to effect the purposes of this
Agreement and the sales of the Receivables hereunder, including, without
limitation, the execution of any financing statements or continuation statements
relating to the Receivables, the related Property or the Collections for filing
under the provisions of the UCC of any applicable jurisdiction.
(b) From time to time at the request of a Seller, the Company
shall
30
deliver to such Seller such documents, assignments, releases and instruments of
termination as such Seller may reasonably request to evidence the reconveyance
by the Company to such Seller of a Receivable pursuant to the terms of
subsection 2.1(a) or subsection 2.6(a), PROVIDED that the Company shall have
been paid all amounts due thereunder; and the Company and the Master Servicer
shall take such action as such Seller may reasonably request, at the expense of
such Seller, to assure that any such Receivable, the Related Property with
respect thereto and the proceeds thereof do not remain commingled with
Collections hereunder.
9.2 PAYMENTS. Each cash payment to be made by any of the Company or the
Sellers hereunder shall be made on the required payment date and in immediately
available funds at the office of the payee set forth in Section 9.9 or on
Schedule 1 or to such other office as may be specified by either party in a
notice to the other party to this Agreement and in U.S. Dollars.
9.3 COSTS AND EXPENSES. The Sellers, jointly and severally, agree: (a)
to pay or reimburse the Company for all its out-of-pocket costs and expenses
incurred in connection with the preparation and execution of, and any amendment,
supplement or modification to, this Agreement, the other Sale Documents and any
other documents prepared in connection herewith and therewith, the consummation
and administration of the transactions contemplated hereby and thereby,
including, without limitation, all reasonable fees and disbursements of counsel
to the Company; (b) to pay or reimburse the Company for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement and any of the other Transaction Documents,
including, without limitation, the reasonable fees and disbursements of counsel
to the Company; (c) to pay, indemnify, and hold the Company harmless from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay caused by the Seller in paying, stamp, excise and
other similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this Agreement
and any such other documents; and (d) to pay, indemnify, and hold the Company
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (collectively, "LIABILITIES"), (i) which may at
any time be imposed on, incurred by or asserted against the Company in any way
relating to or arising out of this Agreement or the transactions contemplated
hereby or in connection herewith or any action taken or omitted by the Company
under or in connection with any of the foregoing or (ii) which would not have
been imposed on, incurred by or asserted against the Company but for its having
purchased the Receivables hereunder (all such other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements being herein called "INDEMNIFIED LIABILITIES"), PROVIDED, that
such indemnity shall not be available to the extent that such Indemnified
Liabilities are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross
31
negligence or willful misconduct of the Company, and PROVIDED, FURTHER, that the
Sellers shall have no obligation under this Section 9.3 to the Company with
respect to Indemnified Liabilities arising from (i) any action taken, or omitted
to be taken, by a Master Servicer which is not an Affiliate of the Sellers, (ii)
any Eligible Receivable which becomes a Charged-Off Receivable as a result of
nonpayment by the Obligor with respect thereto or (iii) any action taken by the
Trustee or the Company at the direction of the Trustee in collecting from an
Obligor. The agreements in this Section 9.3 shall survive the collection of all
Receivables, the termination of this Agreement and the payment of all amounts
payable hereunder.
9.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Sellers and the Company and their respective
successors (whether by merger, consolidation or otherwise) and assigns. Each
Seller agrees that it will not assign or transfer all or any portion of its
rights or obligations hereunder without the prior written consent of the
Company. The Sellers acknowledge that the Company may and shall assign all of
its rights hereunder to the Trustee. Each Seller consents to such assignment and
agrees that the Trustee, to the extent provided in the Pooling Agreement, shall
be entitled to enforce the terms of this Agreement and the rights (including,
without limitation, the right to grant or withhold any consent or waiver) of the
Company directly against such Seller, whether or not a Purchase Termination
Event or a Potential Purchase Termination Event has occurred. Each Seller
further agrees that, in respect of its obligations hereunder, it will act at the
direction of and in accordance with all requests and instructions from the
Trustee until all amounts due to the Investor Certificateholders are paid in
full. The Trustee, on behalf of the Investor Certificateholders, shall have the
rights of a third-party beneficiary under this Agreement.
9.5 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICT OF LAW
PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES TO THIS
AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAW.
9.6 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no delay
in exercising, on the part of the Company, any right, remedy, power or privilege
hereunder, 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 exhaustive of any rights, remedies, powers and privileges
provided by law.
9.7 AMENDMENTS AND WAIVERS. Neither this Agreement nor any terms hereof
may be amended, supplemented or modified except in a writing signed by the
Company and each affected Seller. Any amendment, supplement or modification
shall not be effective until the Rating Agency Condition has been satisfied and
until the
32
consent of each Agent, and, if it would have a Material Adverse Effect on any
Series of the Investor Certificates, the consent of a majority of the
Controlling Class of such Series has been obtained, and no such amendment shall
have an effect specified in the proviso of Section 11.1(b) of the Pooling
Agreement without the consent of all Investor Certificateholders of the affected
Series.
9.8 SEVERABILITY. Any provision of this 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.
9.9 NOTICES. All notices, requests and demands to or upon the
respective parties to this Agreement to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or three days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Company and
Parent, and as set forth on SCHEDULE 1 hereof in the case of the Sellers, or to
such other address as may be hereafter notified by the respective parties to
this Agreement:
IF TO THE COMPANY:
General Cable Capital Funding, Inc.
0000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
IF TO THE SELLERS:
c/o General Cable Industries, Inc.
0 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
IN THE CASE OF BOTH THE COMPANY AND THE SELLERS, WITH A COPY
TO:
Blank Rome Xxxxxxx & XxXxxxxx LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, XX, Esq.
Facsimile: (000) 000-0000
IF TO THE TRUSTEE:
00
Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Structured Finance Services - ABS
Facsimile: 000-000-0000
9.10 COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this 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 Agreement
signed by all the parties shall be lodged with the Company.
9.11 CONSTRUCTION OF AGREEMENT AS SECURITY AGREEMENT.
(a) The parties to this Agreement intend that the transactions
contemplated hereby shall be, and shall be treated as, a purchase by the Company
and a sale by the applicable Seller of the Purchased Receivables and Related
Property with respect thereto and not as a lending transaction. If, however,
notwithstanding the express intent of the parties, such transactions are deemed
to be loans, each Seller hereby grants to the Company a first priority security
interest in all of such Seller's right, title and interest in and to the
Receivables and the Related Property now existing and hereafter created, all
monies due or to become due and all amounts received with respect thereto,
including, without limitation, Recoveries, and all "PROCEEDS" thereof, to secure
all such Seller's obligations hereunder.
(b) This Agreement shall constitute a security agreement under
applicable law.
9.12 WAIVERS OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER SALE
DOCUMENTS. EACH PARTY TO THIS AGREEMENT: (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES TO THIS
AGREEMENT HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER SALE
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.12.
9.13 JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(A) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE
CITY
34
OF NEW YORK, AND ANY APPELLATE COURT THEREFROM, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER SALE DOCUMENTS, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES TO THIS
AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
FEDERAL COURT. EACH OF THE PARTIES TO THIS AGREEMENT AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE
COMPANY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE OTHER SALE DOCUMENTS AGAINST ANY SELLER OR ITS PROPERTIES IN
THE COURTS OF ANY JURISDICTION.
(B) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT THEY MAY LEGALLY AND EFFECTIVELY
DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE OTHER SALE DOCUMENTS IN ANY FEDERAL COURT SITTING IN THE CITY OF NEW
YORK. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(C) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.9. NOTHING IN
THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
9.14 ADDITION OF SELLERS. Subject to Section 3.4 hereof and the terms
and the conditions of this Section 9.14, from time to time one or more
additional wholly-owned Subsidiaries (whether now owned or hereafter acquired)
of General Cable Corporation may become Sellers hereunder and parties to this
Agreement. If any such Subsidiary of General Cable Corporation wishes to become
an additional Seller, it shall submit a request to such effect in writing to the
Company. The Company, in its sole and absolute discretion, may agree to or deny
any such request, PROVIDED that, if the Company shall have failed to respond to
any such request within 30 days after receipt thereof, such request shall be
deemed to have been denied. If the Company shall have agreed to any such
request, such Subsidiary shall become an additional Seller hereunder and a party
to this Agreement on the related Effective Date upon satisfaction of the
conditions set forth in Sections 3.1 and 3.4.
9.15 OPTIONAL TERMINATION OF A SELLER.
(a) Any Seller (other than Parent) may be terminated as a
Seller hereunder on the date such Seller ceases to be a wholly-owned direct or
indirect
35
Subsidiary of General Cable Corporation, PROVIDED (i) that the aggregate
outstanding Principal Amount of Purchased Receivables sold by all Sellers which
so cease to be wholly-owned Subsidiaries at such time (together with the
aggregate outstanding Principal Amount of Purchased Receivables sold by all
Sellers which have been terminated pursuant to this Section 9.15 within the
preceding 90 days) shall not exceed 10% of the aggregate outstanding Principal
Amount of all Purchased Receivables, (ii) that no Purchase Termination Event or
Potential Purchase Termination Event has occurred and is continuing, or would
occur as a result thereof and (iii) the other conditions set forth in the
applicable Supplement shall have been satisfied. From and after the date any
such Seller ceases to be a wholly-owned Subsidiary of General Cable Corporation
and is so terminated, the Company shall cease buying Receivables and Related
Property from such Seller. Each such Seller shall be released as a Seller party
to this Agreement for all purposes and shall cease to be a Seller and party to
this Agreement on the date on which there are no amounts outstanding with
respect to Purchased Receivables previously sold by such Seller to the Company,
whether such amounts have been repurchased, collected or written off in
accordance with the Policies. Prior to such date, such Seller shall be obligated
to perform its servicing and other obligations hereunder and under the
Transaction Documents to which it is a party with respect to Purchased
Receivables previously sold by such Seller to the Company, including, without
limitation, its obligation to deposit Collections into the appropriate
Lockboxes.
(b) From time to time the Sellers, or the Master Servicer on
behalf of the Sellers, may request in writing that the Company designate one or
more Sellers as Sellers that shall cease to be parties to this Agreement;
PROVIDED that no Purchase Termination Event or Potential Purchase Termination
Event has occurred and is continuing, or would occur as a result thereof, and
PROVIDED FURTHER, that the Rating Agency Condition shall have been satisfied and
each Agent shall have consented thereto. Any such request shall specify the
minimum aggregate Principal Amount of outstanding Purchased Receivables to have
been sold by the Sellers to be so designated by the Company. The Company, in its
sole and absolute discretion, shall, within 45 days of receipt of such request,
select the Sellers (other than Parent) to be so terminated, PROVIDED that the
aggregate Principal Amount of outstanding Purchased Receivables previously sold
by such Sellers shall be substantially equal to the Principal Amount specified
in such request. Promptly after receipt of any such designation by the Company,
the Sellers shall either (i) elect not to terminate such designated Sellers or
(ii) select a date, which date shall not be later than 30 days after the date of
receipt of such designation, as the "SALE TERMINATION DATE" for such designated
Sellers. From and after such date, the Company shall cease buying Receivables
and Related Property from such Sellers. Each such Seller shall be released as a
Seller hereunder for all purposes and shall cease to be a party to this
Agreement on the date on which there are no amounts outstanding with respect to
Purchased Receivables previously sold by such Seller to the Company, whether
such amounts have been collected or written off in accordance with the Policies.
Prior to such date, such Seller shall be obligated to perform its servicing and
other obligations hereunder and under the
36
Transaction Documents to which it is a party with respect to Purchased
Receivables previously sold by such Seller to the Company, including, without
limitation, its obligation to deposit Collections into the appropriate
Lockboxes.
(c) A terminated Seller shall have no obligation to repurchase
any Receivables other than Receivables previously sold by it to the Company
which are subject to a Repurchase Event.
9.16 NO BANKRUPTCY PETITION. Each Seller and Parent by entering into
this Agreement, and any present or future holder of the Subordinated Note, by
its acceptance thereof, covenants and agrees that, prior to the date which is
one year and one day after payment in full of all Investor Certificates it will
not institute against, or join any other Person in instituting against the
Company any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law.
9.17 TERMINATION. This Agreement will terminate at such time as (i) the
commitment of the Company to purchase Receivables from all Sellers hereunder
shall have terminated, and (ii) all Receivables purchased hereunder have been
collected, and the proceeds thereof turned over to the Company and all other
amounts owing to the Company hereunder shall have been paid in full or, if
Receivables sold hereunder have not been collected, such Receivables have become
Charged-Off Receivables and the Company shall have completed its collection
efforts in respect thereto; PROVIDED, HOWEVER, that the indemnities of the
Sellers to the Company set forth in this Agreement shall survive such
termination for a period of three years and PROVIDED FURTHER, that, to the
extent any amounts remain due and owing to the Company hereunder, the Company
shall remain entitled to receive any collections on Receivables sold hereunder
which have become Defaulted Receivables after it shall have completed its
collection efforts in respect thereof.
9.18 CONFIDENTIALITY. The Company agrees to keep strictly confidential
all information provided to it by each Seller pursuant to this Agreement, and
shall not, without the prior written consent of the relevant Seller, disclose in
any manner whatsoever, in whole or in part, and shall not use in any way other
than for the purposes of this Agreement any such non-public information provided
to it; PROVIDED that nothing herein shall prevent the Company from disclosing
any such information (i) to the Trustee, (ii) if such information consists of
Rule 144A Information, to any Investor Certificateholder or any prospective
purchaser designated by any Investor Certificateholder, (iii) if such
information consists of financial statements of the Company or Parent, to any
Investor Certificateholder or any prospective purchaser designated by any
Investor Certificateholder, (iv) to its employees, directors, agents, attorneys,
accountants and other professional advisors in connection with the foregoing,
(v) upon the request or demand of any Governmental Authority having jurisdiction
over the Company or any Investor Certificateholder (provided that notice of such
request or demand shall be furnished to the affected Seller a reasonable time
prior to the time for
37
compliance therewith unless such notice is legally prohibited or such
Governmental Authority requests that such notice not be furnished to the
Seller), (vi) in response to any order of any court or other Governmental
Authority or as may otherwise be required of the Company or any Investor
Certificateholder pursuant to any Requirement of Law (provided that notice of
such order or requirement shall be furnished to the affected Seller a reasonable
time prior to the time for compliance therewith unless such notice is legally
prohibited or such court or Governmental Authority requests that such notice or
requirement not be furnished to the Seller), (vii) which has been publicly
disclosed other than in breach of this Agreement or any Confidentiality
Agreement or (viii) in connection with the exercise of any remedy hereunder or
under the Pooling Agreement.
{SIGNATURE PAGE TO RECEIVABLES SALE AGREEMENT FOLLOWS}
38
IN WITNESS WHEREOF, the parties have caused this Receivables Sale
Agreement to be executed by their respective duly authorized officers, all as of
the day and year first appearing above.
GENERAL CABLE INDUSTRIES, INC., as
Master Servicer
By: ______________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Treasurer
GENERAL CABLE CAPITAL FUNDING, INC.,
as Purchaser
By: ______________________________________
Name: Xxxxxxx X. Xxxxx
Title: Treasurer and Assistant Secretary
GENERAL CABLE INDUSTRIES, INC., as
Seller
By: ______________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Treasurer
{SIGNATURE PAGE TO RECEIVABLES SALE AGREEMENT}
39
SCHEDULE 1
----------
EXECUTIVE OFFICES/REV. ART. 9 LOCATION
--------------------------------------
General Cable Industries, Inc., incorporated in the State of Delaware
0 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
1
SCHEDULE 2
----------
LOCKBOXES/LOCKBOX ACCOUNT/CONCENTRATION ACCOUNT
-----------------------------------------------
GENERAL CABLE INDUSTRIES, INC.
BANK LOCK BOX LOCATION
-----------------------------------------------------
PNC Bank, Ohio, N.A. Pittsburgh PA
PNC Bank, Ohio, N.A. Atlanta, GA
PNC Bank, Ohio, N.A. Pasadena, CA
Concentration Account
PNC Bank, Ohio, N.A.
2
SCHEDULE 3
----------
DISCOUNTED PERCENTAGE
---------------------
The "DISCOUNTED PERCENTAGE" applicable to the Receivables purchased from any
Seller on any date shall equal the percentage obtained from the following
formula:
100% - (A + B + C + D)
all determined by such Seller and the Company as of the related Payment Date,
where:
A = Adjusted Loss Reserve Percentage, which as of such Payment Date
will equal the ratio obtained by dividing (a) Charged-Off Receivables (net of
Recoveries in respect of Charged- Off Receivables) with respect to such Seller
during the twelve-fiscal-month period immediately preceding the Distribution
Date most recently preceding such Payment Date by (b) the aggregate amount of
Collections during such period with respect to Receivables originated by such
Seller;
B = Adjusted Yield Reserve Percentage, which as of such Payment Date
will equal the amount obtained by dividing (a) the product of (i) Days Sales
Outstanding MULTIPLIED BY (ii) the Adjusted Discount Rate, by (b) 360;
C = .0005; and
D = Processing Expense Reserve Percentage, which will equal .0003 and
reflects the cost of the Company's overhead, including costs of processing the
purchase of Receivables and other normal operating costs and a reasonable profit
margin.
None of the elements of the above-referenced formula, in respect of any purchase
of Receivables, will be adjusted following the related Payment Date.
"ADJUSTED DISCOUNT RATE" means as of such Payment Date the sum of (a) the
weighted average of (i) the weighted average rate of interest payable to the
Investor Certificateholders with respect to the Aggregate Adjusted Invested
Amount as such weighted average rate is in effect as at the end of the
Settlement Period immediately preceding the Distribution Date most recently
preceding such Payment Date, (ii) the rate of interest payable to the Sellers
with respect to the outstanding principal amount of the Subordinated Note, as in
effect as at the end of the fiscal month immediately preceding the Distribution
Date most recently preceding such Payment Date and (iii) an assumed return on
the stockholders' equity in the Company at a rate to be determined from time to
time by the Master Servicer and (b) the amount obtained by DIVIDING (1) the
3-1
aggregate amount of fees (other than the Monthly Servicing Fee) accrued pursuant
to the Transaction Documents during the fiscal month immediately preceding the
Distribution Date most recently preceding such Payment Date BY (2) the average
outstanding Principal Amount of the Receivables during such fiscal month.
With respect to each calculation set forth above with respect to a Distribution
Date, such calculation as calculated on each Settlement Report Date and included
in the applicable Monthly Settlement Statement shall remain in effect from and
including the related Distribution Date to but excluding the following
Distribution Date.
3-2
EXHIBIT A
---------
ADDITIONAL SELLER SUPPLEMENT
----------------------------
A-1
EXHIBIT B
---------
TRADE NAMES
-----------
BICCGeneral
BICC General Cable Industries, Inc.
General Cable
General Photonics LLC
B-1
EXHIBIT C
---------
NON-NEGOTIABLE SUBORDINATED PROMISSORY NOTE
-------------------------------------------
May 9, 2001
FOR VALUE RECEIVED, the undersigned, GENERAL CABLE CAPITAL FUNDING,
INC., a Delaware corporation (the "BUYER"), promises to pay to the Master
Servicer under the Pooling Agreement, initially General Cable Industries, Inc.,
on behalf of the Sellers, on the terms and subject to the conditions set forth
herein and in the Receivables Sale Agreement referred to below, the aggregate
principal amount of all advances made by the Master Servicer, on behalf of the
Sellers in accordance with Section 2.3 of such Receivables Sales Agreement to
the Buyer, less any payments received by the Master Servicer from the Buyer, in
each case, on behalf of the Sellers pursuant to the Receivables Sale Agreement
(subject to adjustment pursuant to the Receivables Sale Agreement). Such amount
as shown in the records of the Master Servicer will be rebuttable presumptive
evidence of the principal amount owing under this Note. The Master Servicer
shall bear the sole responsibility for allocating payments under this Note among
the various Sellers identified from time to time in the Receivables Sale
Agreement.
1. RECEIVABLES SALE AGREEMENT. This Note is a "Subordinated Note"
described in, and is subject to the terms and conditions set forth in, that
certain Receivables Sale Agreement, dated as of May 9, 2001 (as the same may be
amended, supplemented, or otherwise modified in accordance with its terms, the
"RECEIVABLES SALE AGREEMENT"), among General Cable Industries, Inc. (on its own
behalf as Seller and as the Master Servicer) and the Buyer. Reference is hereby
made to the Receivables Sale Agreement for a statement of certain other rights
and obligations of the Buyer, the Sellers and the Master Servicer. In the case
of any conflict between the terms of this Note and the terms of the Receivables
Sale Agreement, the terms of the Receivables Sale Agreement shall control.
2. DEFINITIONS. Capitalized terms used (but not defined) herein have
the meanings ascribed thereto in the Receivables Sale Agreement or Master
Pooling and Servicing Agreement dated as of May 9, 2001 by and among General
Cable Capital Funding, Inc., General Cable Industries, Inc., as Master Servicer
and The Chase Manhattan Bank, as Trustee as the same may be amended,
supplemented or otherwise modified (the "POOLING AGREEMENT") as appropriate. In
addition, as used herein, the following terms have the following meanings:
"FINAL MATURITY DATE" means the date that falls one year and
one day after the later of (x) a Purchase Termination Event and (y) the Trust
Termination Date.
"JUNIOR LIABILITIES" means all obligations of the Buyer to the
Master
C-1
Servicer (acting on behalf of the Sellers) under this Note.
"SENIOR AGENT" means the Trustee.
"SENIOR INTERESTS" means (a) the interests acquired by the
Trust pursuant to the Pooling and Servicing Agreement, and (b) all obligations
of the Buyer to the Senior Interest Holders, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing, or due or to become due on or before the Final Maturity Date.
"SENIOR INTEREST HOLDERS" means, collectively, the Trustee and
the Investor Certificateholders.
"SUBORDINATION PROVISIONS" means, collectively, clauses (a)
through (k) of Section 7 hereof.
3. INTEREST. Subject to the Subordination Provisions, the Buyer
promises to pay interest on the aggregate unpaid principal amount of this Note
outstanding on each day prior to the final payment in full and in cash of the
Senior Interests, at a rate per annum equal to eight and one-half percent
(8.5%).
4. INTEREST PAYMENT DATES. Subject to the Subordination Provisions, the
Buyer shall pay accrued interest on this Note on each Distribution Date with
respect to amounts accrued and not paid as of the last day of the preceding
Settlement Period and on the Final Maturity Date (or, if any such day is not a
Business Day, the next succeeding Business Day) provided however, that accrued
interest which is not so paid may be added to the principal amount of this Note.
Subject to the Subordination Provisions, the Buyer also shall pay accrued
interest on the principal amount of each prepayment hereof on the date of each
such prepayment.
5. BASIS OF COMPUTATION. Interest accrued hereunder shall be computed
for the actual number of days elapsed on the basis of a 360-day year.
6. PRINCIPAL PAYMENT DATES. Subject to the Subordination Provisions,
any unpaid principal of this Note shall be paid on the Final Maturity Date (or,
if such date is not a Business Day, the next succeeding Business Day). Subject
to the Subordination Provisions, the principal amount of and accrued interest on
this Note may be prepaid on any Business Day without premium or penalty.
7. SUBORDINATION PROVISIONS. The Buyer covenants and agrees, and the
Master Servicer, as agent for various Sellers hereafter added to the Receivables
Sale Agreement, by its acceptance of this Note, likewise covenants and agrees,
that the payment of all Junior Liabilities is hereby expressly subordinated in
right of payment to the payment and performance of the Senior Interests to the
extent and in the manner set forth in the following clauses of this Section 7:
C-2
(a) No payment or other distribution of the Buyer's assets of any kind
or character, whether in cash, securities, or other rights or property, shall be
made on account of this Note unless all amounts payable in connection with the
Pooling and Servicing Agreement and the related purchase agreements have been
paid in full and then only to the extent such payment or other distribution is
(i) permitted under the Pooling and Servicing Agreement or (ii) made pursuant to
Sections 4 or 6 of this Note subject to the Subordination Provisions;
(b) On and after the first to occur of (i) any dissolution, winding-up,
liquidation or reorganization of the Buyer (whether voluntary or involuntary and
whether in bankruptcy, insolvency or receivership proceedings, or upon an
assignment for the benefit of creditors or any other marshaling of the assets
and liabilities of the Buyer or otherwise) (an "EVENT OF BANKRUPTCY"), and (ii)
the occurrence of the Purchase Termination Date, the Senior Interests shall
first be paid and performed in full and in cash before the Master Servicer shall
be entitled to receive and to retain any payment or distribution in respect of
the Junior Liabilities. In order to implement the foregoing: (x) all payments
and distributions of any kind or character in respect of the Junior Liabilities
to which the Master Servicer would be entitled except for this subsection 7(b)
shall be made directly to the Senior Agent (for the benefit of the Senior
Interest Holders); and (y) the Master Servicer hereby irrevocably agrees that
the Senior Agent, in the name of the Master Servicer or otherwise, may demand,
xxx for, collect, receive and receipt for any and all such payments or
distributions, and file, prove and vote or consent in any such proceeding with
respect to any and all claims of the Master Servicer relating to the Junior
Liabilities, in each case until the Senior Interests shall have been paid and
performed in full and in cash.
(c) In the event that the Master Servicer receives any payment or other
distribution of any kind or character from the Buyer or from any other source
whatsoever, in respect of the Junior Liabilities, other than as expressly
permitted by the terms of this Note, such payment or other distribution shall be
received in trust for the Senior Interest Holders and shall be turned over by
the Master Servicer to the Senior Agent (for the benefit of the Senior Interest
Holders) forthwith until the Senior Interests have been paid in full. All
payments and distributions received by the Senior Agent in respect of this Note,
to the extent received in or converted into cash, may be applied by the Senior
Agent (for the benefit of the Senior Interest Holders) first to the payment of
any and all reasonable expenses (including, without limitation, reasonable
attorneys' fees and other legal expenses) paid or incurred by the Senior Agent
or the Senior Interest Holders in enforcing these Subordination Provisions, or
in endeavoring to collect or realize upon the Junior Liabilities, and any
balance thereof shall, solely as between the Master Servicer and the Senior
Interest Holders, be applied by the Senior Agent toward the payment of the
Senior Interests in a manner determined by the Senior Agent to be in accordance
with the Pooling and Servicing Agreement; but as between the Buyer and its
creditors, no such payments or distributions of any kind or character shall be
deemed to be payments or distributions in respect of the Senior Interests.
C-3
(d) Upon the final payment in full and in cash of all Senior Interests,
the Master Servicer shall be subrogated to the rights of the Senior Interest
Holders to receive payments or distributions from the Buyer that are applicable
to the Senior Interests until the Junior Liabilities are paid in full.
(e) These Subordination Provisions are intended solely for the purpose
of defining the relative rights of the Master Servicer, on the one hand, and the
Senior Interest Holders, on the other hand. Nothing contained in the
Subordination Provisions or elsewhere in this Note is intended to or shall
impair, as between the Buyer, its creditors (other than the Senior Interest
Holders) and the Master Servicer, the Buyer's obligation, which is unconditional
and absolute, to pay the Junior Liabilities as and when the same shall become
due and payable in accordance with the terms hereof and of the Receivables Sale
Agreement or to affect the relative rights of the Master Servicer and creditors
of the Buyer (other than the Senior Interest Holders).
(f) The Master Servicer shall not, until the Senior Interests have been
finally paid and performed in full and in cash, (i) cancel, waive, forgive,
transfer or assign, or commence legal proceedings to enforce or collect, or
subordinate to any obligation of the Buyer, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, or now or
hereafter existing, or due or to become due, other than the Senior Interests or
any rights in respect thereof or (ii) convert the Junior Liabilities into an
equity interest in the Buyer.
(g) The Master Servicer shall not commence, or join with any other
Person in commencing, any proceedings related to an Event of Bankruptcy with
respect to the Buyer until at least one year and one day shall have passed since
the Senior Interests shall have been finally paid and performed in full and in
cash.
(h) If, at any time, any payment (in whole or in part) made with
respect to any Senior Interest is rescinded or must be restored or returned by a
Senior Interest Holder (whether in connection with any Event of Bankruptcy or
otherwise), these Subordination Provisions shall continue to be effective or
shall be reinstated, as the case may be, as though such payment had not been
made.
(i) Each of the Senior Interest Holders may, from time to time, at its
sole discretion, without notice to the Master Servicer, and without waiving any
of its rights under these Subordination Provisions, take any or all of the
following actions: (i) retain or obtain an interest in any property to secure
any of the Senior Interests; (ii) retain or obtain the primary or secondary
obligations of any other obligor or obligors with respect to any of the Senior
Interests; (iii) extend or renew for one or more periods (whether or not longer
than the original period), alter or exchange any of the Senior Interests, or
release or compromise any obligation of any nature with respect to any of the
Senior Interests; and (iv) release its security interest in, or surrender,
release or permit any substitution or exchange for all or any part of any rights
or property securing any of the Senior Interests, or extend or renew for one or
more periods (whether or not longer than
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the original period), or release, compromise, alter or exchange any obligations
of any nature of any obligor with respect to any such rights or property.
(j) The Master Servicer hereby waives: (i) notice of acceptance of
these Subordination Provisions by any of the Senior Interest Holders; (ii)
notice of the existence, creation, non-payment or non-performance of all or any
of the Senior Interests, and (iii) all diligence in enforcement, collection or
protection of, or realization upon the Senior Interests, or any thereof, or any
security therefor.
(k) These Subordination Provisions constitute a continuing offer from
the Buyer to all Persons who become the holders of, or who continue to hold,
Senior Interests; and these Subordination Provisions are made for the benefit of
the Senior Interest Holders, and the Senior Agent may proceed to enforce such
provisions on behalf of each of such Persons.
8. AMENDMENTS, ETC. No failure or delay on the part of the Master
Servicer in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No amendment, modification or waiver of, or consent with respect
to, any provision of this Note shall in any event be effective unless (a) the
same shall be in writing and signed and delivered by the Buyer and the Master
Servicer, and (b) all consents required for such actions under the Transaction
Documents shall have been received by the appropriate Persons, including Section
11.1 of the Pooling Agreement, if applicable.
9. LIMITATION ON INTEREST. Notwithstanding anything in this Note to the
contrary, the Buyer shall never be required to pay unearned interest on any
amount outstanding hereunder, and shall never be required to pay interest on the
principal amount outstanding hereunder, at a rate in excess of the maximum
interest rate that may be contracted for, charged or received without violating
applicable federal or state law.
10. LIMITATION ON PAYMENTS. Notwithstanding any provisions contained in
this Note to the contrary, this Note shall be non-recourse and is payable solely
from the Company's interest in the Trust Assets. Buyer shall not, and shall not
be obligated to, pay any amount pursuant to this Note unless the Buyer has
available funds which may be used to make such payment and which funds are not
required to repay any Senior Interests when due. Any amount which the Buyer does
not pay to the Master Servicer pursuant to the operation of the preceding
sentence shall not constitute a claim (as defined in ss.101 of the Bankruptcy
Code) against or corporate obligation of the Buyer for any such insufficiency
until the Final Maturity Date.
11. NO NEGOTIATION. This Note is not negotiable.
12. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
13. CAPTIONS. Paragraph captions used in this Note are provided solely
for convenience of reference only and shall not affect the meaning or
interpretation of any provision of this Note.
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IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
by its officer thereunto duly authorized on the date first above written.
GENERAL CABLE CAPITAL FUNDING, INC.
By:_______________________________
Name: Xxxxxxx X. Xxxxx
Title: Treasurer and Assistant Secretary
{Signature Page to Subordinated Note}
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