Transfer and Administration Agreement Dated as of December 8, 2008 by and among GREIF RECEIVABLES FUNDING LLC, GREIF PACKAGING LLC, as initial Servicer GREIF PACKAGING LLC, and each other entity from time to time party hereto as an Originator, as...
EXECUTION
COPY
Dated as
of December 8, 2008
by and
among
XXXXX RECEIVABLES FUNDING
LLC,
XXXXX PACKAGING
LLC,
as
initial Servicer
XXXXX PACKAGING
LLC,
and each
other entity from time to time party hereto
as an
Originator, as Originators
XX XXXX TRUST,
as
Conduit Investor and Uncommitted Investor
BANK OF AMERICA,
NATIONAL
ASSOCIATION,
as Agent,
a Managing Agent, an Administrator and a Committed Investor
and
The Various Investor Groups, Managing
Agents and Administrators From Time to
Time Parties
Hereto
TABLE OF CONTENTS
Page
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ARTICLE
I
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DEFINITIONS
|
1
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Section
1.1
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Certain
Defined Terms
|
1
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Section
1.2
|
Other
Terms
|
27
|
|
Section
1.3
|
Computation
of Time Periods
|
27
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Section
1.4
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Times
of Day
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27
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ARTICLE
II
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PURCHASES
AND SETTLEMENTS
|
27
|
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Section
2.1
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Transfer
of Affected Assets; Intended Characterization
|
27
|
|
Section
2.2
|
Purchase
Price
|
28
|
|
Section
2.3
|
Investment
Procedures
|
29
|
|
Section
2.4
|
Determination
of Yield and Rate Periods
|
31
|
|
Section
2.5
|
Yield,
Fees and Other Costs and Expenses
|
33
|
|
Section
2.6
|
Deemed
Collections
|
33
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|
Section
2.7
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Payments
and Computations, Etc
|
34
|
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Section
2.8
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Reports
|
34
|
|
Section
2.9
|
Collection
Account
|
34
|
|
Section
2.10
|
Sharing
of Payments, Etc
|
34
|
|
Section
2.11
|
Right
of Setoff
|
35
|
|
Section
2.12
|
Settlement
Procedures
|
35
|
|
Section
2.13
|
Optional
Reduction of Net Investment
|
37
|
|
Section
2.14
|
Application
of Collections Distributable to SPV
|
38
|
|
Section
2.15
|
Collections
Held in Trust
|
38
|
|
Section
2.16
|
Reduction
of Facility Limit
|
38
|
|
ARTICLE
III
|
ADDITIONAL
COMMITTED INVESTOR PROVISIONS
|
39
|
|
Section
3.1
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Assignment
to Committed Investors
|
39
|
|
Section
3.2
|
Downgrade
of Committed Investor
|
41
|
|
Section
3.3
|
Extension
of Commitment Termination Date/Non-Renewing Committed
Investors
|
42
|
|
ARTICLE
IV
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REPRESENTATIONS
AND WARRANTIES
|
43
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Section
4.1
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Representations
and Warranties of the SPV and the Initial Servicer
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43
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-i-
TABLE OF CONTENTS
(continued)
Page
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ARTICLE
V
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CONDITIONS
PRECEDENT
|
49
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Section
5.1
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Conditions
Precedent to Closing
|
49
|
|
Section
5.2
|
Conditions
Precedent to All Investments and Reinvestments
|
52
|
|
ARTICLE
VI
|
COVENANTS
|
52
|
|
Section
6.1
|
Affirmative
Covenants of the SPV and Servicer
|
52
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Section
6.2
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Negative
Covenants of the SPV and Servicer
|
57
|
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ARTICLE
VII
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ADMINISTRATION
AND COLLECTIONS
|
60
|
|
Section
7.1
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Appointment
of Servicer
|
60
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Section
7.2
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Duties
of Servicer
|
61
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|
Section
7.3
|
Blocked
Account Arrangements
|
62
|
|
Section
7.4
|
Enforcement
Rights
|
62
|
|
Section
7.5
|
Servicer
Default
|
63
|
|
Section
7.6
|
Servicing
Fee
|
65
|
|
Section
7.7
|
Protection
of Ownership Interest of the Investors
|
65
|
|
ARTICLE
VIII
|
TERMINATION
EVENTS
|
65
|
|
Section
8.1
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Termination
Events
|
65
|
|
Section
8.2
|
Termination
|
67
|
|
ARTICLE
IX
|
INDEMNIFICATION;
EXPENSES; RELATED MATTERS
|
68
|
|
Section
9.1
|
Indemnities
by the SPV
|
68
|
|
Section
9.2
|
Indemnities
by the Servicer
|
70
|
|
Section
9.3
|
Indemnity
for Taxes, Reserves and Expenses
|
71
|
|
Section
9.4
|
Taxes
|
73
|
|
Section
9.5
|
Status
of Investors
|
74
|
|
Section
9.6
|
Other
Costs and Expenses; Breakage Costs
|
75
|
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Section
9.7
|
Mitigation
Obligations
|
76
|
|
ARTICLE
X
|
THE
AGENT
|
76
|
|
Section
10.1
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Appointment
and Authorization of Agent
|
76
|
|
Section
10.2
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Delegation
of Duties
|
77
|
|
Section
10.3
|
Liability
of Agents and Managing Agents
|
77
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Section
10.4
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Reliance
by Agent
|
77
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-ii-
TABLE OF CONTENTS
(continued)
Page
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Section
10.5
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Notice
of Termination Event, Potential Termination Event or Servicer
Default
|
78
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Section
10.6
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Credit
Decision; Disclosure of Information by the Agent
|
78
|
|
Section
10.7
|
Indemnification
of the Agent
|
79
|
|
Section
10.8
|
Agent
in Individual Capacity
|
79
|
|
Section
10.9
|
Resignation
of Agents
|
80
|
|
Section
10.10
|
Payments
by the Agent
|
80
|
|
ARTICLE
XI
|
MISCELLANEOUS
|
80
|
|
Section
11.1
|
Term
of Agreement
|
80
|
|
Section
11.2
|
Waivers;
Amendments
|
80
|
|
Section
11.3
|
Notices;
Payment Information
|
81
|
|
Section
11.4
|
Governing
Law; Submission to Jurisdiction; Appointment of Service
Agent
|
81
|
|
Section
11.5
|
Integration
|
82
|
|
Section
11.6
|
Severability
of Provisions
|
82
|
|
Section
11.7
|
Counterparts;
Facsimile Delivery
|
82
|
|
Section
11.8
|
Successors
and Assigns; Binding Effect
|
82
|
|
Section
11.9
|
Waiver
of Confidentiality
|
86
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Section
11.10
|
Confidentiality
Agreement
|
86
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|
Section
11.11
|
No
Bankruptcy Petition Against the Conduit Investor
|
86
|
|
Section
11.12
|
No
Recourse
|
86
|
|
Section
11.13
|
No
Proceedings; Limitations on Payments
|
87
|
-iii-
Schedules
|
|
Schedule
1.01
|
List
of Agricultural Receivables Eligible Obligors
|
Schedule
4.1(d)
|
Perfection
Representations, Warranties and Covenants
|
Schedule
4.1(g)
|
List
of Actions and Suits
|
Schedule
4.1(i)
|
Location
of Certain Offices and Records
|
Schedule
4.1(j)
|
List
of Subsidiaries, Divisions and Tradenames; FEIN
|
Schedule
4.1(s)
|
List
of Blocked Account Banks and Blocked Accounts
|
Schedule
6.1(a)
|
Agreed-Upon
Procedures
|
Schedule
11.3
|
Address
and Payment Information
|
Exhibits
|
|
Exhibit
A
|
Form
of Assignment and Assumption Agreement
|
Exhibit
B
|
Credit
and Collection Policies and Practices
|
Exhibit
C
|
Form
of Investment Request
|
Exhibit
D
|
Form
of Servicer Report
|
Exhibit
E
|
Form
of SPV Secretary’s Certificate
|
Exhibit
F
|
Forms
of Originator/Servicer Secretary’s
Certificate
|
This
Transfer and Administration
Agreement (this
“Agreement”), dated
as of December 8, 2008, by and among:
(1) XXXXX RECEIVABLES FUNDING
LLC, a
Delaware limited liability company (the “SPV”);
(2) XXXXX PACKAGING
LLC, a
Delaware limited liability company, as an Originator (in such capacity, the
“GP
Originator”) and
each other entity from time to time party hereto as an “Originator” pursuant to
a joinder agreement in form and substance acceptable to the Agent (each, an
“Originator” and
collectively, the “Originators”);
(3) XXXXX PACKAGING
LLC., as
servicer (in such capacity, the “Servicer”);
(4) XX XXXX TRUST,
a
Delaware statutory trust (“XX XXXX”), as a
Conduit Investor and Uncommitted Investor;
(5) BANK OF AMERICA, NATIONAL
ASSOCIATION, a
national banking association (“Bank of
America”), as
the Agent, a Managing Agent, an Administrator and a Committed Investor;
and
(6) the
various Investor Groups, Managing Agents and Administrators from time to time
parties hereto.
ARTICLE I
DEFINITIONS
SECTION
1.1 Certain Defined
Terms. As used
in this Agreement, the following terms shall have the following
meanings:
“Accounts” means
the Blocked Accounts, the Collection Account and each other account into which
Collections may be deposited or received.
“Administrators” means
the XX XXXX Administrator and any other Person that becomes a party to this
Agreement as an “Administrator”.
“Adverse
Claim” means a
Lien on any Person’s assets or properties in favor of any other Person;
provided that
“Adverse Claim” shall not include any “precautionary” financing statement filed
by any Person not evidencing any such Lien.
“Affected
Assets” means,
collectively, (a) the Receivables, (b) the Related Security, (c) with
respect to any Receivable, all rights and remedies of the SPV under the First
Tier Agreement, together with all financing statements filed by the SPV against
the Originators in connection therewith, (d) all Blocked Accounts and all funds
and investments therein and all of the SPV’s rights in the Blocked Account
Agreements and
(e) all proceeds of the foregoing.
“Affiliate” means,
as to any Person, any other Person which, directly or indirectly, owns, is in
control of, is controlled by, or is under common control with such Person, in
each case whether beneficially, or as a trustee, guardian or other fiduciary. A
Person shall be deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management or policies of the other Person, whether through the ownership of
voting securities or membership interests, by contract, or
otherwise.
“Agent” means
Bank of America, in its capacity as agent for the Secured Parties, and any
successor thereto appointed pursuant to Article X.
“Agents” means,
collectively, the Managing Agents and the Agent.
“Agent-Related
Persons” means,
with respect to any Managing Agent or the Agent, such Person together with its
Affiliates, and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and their respective Affiliates.
“Aggregate Unpaid
Balance” means,
as of any date of determination, the sum of the Unpaid Balances of all
Receivables which constitute Eligible Receivables as of such date of
determination.
“Aggregate
Unpaids” means,
at any time, an amount equal to the sum of (a) the aggregate unpaid Yield
accrued and to accrue through the end of all Rate Periods in existence at such
time, (b) the Net Investment at such time and (c) all other amounts
owed (whether or not then due and payable) hereunder and under the other
Transaction Documents by the SPV and each Originator to the Agent, the Managing
Agents, the Administrators, the Investors or the Indemnified Parties at such
time.
“Agreement” is
defined in the Preamble.
“Agricultural
Receivable” means
any Eligible Receivable originated on or after April 1st of any
calendar year and payable on or prior to October 15th of such
calendar year to an Agricultural Receivable Eligible Obligor.
“Agricultural Receivable
Eligible Obligor” means
any Eligible Obligor or their corporate successor listed on Schedule 1.01 hereto
as such Schedule 1.01 may be updated from time to time at the request of the SPV
and with the consent of the Administrative Agent.
“Alternate
Rate” means,
for any Rate Period for any Portion of Investment, an interest rate per annum equal to
1.75% per annum above
the Offshore Rate for such Rate Period; provided that in the
case of:
(i) any Rate
Period which commences on a date prior to the Agent receiving at least three (3)
Business Days’ notice thereof, or
(ii) any Rate
Period relating to a Portion of Investment which is less than
$1,000,000,
the
“Alternate
Rate” for
each day in such Rate Period shall be an interest rate per annum equal to
the Base Rate in effect on such day. The “Alternate
Rate” for any
date on or after the declaration or automatic occurrence of Termination Date
pursuant to Section
8.2 shall be
an interest rate equal to 2.00% per annum above
the Base Rate in effect on such day.
2
“Asset
Interest” is
defined in Section
2.1(b).
“Assignment
Amount” means,
with respect to a Committed Investor at the time of any assignment pursuant to
Section
3.1, an
amount equal to the least of (a) such Committed Investor’s Pro Rata Share
of the Net Investment requested by the Uncommitted Investor in its Investor
Group to be assigned at such time; (b) such Committed Investor’s unused
Commitment (minus the unrecovered principal amount of such Committed Investor’s
investments in the Asset Interest pursuant to the Program Support Agreement to
which it is a party); and (c) in the case of an assignment on or after the
applicable Conduit Investment Termination Date, an amount equal to (A) the sum
of such Committed Investor’s Pro Rata Share of the Investor Group Percentage of
(i) the aggregate Unpaid Balance of the Receivables (other than Defaulted
Receivables), plus
(ii) all Collections received by the Servicer but not yet remitted by the
Servicer to the Agent, plus
(iii) any amounts in respect of Deemed Collections required to be paid by
the SPV at such time.
“Assignment and Assumption
Agreement” means
an Assignment and Assumption Agreement substantially in the form of Exhibit A.
“Assignment
Date” is
defined in Section
3.1(a).
“Attributable
Indebtedness” means,
on any date, but without duplication, (a) in respect of any Capitalized Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP, (b) in respect
of any Synthetic Lease Obligation, the capitalized amount of the remaining lease
or similar payments under the relevant lease or other applicable agreement or
instrument that would appear on a balance sheet of such Person prepared as of
such date in accordance with GAAP if such lease or other agreement or instrument
were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such
Person.
“Bank of
America” is
defined in the Preamble.
“Bank of America Investor
Group” is
defined in the definition of Investor Group.
“Bankruptcy
Code” means
the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101 et
seq.
“Base Rate” means,
for any day, a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Rate for such day, plus 0.50%,
(b) the rate of interest in effect for such day as publicly announced from time
to time by the applicable Managing Agent as its “prime rate” or (c) the daily
Offshore Rate plus 1.75%. The “prime rate” is a rate set by the applicable
Managing Agent based upon various factors including such Managing Agent’s costs
and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in the prime rate announced by a Managing
Agent shall take effect at the opening of business on the day specified in the
public announcement of such change.
3
“Blocked
Account” means
an account and any associated lock-box maintained by the Servicer or SPV at a
Blocked Account Bank for the purpose of receiving Collections or concentrating
Collections received, set forth in Schedule
4.1(s), or any
account added as a Blocked Account pursuant to and in accordance with
Section 4.1(s) and
which, if not maintained at and in the name of the Agent, is subject to a
Blocked Account Agreement.
“Blocked Account
Agreement” means a
deposit account control agreement among the Servicer or SPV, the Agent and a
Blocked Account Bank, in form and substance reasonably acceptable to the
Agent.
“Blocked Account
Bank” means
each of the banks set forth in Schedule
4.1(s), as such
Schedule 4.1(s) may be
modified pursuant to Section
4.1(s).
“Business
Day” means
any day excluding Saturday, Sunday and any day on which banks in New York, New
York, Charlotte, North Carolina, or the State of Ohio, are authorized or
required by law to close, and, when used with respect to the determination of
any Offshore Rate or any notice with respect thereto, any such day which is also
a day for trading by and between banks in United States dollar deposits in the
London interbank market.
“Calculation
Period” means:
(a) the period from and including the Closing Date to and including the next
Month End Date; and (b) thereafter, each period from but excluding a Month End
Date to and including the earlier to occur of the next Month End Date or the
Final Payout Date.
“Capital
Expenditures” means,
with respect to any Person for any period, any expenditure in respect of the
purchase or other acquisition of any fixed or capital asset (excluding normal
replacements
and maintenance which are properly charged to current operations). For purposes
of this definition, the purchase price of equipment that is purchased
simultaneously with the trade-in of existing equipment or with insurance
proceeds shall be included in Capital Expenditures only to the extent of the
gross amount by which such purchase price exceeds the credit granted by the
seller of such equipment for the equipment being traded in at such time or the
amount of such
insurance proceeds, as the case may be.
“Capitalized
Lease” of a
Person means any lease of property by such Person as lessee which would be
capitalized on a balance sheet of such Person prepared in accordance with
GAAP.
“Change in Law” is defined
in Section 9.3(a).
“Change of
Control” means
(a) any
failure by Xxxxx, Inc. to beneficially own and
control, directly or indirectly, more than 50% of the total voting power and
economic
interests represented by the issued and outstanding Equity Interests of the
SPV or
any Originator (other than the GI Originator), or (b) any “Change of Control” as
defined in the Senior Credit Agreement.
“Charged-Off
Receivable” means a
Receivable (a) as to which the Obligor thereof has become the subject of any
Event of Bankruptcy, (b) which has been identified by the SPV, any
Originator or the Servicer as uncollectible, or (c) which, consistent with
the Credit and Collection Policy, would be written off as
uncollectible.
4
“Closing
Date” means
December 8, 2008.
“Code” means
the Internal Revenue Code of 1986, as amended, or any successor
thereto.
“Collection
Account” is
defined in Section
2.9.
“Collections” means,
with respect to any Receivable, all cash collections and other cash proceeds of
such Receivable, including (i) all scheduled interest and principal payments,
and any applicable late fees, in any such case, received and collected on such
Receivable, (ii) all proceeds received by virtue of the liquidation of such
Receivable, net of expenses incurred in connection with such liquidation, (iii)
all proceeds received (net of any such proceeds which are required by law to be
paid to the applicable Obligor) under any damage, casualty or other insurance
policy with respect to such Receivable, (iv) all cash proceeds of the Related
Security related to or otherwise attributable to such Receivable, (v) any
repurchase payment received with respect to such Receivable pursuant to any
applicable recourse obligation of the Servicer or any Originator under this
Agreement or any other Transaction Document and (vi) all Deemed Collections
received with respect to such Receivable.
“Commercial
Paper” means
the promissory notes issued or to be issued by a Conduit Investor (or its
related commercial paper issuer if such Conduit Investor does not itself issue
commercial paper) in the commercial paper market.
“Commitment” means,
with respect to each Committed Investor, as the context requires, (a) the
commitment of such Committed Investor to make Investments and to pay Assignment
Amounts in accordance herewith in an amount not to exceed the amount described
in the following clause (b), and
(b) the dollar amount set forth opposite such Committed Investor’s
signature on the signature pages hereof under the heading “Commitment” (or, in
the case of a Committed Investor which becomes a party hereto pursuant to an
Assignment and Assumption Agreement, as set forth in such Assignment and
Assumption Agreement), minus the
dollar amount of any Commitment or portion thereof assigned by such Committed
Investor pursuant to an Assignment and Assumption Agreement, plus the
dollar amount of any increase to such Committed Investor’s Commitment consented
to by such Committed Investor prior to the time of determination; provided
that if
the Facility Limit is reduced, the aggregate of the Commitments of all the
Committed Investors shall be reduced in a like amount and the Commitment of each
Committed Investor shall be reduced in proportion to such
reduction.
“Commitment Termination
Date” means
December 7, 2009, or such later date to which the Commitment Termination Date
may be extended by the SPV, the Agent and the Committed Investors (each in their
sole discretion).
“Committed
Investors” means
(a) for the Bank of America Investor Group, the XX XXXX Committed Investors and
(b) for any other Investor Group, each of the Persons executing this Agreement
in the capacity of a “Committed Investor” for such Investor Group in accordance
with the terms of this Agreement, and, in each case, successors and permitted
assigns.
5
“Concentration
Limits” shall,
at any time, be deemed exceeded if:
(a) the
aggregate Unpaid Balance of all Receivables relating to a single Obligor
(together with its subsidiaries and Affiliates) exceeds (i) 3.00% of the
Aggregate Unpaid Balance at such time or (ii) if higher, the percentage of the
Aggregate Unpaid Balance specified below, contingent upon the Obligor’s public
unsecured debt rating.
Obligor’s
Public Unsecured Debt Rating
(S&P/Xxxxx’x)1
|
Concentration
Limit
|
A/A2
or better
|
7.50%
|
A-/A3
|
5.00%
|
Below
A/A3 or unrated
|
3.00%
|
(b) the
aggregate Unpaid Balance of all Extended Term Receivables exceeds 3.5% of the
Aggregate Unpaid Balance at such time, or
(c) the
aggregate Unpaid Balance of all Agricultural Receivables exceeds 9.0% of the
Aggregate Unpaid Balance at such time.
“Conduit
Assignee” means,
with respect to any Conduit Investor, any special purpose entity that finances
its activities directly or indirectly through asset backed commercial paper and
is administered by a Managing Agent or any of its Affiliates and designated by
such Conduit Investor’s Managing Agent from time to time to accept an assignment
from such Conduit Investor of all or a portion of the Net
Investment.
“Conduit Investment
Termination Date” means,
with respect to any Conduit Investor, the date of the delivery by such Conduit
Investor to the SPV of written notice that such Conduit Investor elects, in its
sole discretion, to permanently cease to fund Investments hereunder. For the
avoidance of doubt, the delivery of any such written notice by such Conduit
Investor shall not relieve or terminate the obligations of any Committed
Investor hereunder to fund any Investment.
“Conduit
Investor” means
XX XXXX and any other Person that shall become a party to this Agreement in the
capacity as a “Conduit Investor” and any Conduit Assignee of any of the
foregoing.
“Continuing Fortis
Obligations” means
those obligations which are identified to continue as obligations under the
Termination and Payoff Letter.
“Contract” means,
in relation to any Receivable, any and all contracts, instruments, agreements,
leases, invoices, notes, or other writings pursuant to which such Receivable
arises or which evidence such Receivable or under which an Obligor becomes or is
obligated to make payment in respect of such Receivable.
1 The
rating of an Obligor will be the lower of any public unsecured debt rating of
such Obligor as issued by either S&P or Xxxxx’x. If such Obligor has only
one rating from either S&P or Xxxxx’x, that rating shall be
used.
6
“CP Rate” means,
for any Rate Period for any Portion of Investment and a particular Conduit
Investor, the per annum rate
equivalent to the weighted average cost (as determined by the related
Administrator and which shall include commissions of placement agents and
dealers, incremental carrying costs incurred with respect to Commercial Paper
maturing on dates other than those on which corresponding funds are received by
such Conduit Investor, other borrowings by such Conduit Investor (other than
under any Program Support Agreement) and any other costs associated with the
issuance of Commercial Paper) of or related to the issuance of Commercial Paper
that are allocated, in whole or in part, by the Conduit Investor or its
Administrator to fund or maintain such Portion of Investment (and which may be
also allocated in part to the funding of other assets of the Conduit Investor);
provided that if any
component of such rate is a discount rate, in calculating the “CP Rate” for
such Portion of Investment for such Rate Period, such Conduit Investor shall for
such component use the rate resulting from converting such discount rate to an
interest bearing equivalent rate per annum.
“Credit and Collection
Policy” means
the Originators’ credit and collection policy or policies and practices relating
to Receivables as in effect on the Closing Date and set forth in Exhibit B, as
modified, from time to time, in compliance with Sections
6.1(a)(vii) and
6.2(c).
“Days Sales
Outstanding” means,
for any Calculation Period, the product, rounded upward, if necessary, to the
next higher whole number, obtained by multiplying (a) 121 by (b) the
quotient obtained by dividing
(i) the aggregate Unpaid Balance of Receivables as of the most recent Month End
Date by (ii) the aggregate amount of sales giving rise to Receivables originated
during the consecutive four (4) month period ended on the most recent Month End
Date.
“Debtor Relief
Laws” means
any applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, insolvency, fraudulent conveyance, reorganization, or similar
Laws affecting the rights, remedies, or recourse of creditors generally,
including the Bankruptcy Code and all amendments thereto, as are in effect from
time to time.
“Deemed
Collections” means
any Collections on any Receivable deemed to have been received pursuant to
Sections
2.6.
“Default
Rate” means a
per annum rate equal to the sum of (a) the Base Rate plus (b)
2.00%.
“Default
Ratio” means,
for any Calculation Period, the ratio (expressed as a percentage) computed as of
the most recent Month End Date of (a) the sum of (i) the aggregate initial
Unpaid Balance of all Receivables as to which, as of such Month End Date, any
payment, or any part thereof, remained unpaid 91 days or more, but not more than
120 days, from the original due date thereof, plus (without
duplication) (ii) the aggregate initial Unpaid Balance of all Charged-Off
Receivables arising as of such Month End Date, divided
by (b) the
aggregate amount of sales by the Originators giving rise to Receivables in the
fourth month prior to the month of determination.
7
“Defaulted
Receivable” means a
Receivable as to which any payment, or part thereof, remains unpaid for 61 days
or more from the original due date for such payment.
“Delinquency
Ratio” means,
for any Calculation Period, the ratio (expressed as a percentage) equal to the
quotient of (a) the aggregate Unpaid Balance of all Delinquent Receivables as of
the most recent Month End Date divided
by (b) the
aggregate amount of sales by the Originator giving rise to the Receivables in
the third month prior to the month of determination.
“Delinquent
Receivable” means a
Receivable: (a) as to which any payment, or part thereof, remains unpaid for 31
days or more from the original due date for such payment and (b) which is
not a Defaulted Receivable.
“Dilution” means,
on any date, an amount equal to the sum, without duplication, of the aggregate
reduction effected on such day in the Unpaid Balances of the Receivables
attributable to any non-cash items including credits, rebates, billing errors,
sales or similar taxes, cash discounts, volume discounts, allowances, disputes
(it being understood that a Receivable is “subject to dispute” only if and to
the extent that, in the reasonable good faith judgment of the applicable
Originator (which shall be exercised in the ordinary course of business) such
Obligor’s obligation in respect of such Receivable is reduced on account of any
performance failure on the part of such Originator), set-offs, counterclaims,
chargebacks, returned or repossessed goods, sales and marketing discounts,
warranties, any unapplied credit memos and other adjustments that are made in
respect of Obligors; provided that
writeoffs related to an Obligor’s bad credit, inability to pay or insolvency
shall not constitute Dilution, and contractual adjustments to the amounts
payable by the Obligor that are eliminated from the Receivables balance sold
through a reduction in purchase price shall not constitute
Dilution.
“Dilution Horizon
Ratio” means,
for any Calculation Period, the greater of (a) 200% and (b) the ratio (expressed
as a percentage) computed as of the most recent Month End Date by dividing (i)
the aggregate initial Unpaid Balance of sales by the Originators giving rise to
Receivables during the calendar month and the two preceding calendar months
ended on such Month End Date by (ii) the
Aggregate Unpaid Balance as of such Month End Date.
“Dilution
Ratio” means,
for any Calculation Period, the ratio (expressed as a percentage) computed as of
the most recent Month End Date by dividing (a) the aggregate Dilution incurred
during such period, by (b) the
aggregate amount of sales by the Originators giving rise to Receivables in the
month prior to the month of determination.
“Dilution Reserve
Percentage” means,
for any Calculation Period, a percentage equal to:
where:
SF = the
Stress Factor;
EDR = the
Expected Dilution Ratio;
8
DS = the
Dilution Spike; and
DHR = the
Dilution Horizon Ratio.
“Dilution
Spike” means,
as of any date of determination, the highest average Dilution Ratio for any two
consecutive calendar months during the immediately preceding 12 calendar
months.
“Dollar” or
“$” means
the lawful currency of the United States.
“Downgrade Collateral
Account” is
defined in Section
3.2(a).
“Downgrade
Draw” is
defined in Section
3.2(a).
“Eligible
Investments” means
any of the following investments denominated and payable solely in Dollars: (a)
readily marketable debt securities issued by, or the full and timely payment of
which is guaranteed by the full faith and credit of, the federal government of
the United States, (b) insured demand deposits, time deposits and certificates
of deposit of any commercial bank rated “A-1+” by S&P, “P-1” by Xxxxx’x and
“A-1+” by Fitch (if rated by Fitch), (c) no load money market funds rated in the
highest ratings category by each of the Rating Agencies (without the “r” symbol
attached to any such rating by S&P), and (d) commercial paper of any
corporation incorporated under the laws of the United States or any political
subdivision thereof, provided that
such commercial paper is rated “A-1+” by S&P, “P-1” by Xxxxx’x and “A-1+” by
Fitch (if rated by Fitch) (without the “r” symbol attached to any such rating by
S&P).
“Eligible
Obligor” means,
at any time, any Obligor:
(a) which is
a United States resident (or, if a corporation or other registered organization,
is organized and in existence under the laws of the United States or any state
or political subdivision thereof);
(b) which is
not an Affiliate or employee of any of the originators, SPV or
Servicer;
(c) which is
not an Official Body; and
(d) which
does not have more than 35.0% of Defaulted Receivables with respect to the
Receivables owed by such Obligor.
“Eligible
Receivable” means,
at any time, any Receivable:
(a) which was
originated by an Originator in the ordinary course of its business;
9
(b) (i) with
respect to which each of the applicable Originator and the SPV has performed all
obligations required to be performed by it thereunder or under any related
Contract, including shipment of the merchandise and/or the performance of the
services purchased thereunder; (ii) which has been billed to the relevant
Obligor; and (iii) which, according to the Contract related thereto, is required
to be paid in full within 60 days of the original billing date therefor,
provided,
however, that up
to 3.5% of the Aggregate Unpaid Balance may consist of Extended Term Receivables
and 9.0% of the Aggregate Unpaid Balance may consist of Agricultural
Receivables, provided,
further, that
the Administrative Agent may deem any Extended Term Receivable or Agricultural
Receivable to be ineligible at any time in its discretion upon twenty (20) days
advance written notice to the SPV;
(c) which was
originated in accordance with and satisfies in all material respects all
applicable requirements of the Credit and Collection Policy;
(d) which has
been sold or contributed to the SPV pursuant to (and in accordance with) the
First Tier Agreement and to which the SPV has good and marketable title, free
and clear of all Adverse Claims;
(e) the
Obligor of which has been directed to make all payments to a Blocked
Account;
(f) which is
assignable without the consent of, or notice to, the Obligor thereunder unless
such consent has been obtained and is in effect or such notice has been
given;
(g) which,
together with the related Contract, is in full force and effect and constitutes
the legal, valid and binding obligation of the related Obligor enforceable
against such Obligor in accordance with its terms and is not subject to any
asserted litigation, dispute, offset, holdback, counterclaim or other defense;
provided that
with respect to offsets and holdbacks only the portion of such Receivable that
is the subject of such offset or holdback shall be deemed to be ineligible
pursuant to the terms of this clause
(g);
(h) which is
denominated and payable only in Dollars in the United States;
(i) which is
not a Defaulted Receivable;
(j) which is
not a Charged-Off Receivable;
(k) which has
not been compromised, adjusted or modified (including by the extension of time
for payment or the granting of any discounts, allowances or credits) in a manner
not otherwise authorized by this Agreement; provided that
only such portion of such Receivable that is the subject of such compromise,
adjustment or modification shall be deemed to be ineligible pursuant to the
terms of this clause
(l);
(l) which is
an “account” within the meaning of Article 9 of the UCC of all applicable
jurisdictions and is not evidenced by instruments or chattel paper;
(m) which,
together with the Contract related thereto, does not contravene in any material
respect any Laws applicable thereto (including Laws relating to truth in
lending, fair credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy);
10
(n) the
assignment of which under the First Tier Agreement by the applicable Originator
to the SPV and hereunder by the SPV to the Agent does not violate, conflict or
contravene any applicable Law or any enforceable contractual or other
restriction, limitation or encumbrance;
(o) such
Receivable is not a Receivable which arose as a result of the sale of consigned
inventory owned by a third party or a sale in which the Originator acted as
agent of any other Person or otherwise not as principal;
(p) such
Receivable has not been selected for funding under the Facility pursuant to any
“adverse selection” procedures;
(q) such
Receivable is not an Impaired Eligible Receivable, provided that if such
Receivable is an Impaired Eligible Receivable it shall be deemed to be an Deemed
Collection;
(r) which
(together with the Related Security related thereto) has been the subject of
either a valid transfer and assignment from, or the grant of a first priority
perfected security interest therein by, the SPV to the Agent, on behalf of the
Investors, of all of the SPV’s right, title and interest therein, effective
until the Final Payout Date (unless repurchased by the SPV at an earlier date
pursuant to this Agreement); and
(s) the
Obligor of which is an Eligible Obligor.
“Equity
Interests” means,
with
respect to any Person, any and all shares,
interests, participations or other equivalents, including membership interests
(however
designated, whether voting or non-voting or whether certificated or not
certificated), of capital of such Person, including, if such
Person is a partnership, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership, whether outstanding on the
date
hereof or issued thereafter.
“ERISA” means
the U.S. Employee Retirement Income Security Act of 1974 and any regulations
promulgated and rulings issued thereunder.
“ERISA
Affiliate” means,
with respect to any Person, any corporation, partnership, trust, sole
proprietorship or trade or business which, together with such Person, is treated
as a single employer under Section 414(b) or (c) of the Code or, with respect to
any liability for contributions under Section 302(c) of ERISA, Section 414(m) or
Section 414(o) of the Code.
“Eurodollar Reserve
Percentage” means,
for any day during any Rate Period, the reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on such day,
whether or not applicable to any Investor, under regulations issued from time to
time by the Board of Governors of the Federal Reserve System for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as “eurocurrency liabilities”). The Offshore Rate shall be adjusted
automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.
11
“Event of
Bankruptcy” means,
with respect to any Person, (a) that such Person becomes unable or admits in
writing its inability or fails generally to pay its debts as they become due;
(b) that any writ or warrant of attachment or execution or similar process is
issued or levied against all or any material part of the property of any such
Person and is not released, vacated or fully bonded within thirty (30) days
after its issue or levy; (c) that such Person institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors, or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or (d) that any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for sixty
(60) calendar days; or (e) that any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for sixty (60) calendar days, or an order for relief is entered in any
such proceeding.
“Excluded
Amounts” is
defined in Section
4.1(s).
“Excluded
Taxes” means,
with respect to the Managing Agent, any Investor, any other Secured Party, or
any other recipient of any payment to be made by or on account of any obligation
of a payor hereunder, (a) taxes imposed on or measured by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the Laws of which such recipient is organized or in which its principal office
is located or, in the case of any Investor, in which its applicable Funding
Office is located, (b) any branch profits taxes imposed by the United
States or any similar tax imposed by any other jurisdiction in which the payor
is located and (c) in the case of a Foreign Investor, any withholding tax
that is imposed on amounts payable to such Foreign Investor at the time such
Foreign Investor becomes a party hereto (or designates a new Funding Office) or
is attributable to such Foreign Investor’s failure or inability (other than as a
result of a Change in Law) to comply with Section
9.5) except
to the extent that such Foreign Investor (or its assignor, if any) was entitled,
at the time of designation of a new Funding Office (or assignment), to receive
additional amounts from the SPV with respect to such withholding tax pursuant to
Section
9.4.
“Expected Dilution
Ratio” means,
for any Calculation Period, the average of the Dilution Ratios for the 12
calendar months ending on the most recent Month End Date.
“Extended Term
Receivable” means
any Eligible Receivable with a maturity greater than 60 days but less than 91
days.
“Facility
Fee” is
defined in the Fee Letter.
“Facility
Limit” means
at any time $137,700,000, as such amount may be reduced in accordance with
Section
2.16;
provided that
such amount may not at any time exceed the aggregate Commitments then in
effect.
12
“Federal Funds
Rate” means,
for any day, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that (a)
if such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to the applicable Managing Agent on such
day on such transactions as determined by it.
“Fee
Letter” means,
as applicable, (i) the confidential letter agreement among the SPV and the
Managing Agent for the Bank of America Investor Group and (ii) each confidential
letter agreement entered into by the SPV with any Managing Agent for an Investor
Group that becomes a party to this Agreement on or after the Closing
Date.
“Final Payout
Date” means
the date, after the Termination Date, on which the Net Investment has been
reduced to zero, all accrued Servicing Fees have been paid in full and all other
Aggregate Unpaids have been paid in full in cash.
“First Tier
Agreement” means
the Sale Agreement, dated as of the Closing Date, among the Originators and the
SPV.
“Fluctuation
Factor” means
1.2.
“Foreign
Investor” means
any Investor that is not (i) a citizen or resident of the jurisdiction in which
the SPV is resident for tax purposes, or (ii) a corporation, partnership,
national bank association trust, or other entity created or organized in or
under the laws of the jurisdiction referenced in clause (i) or any estate or
trust that is subject to taxation by such jurisdiction regardless of the source
of its income. For purposes of this definition, the United States, each state
thereof, and the District of Columbia shall be deemed to constitute a single
jurisdiction.
“Funding
Office” of an
Investor means the office from which such Investor funds its
Investment.
“GAAP” means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such accounting
profession, in effect from time to time.
“Greif
Guaranty” means
the Guaranty dated as of the date hereof (as
hereafter amended, supplemented or restated)
delivered by Xxxxx, Inc. to the Persons
named therein in relation to the obligations of the Originators and the Servicer
under the Transaction Documents.
13
“Guarantee” means,
with respect to any Person, (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the
“primary
obligor”) in any
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness or other obligation of the payment
or performance of such Indebtedness or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity or level of income or cash flow of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation, or (iv)
entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect thereof (in whole or
in part), or (b) any Lien on any assets of such Person securing any Indebtedness
or other obligation of any other Person, whether or not such Indebtedness or
other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The
amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term “Guarantee” as a
verb has a corresponding meaning.
“Impaired Eligible
Receivable” means
an Eligible Receivable which contains a confidentiality provision that purports
to restrict the ability of the SPV or its assignees to exercise their rights
under the related Contract or the First Tier Agreement, including, without
limitation, the SPV’s or its assignees’ right to review such
Contract.
“Indebtedness” means,
as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:
(a) all
obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
(b) the
maximum amount of all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net
obligations of such Person under any Swap Contract;
(d) all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts and other accrued liabilities incurred
payable in the ordinary course of business);
(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
(f) all
Attributable Indebtedness in respect of Capitalized Leases, Synthetic Lease
Obligations and Synthetic Debt of such Person; and
14
(g) all
Guarantees of such Person in respect of any of the foregoing.
For all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture (other than a joint venture that is itself a
corporation, limited liability company or other entity the obligations of which
are not, by operation of law, the joint or several obligations of the holders of
its Equity Interests) in which such Person is a general partner or a joint
venturer, unless such Indebtedness is expressly made non-recourse to such Person
or such Indebtedness would not be required to be consolidated with the other
Indebtedness of such Person under GAAP. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date.
“Indemnified
Amounts” is
defined in Section
9.1.
“Indemnified
Parties” is
defined in Section
9.1.
“Interest
Component” means,
at any time of determination for any Conduit Investor, the
aggregate Yield accrued and to accrue through the end of the current Rate Period
for the Portion of Investment accruing Yield calculated by reference to the CP
Rate at such time (determined for such purpose using the CP Rate most recently
determined by its Administrator).
“Interest Coverage
Ratio” has the
meaning assigned to such term in the Senior Credit Agreement.
“Investment” is
defined in Section
2.2(a).
“Investment
Date” is
defined in Section
2.3(a).
“Investment
Request” means
each request substantially in the form of Exhibit C.
“Investor(s)” means
the Conduit Investors, the Committed Investors and/or the Uncommitted Investors,
as the context may require.
“Investor
Group” means
each of the following groups of Investors:
(a) XX XXXX,
any Conduit Assignee thereof, Bank of America, as Administrator and Managing
Agent, and the XX XXXX Committed Investors from time to time party hereto (the
“Bank of America Investor
Group”);
and
(b) any
Conduit Investor, its Administrator, its Managing Agent and its related
Committed Investors from time to time party hereto.
“Investor Group
Percentage” means,
for any Investor Group, the percentage equivalent (carried out to five decimal
places) of a fraction the numerator of which is the aggregate amount of the
Commitments of all Committed Investors in that Investor Group and the
denominator of which is the sum of such numerators for each of the Investor
Groups.
“Law” means
any law (including common law), constitution, statute, treaty, regulation, rule,
ordinance, order, injunction, writ, decree, judgment or award of any Official
Body.
15
“Leverage
Ratio” has the
meaning assigned to such term in the Senior Credit Agreement.
“Lien” means
any mortgage, pledge, hypothecation, assignment, encumbrance, lien (statutory or
other), charge, or preference, priority or other security interest or
preferential arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement and any financing lease having substantially the same economic effect
as any of the foregoing).
“Loss Horizon
Ratio” means,
for any Calculation Period, the quotient, expressed as a percentage, of (a) the
aggregate initial Unpaid Balance of Eligible Receivables which arose during the
period ending on the most recent Month End Date and the three immediately
preceding Calculation Periods, divided
by (b) the
aggregate initial Unpaid Balance of Eligible Receivables at the most recent
Month End Date.
“Loss Reserve
Ratio” means,
for any Calculation Period, the product of (a) the Stress Factor, (b) the
highest three-month average, during the twelve-month period ending on the most
recent Month End Date, of the Default Ratio and (c) the Loss Horizon
Ratio for such Calculation Period.
“Majority
Investors” means,
at any time, those Committed Investors that hold Commitments aggregating in
excess of fifty percent (50%) of the
Facility Limit as of such date (or, if the Commitments shall have been
terminated, the Investors whose aggregate pro rata shares
of the Net Investment exceed fifty percent (50%) of the
Net Investment).
“Managing
Agent” means,
with respect to any Investor Group, the Person acting as Managing Agent for such
Investor Group and designated as such on the signature pages hereto or in any
Assignment and Assumption Agreement for such Investor Group under this
Agreement, and each of its successors and assigns.
“Material Adverse
Effect” means
any change, effect, event, occurrence, state of facts or development that
materially and adversely affects (a) the collectibility of a material portion of
the Receivables, (b) the operations, business, properties, liabilities (actual
or contingent), or condition (financial or otherwise) of the SPV individually or
Greif and its consolidated Subsidiaries (taken as a whole), (c) the ability of
the SPV, the Servicer or any of the Originators to perform its respective
material obligations under the Transaction Documents to which it is a party, or
(d) the rights of or benefits available to the Agent, the Managing Agents or the
Investors under the Transaction Documents.
“Material
Subsidiary” has the
meaning assigned to such term in the Senior Credit Agreement.
“Maturity
Date” means
the fifth anniversary of the Closing Date unless otherwise extended with the
consent of each Managing Agent.
“Maximum
Commitment” means,
as of any date of determination, the sum of the maximum Commitments of all
Committed Investors hereunder.
16
“Maximum Net
Investment” means,
at any time, an amount equal to the Facility Limit divided by 1.02.
“Measurement
Period” means,
at any date of determination, the most recently completed four fiscal quarters
of Xxxxx, Inc. or any other Originator, as applicable.
“Minimum
Percentage” means,
for any Calculation Period, the sum of (a) 0.15 plus (b) the
product of (i) the Expected Dilution Ratio and (ii) the Dilution Horizon
Ratio.
“Month End
Date” means
the last day of each calendar month.
“Moody’s” means
Xxxxx’x Investors Service, Inc., or any successor that is a nationally
recognized statistical rating organization.
“Multiemployer
Plan” is
defined in Section 4001(a)(3) of ERISA.
“Net
Investment” at any
time means (a) the cash amounts paid to the SPV pursuant to Sections
2.2 and
2.3, together
with the amount of any funding under a Program Support Agreement allocated to
the Interest Component at the time of such funding less (b) the aggregate amount
of Collections theretofore received and applied by the Agent to reduce such Net
Investment pursuant to Section 2.12;
provided that the
Net Investment shall be restored and reinstated in the amount of any Collections
so received and applied if at any time the distribution of such Collections is
rescinded or must otherwise be returned for any reason; and provided further that the
Net Investment shall be increased by the amount described in Section 3.1(b) as
described therein.
“Net Pool
Balance” means,
at any time, (a) the Aggregate Unpaid Balance at such time, minus
(b) the sum of (i) the aggregate Unpaid Balances of such Eligible
Receivables that have become Defaulted Receivables, (ii) for each category
of Receivables subject to a Concentration Limit, the amount by which the Unpaid
Balances of any Eligible Receivable or category of Eligible Receivables exceeds
the applicable Concentration Limits set forth in the definition of
“Concentration Limit”, and (iii) without duplication of clause
(i), the
aggregate Unpaid Balance of any Impaired Eligible Receivables identified as such
by or to the Servicer.
“Obligor” means,
with respect to any Receivable, the Person obligated to make payments in respect
of such Receivable pursuant to a Contract.
“Official
Body” means
any government or political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of any such government
or political subdivision, or any court, tribunal, grand jury or arbitrator, or
any accounting board or authority (whether or not a part of government) which is
responsible for the establishment or interpretation of national or international
accounting principles, in each case whether foreign or domestic.
“Offshore Base
Rate” means,
for any Rate Period:
17
(i) the rate
per annum (carried out to the fifth decimal place) equal to the rate determined
by the applicable Managing Agent to be the offered rate that appears on the page
of the Telerate, Inc. screen that displays an average British Bankers
Association Interest Settlement Rate (such page currently being page number
3750) for deposits in Dollars (for delivery on the first day of such Rate
Period) with a term equivalent to such Rate Period, determined as of
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Rate Period, or
(ii) in the
event the rate referenced in the preceding subsection
(i) does not
appear on such page or service or such page or service shall cease to be
available, the rate per annum (carried to the fifth decimal place) equal to the
rate determined by the applicable Managing Agent to be the offered rate on such
other page or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Rate Period) with a term equivalent to such Rate Period, determined as
of approximately 11:00 a.m. (London time) two (2) Business Days prior to the
first day of such Rate Period, or
(iii) in the
event the rates referenced in the preceding subsections
(i) and
(ii) are not
available, the rate per annum determined by the applicable Managing Agent as the
rate of interest at which Dollar deposits (for delivery on the first day of such
Rate Period) in same day funds in the approximate amount of the applicable
Portion of Investment to be funded by reference to the Offshore Rate and with a
term equivalent to such Rate Period would be offered by its London Branch to
major banks in the offshore dollar market at their request at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Rate Period.
“Offshore
Rate” means,
for any Rate Period, a rate per annum determined by the applicable Managing
Agent pursuant to the following formula:
“Originator” is
defined in the Preamble.
“Pension
Plan” means
an employee pension benefit plan as defined in Section 3(2) of ERISA, which is
subject to Title IV of ERISA (other than a Multiemployer Plan) and to which any
Originator, the SPV or an ERISA Affiliate of any of them may have any liability,
including any liability by reason of having been a substantial employer within
the meaning of Section 4063 of ERISA or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.
“Person” means
an individual, partnership, limited liability company, corporation, joint stock
company, trust (including a business trust), unincorporated association, joint
venture, firm, enterprise, Official Body or any other entity.
“Portion of
Investment” is
defined in Section
2.4(a).
18
“Potential Termination
Event” means
an event which but for the lapse of time or the giving of notice, or both, would
constitute a Termination Event.
“Pro Rata
Share” means,
with respect to a Committed Investor and a particular Investor Group at any
time, the Commitment of such Committed Investor, divided
by the sum
of the Commitments of all Committed Investors in such Investor Group (or, if the
Commitments shall have been terminated, its pro rata share of
the Net Investment funded by such Investor Group).
“Program
Fee” is
defined in the Fee Letter.
“Program Support
Agreement” means
and includes, with respect to any Conduit Investor, any agreement entered into
by any Program Support Provider providing for the issuance of one or more
letters of credit for the account of the Conduit Investor (or any related
commercial paper issuer that finances the Conduit Investor), the issuance of one
or more surety bonds for which the Conduit Investor (or such related issuer) is
obligated to reimburse the applicable Program Support Provider for any drawings
thereunder, the sale by the Conduit Investor (or such related issuer) to any
Program Support Provider of the Asset Interest (or portions thereof or
participations therein) and/or the making of loans and/or other extensions of
credit to the Conduit Investor (or such related issuer) in connection with its
commercial paper program, together with any letter of credit, surety bond or
other instrument issued thereunder.
“Program Support
Provider” means
and includes, with respect to any Conduit Investor, any Person now or hereafter
extending credit or having a commitment to extend credit to or for the account
of, or to make purchases from, the Conduit Investor (or any related commercial
paper issuer that finances the Conduit Investor) or issuing a letter of credit,
surety bond or other instrument to support any obligations arising under or in
connection with the Conduit Investor’s (or such related issuer’s) commercial
paper program.
“Rate
Period” means
(a) with respect to any Portion of Investment funded by the issuance of
Commercial Paper, (i) initially the period commencing on (and including) the
date of the initial purchase or funding of such Portion of Investment and ending
on (and including) the last day of the current calendar month, and
(ii) thereafter, each period commencing on (and including) the first day
after the last day of the immediately preceding Rate Period for such Portion of
Investment and ending on (and including) the last day of the current calendar
month; and (b) with respect to any Portion of Investment not funded by the
issuance of Commercial Paper, (i) initially the period commencing on (and
including) the date of the initial purchase or funding of such Portion of
Investment and ending on (but excluding) the next following Settlement Date, and
(ii) thereafter, each period commencing on (and including) a Settlement Date and
ending on (but excluding) the next following Settlement Date; provided
that
(A) any Rate
Period with respect to any Portion of Investment (other than any Portion of
Investment accruing Yield at the CP Rate) that would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day; provided that if
Yield in respect of such Rate Period is computed by reference to the Offshore
Rate, and such Rate Period would otherwise end on a day which is not a Business
Day, and there is no subsequent Business Day in the same calendar month as such
day, such Rate Period shall end on the next preceding Business Day;
19
(B) in the
case of any Rate Period for any Portion of Investment that commences before the
Termination Date and would otherwise end on a date occurring after the
Termination Date, such Rate Period shall end on such Termination Date and the
duration of each Rate Period which commences on or after the Termination Date
shall be of such duration as shall be selected by such Managing Agent;
and
(C) any Rate
Period in respect of which Yield is computed by reference to the CP Rate may be
terminated at the election of, and upon notice thereof to the SPV by, the
applicable Managing Agent any time, in which
case the Portion of Investment allocated to such terminated Rate Period shall be
allocated to a new Rate Period commencing on (and including) the date of such
termination and ending on (but excluding) the next following Settlement Date,
and shall accrue Yield at the Alternate Rate.
“Rate Type” means
the Offshore Rate, the Base Rate or the CP Rate.
“Receivable” means
any right to payment owed by any Obligor or evidenced by a Contract arising in
connection with the sale of goods or the rendering of services by an Originator
or any right of an Originator or the SPV to payment from or on behalf of an
Obligor, in respect of any scheduled payment of interest, principal or otherwise
under a Contract, or any right to reimbursement for funds paid or advanced by an
Originator or the SPV on behalf of an Obligor under such Contract, whether
constituting an account, chattel paper, instrument, payment intangible, or
general intangible, (whether or not earned by performance), together with all
supplemental or additional payments required by the terms of such Contract with
respect to insurance, maintenance, ancillary products and services and any other
specific charges (including the obligation to pay any finance charges, fees and
other charges with respect thereto), other than a Retained
Receivable.
“Recipient” is
defined in Section
2.10.
“Records” means
all Contracts and other documents, purchase orders, invoices, agreements, books,
records and any other media, materials or devices for the storage of information
(including tapes, disks, punch cards, computer programs and databases and
related property) maintained by the SPV, any Originator or the Servicer with
respect to the Receivables, any other Affected Assets or the
Obligors.
“Register” is
defined in Section
11.8.
“Reinvestment” is
defined in Section
2.2(b).
“Reinvestment
Period” means
the period commencing on the Closing Date and ending on the Termination
Date.
“Related Committed
Investor” means,
with respect to any Uncommitted Investor, the Committed Investors in such
Uncommitted Investor’s Investor Group.
“Related
Security” means,
with respect to any Receivable, all of the applicable Originator’s (without
giving effect to any transfer under the First Tier Agreement) or the SPV’s
rights, title and interest in, to and under:
20
(a) any goods
(including returned or repossessed goods) and documentation or title evidencing
the shipment or storage of any goods relating to any sale giving rise to such
Receivable;
(b) all other
Liens and property subject thereto from time to time, if any, purporting to
secure payment of such Receivable, whether pursuant to the related Contract or
otherwise, together with all financing statements and other filings authorized
by an Obligor relating thereto;
(c) all
guarantees, indemnities, warranties, letters of credit, insurance policies and
proceeds and premium refunds thereof and other agreements or arrangements of any
kind from time to time supporting or securing payment of such Receivable,
whether pursuant to the Contract related to such Receivable or
otherwise;
(d) all
records, instruments, documents and other agreements (including any Contract
with respect thereto) related to such Receivable;
(e) all
Collections with respect to such Receivable and all of the SPV’s or the
applicable Originator’s right, title and interest in and to any deposit or other
account (including the Blocked Accounts and the Collection Account) into which
such Collections may be deposited or received; and
(f) all
proceeds of the foregoing.
“Reportable
Event” means
any event, transaction or circumstance which is required to be reported with
respect to any Pension Plan under Section 4043 of ERISA and the applicable
regulations thereunder.
“Reporting
Date” is
defined in Section
2.8.
“Required Downgrade
Assignment Period” is
defined in Section
3.2(a).
“Required
Reserves” at any
time means the product of (x) the Net Pool Balance and (y) the sum of (a) the
Yield Reserve, plus (b) the
Servicing Fee Reserve, plus (c) the
greater of (i) the sum of the Loss Reserve Ratio and the Dilution Reserve
Percentage and (ii) the Minimum Percentage, each as in effect at such
time.
“Responsible
Officer” means:
(a) in the case of a corporation, its president, senior vice president,
executive vice president or treasurer, and, in any case where two Responsible
Officers are acting on behalf of such corporation, the second such Responsible
Officer may be a secretary or assistant secretary; (b) in the case of a limited
partnership, the Responsible Officer of the general partner, acting on behalf of
such general partner in its capacity as general partner; and (c) in the case of
a limited liability company, the chairman, chief executive officer, president,
chief operating officer, chief financial officer, executive vice president or
senior vice president of such limited liability company or of the manager,
managing member or sole member of such limited liability company, acting on
behalf of such manager, managing member or sole member in its capacity as
manager, managing member or sole member.
21
“Restricted
Payments” is
defined in Section
6.2(l).
“Retained
Receivable” has the
meaning provided in the First Tier Agreement.
“S&P” means
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor that is a nationally recognized statistical rating
organization.
“Secured
Parties” means
the Investors, the Agent, each Managing Agent, each Administrator and the
Program Support Providers.
“Senior Credit
Agreement”
means:
(a) the
Credit Agreement dated as of March 2, 2005 (as amended, restated, supplemented
or otherwise modified and in effect from time to time), by and among Xxxxx,
Inc., Greif Spain Holdings, S.L., sociedad unipersonal, a private limited
liability company (sociedad de responsabilidad
limitada),
organized under the laws of Spain, Greif Bros. Canada Inc., a corporation
continued and existing under the laws of Canada, Greif UK Ltd., a company
organized under the laws of England and Wales, Greif International Holding B.V.,
a private limited liability company (besloten vennootschap met beperlite
aansprakelijkheid)
organized under the laws of The Netherlands with statutory seat in Amstelveen,
The Netherlands, and Greif Australia PTY. Ltd., a corporation organized under
the laws of the Australian Capital Territory, the financial institutions party
thereto, including Deutsche Bank AG, New York Branch, in their capacities as
lenders thereunder and Deutsche Bank AG, New York Branch, as administrative
agent; or
(b) if the
agreement referred to in paragraph (a) is terminated or cancelled, any secured
or unsecured revolving credit or term loan agreement between or among
Xxxxx,
Inc., as borrower, and any bank or banks or financial institutions, as
lenders(s), for
borrowed monies to be used for general corporate purposes of Xxxxx, Inc. and/or
its Subsidiaries,
with an original term of not less than 3 years and an original aggregate
loan
commitment of at least U.S.$250,000,000 or the equivalent thereof in any other
currency
and, if there is more than one such revolving credit or term loan agreement,
then such
agreement which involves the greatest original aggregate loan commitment(s)
and, as between agreements having the same aggregate original loan commitment(s),
then the one which has the most recent date;
or
(c) if the
agreement referred to in paragraph (a) above and all agreements, if any,
which apply under paragraph (b) have been terminated or cancelled, then so long
as paragraph (b) does not apply as the result of one or more new agreements
being entered into, the agreement which is the last such agreement under
paragraph (a) or
(b) to be so terminated or cancelled as in effect (for purposes of this
definition) pursuant
to such paragraphs immediately prior to such termination or
cancellation.
“Servicer” is
defined in the Preamble.
“Servicer
Default” is
defined in Section
7.5.
22
“Servicer Indemnified
Amounts” is
defined in Section
9.2.
“Servicer Indemnified
Parties” is
defined in Section
9.2.
“Servicer
Report” means a
report, in substantially the form attached hereto as Exhibit D
or in
such other form as is mutually agreed to by the SPV, the Servicer and the Agent,
furnished by the Servicer pursuant to Section
2.8.
“Servicing
Fee” means
the fees payable to the Servicer from Collections, in an amount equal to either
(i) at any time when the Servicer is an Affiliate of Xxxxx, Inc., 1.0%
per annum on the
weighted daily average of the aggregate Unpaid Balances of the Receivables for
the preceding calendar month, or (ii) at any time when the Servicer is not an
Affiliate of Xxxxx, Inc., the amount determined upon the agreement of the
Servicer, and the Agent, payable in arrears on each Settlement Date from
Collections pursuant to, and subject to the priority of payments set forth in,
Section
2.12. With
respect to any Portion of Investment, the Servicing Fee allocable thereto shall
be equal to the Servicing Fee determined as set forth above, times a
fraction, the numerator of which is the amount of such Portion of Investment and
the denominator of which is the Net Investment.
“Servicing Fee
Reserve” means,
at any time, an amount equal to the sum of (a) the current Servicing Fee rate,
plus
(b) the product of (i) a fraction, the numerator of which is the Days Sales
Outstanding and the denominator of which is 360 multiplied
by (ii) the
aggregate Unpaid Balance of all Receivables.
“Settlement
Date” means
(a) prior to the Termination Date, the 17th day of
each calendar month (or, if such day is not a Business Day, the immediately
succeeding Business Day) or such other day as agreed upon in writing by the SPV
and the Agent, after consultation with the Managing Agents, and (b) for any
Portion of Investment on and after the Termination Date, each day selected from
time to time by the Agent, after consultation with the Managing Agents (it being
understood that the Agent may select such Settlement Date to occur as frequently
as daily) or, in the absence of any such selection, the date which would be the
Settlement Date for such Portion of Investment pursuant to clause (a) of this
definition.
“Solvent” has the
meaning provided in the First Tier Agreement.
“Stress
Factor” means
2.25.
“SPV” is
defined in the Preamble.
“Subsidiary” means,
with respect to any Person, any corporation or other Person (a) of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other Persons performing similar functions
are at the time directly or indirectly owned by such Person or (b) that is
directly or indirectly controlled by such Person within the meaning of control
under Section 15 of the Securities Act of 1933.
23
“Swap
Contract” means
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master
Agreement”),
including any such obligations or liabilities under any Master
Agreement.
“Swap Termination
Value” means,
in respect of any one or more Swap Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the xxxx-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap
Contracts.
“Synthetic
Debt” means,
with respect to any Person as of any date of determination thereof, all
obligations of such Person in respect of transactions entered into by such
Person that are intended to function primarily as a borrowing of funds
(including any minority interest transactions that function primarily as a
borrowing) but are not otherwise included in the definition of “Indebtedness” or
as a liability on the consolidated balance sheet of such Person and its
Subsidiaries in accordance with GAAP.
“Synthetic Lease
Obligation” means
the monetary obligation of a Person under (a) a so-called synthetic, off-balance
sheet or tax retention lease, or (b) an agreement for the use or possession of
property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which,
upon the application of any Debtor Relief Laws to such Person, would be
characterized as the indebtedness of such Person (without regard to accounting
treatment).
“Taxes” is
defined in Section
9.4(a).
“Termination
Date” means
the earliest of (a) the Business Day designated by the SPV to the Agent and the
Managing Agents as the Termination Date at any time following not less than five
(5) days’ written notice to the Agent and the Managing Agents, (b) the day upon
which the Termination Date is declared or automatically occurs pursuant to
Section
8.2,
(c) the day that is five (5) Business Days prior to the Commitment
Termination Date and (d) the Maturity Date.
“Termination
Event” is
defined in Section
8.1.
24
“Termination and Payoff
Letter” means
that certain letter agreement, dated the date hereof, among the SPV, the
Originators, Fortis Bank S.A./N.V. and the Agent, pursuant to which Fortis Bank
S.A./N.V. acknowledges receipt of all monies outstanding pursuant to, and agrees
to terminate, the receivables purchase facility evidenced by that certain
Receivables Purchase Agreement, dated as of October 31, 2003, among the SPV, the
Originators, Scaldis Capital LLC and Fortis Bank S.A./N.V.
“Three-Month Default
Ratio” means,
for any Calculation Period, the average of the Default Ratio for such
Calculation Period and each of the two immediately preceding Calculation
Periods.
“Three-Month Delinquency
Ratio” means,
for any Calculation Period, the average of the Delinquency Ratio for such
Calculation Period and each of the two immediately preceding Calculation
Periods.
“Transaction
Costs” is
defined in Section
9.5(a).
“Transaction
Documents” means,
collectively, this Agreement, the First Tier Agreement, the Fee Letters, the
Blocked Account Agreements, Guaranty, each Assignment and Assumption Agreement
and all of the other instruments, documents and other agreements executed and
delivered by the Servicer, any Originator or the SPV in connection with any of
the foregoing.
“UCC” means
the Uniform Commercial Code as in effect in the applicable jurisdiction or
jurisdictions.
“Uncommitted
Investor” means
XX XXXX and any other Conduit Investor designated as an “Uncommitted Investor”
for any Investor Group and any of their respective Conduit
Assignees.
“Unpaid
Balance” of any
Receivable means at any time the unpaid principal amount thereof.
“U.S.” or
“United
States” means
the United States of America.
“XX XXXX” is
defined in the Preamble.
“XX XXXX
Administrator” means
Bank of America or an Affiliate thereof, as Administrative Trustee for XX XXXX,
or Bank of America or an Affiliate thereof, as administrator for any Conduit
Assignee of XX XXXX.
“XX XXXX Committed
Investors” means
each financial institution party to this Agreement as a XX XXXX Committed
Investor.
“Yield”
means:
(i) for any
Portion of Investment during any Rate Period to the extent a Conduit Investor
funds such Portion of Investment through the issuance of Commercial Paper
(directly or indirectly through a related commercial paper issuer),
25
(ii) for any
Portion of Investment funded by a Committed Investor and for any Portion of
Investment to the extent a Conduit Investor will not be funding such Portion of
Investment through the issuance of Commercial Paper (directly or indirectly
through a related commercial paper issuer),
where:
AR |
=
the
Alternate Rate for such Portion of Investment for such Rate
Period,
|
CPR |
=
the
CP Rate for such Conduit Investor for such Portion of Investment for such
Rate Period (as determined by the Administrator on or prior to the fifth
(5th) Business Day of the calendar month next following such Rate
Period),
|
D |
=
the
actual number of days during such Rate Period,
and
|
I |
=
the
weighted average of such Portion of Investment during such Rate
Period;
|
provided that no
provision of this Agreement shall require the payment or permit the collection
of Yield in excess of the maximum permitted by applicable law; and provided
further that at all
times after the declaration or automatic occurrence of the Termination Date
pursuant to Section 8.2, Yield
for all Portion of Investment shall be determined as provided in clause
(ii) of this
definition; and provided further that
notwithstanding the forgoing, all computations of Yield based on the Base Rate
shall be based on a year of 365 or 366 days, as applicable.
“Yield
Reserve” means,
as of any date of determination, an amount equal to (a) the product of (i) the
Stress Factor times (ii) the
Days Sales Outstanding in effect on such date times (iii)
the sum of the Base Rate in effect on such date (as determined by the Agent)
plus 2%,
divided
by (b) 360,
multiplied
by (c) the
Net Pool Balance on such date.
26
SECTION
1.2 Other
Terms. All
terms defined directly or by incorporation herein shall have the defined
meanings when used in any certificate or other document delivered pursuant
thereto unless otherwise defined therein. For purposes of this Agreement and all
such certificates and other documents, unless the context otherwise requires:
(a) accounting terms not otherwise defined herein, and accounting terms
partly defined herein to the extent not defined, shall have the respective
meanings given to them under, and shall be construed in accordance with, GAAP;
(b) terms used in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such Article 9;
(c) references to any amount as on deposit or outstanding on any particular
date means such amount at the close of business on such day; (d) the words
“hereof,” “herein” and “hereunder” and words of similar import refer to this
Agreement (or the certificate or other document in which they are used) as a
whole and not to any particular provision of this Agreement (or such certificate
or document); (e) references to any Section, Schedule or Exhibit are
references to Sections, Schedules and Exhibits in or to this Agreement (or the
certificate or other document in which the reference is made) and references to
any paragraph, subsection, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of
such Section or definition; (f) the term “including” means “including
without limitation”; (g) references to any Law refer to that Law as amended from
time to time and include any successor Law; (h) references to any agreement
refer to that agreement as from time to time amended or supplemented or as the
terms of such agreement are waived or modified in accordance with its terms; (i)
references to any Person include that Person’s successors and permitted assigns;
and (j) headings are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
SECTION
1.3 Computation of Time
Periods. Unless
otherwise stated in this Agreement, in the computation of a period of time from
a specified date to a later specified date, the word “from” means “from and
including”, the words “to” and “until” each means “to but excluding”, and the
word “within” means “from and excluding a specified date and to and including a
later specified date”.
SECTION
1.4 Times of
Day. Unless
otherwise specified in this Agreement, time references are to time in New York,
New York.
ARTICLE II
PURCHASES AND
SETTLEMENTS
SECTION
2.1 Transfer of Affected Assets;
Intended Characterization. (a)
Sale of Asset
Interest. In
consideration of the payment by each Managing Agent (on behalf of the applicable
Investors in the related Investor Group as determined pursuant to Section
2.3) of the
amount of the applicable Investor Group Percentage of the initial Investment on
the Closing Date and each Managing Agent’s agreement (on behalf of the
applicable Investors as determined below) to make payments to the SPV from time
to time in accordance with Section 2.2,
effective upon the SPV’s (or its designee’s) receipt of payment for such
Investment on the Closing Date, the SPV hereby sells, conveys, transfers and
assigns to the Agent, on behalf of the Investors, (i) all Receivables
existing on the date of the initial Investment hereunder or thereafter arising
or acquired by the SPV from time to time prior to the Final Payout Date under
the First Tier Agreement, and (ii) all other Affected Assets, whether
existing on the Closing Date or thereafter arising at any time and acquired by
the SPV under the First Tier Agreement.
(b) Purchase of Asset
Interest. Subject
to the terms and conditions hereof, the Agent (on behalf of the Investors)
hereby purchases and accepts from the SPV the Receivables and all other Affected
Assets sold, assigned and transferred pursuant to Section
2.1(a). The
Agent’s right, title and interest in and to such Receivables and all other
Affected Assets (on behalf of the Investors) hereunder is herein called the
“Asset
Interest”. Each
Investment hereunder shall be made by the Investor Groups pro rata
according to their respective Investor Group Percentages. The Agent shall hold
the Asset Interest on behalf of the Investors in each Investor Group in
accordance with the respective portions of the Net Investment funded by that
Investor Group from time to time. Within each Investor Group, except as
otherwise provided in Section 3.3(b), the
Agent shall hold the applicable Investor Group Percentage of the Asset Interest
on behalf of the Investors in that Investor Group in accordance with the
respective outstanding portions of the Net Investment funded by
them.
27
(c) Obligations Not
Assumed. The
foregoing sale, assignment and transfer does not constitute and is not intended
to result in the creation, or an assumption by the Agent, the Managing Agents or
any Investor, of any obligation of the SPV, any Originator, or any other Person
under or in connection with the Receivables or any other Affected Asset, all of
which shall remain the obligations and liabilities of the SPV and/or the
Originators, as applicable.
(d) Intended Characterization;
Grant of Security Interest.
(i) The SPV,
the Agent, the Managing Agents and the Investors intend that the sale,
assignment and transfer of the Affected Assets to the Agent (on behalf of the
Investors) hereunder shall be treated as a sale for all purposes, other than
accounting and federal and state income tax purposes. If notwithstanding the
intent of the parties, the sale, assignment and transfer of the Affected Assets
to the Agent (on behalf of the Investors) is not treated as a sale for all
purposes, other than accounting and federal and state income tax purposes, the
sale, assignment and transfer of the Affected Assets shall be treated as the
grant of, and the SPV hereby does grant, a security interest in the Affected
Assets to secure the payment and performance of the SPV’s obligations to the
Agent (on behalf of the Investors) hereunder and under the other Transaction
Documents or as may be determined in connection therewith by applicable Law. The
SPV and Agent agree, and each Investor by acquiring an Investment or other
interest in the Affected Assets agrees, to treat and report such Investment or
other interests in the Affected Assets as indebtedness for U.S. federal and
state income tax purposes.
(ii) The SPV
hereby grants to the Agent (on behalf of the Investors) a security interest in
the Accounts as additional collateral to secure the payment and performance of
the SPV’s obligations to the Agent (on behalf of the Investors) hereunder and
under the other Transaction Documents or as may be determined in connection
therewith by applicable Law.
(iii) Each of
the parties hereto further expressly acknowledges and agrees that the
Commitments of the Committed Investors hereunder, regardless of the intended
true sale nature of the overall transaction, are financial accommodations
(within the meaning of Section 365(c)(2) of the Bankruptcy Code) to or for the
benefit of SPV.
SECTION
2.2 Purchase
Price. Subject
to the terms and conditions hereof, including Article V, in
consideration for the sale, assignment and transfer of the Affected Assets by
the SPV to the Agent (on behalf of the Investors) hereunder:
28
(a) Investments. On the
Closing Date, and thereafter from time to time prior to the Termination Date, on
request of the SPV in accordance with Section
2.3, each
Managing Agent (on behalf of the applicable Investors as determined pursuant to
Section
2.3) shall
pay to the SPV the applicable Investor Group Percentage of an amount equal in
each instance to the lesser of (i) the amount requested by the SPV under
Section 2.3(a), and
(ii) the largest amount that will not cause (A) the Net Investment to
exceed the Maximum Net Investment and (B) the sum of the Net Investment and
Required Reserves to exceed the Net Pool Balance. Each such payment is herein
called an “Investment”.
(b) Reinvestments. On each
Business Day during the Reinvestment Period, the Servicer, on behalf of the
Agent (on behalf of the Managing Agents and the Investors), shall pay to the
SPV, out of Collections, the amount available for Reinvestment in accordance
with Section
2.12(a)(iii). Each
such payment is hereinafter called a “Reinvestment”. All
Reinvestments with respect to the applicable Investor Group Percentage of the
Asset Interest shall be made ratably on behalf of the Investors in the relevant
Investor Group in accordance with the respective outstanding portions of the Net
Investment funded by them.
(c) Deferred Purchase
Price. On each
Business Day on and after the Final Payout Date, the Servicer, on behalf of the
Agent, shall pay to the SPV an amount equal to the Collections of Receivables
received by the SPV less the accrued and unpaid Servicing Fee (and the SPV (or
the Servicer on its behalf) shall apply such Collections in the manner described
in Section 2.14).
(d) SPV Payments Limited to
Collections.
Notwithstanding any provision contained in this Agreement to the contrary, no
Managing Agent shall, nor shall be obligated (whether on behalf of the
applicable Uncommitted Investor or the Committed Investors in such Managing
Agent’s Investor Group), to pay any amount to the SPV as the purchase price of
Receivables pursuant to subsections
(b) and
(c) above
except to the extent of Collections on Receivables available for distribution to
the SPV in accordance with this Agreement (but without otherwise limiting any
obligations under Section
2.3). Any
amount that any Managing Agent (whether on behalf of the Uncommitted Investors
or the Committed Investors in such Managing Agent’s Investor Group) does not pay
pursuant to the preceding sentence shall not constitute a claim (as defined in §
101 of the Bankruptcy Code) against or corporate obligation of such Managing
Agent for any such insufficiency unless and until such amount becomes available
for distribution to the SPV under Section
2.12.
SECTION
2.3 Investment
Procedures.
(a) Notice. The SPV
shall request an Investment hereunder, by request to the Agent (which shall
promptly provide a copy to each Managing Agent) given by facsimile in the form
of an Investment Request at least three (3) Business Days prior to the proposed
date of any Investment (including the initial Investment). Each such Investment
Request shall specify (i) the desired amount of such Investment (which
shall be at least $1,000,000 in the aggregate for all Investor Groups or an
integral aggregate multiple of $100,000 in excess thereof per Investor Group or,
to the extent that the then available unused portion of the Maximum Net
Investment is less than such amount, such lesser amount equal to such available
unused portion of the Maximum Net Investment), and (ii) the desired date of
such Investment (the “Investment
Date”) which
shall be a Business Day.
29
(b) Conduit Investor Acceptance
or Rejection; Investment Request Irrevocable.
(i) Each
Managing Agent will promptly notify the Conduit Investors in its Investor Group
and their respective Administrators of the Managing Agent’s receipt of any
Investment Request. If the Investment Request is received prior to the Conduit
Investment Termination Date, each Conduit Investor shall instruct its
Administrator to cause its Managing Agent to accept or reject such Investment
Request by notice given to the SPV, its Managing Agent and the Agent by
telephone or facsimile by no later than the close of its business on the
Business Day following its receipt of any such Investment Request. Any rejection
by a Conduit Investor shall not relieve or terminate the obligations of any
Committed Investor hereunder to fund any Investment.
(ii) Each
Investment Request shall be irrevocable and binding on the SPV, and the SPV
shall indemnify each Investor against any loss or expense incurred by such
Investor, either directly or indirectly (including, in the case of any Conduit
Investor, through a Program Support Agreement) as a result of any failure by the
SPV to complete such Investment, including any loss (including loss of profit)
or expense incurred by the Agent, any Managing Agent or any Investor, either
directly or indirectly (including, in the case of any Conduit Investor, pursuant
to a Program Support Agreement) by reason of the liquidation or reemployment of
funds acquired by such Investor (or the applicable Program Support Provider(s))
(including funds obtained by issuing commercial paper or promissory notes or
obtaining deposits or loans from third parties) in order to fund such
Investment.
(c) Committed Investor’s
Commitment. Subject
to the satisfaction of the conditions precedent set forth in Sections
5.1 and
5.2 and the
other terms and conditions hereof, each Committed Investor hereby agrees to make
Investments during the period from and including the Closing Date to but not
including the Commitment Termination Date in an aggregate amount up to but not
exceeding the Commitment of such Committed Investor as in effect from time to
time. Subject to Section
2.2(b)
concerning Reinvestments, at no time will any Uncommitted Investor have any
obligation to fund an Investment or Reinvestment. At all times on and after the
Conduit Investment Termination Date with respect to a Conduit Investor, all
Investments and Reinvestments shall be made by the Managing Agent on behalf of
the Committed Investors in such Investor Group. At any time when any Uncommitted
Investor has rejected a request to fund its Investor Group Percentage of an
Investment, its Managing Agent shall so notify the Related Committed Investors
and such Related Committed Investors shall fund their respective share of such
Investment, on a pro rata basis,
in accordance with their respective Pro Rata Shares. Notwithstanding anything
contained in this Section
2.3(c) or
elsewhere in this Agreement to the contrary, no Committed Investor shall be
obligated to provide its Managing Agent or the SPV with funds in connection with
an Investment in an amount that would result in the portion of the Net
Investment then funded by it exceeding its Commitment then in effect (inclusive
of any amounts funded by such Committed Investor under the Program Support
Agreement to which it is a party). The obligation of the Committed Investors in
each Investor Group to remit the applicable Investor Group Percentage of any
Investment shall be several from that of the other Committed Investors in the
other Investor Groups and within the each Investor Group each Committed
Investor’s obligation to fund its portion of the Investments shall be several
from the obligations of the other Investors. The failure of any Committed
Investor to so make such amount available to its Managing Agent shall not
relieve any other Committed Investor of its obligation hereunder.
30
(d) Payment of
Investment. On any
Investment Date, each Uncommitted Investor or each Committed Investor, as the
case may be, shall remit its share of the aggregate amount of such Investment
(determined pursuant to Section 2.2(a)) to the
account of the Managing Agent specified therefor from time to time by the
Managing Agent by notice to such Persons by wire transfer of same day funds.
Following the Managing Agent’s receipt of funds from the Investors as aforesaid,
the Managing Agent shall remit such funds received to the SPV’s account at the
location indicated in Schedule
11.3, by wire
transfer of same day funds.
(e) Managing Agent May Advance
Funds. Unless
a Managing Agent shall have received notice from any Investor in its Investor
Group that such Person will not make its share of any Investment available on
the applicable Investment Date therefor, a Managing Agent may (but shall have no
obligation to) make any such Investor’s share of any such Investment available
to the SPV in anticipation of the receipt by the Managing Agent of such amount
from the applicable Investor. Subject to Section
2.3(c), to the
extent any such Investor fails to remit any such amount to its Managing Agent
after any such advance by such Managing Agent on such Investment Date, such
Investor, and if such Investor does not, upon the request of the applicable
Managing Agent, the SPV, shall be required to pay such amount to the Agent for
payment to such Managing Agent for its own account, together with interest
thereon at a per annum rate
equal to the Federal Funds Rate, in the case of such Investor, or the Base Rate,
in the case of the SPV, to the Agent for payment to such Managing Agent
(provided that a
Conduit Investor shall have no obligation to pay such interest amounts except to
the extent that it shall have sufficient funds to pay the face amount of its
Commercial Paper in full). Until such amount shall be repaid, such amount shall
be deemed to be Net Investment paid by the applicable Managing Agent and such
Managing Agent shall be deemed to be the owner of an interest in the Asset
Interest hereunder to the extent of such Investment. Upon the payment of such
amount to the Agent for payment to the applicable Managing Agent (i) by the SPV,
the amount of the aggregate Net Investment shall be reduced by such amount or
(ii) by such Investor, such payment shall constitute such Person’s payment of
its share of the applicable Investment.
SECTION
2.4 Determination of Yield and
Rate Periods.
(a) From time
to time, for purposes of determining the Rate Periods applicable to the
different portions of the Net Investment funded by its Investor Group and of
calculating Yield with respect thereto, each Managing Agent shall allocate the
Net Investment allocable to its Investor Group to one or more tranches (each a
“Portion of
Investment”). At
any time, each Portion of Investment shall have only one Rate Period and one
Rate Type.
31
(b) Offshore Rate Protection;
Illegality. (i) If
any Managing Agent is unable to obtain on a timely basis the information
necessary to determine the Offshore Rate for any proposed Rate Period, then:
(A) such
Managing Agent shall forthwith notify its Conduit Investor or Committed
Investors, as applicable, and the SPV that the Offshore Rate cannot be
determined for such Rate Period, and
(B) while
such circumstances exist, none of such Conduit Investor, such Committed
Investors or such Managing Agent shall allocate any Portion of Investment with
respect to Investments made during such period or reallocate any Portion of
Investment allocated to any then existing Rate Period ending during such period,
to a Rate Period with respect to which Yield is calculated by reference to the
Offshore Rate.
(i) If, with
respect to any outstanding Rate Period, a Conduit Investor or any Committed
Investor on behalf of which a Managing Agent holds any Portion of Investment
notifies such Managing Agent that it is unable to obtain matching deposits in
the London interbank market to fund its purchase or maintenance of such Portion
of Investment or that the Offshore Rate applicable to such Portion of Investment
will not adequately reflect the cost to the Person of funding or maintaining
such Portion of Investment for such Rate Period, then (A) such Managing
Agent shall forthwith so notify the SPV and (B) upon such notice and
thereafter while such circumstances exist none of such Managing Agent, such
Conduit Investor or such Committed Investor, as applicable, shall allocate any
other Portion of Investment with respect to Investments made during such period
or reallocate any Portion of Investment allocated to any Rate Period ending
during such period, to a Rate Period with respect to which Yield is calculated
by reference to the Offshore Rate.
(ii) Notwithstanding
any other provision of this Agreement, if a Conduit Investor or any of the
Committed Investors, as applicable, shall notify their respective Managing Agent
that such Person has determined (or has been notified by any Program Support
Provider) that the introduction after the Closing Date of or any change in or in
the interpretation of any Law makes it unlawful (either for such Conduit
Investor, such Committed Investor or such Program Support Provider, as
applicable), or any central bank or other Official Body asserts that it is
unlawful for such Conduit Investor, such Committed Investor or such Program
Support Provider, as applicable, to fund the purchases or maintenance of any
Portion of Investment accruing Yield calculated by reference to the Offshore
Rate, then (A) as of the effective date of such notice from such Person to its
Managing Agent, the obligation or ability of such Conduit Investor or such
Committed Investor, as applicable, to fund the making or maintenance of any
Portion of Investment accruing Yield calculated by reference to the Offshore
Rate shall be suspended until such Person notifies its Managing Agent that the
circumstances causing such suspension no longer exist and (B) each Portion of
Investment made or maintained by such Person shall either (1) if such Person may
lawfully continue to maintain such Portion of Investment accruing Yield
calculated by reference to the Offshore Rate until the last day of the
applicable Rate Period, be reallocated on the last day of such Rate Period to
another Rate Period and shall accrue Yield calculated by reference to the Base
Rate or (2) if such Person shall determine that it may not lawfully continue to
maintain such Portion of Investment accruing Yield calculated by reference to
the Offshore Rate until the end of the applicable Rate Period, such Person’s
share of such Portion of Investment allocated to such Rate Period shall be
deemed to accrue Yield at the Base Rate from the effective date of such notice
until the end of such Rate Period.
32
SECTION
2.5 Yield, Fees and Other Costs
and Expenses.
Notwithstanding any limitation on recourse herein, the SPV shall pay, as and
when due in accordance with this Agreement:
(a) to the
Agent and each Managing Agent, all fees hereunder and under each Fee Letter, all
amounts payable pursuant to Article
IX, if any,
and the Servicing Fees, if required pursuant to Section
2.12(b);
and
(b) on
each Settlement
Date, to the extent not paid pursuant to Section
2.12 for any
reason, to the Agent, on behalf of the Conduit Investor or the Committed
Investors, as applicable, an amount equal to the accrued and unpaid Yield for
the related Rate Period.
Nothing
in this Agreement shall limit in any way the obligations of the SPV to pay
the amounts set forth in this Section
2.5.
SECTION
2.6 Deemed
Collections. (a)
Dilutions. If on
any day the Unpaid Balance of an Eligible Receivable is reduced (but not
cancelled) as a result of any Dilution, the SPV shall be deemed to have received
on such day a Collection of such Receivable in the amount of such reduction. If
on any day an Eligible Receivable is canceled as a result of any Dilution, the
SPV shall be deemed to have received on such day a Collection of such Eligible
Receivable in the amount of the Unpaid Balance (as determined immediately prior
to such Dilution) of such Eligible Receivable. Any amount deemed to have been
received under this Section
2.6(a) shall
constitute a “Deemed
Collection”. Upon
any such Deemed Collection, the SPV shall, on the second Business Day following
its knowledge of such Dilution, pay to the Servicer an amount equal to such
Deemed Collection and such amount shall be applied by the Servicer as a
Collection in accordance with Section
2.12.
(b) Breach of Representation or
Warranty. If on
any day any representation or warranty in Sections
4.1(d),
(k),
(t) or
(u) with
respect to any Eligible Receivable (whether on or after the date of transfer
thereof to the Agent, for the benefit of the Investors, as contemplated
hereunder) is determined to have been incorrect at the time such representation
or warranty was made or deemed made, the SPV shall be deemed to have received on
such day a Collection of such Eligible Receivable equal to its Unpaid Balance.
Any amount deemed to have been received under this Section
2.6(b) shall
constitute a “Deemed
Collection”. Upon
any such Deemed Collection, the SPV shall, on the second Business Day following
its knowledge thereof, deposit into the Collection Account an amount equal to
such Deemed Collection and such amount shall be applied by the Servicer as a
Collection in accordance with Section
2.12.
33
SECTION
2.7 Payments and Computations,
Etc. All
amounts to be paid or deposited by the SPV or the Servicer hereunder shall be
paid or deposited in accordance with the terms hereof no later than 12:00 noon
on the day when due in immediately available funds; if such amounts are payable
to the Agent or any Managing Agent (whether on behalf of any Investor or
otherwise) they shall be paid or deposited in the account indicated under the
heading “Payment Information” in Section
11.3, until
otherwise notified by the Agent or any Managing Agent. The SPV shall, to the
extent permitted by Law, pay to the Agent or the applicable Managing Agent, for
the benefit of the Investors, upon demand, interest on all amounts not paid or
deposited when due hereunder (subject to any applicable grace period) at the
Default Rate. All computations of per annum fees
hereunder shall be made on the basis of a year of 360 days for the actual number
of days (including the first but excluding the last day) elapsed. Any
computations made by the Agent or any Managing Agent of amounts payable by the
SPV hereunder shall be binding upon the SPV absent manifest error.
SECTION
2.8 Reports. By no
later than 4:00 p.m. on the second Business Day prior to each Settlement Date
(and within four (4) Business Days after a request from the Agent) (each, a
“Reporting
Date”), the
Servicer shall prepare and forward to the Agent and each Managing Agent a
Servicer Report, certified by the Servicer.
SECTION
2.9 Collection
Account. The
Agent shall establish in its name on or prior to the day of the initial
Investment hereunder and shall maintain a segregated account (the “Collection
Account”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Agent, on behalf of the Secured Parties. The Agent
shall have exclusive dominion and control over the Collection Account and all
monies, instruments and other property from time to time in the Collection
Account. The SPV and the Servicer shall remit to the Collection Account on the
dates specified in Section
2.12(b) all
amounts due and owing thereunder. At all other times, any Collections received
directly by the SPV, any of the Originators or the Servicer shall be sent
promptly (but in any event within two (2) Business Days of receipt) to a Blocked
Account. Funds on deposit in the Collection Account (other than investment
earnings) shall be invested by the Agent, in the name of the Agent, in Eligible
Investments that will mature so that such funds will be available so as to
permit amounts in the Collection Account to be paid and applied on the next
Settlement Date and otherwise in accordance with the provisions of Section
2.12;
provided that
such funds shall not reduce the Net Investment or accrued Yield hereunder until
so applied under Section
2.12. On each
Settlement Date, all interest and earnings (net of losses and investment
expenses) on funds on deposit in the Collection Account shall be applied as
Collections. On the Final Payout Date, any and all funds remaining on deposit in
the Collection Account shall be paid to the SPV.
SECTION
2.10 Sharing of Payments,
Etc. If any
Investor (for purposes of this Section only, being a “Recipient”) shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of the portion of the Asset Interest
owned by it (other than pursuant to a Fee Letter, Section 3.3(b) or
Article
IX and
other than as a result of the differences in the timing of the applications of
Collections pursuant to Section
2.12 and
other than a result of the different methods for calculating Yield) in excess of
its ratable share of payments on account of the Asset Interest obtained by the
Investors entitled thereto, such Recipient shall forthwith purchase from the
Investors entitled to a share of such amount participations in the portions of
the Asset Interest owned by such Persons as shall be necessary to cause such
Recipient to share the excess payment ratably with each such other Person
entitled thereto; provided that if
all or any portion of such excess payment is thereafter recovered from such
Recipient, such purchase from each such other Person shall be rescinded and each
such other Person shall repay to the Recipient the purchase price paid by such
Recipient for such participation to the extent of such recovery, together with
an amount equal to such other Person’s ratable share (according to the
proportion of (a) the amount of such other Person’s required payment to (b)
the total amount so recovered from the Recipient) of any interest or other
amount paid or payable by the Recipient in respect of the total amount so
recovered.
34
SECTION
2.11 Right of
Setoff. Without
in any way limiting the provisions of Section 2.10, each of
the Agent, each Managing Agent and each Investor is hereby authorized (in
addition to any other rights it may have) at any time after the occurrence of
the Termination Date due to the occurrence and continuation of a Termination
Event, upon prior written notice to the SPV, to set-off, appropriate and apply
(without presentment, demand, protest or other notice which are hereby expressly
waived) any deposits and any other indebtedness held or owing by the Agent, the
Managing Agent or such Investor to, or for the account of, the SPV against the
amount of the Aggregate Unpaids owing by the SPV to such Person or to the Agent
or the Managing Agent on behalf of such Person (even if contingent or
unmatured).
SECTION
2.12 Settlement
Procedures. (a)
Daily
Procedure. On each
day, the Servicer shall, out of the Collections received or deemed received by
the SPV and after return of any Excluded Amounts received in error, any of the
Originators or the Servicer (including in any Blocked Account) on such
day:
(i) hold in
trust for the benefit of the Managing Agents (on behalf of such Managing Agents’
Investor Groups) an amount equal to the aggregate of the Yield (which, in the
case of Yield computed by reference to the CP Rate, shall be determined for such
purpose using the CP Rate most recently determined by the applicable
Administrator, multiplied by the
Fluctuation Factor) and the Program Fee, in each case for the related Rate
Period accrued through such day for all Portions of Investment, the Facility Fee
and the Servicing Fee accrued through such day, and any other Aggregate Unpaids
(other than Net Investment not then due and owing) accrued through such day and
not previously held in trust (and which are then due);
(ii) hold in
trust for the benefit of the Managing Agents (on behalf of such Managing Agents’
Investor Groups) an amount equal to the excess, if any, of:
(A) the
greatest of:
(1)
|
if
the SPV shall have elected to reduce the Net Investment under Section
2.13,
the amount of the proposed
reduction,
|
(2)
|
the
amount, if any, by which the sum of the Net Investment and Required
Reserves shall exceed the Net Pool Balance, together with the amount, if
any, by which the Net Investment shall exceed the Maximum Net Investment,
and
|
35
(3)
|
if
such day is on or after the Termination Date, the Net Investment;
over
|
(B) the
aggregate of the amounts theretofore set aside and then so held for the benefit
of the Managing Agents (on behalf of such Managing Agents’ Investor Groups)
pursuant to this clause (ii);
and
(iii) pay the
remainder, if any, of such Collections to the SPV for application to
Reinvestment, for the benefit of the Agent (for the benefit of the Investor), in
the Receivables and other Affected Assets in accordance with Section
2.2(b). To the
extent and for so long as such Collections may not be reinvested pursuant to
Section
2.2(b), the
Servicer shall hold such Collections in trust for the benefit of the Agent (for
the benefit of the Investors).
(b) Settlement
Procedures.
(i) The
Servicer shall deposit into the Collection Account, on each Business Day
selected by the SPV for a reduction of the Net Investment under Section
2.13 the
amount of Collections held for the Agent pursuant to Section
2.12(a)(ii)(A)(1).
(ii) On any
date on or prior to the Termination Date, if the sum of the Net Investment and
Required Reserves exceeds the Net Pool Balance, the Servicer shall immediately
pay to the Collection Account from amounts set aside pursuant to Section
2.12(a)(ii)(A)(2) an
amount equal to such excess.
(iii) On each
Settlement Date, the Servicer shall deposit to the Collection Account out of the
amount, if any, held in trust pursuant to Section
2.12(a)(i) and (to
the extent not theretofore reinvested) Section
2.12(a)(iii) and not
theretofore deposited to the Collection Account pursuant to this Section
2.12(b), an
amount equal to the lesser of such amount and the Net Investment;
provided, that if the
Agent gives its consent (which consent may be revoked at any time during the
continuation of a Termination Event or a Potential Termination Event), the
Servicer may retain amounts which would otherwise be deposited in respect of the
accrued and unpaid Servicing Fee, in which case no distribution shall be made in
respect of such Servicing Fee under clause (c) below.
Any amounts set aside pursuant to Section
2.12(a) in
excess of the amount required to be deposited in the Collection Account pursuant
to this subsection
(b) shall
continue to be set aside and held in trust by the Servicer for application on
the next succeeding Settlement Date, and provided,
further,
that if (i)
the Servicer makes a deposit into the Collection Account in respect of a
Collection of a Receivable and such Collection was received by the Servicer in
the form of a check that is not honored for any reason, (ii) the Servicer makes
a mistake with respect to the amount of any Collection and deposits an amount
that is less than or more than the actual amount of such Collection or (iii) the
deposit was made in error and constitutes an Excluded Amount, the Servicer shall
appropriately adjust the amount subsequently deposited into the Collection
Account to reflect such dishonored check or mistake. Any payment in respect of
which a dishonored check is received shall be deemed not to have been
paid.
36
(c) Order of
Application. Upon
receipt by the Agent of funds deposited to the Collection Account pursuant to
Section
2.12(b), the
Agent shall distribute them to the Persons, for the purposes and in the order of
priority set forth below:
(i) to each
Managing Agent, pro rata based on
the amount of accrued and unpaid Yield owing to such Managing Agent’s Investor
Group, in payment of the accrued and unpaid Yield and Program Fee on all
Portions of Investment and for the related Rate Period and the Facility Fee then
due and owing;
(ii) if an
Originator or any Affiliate of an Originator is not then the Servicer, to the
Servicer, in payment of the accrued and unpaid Servicing Fee then due and owing
on such Settlement Date;
(iii) to each
Managing Agent (A) prior to the Termination Date, pro rata based
upon the Net Investment attributable to such Managing Agent’s Investor Group in
reduction of the outstanding Net Investment, an amount equal to the sum of (x)
the positive difference (if any) of (I) the sum of the Net Investment
plus the
Required Reserves minus (II) the Net Pool Balance and (y) the amount of any
optional reduction of the Net Investment specified by the SPV in accordance with
Section
2.13, and (B)
on or after the Termination Date, pro rata based
upon the Net Investment attributable to such Managing Agent’s Investor Group in
reduction of the outstanding Net Investment, an amount equal to the outstanding
Net Investment;
(iv) to the
Agent and each other Secured Party as may be entitled to such payment,
pro rata based on
the amounts due and owing to each of them, in payment of any other Aggregate
Unpaids (other than Net Investment not then due and owing) then due and owing by
the SPV hereunder to such Person (in each case, without duplication);
(v) if an
Originator or any Affiliate of an Originator is the Servicer, to the Servicer in
payment of the accrued Servicing Fee then due and owing on such Settlement Date,
to the extent not paid pursuant to clause
(ii) above or
retained pursuant to Section 2.12(b)
above;
and
(vi) to the
SPV, any remaining amounts.
SECTION
2.13 Optional Reduction of Net
Investment. The SPV
may at any time elect to cause the reduction of the Net Investment as
follows:
(a) the SPV
shall instruct the Servicer to (and the Servicer shall) set aside Collections
and hold them in trust for the Managing Agents (on behalf of such Managing
Agents’ Investor Groups) under Section
2.12(a)(ii)(A)(1) until
the amount so set aside shall equal the desired amount of
reduction;
37
(b) the SPV
shall give the Agent and the Managing Agents at least two (2) Business Days’
prior written notice (or at least four (4) Business Days’ prior written notice
in the case of any reduction of the Net Investment by more than $20,000,000) of
the amount of such reduction and the date on which such reduction will occur;
and
(c) on any
Business Day occurring at least two (2) Business Days after the date of the
SPV’s notice, the Servicer shall pay to each applicable Managing Agent (on a
pro rata basis
based on the Net Investment attributed to such Managing Agents’ Investor Group),
in reduction of the Net Investment, the amount of such Collections so held or,
if less, the Net Investment (it being understood that the Net Investment shall
not be deemed reduced by any amount set aside or held pursuant to this
Section 2.13 unless
and until, and then only to the extent that, such amount is finally paid to the
applicable Managing Agents as aforesaid); provided that the
amount of any such reduction shall be not less than $1,000,000.
SECTION
2.14 Application of Collections
Distributable to SPV. The
Servicer shall allocate and apply, on behalf of the SPV, Collections
distributable to the SPV hereunder pursuant to Section
2.12(c)(vi), in
accordance with the instructions of the SPV, provided that the SPV shall
instruct the Servicer to allocate and apply such Collections so that the
operating expenses and other contractual obligations of the SPV are timely paid
when due.
SECTION
2.15 Collections Held in
Trust. So long
as the SPV or the Servicer shall hold any Collections or Deemed Collections then
or thereafter required to be paid by the SPV to the Servicer or by the SPV or
the Servicer to the Agent, it shall hold such Collections in trust, and shall
deposit such Collections into a Blocked Account or the Collection Account at
such times otherwise required by this Agreement. The Net Investment shall not be
deemed reduced by any amount held in trust or in the Collection Account pursuant
to Sections
2.12 or
2.13 unless
and until, and then only to the extent that, such amount is finally paid to the
Agent or the applicable Managing Agent in accordance with Sections 2.12 or
2.13.
SECTION
2.16 Reduction of Facility
Limit. The SPV
may, upon at least ten (10) Business Days’ written notice to the Agent and each
Managing Agent, terminate the facility provided in this Article
II in whole
or, from time to time, irrevocably reduce in part the unused portion of the
Facility Limit; provided that
each partial reduction shall be in the amount of at least $5,000,000, or an
integral multiple of $1,000,000 in excess thereof, and that, unless terminated
in whole, the Facility Limit shall in no event be reduced below $50,000,000; and
provided further that (in
addition to and without limiting any other requirements for termination or
prepayment hereunder) no such termination in whole shall be effective unless and
until all Aggregate Unpaids have been paid in full. The Agent shall advise the
Managing Agents of any notice it receives pursuant to this Section
2.16.
38
ARTICLE III
ADDITIONAL COMMITTED INVESTOR
PROVISIONS
SECTION
3.1 Assignment to Committed
Investors.
(a) Assignment
Amounts. At any
time on or prior to the Commitment Termination Date for the applicable Conduit
Investor, if the related Administrator on behalf of such Conduit Investor in
such Investor Group so elects, by written notice to the Agent, the SPV hereby
irrevocably requests and directs that such Conduit Investor assign, and such
Conduit Investor does hereby assign effective on the Assignment Date referred to
below all or such portions as may be elected by the Conduit Investor of its
interest in the Net Investment and the Asset Interest at such time to the
Committed Investors in its Investor Group pursuant to this Section
3.1 and the
SPV hereby agrees to pay the amounts described in Section
3.1(b);
provided that unless
such assignment is an assignment of all of such Conduit Investor’s interest in
the Net Investment and the Asset Interest in whole on or after such Conduit
Investment Termination Date, no such assignment shall take place pursuant to
this Section
3.1 if a
Termination Event described in Section
8.1(g) shall
then exist; and provided further that no
such assignment shall take place pursuant to this Section 3.1 at a
time when an Event of Bankruptcy with respect to such Conduit Investor exists.
No further documentation or action on the part of such Conduit Investor or the
SPV shall be required to exercise the rights set forth in the immediately
preceding sentence, other than the giving of the notice by the related
Administrator on behalf of such Conduit Investor referred to in such sentence
and the delivery by the related Administrator of a copy of such notice to each
Committed Investor in its Investor Group (the date of the receipt by such
Administrator of any such notice being the “Assignment
Date”). Each
Committed Investor hereby agrees, unconditionally and irrevocably and under all
circumstances, without setoff, counterclaim or defense of any kind, to pay the
full amount of its Assignment Amount on such Assignment Date to the applicable
Conduit Investor in immediately available funds to an account designated by the
related Administrator. Upon payment of its Assignment Amount, each related
Committed Investor shall acquire an interest in the Asset Interest and the Net
Investment equal to its pro rata share
(based on the outstanding portions of the Net Investment funded by it) of the
assigned portion of the Net Investment. Upon any assignment in whole by a
Conduit Investor to the Committed Investors in its Investor Group on or after
the Conduit Investment Termination Date as contemplated hereunder, such Conduit
Investor shall cease to make any additional Investments or Reinvestments
hereunder. At all times prior to the Conduit Investment Termination Date,
nothing herein shall prevent the Conduit Investor from making a subsequent
Investment or Reinvestment hereunder, in its sole discretion, following any
assignment pursuant to this Section 3.1 or from
making more than one assignment pursuant to this Section
3.1.
(b) SPV’s Obligation to Pay
Certain Amounts; Additional Assignment Amount. The SPV
shall pay to the applicable Administrator, for the account of the applicable
Uncommitted Investor, in connection with any assignment by such Uncommitted
Investor to the Committed Investors in its Investor Group pursuant to this
Section
3.1, an
aggregate amount equal to all Yield to accrue through the end of the current
Rate Period to the extent attributable to the portion of the Net Investment so
assigned to the Committed Investors (which
Yield shall be determined for such purpose using the CP Rate most recently
determined by the applicable Administrator) (as determined immediately prior to
giving effect to such assignment), plus all
other Aggregate Unpaids then owing to such Uncommitted Investor (other than the
Net Investment and other than any Yield not described above) related to the
portion of the Net Investment so assigned to the Committed Investors in its
Investor Group. If the SPV fails to make payment of such amounts at or prior to
the time of assignment by the Uncommitted Investor to the Committed Investors,
such amount shall be paid by the Committed Investors (in accordance with their
respective Pro Rata Shares) to the Uncommitted Investor as additional
consideration for the interests assigned to the Committed Investors and the
amount of the “Net Investment” hereunder held by the Committed Investors shall
be increased by an amount equal to the additional amount so paid by the
Committed Investors.
39
(c) Administration of Agreement
after Assignment from Conduit Investor to Committed Investors following the
Conduit Investment Termination Date. After
any assignment in whole by a Conduit Investor to the Committed Investors in its
Investor Group pursuant to this Section 3.1 at any time on or after the related
Conduit Investment Termination Date (and the payment of all amounts owing to the
Conduit Investor in connection therewith), all rights of the applicable
Administrator set forth herein shall be given to the Managing Agent on behalf of
the applicable Committed Investors instead of the Administrator.
(d) Payments to Agent’s
Account. After
any assignment in whole by a Conduit Investor to the Committed Investors in its
Investor Group pursuant to this Section
3.1 at any
time on or after the related Conduit Investment Termination Date, all payments
to be made hereunder by the SPV or the Servicer to such Conduit Investor shall
be made to the applicable Managing Agent’s account as such account shall have
been notified to the SPV and the Servicer.
(e) Recovery of Net
Investment. In the
event that the aggregate of the Assignment Amounts paid by the Committed
Investors pursuant to this Section
3.1 on any
Assignment Date occurring on or after the Conduit Investment Termination Date is
less than the Net Investment of the Conduit Investor on such Assignment Date,
then to the extent Collections thereafter received by its Managing Agent
hereunder in respect of the Net Investment exceed the aggregate of the
unrecovered Assignment Amounts and Net Investment funded by such Committed
Investors, such excess shall be remitted by such Managing Agent to the Conduit
Investor (or to the applicable Administrator on its behalf) for the account of
the Conduit Investor.
40
SECTION
3.2 Downgrade of Committed
Investor. (a)
Downgrades
Generally. If at
any time on or prior to the Commitment Termination Date for a Conduit Investor,
the short term debt rating of any Committed Investor in such Conduit Investor’s
Investor Group shall be “A-2” or “P-2” from S&P or Xxxxx’x, respectively,
with negative credit implications, such Committed Investor, upon request of its
Managing Agent, shall, within thirty (30) days of such request, assign its
rights and obligations hereunder to another financial institution in accordance
with Section
11.8 (which
institution’s short term debt shall be rated at least “A-2” or “P-2” from
S&P or Xxxxx’x, respectively, and which shall not be so rated with negative
credit implications and which is acceptable to the Conduit Investor and its
Managing Agent). If the short term debt rating of a Committed Investor shall be
“A-3” or “P-3”, or lower, from S&P or Xxxxx’x, respectively (or such rating
shall have been withdrawn by S&P or Xxxxx’x), such Committed Investor, upon
request of its Managing Agent, shall, within five (5) Business Days of such
request, assign its rights and obligations hereunder to another financial
institution (which institution’s short term debt shall be rated at least “A-2”
or “P-2”, from S&P or Xxxxx’x, respectively, and which shall not be so rated
with negative credit implications and which is acceptable to the applicable
Conduit Investor and its Managing Agent). In either such case, if any such
Committed Investor shall not have assigned its rights and obligations under this
Agreement within the applicable time period described above (in either such
case, the “Required Downgrade
Assignment Period”), its
Managing Agent on behalf of the applicable Conduit Investor shall have the right
to require such Committed Investor to pay upon one (1) Business Day’s notice at
any time after the Required Downgrade Assignment Period (and each such Committed
Investor hereby agrees in such event to pay within such time) to such Managing
Agent an amount equal to such Committed Investor’s unused Commitment (a
“Downgrade
Draw”) for
deposit by such Managing Agent into an account, in the name of such Managing
Agent (a “Downgrade Collateral
Account”), which
shall be in satisfaction of such Committed Investor’s obligations to make
Investments and to pay its Assignment Amount upon an assignment from a Conduit
Investor in accordance with Section
3.1;
provided that if,
during the Required Downgrade Assignment Period, such Committed Investor
delivers a written notice to such Managing Agent of its intent to deliver a
direct pay irrevocable letter of credit pursuant to this proviso in lieu of the
payment required to fund the Downgrade Draw, then such Committed Investor will
not be required to fund such Downgrade Draw. If any Committed Investor gives its
Managing Agent such notice, then such Committed Investor shall, within one (1)
Business Day after the Required Downgrade Assignment Period, deliver to such
Managing Agent a direct pay irrevocable letter of credit in favor of such
Managing Agent in an amount equal to the unused portion of such Committed
Investor’s Commitment, which letter of credit shall be issued through an United
States office of a bank or other financial institution (i) whose short-term
debt ratings by S&P and Xxxxx’x are at least equal to the ratings assigned
by such statistical rating organization to the Commercial Paper of its related
Conduit Investor and (ii) that is acceptable to the applicable Conduit
Investor and its Managing Agent. Such letter of credit shall provide that the
Managing Agent may draw thereon for payment of any Investment or Assignment
Amount payable by such Committed Investor which is not paid hereunder when
required, shall expire no earlier than the related Commitment Termination Date
and shall otherwise be in form and substance acceptable to the Managing
Agent.
41
(b) Application of Funds in
Downgrade Collateral Account. If any
Committed Investor shall be required pursuant to Section
3.2(a) to fund
a Downgrade Draw, then its Managing Agent shall apply the monies in the
Downgrade Collateral Account applicable to such Committed Investor’s share of
Investments required to be made by the Committed Investors and to any Assignment
Amount payable by such Committed Investor pursuant to Section
3.1 at the
times, in the manner and subject to the conditions precedent set forth in this
Agreement. The deposit of monies in such Downgrade Collateral Account by any
Committed Investor shall not constitute an Investment or the payment of any
Assignment Amount (and such Committed Investor shall not be entitled to interest
on such monies except as provided below in this Section
3.2(b), unless
and until (and then only to the extent that) such monies are used to fund
Investments or to pay any Assignment Amount. The amount on deposit in such
Downgrade Collateral Account shall be invested by the applicable Managing Agent
in Eligible Investments and such Eligible Investments shall be selected by the
applicable Managing Agent in its sole discretion. The Agent shall remit to such
Committed Investor, on the last Business Day of each month, the income actually
received thereon. Unless required to be released as provided below in this
subsection, Collections received by the Agent in respect of such Committed
Investor’s portion of the Net Investment shall be deposited in the Downgrade
Collateral Account for such Committed Investor. Amounts on deposit in such
Downgrade Collateral Account shall be released to such Committed Investor (or
the stated amount of the letter of credit delivered by such Committed Investor
pursuant to subsection
(a) above
may be reduced) within one (1) Business Day after each Settlement Date following
the Termination Date to the extent that, after giving effect to the
distributions made and received by the Investors on such Settlement Date, the
amount on deposit in such Downgrade Collateral Account would exceed such
Committed Investor’s pro rata share (determined as of the day prior to the
Termination Date) of the sum of all Portions of Investment then funded by the
applicable Conduit Investor, plus the
Interest Component. All amounts remaining in such Downgrade Collateral Account
shall be released to such Committed Investor no later than the Business Day
immediately following the earliest of (i)
the effective date of any replacement of such Committed Investor or removal of
such Committed Investor as a party to this Agreement, (ii) the date on which
such Committed Investor shall furnish its Managing Agent with confirmation that
such Committed Investor shall have short-term debt ratings of at least “A-2” or
“P-2” from S&P and Xxxxx’x, respectively, without negative credit
implications, and (iii) the Commitment Termination Date (or if earlier, the
Commitment Termination Date in effect prior to any renewal pursuant to
Section
3.3 to which
such Committed Investor does not consent. Nothing in this Section
3.2 shall
affect or diminish in any way any such downgraded Committed Investor’s
Commitment to the SPV or the applicable Conduit Investor or such downgraded
Committed Investor’s other obligations and liabilities hereunder and under the
other Transaction Documents.
(c) Program Support Agreement
Downgrade Provisions.
Notwithstanding the other provisions of this Section
3.2, a
Committed Investor shall not be required to make a Downgrade Draw (or provide
for the issuance of a letter of credit in lieu thereof) pursuant to Section
3.2(a) at a
time when such Committed Investor has a downgrade collateral account (or letter
of credit in lieu thereof) established pursuant to the Program Support Agreement
relating to the transactions contemplated by this Agreement to which it is a
party in an amount at least equal to its unused Commitment, and its Managing
Agent may apply monies in such downgrade collateral account in the manner
described in Section
3.2(b) as if
such downgrade collateral account were a Downgrade Collateral
Account.
SECTION
3.3 Extension of Commitment
Termination Date/Non-Renewing Committed Investors. Not
more than ninety (90) days or less than sixty (60) days prior to the then
current Commitment Termination Date, the SPV may request an extension thereof
for an additional period not to exceed 364 days. Each Committed Investor will
inform the SPV at least forty-five (45) days prior to the then current
Commitment Termination Date whether it consents to such extension (which
election is in the sole discretion of each Committed Investor.) If at any time
the SPV requests that the Committed Investors renew their Commitments hereunder
and some but less than all the Committed Investors consent to such renewal, the
SPV may arrange for an assignment, and such non-consenting Committed Investors
shall agree to assign, to one or more financial institutions acceptable to the
related Conduit Investor and the SPV of all the rights and obligations hereunder
of each such non-consenting Committed Investor in accordance with Section
11.8. Any
such assignment shall become effective on the then-current Commitment
Termination Date. Each Committed Investor which does not so consent to any
renewal shall cooperate fully with the SPV in effectuating any such assignment.
If none or less than all the Commitments of the non-renewing Committed Investors
are so assigned as provided above, then the Commitment Termination Date shall
not be renewed.
42
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES
SECTION
4.1 Representations and
Warranties of the SPV and the Initial Servicer. Each of
the SPV and the initial Servicer represents and warrants to the Agent, each
Managing Agent, the Administrators, the Investors and the other Secured Parties,
as to itself only, that, on the Closing Date, on each Investment Date and on
each date of Reinvestment:
(a) Corporate Existence and
Power. It
(i) is validly existing and in good standing under the laws of its
jurisdiction of formation, (ii) with respect to the SPV, was duly
organized, (iii) with respect to the Servicer, was duly incorporated, (iv) has
all corporate or limited liability company power and all licenses,
authorizations, consents and approvals of all Official Bodies required to carry
on its business in each jurisdiction in which its business is now and proposed
to be conducted (except where the failure to have any such licenses,
authorizations, consents and approvals would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect) and
(v) is duly qualified to do business and is in good standing in every other
jurisdiction in which the nature of its business requires it to be so qualified,
except where the failure to be so qualified or in good standing would not
reasonably be expected to have a Material Adverse Effect.
(b) Authorization; No
Contravention. The
execution, delivery and performance by it of this Agreement and the other
Transaction Documents to which it is a party (i) are within its corporate or
limited liability company powers, (ii) have been duly authorized by all
necessary corporate or limited liability company action, (iii) require no
action by or in respect of, or filing with, any Official Body or official
thereof (except as contemplated by this Agreement, all of which have been (or as
of the Closing Date will have been) duly made and in full force and effect),
(iv) do not contravene or constitute a default under (A) its
organizational documents, (B) any Law applicable to it, (C) any
contractual restriction binding on or affecting it or its property or (D) any
order, writ, judgment, award, injunction, decree or other instrument binding on
or affecting it or its property or (v) result in the creation or imposition
of any Adverse Claim upon or with respect to its property (except as
contemplated hereby).
(c) Binding
Effect. Each of
this Agreement and the other Transaction Documents to which it is a party has
been duly executed and delivered and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws affecting
the rights of creditors generally (whether at law or equity).
(d) Perfection. In the
case of the SPV, the representations and warranties set forth on Schedule
4.1(d) hereto
are true and correct.
43
(e) Accuracy of
Information. All
factual information (taken as a whole) heretofore or contemporaneously furnished
by or on behalf of the SPV, the Servicer, the Originator or Xxxxx, Inc. or any
of their Subsidiaries or Affiliates in writing to any Investor, Managing Agent
or the Agent (including, without limitation, all information contained in the
Transaction Documents) for purposes of or in connection with this Agreement or
any transaction contemplated herein is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of the SPV, the Servicer,
the Originator or Xxxxx, Inc. or any of their Subsidiaries or Affiliates in
writing to any Investor, Managing Agent or the Agent for purposes of or in
connection with this Agreement or any transaction contemplated herein, when
taken as a whole, do not contain as of the date furnished any untrue statement
of material fact or omit to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading. The SPV, the Servicer, the Originator and
Xxxxx, Inc. and any of their Subsidiaries or Affiliates have disclosed to each
Investor, each Managing Agent and the Agent (a) all agreements, instruments and
corporate or other restrictions to which SPV, the Servicer, the Originator or
Xxxxx, Inc. or any of their Subsidiaries or Affiliates is subject, and (b) all
other matters known to any of them, that individually or in the aggregate with
respect to (a) and (b) above, would reasonably be expected to result in a
Material Adverse Effect.
(f) Tax
Status. It has
(i) timely filed all material tax returns (federal, state and local)
required to be filed and (ii) paid or made adequate provision for the
payment of all taxes, assessments and other governmental charges, except
(a) taxes, assessments and other governmental charges that are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been set aside on the books and records, or (b) to the extent
that the failure to do so would not reasonably be expected to result in a
Material Adverse Effect.
(g) Action,
Suits. It is
not in violation of any order of any Official Body. Except as set forth in
Schedule
4.1(g), there
are no actions, suits or proceedings pending or, to the best knowledge of the
SPV, threatened (i) against the SPV, the Servicer, any Originator or Xxxxx, Inc.
or any of their Subsidiaries or Affiliates challenging the validity or
enforceability of any material provision of any Transaction Document, or (ii)
that would reasonably be expected to have a Material Adverse
Effect.
(h) Use of
Proceeds. In the
case of the SPV, no proceeds of any Investment or Reinvestment will be used by
it (i) to acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, (ii) to acquire
any equity security of a class which is registered pursuant to Section 12
of such act or (iii) for any other purpose that violates applicable Law,
including Regulation U of the Federal Reserve Board.
(i) Principal Place of Business;
Chief Executive Office; Location of Records. Its
principal place of business, chief executive office and the offices where it
keeps all its Records, are located at the address(es) described on Schedule
4.1(i) or such
other locations notified to each Managing Agent in accordance with Section
7.7 in
jurisdictions where all action required by Section
7.7 has been
taken and completed.
(j) Subsidiaries; Tradenames,
Etc. In the
case of the SPV, as of the Closing Date: (i) it has no Subsidiaries; and
(ii) it has not, within the last five (5) years, operated under any tradename
other than its legal name, and, within the last five (5) years, it has not
changed its name, merged with or into or consolidated with any other Person or
been the subject of any proceeding under the Bankruptcy Code. Schedule
4.1(j) lists
the correct Federal Employer Identification Number of the SPV.
44
(k) Good
Title. In the
case of the SPV, upon each Investment and Reinvestment, the Agent shall acquire
a valid and enforceable perfected first priority ownership interest or a first
priority perfected security interest in each Receivable and all other Affected
Assets that exist on the date of such Investment or Reinvestment, with respect
thereto, free and clear of any Adverse Claim.
(l) Nature of
Receivables. Each
Receivable (i) represented by it to be an Eligible Receivable in any
Servicer Report or (ii) included in the calculation of the Net Pool Balance
in such Servicer Report in fact satisfies at the time of such calculation the
definition of “Eligible Receivable” set forth herein. On the date of the
applicable initial Investment therein by the Investors hereunder, it has no
knowledge of any fact (including any defaults by the Obligor thereunder on any
other Receivable) that would cause it or should have caused it to expect any
payments on such Eligible Receivable not to be paid in full when
due.
(m) Coverage
Requirement. In the
case of the SPV, the sum of the Net Investment plus the
Required Reserves does not exceed the Net Pool Balance.
(n) Credit and Collection
Policy. It has
at all times complied in all material respects with the Credit and Collection
Policy with regard to each Eligible Receivable.
(o) Material Adverse
Effect. On and
since the Closing Date, there has been no Material Adverse Effect.
(p) No Termination Event or
Potential Termination Event. In the
case of the SPV, no event has occurred and is continuing and no condition exists
which constitutes a Termination Event or a Potential Termination
Event.
(q) Not an Investment Company or
Holding Company. It is
not, and is not controlled by, an “investment company” within the meaning of the
Investment Company Act of 1940, or is exempt from all provisions of such
act.
(r) ERISA. Except
as, in the aggregate, would not reasonably be expected to have a Material
Adverse Effect, no steps have been taken by any Person to terminate any Pension
Plan the assets of which are not sufficient to satisfy all of its benefit
liabilities (as determined under Title IV of ERISA), no contribution failure has
occurred or is expected to occur with respect to any Pension Plan sufficient to
give rise to a lien under Section 302(f) of ERISA, and each Pension Plan has
been administered in all material respects in compliance with its terms and
applicable provision of ERISA and the Code.
(s) Blocked
Accounts. The
names and addresses of all the Blocked Account Banks, together with the account
numbers of the Blocked Accounts at such Blocked Account Banks, are specified in
Schedule
4.1(s) (or at
such other Blocked Account Banks and/or with such other Blocked Accounts as have
been notified to each Managing Agent and for which Blocked Account Agreements
have been executed in accordance with Section 7.3 and
delivered to the Servicer and the Agent). All Blocked Accounts are subject to
Blocked Account Agreements. All Obligors have been instructed to make payment to
a Blocked Account; provided that if
cash or cash proceeds other than Collections on Receivables are deposited into a
Blocked Account (the “Excluded
Amounts”), such
Excluded Amounts shall not constitute Related Security, and the Agent shall have
no right, title or interest in any such Excluded Amounts.
45
(t) Bulk
Sales. In the
case of the SPV, no transaction contemplated hereby or by the First Tier
Agreement requires compliance with any bulk sales act or similar
law.
(u) Transfers Under First Tier
Agreement. In the
case of the SPV, each Receivable has been purchased or otherwise acquired by it
from the applicable Originator pursuant to, and in accordance with, the terms of
the First Tier Agreement.
(v) Preference;
Voidability. In the
case of the SPV, it shall have given reasonably equivalent value to each
Originator in consideration for the transfer to it of the Affected Assets from
such Originator, and each such transfer shall not have been made for or on
account of an antecedent debt owed by any Originator to it and no such transfer
is or may be voidable under any section of the Bankruptcy Code.
(w) Compliance with Applicable
Laws; Licenses, etc. (i) Each
of the SPV and Servicer is in compliance in all material respects with the
requirements of all applicable laws, rules, regulations, and orders of all
Official Bodies (including the Federal Consumer Credit Protection Act, as
amended, Regulation Z of the Board of Governors of the Federal Reserve System,
as amended, laws, rules and regulations relating to usury, truth in lending,
fair credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy and all other consumer laws, rules and
regulations applicable to the Receivables), a breach of any of which,
individually or in the aggregate, would be reasonably likely to have a Material
Adverse Effect; and
(ii) it has
not failed to obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its properties or to the conduct of
its business (including any registration requirements or other actions as may be
necessary in any applicable jurisdiction in connection with the ownership of the
Contracts or the Receivables and other related assets), which violation or
failure to obtain would be reasonably likely to have a Material Adverse
Effect.
(x) Nonconsolidation. The SPV
is operated in such a manner that the separate corporate existence of the SPV,
on the one hand, and the Servicer and each Originator or any Affiliate thereof,
on the other, would not be disregarded in the event of the bankruptcy or
insolvency of the Servicer, such Originator or any Affiliate thereof and,
without limiting the generality of the foregoing:
(i) the SPV
is a limited purpose entity whose activities are restricted in its
organizational documents to activities related to purchasing or otherwise
acquiring receivables (including the Receivables) and related assets and rights
and conducting any related or incidental business or activities it deems
necessary or appropriate to carry out its primary purpose, including entering
into the Transaction Documents;
46
(ii) the SPV
has not engaged, and does not presently engage, in any activity other than those
activities expressly permitted hereunder and under the other Transaction
Documents, nor, after the execution of the Termination and Payoff Letter, will
the SPV be party to any agreement other than this Agreement, the other
Transaction Documents to which it is a party and a services agreement with its
independent manager, and with the prior written consent of the Agent, any other
agreement necessary to carry out more effectively the provisions and purposes
hereof or thereof;
(iii) (A) the SPV
maintains its own deposit account or accounts, separate from those of any of its
Affiliates, with commercial banking institutions, (B) the funds of the SPV are
not and have not been diverted to any other Person or for other than the
corporate use of the SPV and (C) except as may be expressly permitted by this
Agreement, the funds of the SPV are not and have not been commingled with those
of any of its Affiliates;
(iv) to the
extent that the SPV contracts or does business with vendors or service providers
where the goods and services provided are partially for the benefit of any other
Person, the costs incurred in so doing are fairly allocated to or among the SPV
and such entities for whose benefit the goods and services are provided, and
each of the SPV and each such entity bears its fair share of such costs; and
all material transactions between the SPV and any of its Affiliates shall
be on an arm’s-length basis;
(v) the SPV
maintains a principal executive and administrative office through which its
business is conducted and a telephone number and stationery through which all
business correspondence and communication are conducted, in each case separate
from those of any Originator and its Affiliates;
(vi) the SPV
conducts its affairs strictly in accordance with its organizational documents
and observes all necessary, appropriate and customary limited liability company
formalities, including (A) holding all regular and special directors’/managers’
meetings appropriate to authorize all limited liability company action, (B)
keeping separate and accurate minutes of such meetings, (C) passing all
resolutions or consents necessary to authorize actions taken or to be taken, and
(D) maintaining accurate and separate books, records and accounts, including
intercompany transaction accounts;
(vii) all
decisions with respect to its business and daily operations are independently
made by the SPV (although the officer making any particular decision may also be
an employee, officer or director of an Affiliate of the SPV) and are not
dictated by any Affiliate of the SPV (it being understood that the Servicer,
which is an Affiliate of the SPV, will undertake and perform all of the
operations, functions and obligations of it set forth herein and it may appoint
Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such
operations, functions and obligations);
47
(viii) the SPV
acts solely in its own name and through its own authorized officers and agents,
and no Affiliate of the SPV shall be appointed to act as its agent, except as
expressly contemplated by this Agreement;
(ix) no
Affiliate of the SPV advances funds to the SPV, other than as is otherwise
provided herein or in the other Transaction Documents, and no Affiliate of the
SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided that an
Affiliate of the SPV may provide funds to the SPV in connection with the
capitalization of the SPV;
(x) other
than organizational expenses and as expressly provided herein, the SPV pays all
expenses, Indebtedness and other obligations incurred by it;
(xi) the SPV
does not guarantee, and is not otherwise liable, with respect to any obligation
of any of its Affiliates;
(xii) any
financial reports required of the SPV comply with GAAP and are issued separately
from, but may be consolidated with, any reports prepared for any of its
Affiliates;
(xiii) at all
times the SPV is adequately capitalized to engage in the transactions
contemplated in its organizational documents;
(xiv) the
financial statements and books and records of the SPV and the Originators
reflect the separate limited liability company existence of the
SPV;
(xv) the SPV
does not act as agent for any of the Originators or any Affiliate thereof, but
instead presents itself to the public as a entity separate from each such Person
and independently engaged in the business of purchasing and financing
Receivables;
(xvi) the SPV
maintains a five-person board of managers, including at least one independent
manager, who has never been, and shall at no time be a equity owned, director,
officer, employee or associate, or any relative of the foregoing, of any
Originator or any Affiliate thereof (other than the SPV and any other
bankruptcy-remote special purpose entity formed for the sole purpose of
securitizing, or facilitating the securitization of, financial assets of any
Originator or any Affiliate thereof), all as provided in its organizational
documents, and is otherwise reasonably acceptable to the Agent;
(xvii) the
organizational documents of the SPV require the affirmative vote of the
independent manager before a voluntary petition under Section 301 of the
Bankruptcy Code may be filed by the SPV;
(xviii) the SPV
complies with (and causes to be true and correct) each of the facts and
assumptions relating to it contained in the opinion(s) of Vorys, Xxxxx, Xxxxxxx
and Xxxxx LLP, delivered pursuant to Section
5.1(m);
and
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Notwithstanding
the foregoing, the SPV was party to a certain receivables purchase facility with
Fortis Bank S.A./N.V., which was terminated and paid off on the date hereof in
accordance with the Termination and Payoff Letter, and as to which certain
Continuing Fortis Obligations exist.
(y) Other
Debt. Except
as provided herein, the SPV has not created, incurred, assumed or suffered to
exist any Indebtedness whether current or funded, or any other liability other
than (i) Indebtedness of the SPV representing fees, expenses and indemnities
arising hereunder or under the First Tier Agreement for the purchase price of
the Receivables and other Affected Assets under the First Tier Agreement, (ii)
indebtedness to one or more Originators for the Deferred Purchase Price, (iii)
other outstanding Indebtedness incurred in the ordinary course of its business
in an amount that does not exceed $10,000, and (iv) Continuing Fortis
Obligations.
(z) Representations and
Warranties in other Related Documents. Each of
the representations and warranties made by it contained in the Transaction
Documents is true, complete and correct in all material respects (except any
representation or warranty qualified by materiality or by reference to a
material adverse effect, which is true, complete and correct in all respects)
and it hereby makes each such representation and warranty to, and for the
benefit of, the Agent, each Managing Agent, the Administrators, the Investors
and the other Secured Parties as if the same were set forth in full
herein.
(aa) No Servicer
Default. In the
case of the Servicer, no event has occurred and is continuing and no condition
exists which constitutes or may reasonably be expected to constitute a Servicer
Default.
ARTICLE V
CONDITIONS
PRECEDENT
SECTION
5.1 Conditions Precedent to
Closing. The
occurrence of the Closing Date and the effectiveness of the Commitments
hereunder shall be subject to the conditions precedent that (i) the SPV or the
Originators shall have paid in full (A) all amounts required to be paid by each
of them on or prior to the Closing Date pursuant to the Fee Letters and (B) the
fees and expenses described in clause
(i) of
Section
9.4(a) and
invoiced prior to the Closing Date, (ii) satisfactory completion by the Agent of
its due diligence process, and (iii) each Managing Agent shall have received,
for itself and each of the Investors in its Investor Group, an original (unless
otherwise indicated) of each of the following documents, each in form and
substance satisfactory to each Managing Agent:
(a) A duly
executed counterpart of this Agreement, the First Tier Agreement, the Guaranty,
the Fee Letters, the Termination and Payoff Letter and each of the other
Transaction Documents executed by the Originators, the SPV or the Servicer, as
applicable.
(b) A
certificate, substantially in the form of Exhibit E, of the
secretary or assistant secretary of the SPV, certifying and attaching as
exhibits thereto, among other things:
(i) the
organizational documents;
49
(ii) resolutions
of the board of managers or other governing body of the SPV authorizing the
execution, delivery and performance by the SPV of this Agreement, the First Tier
Agreement and the other Transaction Documents to be delivered by the SPV
hereunder or thereunder and all other documents evidencing necessary limited
liability company action and government approvals, if any; and
(iii) the
incumbency, authority and signature of each officer of the SPV executing the
Transaction Documents or any certificates or other documents delivered hereunder
or thereunder on behalf of the SPV.
(c) A
certificate, substantially in the form of Exhibit
F, of the
secretary or assistant secretary of each Originator and the Servicer certifying
and attaching as exhibits thereto, among other things:
(i) the
articles of incorporation or other
organizing document of each Originator and the Servicer (certified by the
Secretary of State or other similar official of its jurisdiction of
incorporation or organization, as applicable, as of a recent date);
(ii) the
by-laws of each Originator and the Servicer;
(iii) resolutions
of the board of directors or other governing body of each Originator and the
Servicer authorizing the execution, delivery and performance by it of this
Agreement, the First Tier Agreement and the other Transaction Documents to be
delivered by it hereunder or thereunder and all other documents evidencing
necessary corporate action (including shareholder consents) and government
approvals, if any; and
(iv) the
incumbency, authority and signature of each officer of each of the Originators
and the Servicer executing the Transaction Documents or any certificates or
other documents delivered hereunder or thereunder on its behalf.
(d) A good
standing certificate for the SPV issued by the Secretary of State or a similar
official of the SPV’s jurisdiction of formation, dated as of a recent
date.
(e) A good
standing certificate for each of the Originators and the Servicer issued by the
Secretary of State or a similar official of its jurisdiction of incorporation or
organization, as applicable, dated as of a recent date.
(f) Acknowledgment
copies or other evidence of filing acceptable to the Agent of proper financing
statements (Form UCC-1) naming the SPV, as debtor, in favor of the Agent, as
secured party, for the benefit of the Secured Parties or other similar
instruments or documents as may be necessary or in the reasonable opinion of the
Agent desirable under the UCC of all appropriate jurisdictions or any comparable
law to perfect the Agent’s ownership or security interest in all Receivables and
the other Affected Assets.
50
(g) Acknowledgment
copies or other evidence of filing acceptable to the Agent of proper financing
statements (Form UCC-1), naming each Originator, as the debtor, in favor of the
SPV, as assignor secured party, and the Agent, for the benefit of the Secured
Parties, as assignee secured party, or other similar instruments or documents as
may be necessary or in the reasonable opinion of the Agent desirable under the
UCC of all appropriate jurisdictions or any comparable law to perfect the SPV’s
ownership interest in all Receivables and the other Affected Assets.
(h) Copies of
proper financing statements (Form UCC-3) necessary to terminate all security
interests and other rights of any Person in Receivables or the other Affected
Assets previously granted by each Originator and the SPV.
(i) Certified
copies of requests for information or copies (Form UCC-11) (or a similar search
report certified by parties acceptable to the Agent) dated a date reasonably
near the Closing Date listing all effective financing statements which name the
SPV or each Originator as debtor and which are filed in jurisdictions in which
the filings were made pursuant to clauses
(f) or
(g) above
and such other jurisdictions where the Agent may reasonably request, together
with copies of such financing statements, and similar search reports with
respect to federal tax liens and liens of the Pension Benefit Guaranty
Corporation in such jurisdictions.
(j) Executed
copies of the Blocked Account Agreements relating to each of the Blocked
Accounts.
(k) A
favorable opinion of Xxxx X. Xxxxx, General Counsel of Xxxxx, Inc., covering
certain corporate matters with respect to the Servicer and the SPV in for and
substance satisfactory to the Agent and Agent’s counsel.
(l) A
favorable opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, special counsel to the
SPV, the Servicer and the Originators, covering certain corporate and UCC
matters in form and substance satisfactory to the Agent and Agent’s counsel.
(m) A
favorable opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, special counsel to the
SPV and the Originators, covering certain bankruptcy and insolvency matters in
form and substance satisfactory to the Agent and Agent’s counsel.
(n) An
electronic file identifying
all Receivables and the Unpaid Balances thereon and such other information with
respect to the Receivables as any Managing Agent may reasonably
request.
(o) Satisfactory
results of a review and audit of the SPV’s and the Originators’ collection,
operating and reporting systems, Credit and Collection Policy, historical
receivables data and accounts, including satisfactory results of a review of the
Originators’ operating location(s) and satisfactory review and approval of the
Eligible Receivables in existence on the date of the initial purchase under the
First Tier Agreement and a written outside audit report of a
nationally-recognized accounting firm as to such matters.
(p) A
Servicer Report as of October 31, 2008.
(q) Evidence
that the Collection Account has been established.
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(r) Such
other approvals, documents, instruments, certificates and opinions as the Agent,
any Managing Agent, any Administrator or any Investor may reasonably
request.
SECTION
5.2 Conditions Precedent to All
Investments and Reinvestments. Each
Investment hereunder (including the initial Investment) and each Reinvestment
hereunder shall be subject to the conditions precedent that (i) the Closing
Date shall have occurred, and (ii) on the date of such Investment or
Reinvestment, as the case may be, the following statements shall be true (and
the SPV by accepting the amount of such Investment or Reinvestment shall be
deemed to have certified that):
(a) The
representations and warranties contained in Section 4.1 are true
and correct in all material respects (except those representations and
warranties qualified by materiality or by reference to a material adverse
effect, which are true and correct in all respects) on and as of such day as
though made on and as of such day and shall be deemed to have been made on such
day (unless such representations and warranties specifically refer to a previous
day, in which case, they shall be complete and correct in all material respects
(or, with respect to such representations or warranties qualified by materiality
or by reference to a material adverse effect, complete and correct in all
respects) on and as of such previous day); provided that no
such representation, warranty, or certification hereunder shall be deemed to be
incorrect or violated to the extent any affected Receivable is subject to a
Deemed Collection and all required amounts with respect to which have been
deposited into a Blocked Account or the Collection Account.
(b) In the
case of an Investment, each Managing Agent shall have received an Investment
Request, appropriately completed, within the time period required by
Section
2.3.
(c) In the
case of an Investment, the Agent and each Managing Agent shall have received a
Servicer Report dated no more than 30 days prior to the proposed Investment
Date, and the information set forth therein shall be true, complete and correct
in all material respects.
(d) The
Termination Date has not occurred.
(e) In the
case of an Investment, the amount of such Investment will not exceed the amount
available therefor under Section
2.2 and,
after giving effect thereto, the sum of the Net Investment and the Required
Reserves will not exceed the Net Pool Balance.
ARTICLE VI
COVENANTS
SECTION
6.1 Affirmative Covenants of the
SPV and Servicer. At all
times from the date hereof to the Final Payout Date, unless the Majority
Investors shall otherwise consent in writing:
(a) Reporting
Requirements. The SPV
shall furnish to the Agent (with a copy to each Managing Agent):
52
(i) Annual
Reporting. Within
ninety (90) days after the close of Xxxxx, Inc.’s fiscal year, (A) audited
financial statements, prepared by a nationally-recognized accounting firm in
accordance with GAAP on a consolidated basis for Xxxxx, Inc. and its
Subsidiaries (which shall include the SPV), including balance sheets as of the
end of such period, related statements of operations, shareholder’s equity and
cash flows, accompanied by an unqualified audit report certified by independent
certified public accountants, acceptable to each Managing Agent, prepared in
accordance with GAAP and any management letter prepared by said accountants and
a certificate of said accountants that, in the course of the foregoing, they
have obtained no knowledge of any Termination Event or Potential Termination
Event, or if, in the opinion of such accountants, any Termination Event or
Potential Termination Event shall exist, stating the nature and status thereof,
and (B) a report covering such fiscal year to the effect that such accounting
firm has applied certain agreed-upon procedures (a copy of which procedures are
attached hereto as Schedule
6.1(a), it
being understood that the Servicer and the Agent will provide an updated
Schedule
6.1(a)
reflecting any further amendments to such Schedule
6.1(a) prior to
the issuance of the first such agreed-upon procedures report, a copy of which
shall replace the then existing Schedule
6.1(a)) to
certain documents and records relating to the Collateral under any Transaction
Document, compared the information contained in the Servicer Reports delivered
during the period covered by such report with such documents and records and
that no matters came to the attention of such accountants that caused them to
believe that such servicing was not conducted in compliance with this
Article
VI, except
for such exceptions as such accountants shall believe to be immaterial and such
other exceptions as shall be set forth in such statement.
(ii) Quarterly
Reporting. Within
forty-five (45) days after the
close of the first three quarterly periods of Xxxxx, Inc.’s fiscal year, for
Xxxxx, Inc. and its other Subsidiaries (which shall include the SPV), in each
case, consolidated balance sheets as at the close of each such period and
consolidated related statements of operations, shareholder’s equity and cash
flows for the period from the beginning of such fiscal year to the end of such
quarter, all certified by its chief financial officer or treasurer.
(iii) Compliance
Certificate.
Together with the financial statements required hereunder, a compliance
certificate signed by Xxxxx, Inc.’s chief financial officer or treasurer stating
that (A) the attached financial statements have been prepared in accordance with
GAAP and accurately reflect the financial condition of the SPV or the
Originators and their respective Subsidiaries, as applicable, and (B) to the
best of such Person’s knowledge, no Termination Event or Potential Termination
Event exists, or if any Termination Event or Potential Termination Event exists,
stating the nature and status thereof and showing the computation of, and
showing compliance with, each of the financial triggers set forth in
Sections 7.5(g) and (h) and
Sections 8.1(h), (i), (j) and (k)
hereof.
(iv) Notices. Promptly
after receipt thereof, copies of all notices received by the SPV from any
Originator.
53
(v) SEC
Filings. So long
as they include the information set forth in subclauses (i) and (ii), the timely
filings by Xxxxx, Inc. of its form 10-K and form 10-Q, respectively, will
satisfy the delivery requirements set forth in such clauses. Promptly upon the
filing thereof, copies of all registration statements and annual, quarterly,
monthly or other regular reports and all special shareholder reports and proxy
statements, if any, which any Originator or any Subsidiary thereof files with
the Securities and Exchange Commission; provided that, so
long as such reports are publicly available on the SEC’s XXXXX website or any
successor thereto, physical delivery of such documents shall not be
required.
(vi) Notice of Termination Events
or Potential Termination Events; Etc.
(A) As soon as possible and in any event within two (2) Business Days after
it obtains knowledge of the occurrence of each Termination Event or Potential
Termination Event, a statement of its chief financial officer or chief
accounting officer setting forth details of such Termination Event or Potential
Termination Event and the action which it proposes to take with respect thereto,
which information shall be updated promptly from time to time upon the request
of the Agent; (B) promptly after it obtains knowledge thereof, notice of any
litigation, investigation or proceeding that may exist at any time between it
and any Person, as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, would reasonably be expected to
have a Material Adverse Effect or any litigation or proceeding relating to any
Transaction Document; and (C) promptly after knowledge of the occurrence
thereof, notice of a Material Adverse Effect.
(vii) Change in Credit and
Collection Policy. At
least ten (10) Business Days prior to the date any material change in or
amendment to the Credit and Collection Policy is made, a copy of the Credit and
Collection Policy then in effect indicating such change or amendment.
(viii) Credit and Collection
Policy. If so
requested by the Agent, within ninety (90) days after the close of each of the
Originator’s and the SPV’s fiscal years, a complete copy of the Credit and
Collection Policy then in effect, if requested by any Managing Agent in
writing.
(ix) ERISA. Promptly
after the filing, giving or receiving thereof, copies of all reports and notices
with respect to any Reportable Event pertaining to any Pension Plan and copies
of any notice by any Person of its intent to terminate any Pension Plan, and
promptly upon the occurrence thereof, written notice of any contribution failure
with respect to any Pension Plan sufficient to give rise to a lien under Section
302(f) of ERISA, in each case if it is reasonably likely that such occurrence
would have a Material Adverse Effect.
(x) Change in Accountants or
Accounting Policy.
Promptly after the occurrence thereof, notice of any change in the accountants
of the SPV or any of the Originators.
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(xi) Other
Information. Such
other information (including non-financial information) as the Agent, any
Managing Agent or the Administrators may from time to time reasonably request
with respect to any Originator, the SPV or the Servicer.
(b) Conduct of Business;
Ownership. Each of
the SPV and the Servicer shall continue to engage in business of the same
general types as now conducted by them (including businesses reasonably related
or incidental thereto) as it is presently conducted and do all things necessary
to remain duly organized, validly existing and in good standing in its
jurisdiction of formation and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted. The SPV shall
at all times be a wholly-owned direct or indirect Subsidiary of Xxxxx,
Inc.
(c) Compliance with Laws,
Etc. Each of
the SPV and the Servicer shall comply in all material respects with all Laws to
which it or its respective properties may be subject and preserve and maintain
its corporate or limited liability company existence, rights, franchises,
qualifications and privileges, except to the extent any non-compliance would not
reasonably be expected to have a Material Adverse Effect.
(d) Furnishing of Information
and Inspection of Records. Each of
the SPV and the Servicer shall furnish to the Agent and each Managing Agent from
time to time such information with respect to the Affected Assets as the Agent
or a Managing Agent may reasonably request, including listings identifying the
Obligor and the Unpaid Balance for each Receivable. Each of the SPV and the
Servicer shall, at any time and from time to time during regular business hours
upon reasonable notice (which shall be at least two (2) Business Days), as
requested by the Agent or a Managing Agent, permit the Agent or Managing Agent,
or its agents or representatives, (i) to examine and make copies of and take
abstracts from all books, records and documents (including computer tapes and
disks) relating to the Receivables or other Affected Assets, including the
related Contracts and (ii) to visit the offices and properties of the SPV,
each Originator or the Servicer, as applicable, for the purpose of examining
such materials described in clause (i), and to
discuss matters relating to the Affected Assets or the SPV’s, each Originator’s
or the Servicer’s performance hereunder, under the Contracts and under the other
Transaction Documents to which such Person is a party with any of the officers,
directors, employees or independent public accountants of the SPV (but only in
the presence of an officer of the SPV), each Originator or the Servicer, as
applicable, having knowledge of such matters; provided that
unless a Termination Event or Potential Termination Event shall have occurred
and be continuing, the SPV and the Servicer shall not be required to reimburse
the reasonable expenses of more than one (1) such visit in the aggregate among
the SPV and the Servicer per calendar year.
(e) Keeping of Records and Books
of Account. Each of
the SPV and the Servicer shall maintain and implement administrative and
operating procedures (including an ability to recreate records evidencing
Receivables and related Contracts in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, computer tapes,
disks, records and other information, reasonably necessary or advisable for the
collection of all Receivables (including records adequate to permit the daily
identification of each new Receivable and all Collections of and adjustments to
each existing Receivable). Each of the SPV and the Servicer shall give the Agent
and each Managing Agent prompt notice of any material change in its
administrative and operating procedures referred to in the previous
sentence.
55
(f) Performance and Compliance
with Receivables, Contracts and Credit and Collection Policy. Each of
the SPV and the Servicer shall, (i) at its own expense, timely and fully perform
and comply with all material provisions, covenants and other promises required
to be observed by it under the Contracts related to the Receivables in
accordance with the Credit and Collection Policy; and (ii) timely and fully
comply in all material respects with the Credit and Collection Policy in regard
to each Eligible Receivable and the related Contract.
(g) Notice of Agent’s
Interest. In the
event that the SPV shall sell or otherwise transfer any interest in accounts
receivable or any other financial assets (other than as contemplated by the
Transaction Documents), any computer tapes or files or other documents or
instruments provided by the Servicer in connection with any such sale or
transfer shall disclose the SPV’s ownership of the Receivables and the Agent’s
interest therein.
(h) Collections. The SPV
and the Servicer have instructed, or shall instruct, all Obligors to cause all
Collections to be deposited directly to a Blocked Account or to post office
boxes to which only Blocked Account Banks have access and shall instruct the
Blocked Account Banks to cause all items and amounts relating to such
Collections received in such post office boxes to be removed and deposited into
a Blocked Account on a daily basis.
(i) Collections
Received. Each of
the SPV and the Servicer shall hold in trust, and deposit, promptly, but in any
event not later than two (2) Business Days following its receipt thereof, to a
Blocked Account or, if required by Section 2.9, to the
Collection Account, all Collections received by it from time to
time.
(j) Blocked
Accounts. Each
Blocked Account shall at all times be subject to a Blocked Account
Agreement.
(k) Sale
Treatment. The SPV
shall not (i) treat, the transactions contemplated by the First Tier Agreement
in any manner other than as a sale or contribution (as applicable) of
Receivables by the Originators to the SPV, except to the extent that such
transactions are not recognized on account of consolidated financial reporting
in accordance with GAAP or are disregarded for tax purposes or (ii) treat
(other than for tax and accounting purposes) the transactions contemplated
hereby in any manner other than as a sale of the Asset Interest by the SPV to
the Agent on behalf of the Investors. In addition, the SPV shall disclose (in a
footnote or otherwise) in all of its financial statements (including any such
financial statements consolidated with any other Person’s financial statements)
the existence and nature of the transaction contemplated hereby and by the First
Tier Agreement and the interest of the SPV (in the case of an Originator’s
financial statements) and the Agent, on behalf of the Investors, in the Affected
Assets.
(l) Separate Business;
Nonconsolidation. The SPV
shall not (i) engage in any business not permitted by its organizational
documents or (ii) conduct its business or act in any other manner which is
inconsistent with Section
4.1(w).
56
(m) Corporate
Documents. The SPV
shall only amend, alter, change or repeal its organizational documents with the
prior written consent of the Agent.
(n) Ownership Interest,
Etc. The SPV
shall, at its expense, take all action necessary or desirable to establish and
maintain a valid and enforceable ownership or security interest in the
Receivables, the Related Security and proceeds with respect thereto, and a first
priority perfected security interest in the Affected Assets, in each case free
and clear of any Adverse Claim, in favor of the Agent for the benefit of the
Secured Parties, including taking such action to perfect, protect or more fully
evidence the interest of the Agent, as any Managing Agent may
request.
(o) Enforcement of First Tier
Agreement. The
SPV, on its own behalf and, during the continuation of a Termination Event or
Potential Termination Event, on behalf of the Agent, each Managing Agent and
each Secured Party, shall promptly enforce all covenants and obligations of the
Originators contained in the First Tier Agreement. During the continuation of a
Termination Event or Potential Termination Event, the SPV shall deliver
consents, approvals, directions, notices, waivers and take other actions under
the First Tier Agreement as may be directed by any Managing Agent consistent
with the SPV’s rights thereunder.
(p) Perfection
Covenants. The SPV
shall comply with each of the covenants set forth in the Schedule
4.1(d) which
are incorporated herein by reference.
(q) Solvency of
SPV. The
fair value of the assets of the SPV, at a fair valuation, will, at all times
prior to the Final Payout Date, exceed its debts and liabilities, subordinated,
contingent or otherwise. The present fair saleable value of the property of the
SPV, at all times prior to the Final Payout Date, will be greater than the
amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured. The SPV will, at all times prior
to the Final Payout Date, be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured. The SPV will not, at any time prior to the Final Payout
Date, have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed to be
conducted.
(r) Good
Title. In the
case of the SPV, upon each Investment and Reinvestment, the Agent shall acquire
a valid and enforceable perfected first priority ownership interest or a first
priority perfected security interest in each Eligible Receivable and all other
Affected Assets that exist on the date of such Investment or Reinvestment, with
respect thereto, free and clear of any Adverse Claim.
SECTION
6.2 Negative Covenants of the
SPV and Servicer. At all
times from the date hereof to the Final Payout Date, unless the Majority
Investors shall otherwise consent in writing:
57
(a) No Sales, Liens,
Etc. (i)
Except as otherwise provided herein and in the First Tier Agreement, neither the
SPV nor the Servicer shall sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Adverse Claim upon (or
the filing of any financing statement) or with respect to (A) any of the
Affected Assets, or (B) any proceeds of inventory or goods, the sale of which
may give rise to a Receivable, or assign any right to receive income in respect
thereof and (ii) the SPV shall not issue any security to, or sell, transfer or
otherwise dispose of any of its property or other assets (including the property
sold to it by an Originator under Section 2.1 of the First Tier Agreement) to,
any Person other than an Affiliate (which Affiliate is not a special purpose
entity organized for the sole purpose of issuing asset backed securities) or as
otherwise expressly provided for in the Transaction Documents.
(b) No Extension or Amendment of
Receivables. Except
as otherwise permitted in Section
7.2, neither
the SPV nor the Servicer shall extend, amend or otherwise modify the terms of
any Receivable, or amend, modify or waive any term or condition of any Contract
related thereto.
(c) No Change in Business or
Credit and Collection Policy. Neither
the SPV nor the Servicer shall make any change in the character of its business
or in the Credit and Collection Policy, which change would, in either case,
materially impair the collectibility of any Eligible Receivable or reasonably be
expected to have a Material Adverse Effect.
(d) No Subsidiaries, Mergers,
Etc. Neither
the SPV nor the Servicer shall consolidate or merge with or into, or sell, lease
or transfer all or substantially all of its assets to, any other Person, unless
in the case of any such action by the Servicer (i) no Termination Event or
Material Adverse Effect would occur or be reasonably likely to occur as a result
of such transaction and (ii) such Person executes and delivers to the Agent and
each Managing Agent an agreement by which such Person assumes the obligations of
the Servicer hereunder and under the other Transaction Documents to which it is
a party, or confirms that such obligations remain enforceable against it,
together with such certificates and opinions of counsel as any Managing Agent
may reasonably request. The SPV shall not form or create any
Subsidiary.
(e) Change in Payment
Instructions to Obligors. Neither
the SPV nor the Servicer shall add or terminate any bank as a Blocked Account
Bank or any account as a Blocked Account to or from those listed in Schedule
4.1(s) or make
any change in its instructions to Obligors regarding payments to be made to any
Blocked Account, unless (i) such instructions are to deposit such payments to
another existing Blocked Account or to the Collection Account or (ii) the Agent
shall have received written notice of such addition, termination or change at
least thirty (30) days prior thereto and the Agent shall have received a Blocked
Account Agreement executed by each new Blocked Account Bank or an existing
Blocked Account Bank with respect to each new Blocked Account, as
applicable.
(f) Deposits to Lock-Box
Accounts. Neither
the SPV nor the Servicer shall deposit or otherwise credit, or cause or permit
to be so deposited or credited, to any Blocked Account or the Collection Account
cash or cash proceeds other than Collections. If such funds are accidentally or
mistakenly deposited into any Blocked Account, the SPV will (or will cause the
Servicer to) promptly identify such funds for segregation. The SPV will not, and
will not permit the Servicer, any Originator or other Person to, commingle
Collections or other funds to which the Agent or any other Secured Party is
entitled with any other funds.
58
(g) Change of Name,
Etc. The SPV
shall not change its name, identity or structure (including a merger) or the
location of its jurisdiction of formation or any other change which could render
any UCC financing statement filed in connection with this Agreement or any other
Transaction Document to become “seriously misleading” under the UCC, unless at
least thirty (30) days prior to the effective date of any such change the SPV
delivers to each Managing Agent (i) such documents, instruments or agreements,
executed by the SPV as are necessary to reflect such change and to continue the
perfection of the Agent’s ownership interests or security interests in the
Affected Assets and (ii) new or revised Blocked Account Agreements executed
by the Blocked Account Banks which reflect such change and enable the Agent to
continue to exercise its rights contained in Section
7.3.
(h) Amendment to First Tier
Agreement. The SPV
shall not amend, modify, or supplement the First Tier Agreement or waive any
provision thereof, in each case except with the prior written consent of the
Majority Investors; nor shall the SPV take, or permit any Originator to take,
any other action under the First Tier Agreement that would reasonably be
expected to result in a material adverse effect on the Agent, any Managing Agent
or any Investor or which is inconsistent in any material manner with the terms
of this Agreement.
(i) Amendment to Organizational
Documents. The SPV
will not amend its Articles of Organization filed with the Secretary of the
State of Delaware or any provision of the LLC Agreement without the consent of
the Agent.
(j) Other
Debt. Except
as provided herein and the Continuing Fortis Obligations, after the date hereof,
the SPV shall not create, incur, assume or suffer to exist any Indebtedness
whether current or funded, or any other liability other than
(i) Indebtedness of the SPV representing fees, expenses and indemnities
arising hereunder or under the First Tier Agreement for the purchase price of
the Receivables and other Affected Assets under the First Tier Agreement, (ii)
the Deferred Purchase Price payable in respect of the Receivables acquired
pursuant to the First Tier Agreement and (iii) other Indebtedness incurred in
the ordinary course of its business in an amount not to exceed $10,000 at any
time outstanding.
(k) Payment to the
Originators. The SPV
shall not acquire any Receivable other than through, under, and pursuant to the
terms of the First Tier Agreement, through the payment by the SPV either in cash
or by increase of the capital contribution of the Originators pursuant to the
First Tier Agreement, by increase in the Deferred Purchase Price, in an amount
equal to the unpaid purchase price for such Receivable as required by the terms
of the First Tier Agreement.
(l) Restricted
Payments. The SPV
shall not (A) purchase or redeem any equity interest in the SPV, (B) prepay,
purchase or redeem any Indebtedness, (C) lend or advance any funds or (D) repay
any loans or advances to, for or from any of its Affiliates (the amounts
described in clauses
(A) through
(D) being
referred to as “Restricted
Payments”),
except that the SPV may (1) make Restricted Payments out of funds received
pursuant to Section
2.2 and (2)
may make other Restricted Payments (including the payment of dividends or
distributions, and payments of the Deferred Purchase Price) if, after giving
effect thereto, no Termination Event or Potential Termination Event shall have
occurred and be continuing.
59
ARTICLE VII
ADMINISTRATION AND
COLLECTIONS
SECTION
7.1 Appointment of
Servicer.
(a) The
servicing, administering and collection of the Receivables shall be conducted by
the Person (the “Servicer”) so
designated from time to time as Servicer in accordance with this Section 7.1. Each of
the SPV, the Managing Agents and the Investors hereby appoints as its agent the
Servicer, from time to time designated pursuant to this Section, to enforce its
respective rights and interests in and under the Affected Assets. To the extent
permitted by applicable law, each of the SPV and the Originators (to the extent
not then acting as Servicer hereunder and only to the extent consistent with its
obligations under the First Tier Agreement) hereby grants to any Servicer
appointed hereunder an irrevocable power of attorney to take any and all steps
in the SPV’s and/or such Originator’s name and on behalf of the SPV or such
Originator as necessary or desirable, in the reasonable determination of the
Servicer, to collect all amounts due under any and all Receivables, including
endorsing the SPV’s and/or such Originator’s name on checks and other
instruments representing Collections and enforcing such Receivables and the
related Contracts and to take all such other actions set forth in this
Article
VII. Until the
Agent gives notice to the existing Servicer (in accordance with this
Section 7.1) of the
designation of a new Servicer, the existing Servicer is hereby designated as,
and hereby agrees to perform the duties and obligations of, the Servicer
pursuant to the terms hereof. At any time following the occurrence and during
the continuation of a Servicer Default, the Agent may upon the direction of the
Majority Investors, designate as Servicer any Person (including the Agent) to
succeed the initial Servicer or any successor Servicer, on the condition in each
case that any such Person so designated shall agree to perform the duties and
obligations of the Servicer pursuant to the terms hereof.
(b) Upon the
designation of a successor Servicer as set forth above, the existing Servicer
agrees that it will terminate its activities as Servicer hereunder in a manner
which the Agent determines will facilitate the transition of the performance of
such activities to the new Servicer, and the existing Servicer shall cooperate
with and assist such new Servicer. Such cooperation shall include access to and
transfer of records and use by the new Servicer of all records, licenses,
hardware or software necessary or desirable to collect the Receivables and the
Related Security.
(c) The
existing Servicer acknowledges that the SPV, the Agent, each Managing Agent and
the Investors have relied on the existing Servicer’s agreement to act as
Servicer hereunder in making their decision to execute and deliver this
Agreement. Accordingly, the existing Servicer agrees that it will not
voluntarily resign as Servicer.
(d) The
Servicer may delegate its duties and obligations hereunder to any subservicer
(each, a “Sub-Servicer”);
provided that, in
each such delegation, (i) such Sub-Servicer shall agree in writing to perform
the duties and obligations of the Servicer pursuant to the terms hereof, (ii)
the Servicer shall remain primarily liable to the SPV, the Agent, the Managing
Agents and the Investors for the performance of the duties and obligations so
delegated, (iii) the SPV and the Majority Investors shall consent in writing to
any material delegation of servicing duties different in scope or nature than
those delegations typically made by the Servicer as of the Closing Date and (iv)
the terms of any agreement with any Sub-Servicer shall provide that the Agent
may terminate such agreement upon the termination of the Servicer hereunder by
giving notice of its desire to terminate such agreement to the Servicer (and the
Servicer shall provide appropriate notice to such Sub-Servicer).
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SECTION
7.2 Duties of
Servicer. (a) The
Servicer shall take or cause to be taken all reasonable action as may be
necessary or advisable to collect each Receivable from time to time, all in
accordance with this Agreement and all applicable Law, with reasonable care and
diligence, and in accordance with the Credit and Collection Policy. The Servicer
shall set aside (and, if applicable, segregate) and hold in trust for the
accounts of the SPV, the Agent and each Managing Agent the amount of the
Collections to which each is entitled in accordance with Article II. So long
as no Termination Event or Potential Termination Event shall have occurred and
be continuing, the Servicer may, in accordance with the Credit and Collection
Policy, extend the maturity or adjust the Unpaid Balance of any Receivable,
including any Defaulted Receivable, or amend, modify or waive any term or
condition of any Contract related thereto, in each case, as the Servicer may
determine to be appropriate to maximize Collections thereof; provided that (i) such
extension, adjustment or modification shall not alter the status of such
Receivable as a Defaulted Receivable or limit the rights of the SPV or any
Secured Party under this Agreement and (ii) if a Termination Event is
continuing, then the Servicer may make such extension, adjustment or
modification only with the approval of the Agent. The SPV shall deliver to the
Servicer and the Servicer shall hold in trust for the SPV and the Agent, on
behalf of the Investors, in accordance with their respective interests, all
Records which evidence or relate to any Affected Asset. Notwithstanding anything
to the contrary contained herein, at any time when a Termination Event is
continuing, the Agent shall have the right to direct the Servicer to commence or
settle any legal action to enforce collection of any Receivable or to foreclose
upon or repossess any Affected Asset. The Servicer shall not make the
Administrator, the Agent, any Managing Agent or any other Secured Party a party
to any litigation without the prior written consent of such Person. At any time
when a Termination Event exists and is continuing, the Agent may notify any
Obligor of its interest in the Receivables and the other Affected
Assets.
(b) The
Servicer shall, as soon as practicable following receipt thereof, turn over to
the SPV all collections from any Person of indebtedness of such Person which are
not on account of a Receivable. Notwithstanding anything to the contrary
contained in this Article
VII, the
Servicer, if not the SPV, an Originator or any Affiliate of the SPV or an
Originator, shall have no obligation to collect, enforce or take any other
action described in this Article
VII with
respect to any indebtedness that is not included in the Asset Interest other
than to deliver to the SPV the Collections and documents with respect to any
such indebtedness as described above in this Section
7.2(b).
(c) Any
payment by an Obligor in respect of any indebtedness owed by it to an Originator
shall, except as otherwise specified by such Obligor, required by contract or
law or clearly indicated by facts or circumstances (including by way of example
an equivalence of a payment and the amount of a particular invoice), and unless
otherwise instructed by the Agent, be applied as a Collection of any Receivable
of such Obligor (starting with the oldest such Receivable) to the extent of any
amounts then due and payable thereunder before being applied to any other
receivable or other indebtedness of such Obligor.
61
SECTION
7.3 Blocked Account
Arrangements. Prior
to the Closing Date the Servicer and SPV shall enter into Blocked Account
Agreements with all of the Blocked Account Banks, and deliver original
counterparts thereof to the Agent. The Agent may at any time after the
occurrence and during the continuation of a Termination Event or Potential
Termination Event give notice to each Blocked Account Bank that the Agent is
exercising its rights under the Blocked Account Agreements to do any or all of
the following: (i) to have the exclusive control of the Blocked Accounts
transferred to the Agent and to exercise exclusive dominion and control over the
funds deposited therein, (ii) to have the proceeds that are sent to the
respective Blocked Accounts be redirected pursuant to its instructions rather
than deposited in the applicable Blocked Account, and (iii) to take any or all
other actions permitted under the applicable Blocked Account Agreement;
provided that the
Agent shall have no right, title or interest in any Excluded Amounts deposited
into Blocked Accounts and shall cause such Excluded Amounts to be transferred to
the applicable Originator at its direction. Each of the Servicer and SPV hereby
agrees that if the Agent, at any time, takes any action set forth in the
preceding sentence, the Agent shall have exclusive control of the proceeds
(including Collections) of all Receivables and each of the Servicer and SPV
hereby further agrees to take any other action that the Agent may reasonably
request to transfer such control. Except as provided in Section
2.9, any
proceeds of Receivables received by any of the Originators, the Servicer or the
SPV thereafter shall be sent promptly (but in any event within two (2) Business
Days of receipt) to a Blocked Account. The parties hereto hereby acknowledge
that if at any time the Agent takes control of any Blocked Account, the Agent
shall distribute or cause to be distributed such funds in accordance with
Section 7.2(b) and
Article
II (in each
case as if such funds were held by the Servicer thereunder). The Servicer and
the SPV further agree that at any time after the occurrence and during the
continuation of a Termination Event or Potential Termination Event, they will
not withdraw or transfer any amounts from a Blocked Account, except: (i) to
another Blocked Account, (ii) to the Collection Account as and when required
hereunder, or (iii) otherwise with the written consent of the
Agent.
SECTION
7.4 Enforcement
Rights. (a) At
any time following the occurrence and during the continuation of a Termination
Event:
(i) the Agent
may direct the Obligors that payment of all amounts payable under any Receivable
be made directly to the Agent or its designee;
(ii) the SPV
shall, at the Agent’s request and at the SPV’s expense, give notice of the
Agent’s, the SPV’s, and/or the Investors’ ownership of the Receivables and (in
the case of the Agent) interest in the Asset Interest to each Obligor and direct
that payments be made directly to the Agent or its designee, except that if the
SPV fails to so notify each obligor, the Agent may so notify the Obligors;
and
(iii) the SPV
shall, at the Agent’s request, (A) assemble all of the Records and shall make
the same available to the Agent or its designee at a place selected by the Agent
or its designee, and (B) segregate all cash, checks and other instruments
received by it from time to time constituting Collections in a manner acceptable
to the Agent and shall, promptly upon receipt, remit all such cash, checks and
instruments, duly endorsed or with duly executed instruments of transfer, to the
Agent or its designee.
62
(b) Each of
the SPV and the Originators hereby authorizes the Agent, and irrevocably
appoints the Agent as its attorney-in-fact with full power of substitution and
with full authority in the place and stead of the SPV or the Originators, as
applicable, which appointment is coupled with an interest, to take any and all
steps in the name of the SPV or the Originators, as applicable, and on behalf of
the SPV or the Originators, as applicable, necessary or desirable, in the
determination of the Agent, to collect any and all amounts or portions thereof
due under any and all Receivables or Related Security, including endorsing the
name of the applicable Originator on checks and other instruments representing
Collections and enforcing such Receivables, Related Security and the related
Contracts. Notwithstanding anything to the contrary contained in this
subsection
(b), none of
the powers conferred upon such attorney-in-fact pursuant to the immediately
preceding sentence shall subject such attorney-in-fact to any liability if any
action taken by it shall prove to be inadequate or invalid, nor shall they
confer any obligations upon such attorney-in-fact in any manner whatsoever, in
each case, other than actions resulting from the gross negligence or willful
misconduct of such attorney-in-fact. The Agent hereby agrees only to use such
power of attorney following the occurrence and during the continuation of a
Termination Event.
SECTION
7.5 Servicer
Default. The
occurrence of any one or more of the following events shall constitute a
“Servicer
Default”:
(a) The
Servicer (i) shall fail to make any payment or deposit required to be made by it
hereunder when due and such failure continues for one (1) Business Day or the
Servicer shall fail to observe or perform any term, covenant or agreement on the
Servicer’s part to be performed under Sections
6.1(b)
(conduct of business,
ownership),
6.1(f)
(performance and compliance with
receivables, contracts and credit and collection policy),
6.1(h)
(obligor payments),
6.1(i)
(handling
collections),
6.2(a)
(no sales or liens),
6.2(c)
(no change in business or credit and
collection policy),
6.2(d)
(no subsidiaries, mergers,
etc.),
6.2(e)
(change in payment instructions to
obligors), or
6.2(f)
(deposits to lock-box
accounts) (any of
the preceding parenthetical phrases in this clause
(i) are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof) and such failure continues for two (2)
Business Days, or (ii) shall fail to observe or perform any other term, covenant
or agreement to be observed or performed by it under Sections 2.8,
2.9,
2.12 or
2.15 and such
failure continues for two (2) Business Days, or (iii) shall fail to observe
or perform in any material respect any other term, covenant or agreement
hereunder or under any of the other Transaction Documents to which such Person
is a party or by which such Person is bound, and such failure shall remain
unremedied for thirty (30) days after the earlier to occur of (i) receipt of
notice thereof from any Managing Agent, any Investor or the Agent or (ii) actual
knowledge thereof by a Responsible Officer; or
63
(b) any
representation, warranty, certification or statement made by the Servicer in
this Agreement or in any of the other Transaction Documents or in any
certificate or report delivered by it pursuant to any of the foregoing shall
prove to have been incorrect in any material respect when made or deemed made
(except any representation or warranty qualified by materiality or by reference
to a material adverse effect, which shall prove to have been incorrect in any
respect) when made or confirmed and such circumstance shall remain uncured for
thirty (30) days after the
earlier to occur of (i) receipt of notice thereof from any Managing Agent, any
Investor or the Agent or (ii) actual knowledge thereof by a Responsible Officer;
provided that no
such representation, warranty, or certification hereunder shall be deemed to be
incorrect or violated to the extent any affected Receivable is subject to a
Deemed Collection and all required amounts with respect to such Receivable have
been deposited into a Blocked Account or the Collection Account; or
(c) failure
of the Servicer or any of its Subsidiaries (other than the SPV) to pay when due
any amounts due under any agreement under which any Indebtedness greater than
$30,000,000 (or such other amount as may from time to time be set forth in the
Senior Credit Agreement) is governed; or the default by the Servicer or any of
its Subsidiaries in the performance of any term, provision or condition
contained in any agreement under which any Indebtedness greater than $30,000,000
(or such other amount as may from time to time be set forth in the Senior Credit
Agreement) was created or is governed, regardless of whether such event is an
“event of default” or “default” under any such agreement; or any Indebtedness of
the Servicer or any of its Subsidiaries (other than the SPV) greater than
$30,000,000 (or such other amount as may from time to time be set forth in the
Senior Credit Agreement) shall be declared to be due and payable or required to
be prepaid (other than by a regularly scheduled payment) prior to the scheduled
date of maturity thereof; or
(d) there is
entered against the Servicer or any Subsidiary thereof (i) one or more final
judgments or orders for the payment of money in an aggregate amount (as to all
such judgments and orders) exceeding $30,000,000 (or such other amount as may
from time to time be set forth in the Senior Credit Agreement) (to the extent
not covered by independent third-party insurance as to which the insurer is
rated at least “A” by A.M. Best Company, has been notified of the potential
claim and does not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of ten (10) consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not
in effect; or
(e) [Reserved];
or
(f) any Event
of Bankruptcy shall occur with respect to the Servicer or any of its Material
Subsidiaries; or
(g) the
Interest Coverage Ratio of the last day of any fiscal quarter of the Servicer is
less than 3.00 to 1.00 (or such other threshold as may from time to time be set
forth in the Senior Credit Agreement); or
(h) the
Leverage Ratio as of the last day of any fiscal quarter of the Servicer is
greater than 3.50 to 1.00 (or such other threshold as may from time to time be
set forth in the Senior Credit Agreement); or
64
(i) an “Event
of Default” under the Senior Credit Agreement has occurred and is
continuing.
SECTION
7.6 Servicing
Fee. The
Servicer shall be paid a Servicing Fee in accordance with 2.12 and
subject to the priorities therein.
SECTION
7.7 Protection of Ownership
Interest of the Investors. Each of
the Originators and the SPV agrees that it shall, from time to time, at its
expense, promptly execute and deliver all instruments and documents and take all
actions as may be necessary or as the Agent may reasonably request in order to
perfect or protect the Asset Interest or to enable the Agent, each Managing
Agent or the Investors to exercise or enforce any of their respective rights
hereunder. Without limiting the foregoing, each of the Originators and the SPV
shall, upon the request of the Agent, any Managing Agent or any of the
Investors, in order to accurately reflect the transactions evidenced by the
Transaction Documents, (i) execute and file such financing or continuation
statements or amendments thereto or assignments thereof (as otherwise permitted
to be executed and filed pursuant hereto) as may be requested by the Agent, any
Managing Agent or any of the Investors and (ii) xxxx its respective master data
processing records and other documents with a legend describing the conveyance
to the Agent, for the benefit of the Secured Parties, of the Asset Interest.
Each of the Originators and the SPV shall, upon request of the Agent, any
Managing Agent or any of the Investors, obtain such additional search reports as
the Agent, any Managing Agent or any of the Investors shall request. To the
fullest extent permitted by applicable law, the Agent is hereby authorized to
sign and file continuation statements and amendments thereto and assignments
thereof without the SPV’s or any Originator’s signature. Carbon, photographic or
other reproduction of this Agreement or any financing statement shall be
sufficient as a financing statement. The SPV shall not change its name, identity
or corporate (or limited liability company) structure nor change its
jurisdiction of formation unless it shall have: (A) given the Agent at
least thirty (30) days prior notice thereof and (B) prepared at the SPV’s
expense and delivered to the Agent all financing statements, instruments and
other documents necessary to preserve and protect the Asset Interest or
requested by the Agent in connection with such change. Any filings under the UCC
or otherwise that are occasioned by such change shall be made at the expense of
the SPV.
ARTICLE VIII
TERMINATION
EVENTS
SECTION
8.1 Termination
Events. The
occurrence of any one or more of the following events shall constitute a
“Termination
Event”:
(a) the SPV
or any Originator shall fail to make any payment or deposit to be made by it
hereunder or under any other Transaction Document when due hereunder or
thereunder and such failure shall continue for two (2) Business Day;
or
65
(b) any
representation, warranty, certification or statement made or deemed made by the
SPV or any Originator in this Agreement, any other Transaction Document to which
it is a party or in any other information, report or document delivered pursuant
hereto or thereto shall prove to have been incorrect in any material respect
(except any representation or warranty qualified by materiality or by reference
to a material adverse effect, which shall prove to have been incorrect in any
respect) when made or confirmed and such circumstance shall remain uncured for
thirty (30) days
after the earlier to occur of (i) receipt of notice thereof from any Managing
Agent, any Investor or the Agent or (ii) actual knowledge thereof by a
Responsible Officer; provided that no
such representation, warranty, or certification hereunder shall be deemed to be
incorrect or violated to the extent any affected Receivable is subject to a
Deemed Collection and all required amounts with respect to such Receivable have
been deposited into a Blocked Account or the Collection Account; or
(c) the SPV
or any Originator (i) shall fail to perform or observe in any
material respect any other term, covenant or agreement contained in this
Agreement
on its part to be
performed or observed and any such failure remains unremedied for 10 days or
(ii)
shall fail to perform the covenant listed in Section 6.1(a)(iv) and such failure
remains
unremedied for 30 days after written notice thereof has been given to the
SPV or
any Originator by the Agent; or
(d) any Event
of Bankruptcy shall occur with respect to the SPV, Xxxxx, Inc., any Originator,
or any Material Subsidiary.
(e) the
Agent, on behalf of the Secured Parties, shall for any reason (other than as a
result of the actions of the Agent or any of the other Secured Parties) fail or
cease to have a valid and enforceable perfected first priority ownership or
security interest in the Affected Assets, free and clear of any Adverse Claim
(it being understood that the forgoing shall not apply to any Receivable subject
to a Deemed Collection and all required amounts with respect to which have been
deposited into a Blocked Account or the Collection Account); or
(f) a
Servicer Default shall have occurred and be continuing; or
(g) the Net
Investment (as determined after giving effect to all distributions pursuant to
this Agreement on such date) plus the
Required Reserves shall exceed the Net Pool Balance for one (1) Business Day;
or
(h) the
Delinquency Ratio is greater than 4.75%; or
(i) the
Dilution Ratio is greater than 3.50%; or
(j) the
Three-Month Default Ratio is greater than 1.50%; or
(k) the
Three-Month Delinquency Ratio is greater than 4.00%; or
(l) the
corporate family rating of Xxxxx, Inc. is below “Ba3” by Xxxxx’x or “BB-” by
S&P; or
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(m) failure
of the SPV or any Originator to pay when due any amounts due under any agreement
to which any such Person is a party and under which any Indebtedness greater
than $10,000 in the case of the SPV, or $30,000,000 (or such other amount as may
from time to time be set forth in the Senior Credit Agreement), in the case of
any Originator; or the default by the SPV or any Originator in the performance
of any term, provision or condition contained in any agreement to which any such
Person is a party and under which any Indebtedness owing by the SPV or any
Originator greater than such respective amounts was created or is governed,
regardless of whether such event is an “event of default” or “default” under any
such agreement if the effect of such default is to cause, or to permit the
holder of such Indebtedness to cause, such Indebtedness to become due and
payable prior to its stated maturity; or any Indebtedness owing by the SPV or
any Originator greater than such respective amounts shall be declared to be due
and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the date of maturity thereof; or
(n) the SPV
is not Solvent and the Originator ceases selling Receivables to the SPV under
the Sale Agreement; or
(o) there
shall be a Change of Control with respect to the SPV or the Originators or the
Servicer; or
(p) any
Person shall institute steps to terminate any Pension Plan if the assets of such
Pension Plan are insufficient to satisfy all of its benefit liabilities (as
determined under Title IV of ERISA), or a contribution failure occurs with
respect to any Pension Plan which is sufficient to give rise to a lien under
Section 302(f) of ERISA if as of the date thereof or any subsequent date, the
sum of each of Xxxxx, Inc.’s and its Subsidiaries’ various liabilities as a
result of such events listed in this clause exceeds $30,000,000 (or such other
amount as may from time to time be set forth in the Senior Credit Agreement) in
the aggregate; or
(q) any
material provision of this Agreement or any other Transaction Document to which
an Originator, the Servicer or the SPV is a party shall cease to be in full
force and effect or such Originator, the Servicer or the SPV shall so state in
writing; or
(r) there is
entered against any Originator or any Subsidiary thereof (i) one or more final
judgments or orders for the payment of money in an aggregate amount (as to all
such judgments and orders) exceeding $30,000,000 (or such other amount as may
from time to time be set forth in the Senior Credit Agreement) (to the extent
not covered by independent third-party insurance as to which the insurer is
rated at least “A” by A.M. Best Company, has been notified of the potential
claim and does not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of ten (10) consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not
in effect.
SECTION
8.2 Termination. During
the continuation of any Termination Event, the Agent may, or at the direction of
the Majority Investors shall, by notice to the SPV and the Servicer, declare the
Termination Date to have occurred; provided that in the
case of any event described in Section
8.1(d), the
Termination Date shall be deemed to have occurred automatically upon the
occurrence of such event. Upon any such declaration or automatic occurrence, the
Agent shall have, in addition to all other rights and remedies under this
Agreement or otherwise, all other rights and remedies provided under the UCC of
the applicable jurisdiction and other applicable laws, all of which rights shall
be cumulative.
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ARTICLE IX
INDEMNIFICATION; EXPENSES; RELATED
MATTERS
SECTION
9.1 Indemnities by the
SPV. Without
limiting any other rights which the Indemnified Parties may have hereunder or
under applicable Law, the SPV hereby agrees to indemnify the Investors, the
Agent, each Managing Agent, each Administrator, the Program Support Providers
and their respective officers, directors, employees, counsel and other agents
(collectively, “Indemnified
Parties”) from
and against any and all damages, losses, claims, liabilities, costs and
expenses, including reasonable attorneys’ fees (which attorneys may be employees
of the Indemnified Parties) and disbursements (all of the foregoing being
collectively referred to as “Indemnified
Amounts”)
awarded against or incurred by any of them in any action or proceeding between
the SPV or any Originator (including any Originator in its capacity as the
Servicer or any Affiliate of an Originator acting as Servicer) and any of the
Indemnified Parties or between any of the Indemnified Parties and any third
party, in each case arising out of or as a result of this Agreement, the other
Transaction Documents, the ownership or maintenance, either directly or
indirectly, by the Agent, any Managing Agent or any Investor of the Asset
Interest or any of the other transactions contemplated hereby or thereby,
excluding, however, (i) Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such Indemnified Party, as
finally determined by a court of competent jurisdiction, (ii) recourse for
uncollectible Receivables or (iii) any Taxes which are covered by Section
9.4 or any
Excluded Taxes. Without limiting the generality of the foregoing, the SPV shall
indemnify each Indemnified Party for Indemnified Amounts relating to or
resulting from:
(a) any
representation or warranty made by the SPV, any Originator (including any
Affiliate of any Originator in its capacity as the Servicer) or any officers of
the SPV, any Originator (including, in its capacity as the Servicer or any
Affiliate of an Originator acting as Servicer) under or in connection with this
Agreement, the First Tier Agreement, any of the other Transaction Documents, any
Servicer Report or any other information or report delivered by the SPV, the
Servicer or any Originator pursuant hereto, or pursuant to any of the other
Transaction Documents which shall have been incomplete, false or incorrect in
any respect when made or deemed made;
(b) the
failure by the SPV or any Originator (including, in its capacity as the Servicer
or any Affiliate of an Originator acting as Servicer) to comply with any
applicable Law with respect to any Receivable or the related Contract, or the
nonconformity of any Receivable or the related Contract with any such applicable
Law;
(c) the
failure (i) to vest and maintain vested in the Agent, on behalf of the Secured
Parties, a first priority, perfected ownership interest in the Asset Interest
free and clear of any Adverse Claim or (ii) to create or maintain a valid
and perfected first priority security interest in favor of the Agent, for the
benefit of the Secured Parties, in the Affected Assets, free and clear of any
Adverse Claim, in each case, other than as a result of actions of the Agent or
any other Secured Creditor;
(d) at the
request of the Agent, the failure by the SPV, any Originator or the Servicer to
file, or any delay in filing, financing statements, continuation statements, or
other similar instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to any of the Affected
Assets;
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(e) any
dispute, claim, offset or defense (other than discharge in bankruptcy or
uncollectibility of a Receivable from the related Obligor) of the Obligor to the
payment of any Receivable (including a defense based on such Receivable or the
related Contract not being the legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms), or any other claim
resulting from the sale of merchandise or services related to such Receivable or
the furnishing or failure to furnish such merchandise or services, or from any
breach or alleged breach of any provision of the Receivables or the related
Contracts restricting assignment of any Receivables;
(f) any
failure of the Servicer to perform its duties or obligations in accordance with
the provisions hereof;
(g) any
products liability claim or personal injury or property damage suit or other
similar or related claim or action of whatever sort arising out of or in
connection with merchandise or services which are the subject of any
Receivable;
(h) the
failure by the SPV or any of the Originators to comply with any term, provision
or covenant contained in this Agreement or any of the other Transaction
Documents to which it is a party or to perform any of its respective duties or
obligations under the Receivables or related Contracts;
(i) the Net
Investment plus the
Required Reserves exceeding the Net Pool Balance at any time (other than as a
result of the uncollectibility of any Receivable);
(j) the
failure of the SPV or any Originator to pay when due any sales, excise or
personal property taxes payable in connection with any of the
Receivables;
(k) any
repayment by any Indemnified Party of any amount previously distributed in
reduction of Net Investment which such Indemnified Party believes in good faith
is required to be made;
(l) the
commingling by the SPV, any Originator or the Servicer of Collections at any
time with any other funds;
(m) any
investigation, litigation or proceeding related to this Agreement, any of the
other Transaction Documents, the use of proceeds of Investments by the SPV or
any Originator, the ownership of the Asset Interest, or any Affected
Asset;
(n) failure
of any Blocked Account Bank to remit any amounts held in the Blocked Accounts or
any related lock-boxes pursuant to the instructions of the Servicer, the SPV,
any Originator or the Agent (to the extent such Person is entitled to give such
instructions in accordance with the terms hereof and of any applicable Blocked
Account Agreement) whether by reason of the exercise of set-off rights or
otherwise;
69
(o) any
inability to obtain any judgment in or utilize the court or other adjudication
system of, any state in which an Obligor may be located as a result of the
failure of the SPV, the Servicer or any Originator to qualify to do business or
file any notice of business activity report or any similar report;
(p) any
attempt by any Person to void, rescind or set-aside any transfer by any
Originator to the SPV of any Receivable or Related Security under statutory
provisions or common law or equitable action, including any provision of the
Bankruptcy Code or other insolvency law;
(q) any
action taken by the SPV, any Originator, or the Servicer (if the Servicer is an
Originator or any Affiliate or designee of an Originator) in the enforcement or
collection of any Receivable (unless such action is directed by the Agent or the
Investors in bad faith or with gross negligence or willful misconduct);
or
(r) the use
of the proceeds of any Investment or Reinvestment.
SECTION
9.2 Indemnities by the
Servicer. Without
limiting any other rights which the Servicer Indemnified Parties may have
hereunder or under applicable Law, the Servicer hereby agrees, to indemnify the
Indemnified Parties and their successors, transferees and assigns and all
officers, directors, shareholders, controlling persons, employees, counsel and
other agents of any of the foregoing (collectively, “Servicer Indemnified
Parties”) from
and against any and all damages, losses, claims, liabilities, costs and
expenses, including reasonable attorneys’ fees (which attorneys may be employees
of any Servicer Indemnified Party) and disbursements (all of the foregoing being
collectively referred to as “Servicer Indemnified
Amounts”)
awarded against or incurred by any of them in any action or proceeding between
the Servicer and any of the Servicer Indemnified Parties or between any of the
Servicer Indemnified Parties and any third party arising out of the following
clauses
(a) through
(i),
excluding however,
(i) Servicer
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Servicer Indemnified Party, as finally determined
by a court of competent jurisdiction, (ii) recourse
for uncollectible Receivables or (iii) any Taxes which are covered by
Section
9.4 or any
Excluded Taxes. The Servicer shall indemnify each Servicer Indemnified Party for
Servicer Indemnified Amounts relating to or resulting from:
(a) any
representation or warranty made by the Servicer or any of its officers under or
in connection with this Agreement, any of the other Transaction Documents, any
Servicer Report or any other information or report delivered by the Servicer
pursuant hereto, or pursuant to any of the other Transaction Documents which
shall have been incomplete, false or incorrect in any respect when made or
confirmed;
(b) the
failure by the Servicer to comply with any applicable Law with respect to any
Receivable or the related Contract;
(c) the
failure by the Servicer to file, or any delay in filing, financing statements,
continuation statements, or other similar instruments or documents under the UCC
of any applicable jurisdiction or other applicable laws with respect to any of
the Affected Assets, if such filings were previously requested in writing to be
filed by the Agent;
70
(d) any
failure of the Servicer to perform its duties or obligations in accordance with
the provisions hereof;
(e) the
failure by the Servicer to comply with any term, provision or covenant contained
in this Agreement or any of the other Transaction Documents to which it is a
party or to perform any of its servicing duties or obligations under the
Receivables or related Contracts;
(f) the
commingling by the Servicer of Collections at any time with any other
funds;
(g) any
inability to obtain any judgment in or utilize the court or other adjudication
system of, any state in which an Obligor may be located as a result of the
failure of the Servicer to qualify to do business or file any notice of business
activity report or any similar report;
(h) any
dispute, claim, offset or defense of an Obligor to the payment of any Receivable
resulting from or related to the collection activities of the Servicer in
respect of such Receivable (unless such action is directed by the Agent or
Investors in bad faith or with gross negligence or willful misconduct);
or
(i) any
action taken by the Servicer in the enforcement or collection of any Receivable
(unless such action is directed by the Agent or Investors in bad faith or with
gross negligence or willful misconduct).
SECTION
9.3 Indemnity for Taxes,
Reserves and Expenses. (a) If
after the Closing Date, the adoption of any Law or bank regulatory guideline or
any amendment or change in the administration, interpretation or application of
any existing or future Law or bank regulatory guideline by any Official Body
charged with the administration, interpretation or application thereof, or the
compliance with any directive of any Official Body (in the case of any bank
regulatory guideline, whether or not having the force of Law) (a “Change in
Law”):
(i) shall
subject any Indemnified Party (or its applicable lending office) to any Taxes,
duty or other charge (other than Taxes which are covered by Section
9.4 or
Excluded Taxes) with respect to this Agreement, the other Transaction Documents,
the ownership, maintenance or financing of the Asset Interest, or payments of
amounts due hereunder, or shall change the basis of taxation of payments to any
Indemnified Party of amounts payable in respect of this Agreement, the other
Transaction Documents, the ownership, maintenance or financing of the Asset
Interest, or payments of amounts due hereunder or its obligation to advance
funds hereunder, under a Program Support Agreement or the credit or liquidity
support furnished by a Program Support Provider or otherwise in respect of this
Agreement, the other Transaction Documents, the ownership, maintenance or
financing of the Asset Interest (except for Taxes which are covered by
Section
9.4, and the
imposition or changes in the rate of any Excluded Tax imposed on such
Indemnified Party);
71
(ii) shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (including any such requirement imposed by the Board of Governors of
the Federal Reserve System) against assets of, deposits with or for the account
of, or credit extended by, any Indemnified Party or shall impose on any
Indemnified Party or on the United States market for certificates of deposit or
the London interbank market any other condition affecting this Agreement, the
other Transaction Documents, the ownership, maintenance or financing of the
Asset Interest, or payments of amounts due hereunder or its obligation to
advance funds hereunder, under a Program Support Agreement or the credit or
liquidity support provided by a Program Support Provider or otherwise in respect
of this Agreement, the other Transaction Documents, or the ownership,
maintenance or financing of the Asset Interest (other than reserves already
taken into account in calculating the Eurodollar Reserve Percentage);
or
(iii) shall
impose upon any Indemnified Party any other condition or expense (including any
loss of margin, reasonable attorneys’ fees and expenses, and expenses of
litigation or preparation therefor in contesting any of the foregoing, but
excluding Taxes and Excluded Taxes) with respect to this Agreement, the other
Transaction Documents, the ownership, maintenance or financing of the Asset
Interest, or payments of amounts due hereunder or its obligation to advance
funds hereunder or under a Program Support Agreement or the credit or liquidity
support furnished by a Program Support Provider or otherwise in respect of this
Agreement, the other Transaction Documents, or the ownership, maintenance or
financing of the Asset Interests,
and the
result of any of the foregoing is to increase the cost to, or to reduce the
amount of any sum received or receivable by, such Indemnified Party with respect
to this Agreement, the other Transaction Documents, the ownership, maintenance
or financing of the Asset Interest, the Receivables, the obligations hereunder,
the funding of any Investments hereunder or under a Program Support Agreement,
by an amount deemed by such Indemnified Party to be material, then, on the
Settlement Date occurring at least ten (10) days after the demand by such
Indemnified Party through the applicable Managing Agent, the SPV shall
pay to the applicable Managing Agent, for the benefit of such Indemnified Party,
such additional amount or amounts as will compensate such Indemnified Party for
such increased cost or reduction.
(b) If any
Indemnified Party shall have determined that after the date hereof, the adoption
of any applicable Law, bank regulatory guideline regarding capital adequacy, or
generally accepted accounting standard, or any change therein, or any change in
the interpretation or administration thereof by any Official Body, or any
request or directive regarding capital adequacy (in the case of any bank
regulatory guideline, whether or not having the force of law) of any such
Official Body, or the implementation of any such change, has or would have the
effect of reducing the rate of return on capital of such Indemnified Party (or
its parent) as a consequence of such Indemnified Party’s obligations hereunder
or with respect hereto to a level below that which such Indemnified Party (or
its parent) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Indemnified Party to be material, then on
the Settlement Date occurring at least ten (10) days after demand, in the form
of a notice as set forth in clause
(c) below,
by such Indemnified Party through the Agent or the applicable Managing Agent,
the SPV shall pay to the applicable Managing Agent, for the benefit of such
Indemnified Party, such additional amount or amounts as will compensate such
Indemnified Party (or its parent) for such reduction. For the avoidance of
doubt, any interpretation of Accounting Research Bulletin No. 51 by the
Financial Accounting Standards Board (including Interpretation No. 46:
Consolidation of Variable Interest Entities (or any future statement or
interpretation issued by the Financial Accounting Standards Board or any
successor thereto)) shall constitute an adoption, change, request or directive,
and any implementation thereof shall be, subject to this Section
9.3(b).
72
(c) Each
Indemnified Party shall promptly notify the SPV in writing of any event of which
it has knowledge, occurring after the date hereof, which will entitle such
Indemnified Party to compensation pursuant to this Section
9.3;
provided that no
failure to give or any delay in giving such notice shall affect the Indemnified
Party’s right to receive such compensation. A notice by the Agent or a Managing
Agent on behalf of the applicable Indemnified Party claiming compensation under
this Section
9.3 and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, the
Agent or any applicable Indemnified Party may use any reasonable averaging and
attributing methods. Any demand for compensation under this Section
9.3 shall be
accompanied by a certificate as to the amount requested which shall set forth a
reasonably detailed calculation for such requested amount. Notwithstanding
anything in this Agreement to the contrary, the SPV shall not be obligated to
make any payment to any Indemnified Party under this Section
9.3 for any
period more than one hundred eighty (180) days prior to the date on which such
Indemnified Party gives written notice to the SPV of its intent to request such
payment under this Section
9.3.
(d) Notwithstanding
anything herein to the contrary, any indemnity payable under this Section
9.3 shall be
payable by the SPV in accordance with the priority of payments in Section
2.12.
SECTION
9.4 Taxes.
All
payments and distributions made hereunder by the SPV, the Originators or the
Servicer (each, a “payor”) to any
Investor, any Managing Agent or any other Secured Party (each, a “recipient”) shall
be made free and clear of and without deduction for any present or future
income, excise, stamp or franchise taxes and any other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority on any recipient (or any assignee of such parties) but excluding
Excluded Taxes (such non-excluded items being called “Taxes”). In
the event that any withholding or deduction from any payment made by the payor
hereunder is required in respect of any Taxes, then such payor shall:
(i) pay
directly to the relevant authority the full amount required to be so withheld or
deducted;
(ii) promptly
forward to the applicable Managing Agent an official receipt or other
documentation satisfactory to such Managing Agent evidencing such payment to
such authority; and
73
(iii) pay to
the recipient such additional amount or amounts as is necessary to ensure that
the net amount actually received by the recipient will equal the full amount
such recipient would have received had no such withholding or deduction been
required.
Moreover,
if any Taxes are directly asserted against any recipient with respect to any
payment received by such recipient hereunder, the recipient may pay such Taxes
and the payor will promptly pay, after written demand therefor by the recipient,
such additional amounts (including any penalties interest or expenses, other
than those arising from the gross negligence or willful misconduct of the Agent
or the recipient) as shall be necessary in order that the net amount received by
the recipient after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount such recipient would have received had
such Taxes not been asserted. Any demand for compensation under this
Section
9.4 shall be
accompanied by a certificate as to the amount requested which shall set forth a
reasonably detailed calculation for such requested amount. Any demand by a
recipient under this Section
9.4 shall be
made no later than 360 days after the earlier of (i) the date on which the
recipient pays such Taxes or (ii) the date on which the relevant taxing
authority makes written demand for payment of such Taxes by the recipient.
If the
payor fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit to the recipient the required receipts or other required
documentary evidence, the payor shall indemnify the recipient for any
incremental Taxes, interest, or penalties that may become payable by any
recipient as a result of any such failure.
SECTION
9.5 Status of
Investors. Any
Foreign Investor that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the SPV is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with
respect to payments hereunder or under any other Transaction Document shall
deliver to the SPV (with a copy to the Agent), at the time or times prescribed
by applicable law or reasonably requested by the payor or the Agent, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate of
withholding. In addition, any Foreign Investor, if requested by the SPV or the
Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the SPV or the Agent as will enable the SPV or the Agent
to determine whether or not such Investor is subject to backup withholding or
information reporting requirements.
Without
limiting the generality of the foregoing, in the event that the SPV is resident
for tax purposes in the United States, any Foreign Investor shall
deliver to the SPV and the Agent (in such number of copies as shall be
requested) on or prior to the date on which such Foreign Investor becomes an
Investor under this Agreement, whichever of the following is
applicable:
(i) duly
completed copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is a
party;
(ii) duly
completed copies of Internal Revenue Service Form W-8ECI;
74
(iii) in the
case of a Foreign Investor claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (x) a certificate signed
under penalties of perjury, in a form reasonably satisfactory to the payor, to
the effect that such Foreign Investor is not (A) a “bank” within the
meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the payor within the meaning of section 881(c)(3)(B) of the
Code, or (C) a “controlled foreign corporation” described in
section 881(c)(3)(C) of the Code and (y) duly completed copies of
Internal Revenue Service Form W-8BEN; or
(iv) any other
form prescribed by applicable law as a basis for claiming exemption from or a
reduction in United States Federal withholding tax duly completed together with
such supplementary documentation as may be prescribed by applicable law to
permit the payor to determine the withholding or deduction required to be
made.
In
addition, each such Foreign Investor shall deliver such forms and certificates
promptly upon the obsolescence, expiration, or invalidity of any form or
certificate previously delivered by the Foreign Investor. Each such Foreign
Investor shall promptly notify the payor and the Agent at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the payor and the Agent (or any other form of certification
adopted by the United States taxing authorities for such purpose).
Notwithstanding any other provision of this Section
9.5, a
Foreign Investor shall not be required to deliver any documentation pursuant to
this Section
9.5 that
such Foreign Investor is not legally able to deliver.
SECTION
9.6 Other Costs and Expenses;
Breakage Costs. (a) The
SPV agrees,
upon receipt of a written invoice, to pay or cause to be paid, and to hold the
Investors, the Agent, each Managing Agent and each Administrator harmless
against liability for the payment of, all reasonable and documented
out-of-pocket expenses (including Xxxxx Xxxxx LLP’s, or any other single law
firm’s, accountants’ and other third parties’ fees and expenses, any filing fees
and expenses incurred by officers or employees of any Investor, the Agent, each
Managing Agent or any Administrator) or intangible, documentary or recording
taxes incurred by or on behalf of any Investor, the Agent, any Managing Agent or
any Administrator (i) in connection with the preparation, negotiation, execution
and delivery of this Agreement, the other Transaction Documents and any
documents or instruments delivered pursuant hereto and thereto and the
transactions contemplated hereby or thereby (including the perfection or
protection of the Asset Interest) and (ii) from time to time (A) relating
to any amendments, waivers or consents under this Agreement and the other
Transaction Documents, (B) arising in connection with the Agent’s, any
Investor’s or any Managing Agent’s enforcement or preservation of rights
(including the perfection and protection of the Asset Interest under this
Agreement), or (C) arising in connection with any audit, dispute, disagreement,
litigation or preparation for litigation involving this Agreement or any of the
other Transaction Documents (all of such amounts, collectively, “Transaction
Costs”).
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(b) The SPV
shall pay the Managing Agents for the account of the Investors, as applicable,
on demand, such amount or amounts as shall compensate the Investors for any loss
(including loss of profit), cost or expense incurred by the Investors (as
reasonably determined by its Managing Agent) as a result of any reduction of any
Portion of Investment other than on the maturity date of the Commercial Paper
(or other financing source) funding such Portion of Investment, such
compensation to be (i) limited to an amount equal to any loss or expense
suffered by the Investors during the period from the date of receipt of such
repayment to (but excluding) the maturity date of such Commercial Paper (or
other financing source) and (ii) net of the income, if any, received by the
recipient of such reductions from investing the proceeds of such reductions of
such Portion of Investment. The determination by any Managing Agent of the
amount of any such loss or expense shall be set forth in a written notice to the
SPV in reasonable detail and shall be conclusive, absent manifest error.
SECTION
9.7 Mitigation
Obligations. If any
Investor requests compensation under Section
9.3, or a
payor is required to pay any additional amount to any Investor (or any Official
Body for the account of any Investor) pursuant to Section 9.4, then
such Investor shall use reasonable efforts to designate a different Funding
Office for funding or booking its Investment hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Investor, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 9.3 or
9.4, as the
case may be, in the future, and (ii) in each case, would not subject such
Investor to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Investor. The SPV hereby agrees to pay all reasonable
costs and expenses incurred by any Investor in connection with any such
designation or assignment. Notwithstanding anything in this Section
9.7 to the
contrary, under no condition will any U.S. Investor in the Bank of America
Investor Group be required to designate a different Funding Office or make any
assignment pursuant to this Section
9.7 if its
Funding Office is in Charlotte, North Carolina or New York, New
York.
ARTICLE X
THE AGENT
SECTION
10.1 Appointment and
Authorization of Agent. Each
Secured Party hereby irrevocably appoints, designates and authorizes the Agent
and its applicable Managing Agent to take such action on its behalf under the
provisions of this Agreement and each other Transaction Document and to exercise
such powers and perform such duties as are expressly delegated to such Agent or
Managing Agent, as applicable, by the terms of this Agreement and any other
Transaction Document, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Transaction Document, no Agent or
Managing Agent shall have any duties or responsibilities except those expressly
set forth in this Agreement, nor shall the Agent or any Managing Agent have or
be deemed to have any fiduciary relationship with any Investor or other Secured
Party, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Transaction Document or otherwise exist against any Agent or Managing Agent.
Without limiting the generality of the foregoing sentence, the use of the term
“agent” in this Agreement with reference to any Agent or Managing Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting
parties.
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SECTION
10.2 Delegation of
Duties. The
Agent and each Managing Agent may execute any of its duties under this Agreement
or any other Transaction Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither the Agent nor any Managing Agent
shall be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
SECTION
10.3 Liability of Agents and
Managing Agents. No
Agent-Related Person shall (a) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Transaction Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct), or (b) be responsible in any manner to
any Secured Party for any recital, statement, representation or warranty made by
the SPV, any Originator or the Servicer, or any officer thereof, contained in
this Agreement or in any other Transaction Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agent or such Managing Agent under or in connection with, this Agreement
or any other Transaction Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Transaction
Document, or for any failure of the SPV, any Originator, the Servicer or any
other party to any Transaction Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Secured
Party to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other
Transaction Document, or to inspect the properties, books or records of the SPV,
any Originator, the Servicer or any of their respective Affiliates.
SECTION
10.4 Reliance by
Agent. (a) The
Agent and each Managing Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel to the SPV, any Originator and the Servicer), independent accountants
and other experts selected by the Agent or such Managing Agent. The Agent and
each Managing Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Transaction Document unless it shall
first receive such advice or concurrence of the Managing Agents or the Investors
in its Investor Group, as applicable, as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Investors
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent and each Managing
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Transaction Document in accordance
with a request or consent of the Managing Agents or the Investors in its
Investor Group, as applicable, or, if required hereunder, all Investors and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all of the Investors.
(b) For
purposes of determining compliance with the conditions specified in Article V on the
Closing Date, each Investor that has executed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Agent or the Managing Agent to such Investor
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such
Investor.
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SECTION
10.5 Notice of Termination Event,
Potential Termination Event or Servicer Default. Neither
the Agent nor any Managing Agent shall be deemed to have knowledge or notice of
the occurrence of a Potential Termination Event, a Termination Event or a
Servicer Default, unless it has received written notice from an Investor or the
SPV referring to this Agreement, describing such Potential Termination Event,
Termination Event or Servicer Default and stating that such notice is a “Notice
of Termination Event or Potential Termination Event” or “Notice of Servicer
Default,” as applicable. Each Managing Agent will notify the Investors in its
Investor Group of its receipt of any such notice. The Agent and each Managing
Agent shall (subject to Section
10.4) take
such action with respect to such Potential Termination Event, Termination Event
or Servicer Default as may be requested by the Managing Agents (or its Investors
in its Investor Group), provided that, unless
and until the Agent shall have received any such request, the Agent (or Managing
Agent) may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Potential Termination Event,
Termination Event or Servicer Default as it shall deem advisable or in the best
interest of the Secured Parties or Investors, as applicable.
SECTION
10.6 Credit Decision; Disclosure
of Information by the Agent. Each
Secured Party acknowledges that none of the Agent-Related Persons has made any
representation or warranty to it, and that no act by the Agent or any Managing
Agent hereinafter taken, including any consent to and acceptance of any
assignment or review of the affairs of the SPV, the Servicer, the Originators or
any of their respective Affiliates, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Secured Party as
to any matter, including whether the Agent-Related Persons have disclosed
material information in their possession. Each Secured Party, including any
Investor by assignment, represents to the Agent and its Managing Agent that it
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the SPV, the
Servicer, each Originator or their respective Affiliates, and all applicable
bank regulatory laws relating to the transactions contemplated hereby, and made
its own decision to enter into this Agreement and to extend credit to the SPV
hereunder. Each Secured Party also represents that it shall, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Transaction Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the SPV, the Servicer or the Originators. Except for
notices, reports and other documents expressly herein required to be furnished
to the Security Parties by the Agent or any Managing Agent herein, neither the
Agent nor any Managing Agent shall have any duty or responsibility to provide
any Secured Party with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the SPV, the Servicer, any Originator or their respective
Affiliates which may come into the possession of any of the Agent-Related
Persons.
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SECTION
10.7 Indemnification of the
Agent. Whether
or not the transactions contemplated hereby are consummated, the Committed
Investors (or the Committed Investors in the applicable Investor Group) shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed by
or on behalf of the SPV and without limiting the obligation of the SPV to do
so), pro rata, and
hold harmless each Agent-Related Person from and against any and all Indemnified
Amounts incurred by it; provided that no
Committed Investor shall be liable for the payment to any Agent-Related Person
of any portion of such Indemnified Amounts resulting from such Person’s gross
negligence or willful misconduct, as finally determined by a court of competent
jurisdiction; provided that no
action taken by Agent (or any Managing Agent) in accordance with the directions
of the Managing Agents (or the Investors in its Investor Group) shall be deemed
to constitute gross negligence or willful misconduct for purposes of this
Section. Without limitation of the foregoing, each Investor shall reimburse its
Managing Agent and the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including attorney’s fees) incurred in connection with
the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Transaction Document, or any document contemplated by or referred to
herein, to the extent that the Agent or such Managing Agent is not reimbursed
for such expenses by or on behalf of the SPV. The undertaking in this Section
shall survive payment on the Final Payout Date and the resignation or
replacement of the Agent or such Managing Agent.
SECTION
10.8 Agent in Individual
Capacity. The
Agent and each Managing Agent (and any successor thereto in such capacity) and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
any of the SPV, the Originators, the Servicer, or any of their Subsidiaries or
Affiliates as though it were not the Agent, a Managing Agent or an Investor
hereunder, as applicable, and without notice to or consent of the Secured
Parties. The Secured Parties acknowledge that, pursuant to such activities, any
such Person or its Affiliates may receive information regarding the SPV, the
Originators, the Servicer or their respective Affiliates (including information
that may be subject to confidentiality obligations in favor of such Person) and
acknowledge that the Agent shall be under no obligation to provide such
information to them. With respect to its Commitment, the Agent and each Managing
Agent (and any successor thereto in such capacity) in its capacity as a
Committed Investor hereunder shall have the same rights and powers under this
Agreement as any other Committed Investor and may exercise the same as though it
were not the Agent, a Managing Agent or a Committed Investor, as applicable, and
the term “Committed Investor” or “Committed Investors” shall, unless the context
otherwise indicates, include the Agent and each Managing Agent in its individual
capacity.
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SECTION
10.9 Resignation of
Agents. The
Agent or any Managing Agent may resign upon thirty (30) days’ notice to the
applicable Investors. If the Agent resigns under this Agreement, the Majority
Investors shall (with the consent of the SPV prior to a Termination Event)
appoint from among the Committed Investors a successor agent for the Secured
Parties. If no successor agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting with the
Investors and, prior to a Termination Event, the SPV, a successor agent from
among the Committed Investors. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term “Agent” shall mean such
successor agent and the retiring Agent’s appointment, powers and duties as Agent
shall be terminated. After any retiring Agent’s resignation hereunder as Agent,
the provisions of this Section
10.9 and
Sections
10.3 and
10.7 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was the Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is thirty (30) days following a retiring
Agent’s notice of resignation, the retiring Agent’s resignation shall
nevertheless thereupon become effective and the Committed Investors shall
perform all of the duties of the Agent hereunder until such time, if any, as the
Majority Investors appoint a successor agent as provided for above. If a
Managing Agent resigns under this Agreement, the Investors in such Investor
Group shall appoint a successor agent.
SECTION
10.10 Payments by the
Agent. Unless
specifically allocated to a Committed Investor pursuant to the terms of this
Agreement, all amounts received by the Agent or a Managing Agent on behalf of
the Investors shall be paid to the applicable Managing Agent or Investors
pro rata in
accordance with amounts then due on the Business Day received, unless such
amounts are received after 12:00 noon on such Business Day, in which case the
applicable agent shall use its reasonable efforts to pay such amounts on such
Business Day, but, in any event, shall pay such amounts not later than the
following Business Day.
ARTICLE XI
MISCELLANEOUS
SECTION
11.1 Term of
Agreement. This
Agreement shall terminate on the Final Payout Date; provided that
(i) the rights and remedies of the Agent, the Managing Agents, the
Investors, the Administrators and the other Secured Parties with respect to any
representation and warranty made or deemed to be made by the SPV, the
Originators or the Servicer pursuant to this Agreement, (ii) the indemnification
and payment provisions of Article
IX, (iii)
the provisions of Section 10.7 and (iv)
the agreements set forth in Sections
11.11 and
11.12, shall
be continuing and shall survive any termination of this Agreement.
SECTION
11.2 Waivers;
Amendments. (a) No
failure or delay on the part of the Agent, any Managing Agent, the Investors,
any Administrator or any Committed Investor in exercising any power, right or
remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any other
further exercise thereof or the exercise of any other power, right or remedy.
The rights and remedies herein provided shall be cumulative and nonexclusive of
any rights or remedies provided by law.
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(b) Any
provision of this Agreement or any other Transaction Document may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the SPV, the Originators, the Servicer (but only with respect to the provisions
applicable to it), the Agent and the Majority Investors; provided that no
such amendment or waiver shall, unless signed by each Committed Investor
directly affected thereby, (i) increase the Commitment of such Committed
Investor, (ii) reduce the Net Investment or rate of Yield to accrue thereon or
any fees or other amounts payable hereunder, (iii) postpone any date fixed for
the payment of any scheduled distribution in respect of the Net Investment or
Yield with respect thereto or any fees or other amounts payable hereunder or for
termination of any Commitment, (iv) change the percentage of the
Commitments of Committed Investors which shall be required for the Committed
Investors or any of them to take any action under this Section or any other
provision of this Agreement, (v) release all or substantially all of the
property with respect to which a security or ownership interest therein has been
granted hereunder to the Agent or the Committed Investors or (vi) extend or
permit the extension of the Commitment Termination Date (it being understood
that a waiver of a Termination Event shall not constitute an extension or
increase in the Commitment of any Committed Investor); and provided further that the
signature of the SPV and the Originators shall not be required for the
effectiveness of any amendment which modifies the representations, warranties,
covenants or responsibilities of the Servicer at any time when the Servicer is
not an Originator or any Affiliate of an Originator or a successor Servicer is
designated pursuant to Section
7.1.
SECTION
11.3 Notices; Payment
Information. Except
as provided below, all communications and notices provided for hereunder shall
be in writing (including facsimile or electronic transmission or similar
writing) and shall be given to the other party at its address or facsimile
number set forth in Schedule
11.3 or at
such other address or facsimile number as such party may hereafter specify for
the purposes of notice to such party. Each such notice or other communication
shall be effective (i) if given by facsimile, when such facsimile is transmitted
to the facsimile number specified in this Section
11.3 and
confirmation is received, (ii) if given by mail, three (3) Business
Days following such posting, if postage prepaid, and if sent via U.S. certified
or registered mail, (iii) if given by overnight courier, one (1) Business
Day after deposit thereof with a national overnight courier service, or (iv) if
given by any other means, when received at the address specified in this
Section 11.3,
provided that an
Investment Request shall only be effective upon receipt by the Managing Agents.
However, anything in this Section
11.3 to the
contrary notwithstanding, the SPV hereby authorizes the Agent and the Managing
Agents to make investments in Eligible Investments and to make Investments based
on telephonic notices made by any Person which the Agent or the Managing Agents
in good faith believe to be acting on behalf of the SPV. The SPV agrees to
deliver promptly to the Agent or the Managing Agents a written confirmation of
each telephonic notice signed by an authorized officer of SPV. However, the
absence of such confirmation shall not affect the validity of such notice. If
the written confirmation differs in any material respect from the action taken
by the Agent or the Investors, the records of the Agent or the Managing Agents
shall govern.
SECTION
11.4 Governing Law; Submission to
Jurisdiction; Appointment of Service Agent.
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(a) THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF OTHER THAN SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF
THE SPV, THE ORIGINATORS, THE SERVICER, THE AGENT AND THE INVESTORS HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE
CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. EACH OF THE SPV, THE SERVICER, THE ORIGINATORS,
THE AGENT AND THE INVESTORS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING IN THIS SECTION
11.4 SHALL
AFFECT THE RIGHT OF THE SECURED PARTIES TO BRING ANY ACTION OR PROCEEDING
AGAINST ANY OF THE SPV, THE ORIGINATOR OR THE SERVICER OR ANY OF THEIR
RESPECTIVE PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.
(b) EACH OF
THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
ANY OF THEM ARISING OUT OF, CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE
RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR THE OTHER
TRANSACTION DOCUMENTS.
SECTION
11.5 Integration. This
Agreement contains the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire Agreement among the parties hereto with respect to the
subject matter hereof superseding all prior oral or written
understandings.
SECTION
11.6 Severability of
Provisions. If any
one or more of the provisions of this Agreement shall for any reason whatsoever
be held invalid, then such provisions shall be deemed severable from the
remaining provisions of this Agreement and shall in no way affect the validity
or enforceability of such other provisions.
SECTION
11.7 Counterparts; Facsimile
Delivery. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same Agreement. Delivery by facsimile of an executed signature page of this
Agreement shall be effective as delivery of an executed counterpart
hereof.
SECTION
11.8 Successors and Assigns;
Binding Effect. (a)
This Agreement shall be binding on the parties hereto and their respective
successors and assigns; provided that none of
the SPV, the Servicer or the Originators may assign any of its rights or
delegate any of its duties hereunder or under the First Tier Agreement or under
any of the other Transaction Documents to which it is a party without the prior
written consent of each Managing Agent. Except as provided in clause
(b) below,
no provision of this Agreement shall in any manner restrict the ability of any
Investor to assign, participate, grant security interests in, or otherwise
transfer any portion of the Asset Interest.
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(b) Any
Committed Investor may assign all or any portion of its Commitment and its
interest in the Net Investment, the Asset Interest and its other rights and
obligations hereunder to any Person with the written approval of the applicable
Administrator, on behalf of its Conduit Investor, and the applicable Managing
Agent and, if no Termination Event is continuing, with the consent of the SPV
(such consent not to be unreasonably withheld). In connection with any such
assignment, the assignor shall deliver to the assignee(s) an Assignment and
Assumption Agreement, duly executed, assigning to such assignee a pro rata interest
in such assignor’s Commitment and other obligations hereunder and in the Net
Investment, the Asset Interest and other rights hereunder, and such assignor
shall promptly execute and deliver all further instruments and documents, and
take all further action, that the assignee may reasonably request, in order to
protect, or more fully evidence, the assignee’s right, title and interest in and
to such interest and to enable the Agent, on behalf of such assignee, to
exercise or enforce any rights hereunder and under the other Transaction
Documents to which such assignor is or, immediately prior to such assignment,
was a party. Upon any such assignment, (i) the assignee shall have all of the
rights and obligations of the assignor hereunder and under the other Transaction
Documents to which such assignor is or, immediately prior to such assignment,
was a party with respect to such assignor’s Commitment and interest in the Net
Investment and the Asset Interest for all purposes of this Agreement and under
the other Transaction Documents to which such assignor is or, immediately prior
to such assignment, was a party (provided that no assignee (including an
assignee that is already an Investor hereunder at the time of the assignment)
shall be entitled to receive any greater amount pursuant to Section
9.4 than
that to which the assignor would have been entitled had no such assignment
occurred) and (ii) the assignor shall have no further obligations with respect
to the portion of its Commitment which has been assigned and shall relinquish
its rights with respect to the portion of its interest in the Net Investment and
the Asset Interest which has been assigned for all purposes of this Agreement
and under the other Transaction Documents to which such assignor is or,
immediately prior to such assignment, was a party. No such assignment shall be
effective unless a fully executed copy of the related Assignment and Assumption
Agreement shall be delivered to the Agent and the SPV. In addition, if the
assignee is not already an Investor, such assignee shall deliver to the Agent,
the SPV and the Servicer, all applicable tax documentation (whether pursuant to
Section
9.5 or
otherwise) requested by the Agent, the SPV or the Servicer. All costs and
expenses of the Agent incurred in connection with any assignment hereunder shall
be borne by the assignee. No Committed Investor shall assign any portion of its
Commitment hereunder without also simultaneously assigning an equal portion of
its interest in the Program Support Agreement to which it is a party or under
which it has acquired a participation.
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(c) By
executing and delivering an Assignment and Assumption Agreement, the assignor
and assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such Assignment and
Assumption Agreement, the assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, the other
Transaction Documents or any other instrument or document furnished pursuant
hereto or thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value or this Agreement, the other Transaction
Documents or any such other instrument or document; (ii) the assignor makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the SPV, any Originator or the Servicer or the
performance or observance by the SPV, any Originator or the Servicer of any of
their respective obligations under this Agreement, the First Tier Agreement, the
other Transaction Documents or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, the First Tier Agreement, each other Transaction Document and
such other instruments, documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such Assignment and
Assumption Agreement and to purchase such interest; (iv) such assignee will,
independently and without reliance upon the Agent, any Managing Agent, any
Investor or any of their Affiliates, or the assignor and based on such
agreements, documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Transaction Documents; (v) such assignee appoints
and authorizes the Agent and its Managing Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement, the other
Transaction Documents and any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Agent or its Managing Agent, as
applicable, by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto and to enforce its respective rights and interests
in and under this Agreement, the other Transaction Documents and the Affected
Assets; (vi) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement and the other
Transaction Documents are required to be performed by it as the assignee of the
assignor; and (vii) such assignee agrees that it will not institute against any
Conduit Investor any proceeding of the type referred to in Section
11.11 prior to
the date which is one (1) year and one (1) day after the payment in full of all
Commercial Paper of such Conduit Investor.
(d) Without
limiting the foregoing, a Conduit Investor may, from time to time, with prior or
concurrent notice to the SPV and the Servicer, in one transaction or a series of
transactions, assign all or a portion of the Net Investment and its rights and
obligations under this Agreement and any other Transaction Documents to which it
is a party to a Conduit Assignee. Upon and to the extent of such assignment by a
Conduit Investor to a Conduit Assignee, (i) such Conduit Assignee shall be the
owner of the assigned portion of the Net Investment, (ii) the related
Administrator for such Conduit Assignee will act as the Administrator for such
Conduit Assignee, with all corresponding rights and powers, express or implied,
granted to the Administrator hereunder or under the other Transaction Documents,
(iii) such Conduit Assignee (and any related commercial paper issuer, if such
Conduit Assignee does not itself issue commercial paper) and their respective
liquidity support provider(s) and credit support provider(s) and other related
parties shall have the benefit of all the rights and protections provided to the
Conduit Investor and its Program Support Provider(s) herein and in the other
Transaction Documents (including any limitation on recourse against such Conduit
Assignee or related parties, any agreement not to file or join in the filing of
a petition to commence an insolvency proceeding against such Conduit Assignee,
and the right to assign to another Conduit Assignee as provided in this
paragraph), (iv) such Conduit Assignee shall assume all (or the assigned or
assumed portion) of the Conduit Investor’s obligations, if any, hereunder or any
other Transaction Document, and the Conduit Investor shall be released from such
obligations, in each case to the extent of such assignment, and the obligations
of the Conduit Investor and such Conduit Assignee shall be several and not
joint, (v) all distributions in respect of the Net Investment shall be made to
the applicable Managing Agent or the related Administrator, as applicable, on
behalf of the Conduit Investor and such Conduit Assignee on a pro rata basis
according to their respective interests, (vi) the definition of the term “CP
Rate” with respect to the portion of the Net Investment funded with commercial
paper issued by the Conduit Investor from time to time shall be determined in
the manner set forth in the definition of “CP Rate” applicable to the Conduit
Investor on the basis of the interest rate or discount applicable to commercial
paper issued by such Conduit Assignee (or the related commercial paper issuer,
if such Conduit Assignee does not itself issue commercial paper) rather than the
Conduit Investor, (vii) the defined terms and other terms and provisions of this
Agreement and the other Transaction Documents shall be interpreted in accordance
with the foregoing, (viii) the Conduit Assignee, if it shall not be an Investor
already, shall deliver to the Agent, the SPV and the Servicer, all applicable
tax documentation reasonably requested by the Agent, the SPV or the Servicer and
(ix) if requested by the related Managing Agent or the related Administrator
with respect to the Conduit Assignee, the parties will execute and deliver such
further agreements and documents and take such other actions as the related
Managing Agent or such Administrator may reasonably request to evidence and give
effect to the foregoing. No assignment by a Conduit Investor to a Conduit
Assignee of all or any portion of the Net Investment shall in any way diminish
the related Committed Investors’ obligations under Section
2.3 to fund
any Investment not funded by the related Conduit Investor or such Conduit
Assignee or to acquire from the Conduit Investor or such Conduit Assignee all or
any portion of the Net Investment pursuant to Section
3.1.
84
(e) In the
event that a Conduit Investor makes an assignment to a Conduit Assignee in
accordance with clause
(d) above,
the Related Committed Investors: (i) if requested by the related Administrator,
shall terminate their participation in the applicable Program Support Agreement
to the extent of such assignment, (ii) if requested by the related
Administrator, shall execute (either directly or through a participation
agreement, as determined by such Administrator) the program support agreement
related to such Conduit Assignee, to the extent of such assignment, the terms of
which shall be substantially similar to those of the participation or other
agreement entered into by such Committed Investor with respect to the applicable
Program Support Agreement (or which shall be otherwise reasonably satisfactory
to the Administrator and the Related Committed Investors), (iii) if requested by
the related Conduit Investor, shall enter into such agreements as requested by
such Conduit Investor pursuant to which they shall be obligated to provide
funding to the Conduit Assignee on substantially the same terms and conditions
as is provided for in this Agreement in respect of such Conduit Investor (or
which agreements shall be otherwise reasonably satisfactory to such Conduit
Investor and the Committed Investors), and (iv) shall take such actions as
the Agent shall reasonably request in connection therewith.
(f) Each of
the SPV, the Servicer and the Originators hereby agrees and consents to the
assignment by any Conduit Investor from time to time pursuant to this
Section
11.8 of all
or any part of its rights under, interest in and title to this Agreement and the
Asset Interest to any Program Support Provider.
(g) The Agent
shall, on behalf of the SPV, maintain at its address referred to in Section
11.3 a copy
of each Assignment and Assumption Agreement delivered to it and a register (the
“Register”) on or
in which it will record the names and addresses of the Investors and assignees,
and the Commitments of, and interest in the Net Investment of each Investor and
assignee from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the SPV, the Agent, and the Secured Parties
shall treat each person whose name is recorded in the Register as the owner of
the interest in the Net Investment recorded therein for all purposes of this
Agreement. Any assignment of any Commitment and interest in the Net Investment
and Asset Interest shall be effective only upon appropriate entries with respect
thereto being made in the Register. The Agent will make the Register available
to the SPV and any Investor (with respect to any entry relating to such
Investor) at any reasonable time and from time to time upon reasonable prior
notice.
85
SECTION
11.9 Waiver of
Confidentiality. Each of
the SPV, the Servicer and the Originators hereby consents to the disclosure of
any non-public information with respect to it received by the Agent, any
Managing Agent, any Investor or any Administrator to any other Investor or
potential Investor, any Managing Agent, any nationally recognized statistical
rating organization rating a Conduit Investor’s Commercial Paper, any dealer or
placement agent of or depositary for the Conduit Investor’s Commercial Paper,
any Administrator, any Program Support Provider, any credit/financing provider
to any Conduit Investor or any of such Person’s counsel or accountants in
relation to this Agreement or any other Transaction Document if they agree to
hold it confidential pursuant to a written agreement of confidentiality in form
and substance reasonably satisfactory to the SPV. Subject to the forgoing, the
Agent, the Managing Agents, the Investors, the Program Support Providers and the
Administrators hereby agree to maintain the confidentiality of any non-public
information.
SECTION
11.10 Confidentiality
Agreement. Each of
the SPV, the Servicer and the Originators hereby agrees that it will not
disclose the contents of this Agreement or any other Transaction Document or any
other proprietary or confidential information of or with respect to any
Investor, the Agent, any Managing Agent, any Administrator or any Program
Support Provider to any other Person except (a) its auditors and attorneys,
employees or financial advisors (other than any commercial bank) and any
nationally recognized statistical rating organization, provided such
auditors, attorneys, employees, financial advisors or rating agencies are
informed of the highly confidential nature of such information and agree to use
such information solely in connection with their evaluation of, or relationship
with, the SPV, the Servicer, the and its affiliates, (b) as otherwise required
by applicable law or order of a court of competent jurisdiction or (c) as
disclosed in any public filing.
SECTION
11.11 No Bankruptcy Petition
Against the Conduit Investor. Each of
the SPV, the Servicer and the Originators hereby covenants and agrees that,
prior to the date which is one (1) year and one (1) day after the payment in
full of all outstanding Commercial Paper or other rated indebtedness of any
Conduit Investor (or its related commercial paper issuer), it will not institute
against, or join any other Person in instituting against, such Conduit Investor
any proceeding of a type referred to in the definition of Event of
Bankruptcy.
SECTION
11.12 No
Recourse.
(a) Notwithstanding
anything to the contrary contained in this Agreement, the obligations of any
Conduit Investor under this Agreement and all other Transaction Documents are
solely the corporate obligations of such Conduit Investor and shall be payable
solely to the extent of funds received from the SPV in accordance herewith or
from any party to any Transaction Document in accordance with the terms thereof
are in excess of funds necessary to pay its matured and maturing Commercial
Paper.
86
(b) Any
amounts which such Conduit Investors does not pay pursuant to the operation of
the preceding sentence shall not constitute a claim (as defined in §101 of the
Bankruptcy Code) against or corporate obligation of such Conduit Investors for
any such insufficiency unless and until such Conduit Investors satisfies the
provisions above.
(c) This
Section
11.12 shall
survive termination of this Agreement.
SECTION
11.13 No Proceedings; Limitations
on Payments.
(a) Each of
the parties hereto, by entering into this Agreement, hereby covenants and agrees
that it will not at any time institute against the SPV, or join in any
institution against the SPV of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or State bankruptcy or similar law in connection with any of the
SPV’s obligations under this Agreement or other Transaction
Documents.
(b) Notwithstanding
any provisions contained in this Agreement to the contrary, the parties hereto
acknowledge and agree that (i) all amounts payable by the SPV hereunder and
under the other Transaction Documents shall be paid in accordance with the
priorities set forth in Section
2.12 and (ii)
the SPV shall only be required to pay amounts payable by the SPV hereunder and
under the other Transaction Documents from funds of the SPV other than the
proceeds of the Affected Assets to the extent it has such funds. Any amounts
which the SPV does not pay pursuant to the operation of clause
(ii) of the
preceding sentence shall not constitute a claim (as defined in §101 of the
Bankruptcy Code) against or corporate obligation of the SPV for any such
insufficiency unless and until the SPV satisfies the provisions of clause
(ii)
above.
(c) This
Section
11.13 shall
survive termination of this Agreement.
[SIGNATURES
FOLLOW]
87
In Witness Whereof, the
parties hereto have executed and delivered this Agreement as of the date first
written above.
XXXXX RECEIVABLES FUNDING
LLC
|
||
By:
|
/s/ Xxxx X. Xxxxxx | |
Name:
|
Xxxx X. Xxxxxx | |
Title:
|
Vice President Treasurer |
XXXXX PACKAGING
LLC,
|
||
Individually,
as an Originator and as the Servicer
|
||
By:
|
/s/ Xxxxxx X. Xxxx | |
Name:
|
Xxxxxx X. Xxxx | |
Title:
|
Executive Vice President |
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BLANK]
S-1
XX XXXX
TRUST,
|
||
as
a Conduit Investor and an Uncommitted Investor
|
||
By: Bank
of America, National Association,
|
||
as
Administrative Trustee
|
||
By:
|
/s/ Xxxxxx Xxxxxxxx | |
Name:
|
Xxxxxx Xxxxxxxx | |
Title:
|
Vice President |
[REMAINDER OF PAGE INTENTIONALLY LEFT
BLANK]
S-2
Commitment:
|
BANK OF AMERICA, NATIONAL
|
|
$137,700,000
|
ASSOCIATION,
|
|
as
Agent, as a Managing Agent, Administrator and
|
||
Committed
Investor for the Bank of America
|
||
Investor
Group
|
||
By:
|
/s/ Xxxxxx Xxxxxxxx | |
Name:
|
Xxxxxx Xxxxxxxx | |
Title:
|
Vice President |
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BLANK]
S-3
SCHEDULE
4.1(d)
PERFECTION REPRESENTATIONS,
WARRANTIES AND COVENANTS
In
addition to the representations, warranties and covenants contained in this
Agreement, the SPV hereby represents, warrants, and covenants as
follows:
General
1. The
Transfer and Administration Agreement creates a valid and continuing security
interest (as defined in UCC Section 9-102) in the Affected Assets in favor of
the Agent (for the benefit of the Secured Parties), which security interest is
prior to all other Adverse Claims, and is enforceable as such as against
creditors of and purchasers from the SPV.
2. The
Eligible Receivables constitute “accounts” within the meaning of UCC Section
9-102. The rights of the SPV under the First Tier Agreement constitute “general
intangibles” within the meaning of UCC Section 9-102.
3. The SPV
has taken all steps necessary to perfect its security interest against the
Obligor in the Related Security (if any) securing the Eligible
Receivables.
4. The
Collection Account constitutes a securities account.
Creation
5. Immediately
prior to (or concurrent with) the transfer and assignment herein contemplated,
the SPV had good title to each Eligible Receivable and its rights under the
First Tier Agreement, and was the sole owner thereof, free and clear of all
Adverse Claims and, upon the transfer thereof, the Agent shall have good title
to each such Receivable, and will (i) be the sole owner thereof, free and clear
of all Liens, or (ii) have a first priority security interest in such Eligible
Receivables, and the transfer or security interest will be perfected under the
UCC. Immediately prior to the sale, assignment, and transfer thereof, each
Eligible Receivable was secured by a valid and enforceable perfected security
interest in the related Related Security (if any) in favor of the SPV as secured
party, and such security interest is prior to all other Adverse Claims in such
Related Security. The SPV has not taken any action to convey any right to any
Person that would result in such Person having a right to payments due under the
Receivables (other than with respect to servicing of Receivables by the Servicer
or Sub-Servicer as permitted by this Agreement).
Perfection
6. At the
request of the Agent, the SPV has caused or will have caused, within ten days
after the effective date of the Transfer and Administration Agreement, the
filing of all appropriate financing statements in the proper filing office in
the appropriate jurisdictions under applicable law in order to perfect the sale
of, or security interest in, the Receivables and the rights of the SPV under the
First Tier Agreement from SPV to the Agent.
Schedule
4.1(d)- 1
7. With
respect to the Collection Account either: (i) the SPV has delivered to the Agent
a fully executed agreement pursuant to which the securities intermediary has
agreed to comply with all instructions originated by the Agent relating to each
of the Collection Account without further consent by the SPV; or (ii) the SPV
has taken all steps necessary to cause the securities intermediary to identify
in its records the Agent as the person having a security entitlement against the
securities intermediary in each of the Collection Account.
Priority
8. Other
than the transfer of the Receivables under the First Tier Agreement and to the
Agent under the Transfer and Administration Agreement, none of the Originators
nor the SPV has pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Receivables or the other Affected Assets. None of
the Originators nor the SPV has authorized the filing of, or is aware of, any
financing statements against the SPV that include a description of collateral
covering the Receivables or the other Affected Assets other than any financing
statement relating to the transfers under the First Tier Agreement and to the
Agent under the Transfer and Administration Agreement or that has been
terminated.
9. None of
the Originators nor the SPV has any knowledge of any judgment, ERISA or tax lien
filings against it which would reasonably be expected to have a Material Adverse
Effect.
10. The
Collection Account is not in the name of any person other than the Agent. The
SPV has not consented to the securities intermediary of the Collection Account
to comply with entitlement orders of any person other than the
Agent.
11. Notwithstanding
any other provision of this Agreement or any other Transaction Document, the
Perfection Representations contained in this Schedule shall be continuing, and
remain in full force and effect until such time as all obligations under this
Agreement have been finally and fully paid and performed.
12. The
parties to the Transfer and Administration Agreement: (i) shall not, without
obtaining a confirmation of the then-current rating of the applicable Commercial
Paper, waive any of the Perfection Representations; and (ii) shall provide
S&P with prompt written notice of any breach of the Perfection
Representations, and shall not, without obtaining a confirmation of the
then-current rating of the applicable Commercial Paper (as determined after any
adjustment or withdrawal of the ratings following notice of such breach) waive a
breach of any of the Perfection Representations.
13. In order
to evidence the interests of the Agent under the Transfer and Administration
Agreement, the Servicer shall, from time to time, take such action, or execute
and deliver such instruments (other than filing financing statements) as may be
necessary (including such actions as are requested in writing by any Managing
Agent) to maintain the Agent’s ownership interest and to maintain and to
perfect, as a first-priority interest, the Agent’s security interest in the
Receivables and the other Affected Assets. At the request of the Agent, the
Servicer shall, from time to time and within the time limits established by law,
prepare and present to the Agent for the Agent’s authorization and approval all
financing statements, amendments, continuations or other filings necessary to
continue, maintain and perfect as a first-priority interest the Agent’s interest
in the Receivables and other Affected Assets. The Agent’s approval of such
filings shall authorize the Servicer to file such financing statements under the
UCC. Notwithstanding anything else in the Transaction Documents to the contrary,
the Servicer shall not have any authority to file a termination, partial
termination, release, partial release, or any amendment that deletes the name of
a debtor or excludes collateral of any such financing statements, without the
prior written consent of each Managing Agent.
Schedule
4.1(d)- 2