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Receivables Purchase Agreement dated as of June 29, 2022 by and among the Various Entities listed on Schedule I hereto, as Originators, Exact Sciences Laboratories, LLC, as the initial Servicer, and Exact Sciences Corporation, as Buyer

EXHIBIT 10.3


dated as of June 29, 2022
by and among
the Various Entities listed on Schedule I hereto,
as Originators,
Exact Sciences Laboratories, LLC,
as the initial Servicer,
and
as Buyer


Table of Contents
Page

ARTICLE I    AGREEMENT TO PURCHASE AND SELL
2
SECTION 1.1    Agreement To Purchase and Sell
2
SECTION 1.2    Timing of Purchases
3
SECTION 1.3    Consideration for Purchases
3
SECTION 1.4    Purchase and Sale Termination Date
3
SECTION 1.5    Intention of the Parties
3
ARTICLE II    PURCHASE REPORT; CALCULATION OF PURCHASE PRICE
3
SECTION 2.1    Purchase Report
3
SECTION 2.2    Calculation of Purchase Price
4
ARTICLE III    PAYMENT OF PURCHASE PRICE
6
SECTION 3.1    Initial Purchase Price Payment
6
SECTION 3.2    Subsequent Purchase Price Payments
6
SECTION 3.3    Settlement as to Specific Receivables and Dilution
6
SECTION 3.4    Reconveyance of Receivables
7
ARTICLE IV    CONDITIONS OF PURCHASES; ADDITIONAL ORIGINATORS
7
SECTION 4.1    Conditions Precedent to Initial Purchase
7
SECTION 4.2    Certification as to Representations and Warranties
8
SECTION 4.3    Additional Originators
8
ARTICLE V    REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
9
ARTICLE VI    COVENANTS OF THE ORIGINATORS
15
ARTICLE VII    ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF RECEIVABLES
23
SECTION 7.1    Rights of the Buyer and the Borrower
23
SECTION 7.2    Responsibilities of the Originators
23
SECTION 7.3    Further Action Evidencing Purchases
23
SECTION 7.4    Application of Collections
24
ARTICLE VIII    PURCHASE AND SALE TERMINATION EVENTS
24
SECTION 8.1    Purchase and Sale Termination Events
24
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Table of Contents
Page

SECTION 8.2    Remedies
24
ARTICLE IX    INDEMNIFICATION
25
SECTION 9.1    Indemnities by the Originators
25
ARTICLE X    MISCELLANEOUS
27
SECTION 10.1    Amendments, etc
27
SECTION 10.2    Notices, etc
27
SECTION 10.3    No Waiver; Cumulative Remedies
27
SECTION 10.4    Binding Effect; Assignability
28
SECTION 10.5    Governing Law
28
SECTION 10.6    Costs, Expenses and Taxes
28
SECTION 10.7    SUBMISSION TO JURISDICTION
29
SECTION 10.8    WAIVER OF JURY TRIAL
29
SECTION 10.9    Captions and Cross References; Incorporation by Reference
29
SECTION 10.10    Execution in Counterparts
29
SECTION 10.11    Acknowledgment and Agreement
30
SECTION 10.12    No Proceeding
30
SECTION 10.13    Limited Recourse
30
SECTION 10.14    Severability
30

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SCHEDULES
Schedule I    Jurisdiction of Organization of the Originators
Schedule II    Location of Books and Records of the Originators
Schedule III    Trade Names

EXHIBITS
Exhibit A    Form of Purchase Report
Exhibit B     Form of Joinder Agreement
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This Receivables Purchase Agreement (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of June 29, 2022, is entered into by and among the Various Entities Listed on Schedule I hereto (the “Originators,” and individually, each an “Originator”), Exact Sciences Laboratories, LLC, a Delaware limited liability company (“Exact Sciences”) as the initial Servicer, and Exact Sciences Corporation, a Delaware corporation (the “Buyer”).
BACKGROUND:
1.The Originators generate Receivables in the ordinary course of their business;
2.The Originators wish to sell such Receivables to the Buyer, and the Buyer is willing to purchase such Receivables from the Originators, on the terms and subject to the conditions set forth herein;
3.The Originators and the Buyer intend each transaction under this Agreement to be a true sale of Receivables by the Originators to the Buyer, providing the Buyer with the full benefits of ownership of such Receivables, and the Originators and the Buyer do not intend the transactions hereunder to be a loan from the Buyer to the Originators;
4.On or about the date hereof, the Buyer is entering into a receivables purchase agreement (the “Subsequent Purchase Agreement”) with Exact Receivables LLC (the “Borrower”), whereby the Buyer will sell all Receivables purchased from the Originators and their Related Rights to the Borrower, and the Borrower will purchase such Receivables and their Related Rights from the Buyer, on the terms and subject to the conditions set forth therein; and
5.The parties hereto understand and acknowledge that on or about the date of its entry into the Subsequent Purchase Agreement, the Borrower will grant a security interest in all Receivables purchased from the Buyer and their Related Rights to the Administrative Agent (for the ratable benefit of the Secured Parties according to their Capital as increased or reduced from time to time) pursuant to the Receivables Financing Agreement (as defined below).
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
DEFINITIONS
Unless otherwise indicated herein, capitalized terms used and not otherwise defined in this Agreement are defined in Section 1.01 of the Receivables Financing Agreement, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Receivables Financing Agreement”), among the Borrower, as borrower, Exact Sciences, as the initial Servicer (in such capacity, the “Servicer”), the Persons from time to time party thereto as Lenders and as Group Agents, PNC Bank, National Association, as administrative agent (the “Administrative Agent”), and PNC Capital Markets LLC, as Structuring Agent. The usage of terms and provisions set forth in Section 1.01 of the Receivables Financing Agreement shall apply hereto as though set forth herein in their entirety. All references herein to months are to calendar months unless otherwise expressly indicated. All accounting terms not specifically defined herein shall be construed in accordance with GAAP.


ARTICLE I
AGREEMENT TO PURCHASE AND SELL
SECTION 1.1Agreement To Purchase and Sell. On the terms and subject to the conditions set forth in this Agreement, each Originator agrees to sell to the Buyer, and the Buyer agrees to purchase, from time to time on or after the initial Credit Extension under the Receivables Financing Agreement (the “Initial Funding Date”), but before the Purchase and Sale Termination Date (as defined in Section 1.4), all of such Originator’s right, title and interest in and to:
(a)each Receivable of such Originator that existed and was owing to such Originator at the closing of such Originator’s business on the Cut-Off Date, as defined below;
(b)each Receivable generated by such Originator after the Cut-Off Date to, but excluding, the Purchase and Sale Termination Date;
(c)all of such Originator’s interest in any goods (including returned goods), and documentation of title evidencing the shipment or storage of any goods (including returned goods), the sale of which gave rise to such Receivable;
(d)all instruments and chattel paper that may evidence such Receivable;
(e)all other security interests or liens and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all UCC financing statements or similar filings relating thereto;
(f)all of each Originator’s rights, interests and claims under the related Contracts and all supporting obligations, guaranties, indemnities, letters of credit (including any letter of credit rights), insurance and other agreements (including the related Contract) or arrangements of whatever character from time to time supporting or securing payment of such Receivable or otherwise relating to such Receivable, whether pursuant to the Contract related to such Receivable or otherwise;
(g)all books and records of each Originator to the extent related to any of the foregoing, and all rights, remedies, powers, privileges, title and interest (but not obligations) in and to each Lock-Box and all Collection Accounts, into which any Collections or other proceeds with respect to such Receivables may be deposited, and any related investment property acquired with any such Collections or other proceeds (as such term is defined in the applicable UCC); and
(h)    all Collections and other proceeds (as defined in the UCC) of any of the foregoing.
All purchases hereunder shall be made without recourse, but shall be made pursuant to, and in reliance upon, the representations, warranties and covenants of such Originator set forth in this Agreement and each other Transaction Document. No obligation or liability to any Obligor on any Receivable is intended to be assumed by the Buyer hereunder, and any such assumption is expressly disclaimed. The property and the proceeds and rights described in clauses (c) through (h) are referred to herein, collectively, as the “Related Rights,” and the Buyer’s foregoing commitment to purchase Receivables and Related Rights is herein called the “Purchase Facility.”
As used herein, “Cut-Off Date” means (a) with respect to each Originator party hereto on the date hereof, June 29, 2022, and (b) with respect to any Originator that first becomes a party hereto after the date hereof, the Business Day immediately prior to the date on which such
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Originator becomes a party hereto or such other date as the Buyer and such Originator agree to in writing.
SECTION 1.2Timing of Purchases.
(a)    Initial Funding Date Purchases. Each Originator’s entire right, title and interest in (i) each Receivable that existed and was owing to such Originator at the Cut-Off Date, (ii) all Receivables created by such Originator after the Cut-Off Date through and including the Initial Funding Date, and (iii) all Related Rights with respect thereto shall automatically be deemed to have been sold by such Originator to the Buyer on the Initial Funding Date.
(b)    Subsequent Purchases. After the Initial Funding Date, until the Purchase and Sale Termination Date, each Receivable and the Related Rights generated by each Originator shall be deemed to have been sold by each such Originator to the Buyer immediately (and without further action) upon the creation of such Receivable.
SECTION 1.3Consideration for Purchases. On the terms and subject to the conditions set forth in this Agreement, the Buyer agrees to make Purchase Price payments to the Originators in accordance with Article III.
SECTION 1.4Purchase and Sale Termination Date. The “Purchase and Sale Termination Date” shall be the earlier to occur of (a) the date the Purchase Facility is terminated pursuant to Section 8.2 and (b) the Final Payout Date.
SECTION 1.5Intention of the Parties. It is the express intent of each Originator and the Buyer that each conveyance by such Originator to the Buyer pursuant to this Agreement of any Receivables and Related Rights, including, without limitation, all Receivables, if any, constituting “general intangibles” (as defined in the UCC), and all Related Rights be construed as a valid and perfected sale and absolute assignment (without recourse except as provided herein) of such Receivables and Related Rights by such Originator to the Buyer (rather than the grant of a security interest to secure a debt or other obligation of such Originator) and that the right, title and interest in and to such Receivables and Related Rights conveyed to the Buyer be prior to the rights of and enforceable against all other Persons at any time, including, without limitation, lien creditors, secured lenders, purchasers and any Person claiming through such Originator. However, if, contrary to the mutual intent of the parties, any conveyance of Receivables, including, without limitation, any Receivables constituting general intangibles, as defined in the UCC, and all Related Rights, is not construed to be both a valid and perfected sale and absolute assignment of such Receivables and Related Rights, and a conveyance of such Receivables and Related Rights that is prior to the rights of and enforceable against all other Persons at any time, including, without limitation, lien creditors, secured lenders, purchasers and any Person claiming through such Originator, then, it is the intent of such Originator and the Buyer that (i) this Agreement also shall be deemed to be, and hereby is, a security agreement within the meaning of the UCC; and (ii) such Originator shall be deemed to have granted to the Buyer as of the date of this Agreement, and such Originator hereby grants to the Buyer, a security interest in, to and under, all of such Originator’s right, title and interest in and to the Receivables and the Related Rights transferred or purported to be transferred hereunder, whether now existing or hereafter created by such Originator, which security interest shall secure the obligations of such Originator under this Agreement.
ARTICLE II
PURCHASE REPORT; CALCULATION OF PURCHASE PRICE
SECTION 2.1Purchase Report. On the Initial Funding Date and on each date when an Information Package or Interim Report is due to be delivered under the Receivables
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Financing Agreement (each such date, a “Purchase Report Date”), the Servicer shall deliver to the Borrower, the Buyer and each Originator a report in substantially the form of Exhibit A (each such report being herein called a “Purchase Report”) setting forth, among other things:
(a)the Purchase Price of all Receivables purchased by the Buyer from each Originator and correspondingly by the Borrower from the Buyer as of the Cut-Off Date (in the case of the Purchase Report to be delivered on the Initial Funding Date);
(b)the Purchase Price of all Receivables purchased by the Buyer from each Originator and correspondingly by the Borrower from the Buyer during the calendar month, week or day, as applicable, immediately preceding such Purchase Report Date (in the case of each subsequent Purchase Report); and
(c)the calculations of reductions of the Purchase Price for any Receivables as provided in Sections 3.3(a) and (b).
SECTION 2.2Calculation of Purchase Price. The “Purchase Price” to be paid to each Originator on any Payment Date in accordance with the terms of Article III for each Receivable that is purchased hereunder from such Originator shall be (i) determined in accordance with the following formula and (ii) subject to the reductions as provided in Sections 3.3(a) and (b):
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PP=OB x FMVD
where:
PP=The Purchase Price for each Receivable as calculated on the relevant Payment Date (or, for the Initial Funding Date, on the Cut-Off Date).
OB=The Outstanding Balance of such Receivable on the relevant Payment Date (or, for the Initial Funding Date, on the Cut-Off Date).
FMVD=
Fair Market Value Discount, as measured on such Payment Date, which is equal to a percentage calculated to provide the Buyer with a reasonable return on its investment in such Receivable after taking account of (i) the time value of money based upon the anticipated dates of collection of such Receivable and the cost to the Buyer of financing its investment in such Receivable during such period and (ii) the risk of nonpayment by the applicable Obligor. Each Originator and the Buyer may agree from time to time to change the Fair Market Value Discount based on changes in one or more of the items affecting the calculation thereof; provided that any change to the Fair Market Value Discount shall take effect as of the first day of a calendar month, shall apply only prospectively and shall not affect the Purchase Price payment in respect of Receivables which came into existence during any calendar month ending prior to the calendar month during which an Originator and the Buyer agree to make such change.
“Payment Date” means (i) the Initial Funding Date and (ii) each Business Day thereafter that the Originators are open for business.
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ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION 3.1Initial Purchase Price Payment. On the terms and subject to the conditions set forth in this Agreement, the Buyer agrees to pay to each Originator the Purchase Price for the purchase of Receivables and Related Rights to be made from such Originator on the Initial Funding Date in either cash or an intercompany credit for such Originator in the books and records of such Originator and the Buyer, at the election of the Buyer (in an amount to be agreed between the Buyer and such Originator and set forth in the initial Purchase Report).
SECTION 3.2Subsequent Purchase Price Payments. On each Payment Date subsequent to the Initial Funding Date, on the terms and subject to the conditions set forth in this Agreement, the Buyer shall be deemed to have paid to each Originator the Purchase Price for the Receivables and the Related Rights generated by such Originator on such Payment Date in either cash or an intercompany credit for such Originator in the books and records of such Originator and the Buyer, at the election of the Buyer (in an amount to be agreed between the Buyer and such Originator and set forth in each subsequent Purchase Report); provided, that such cash payment or intercompany credit may be made by the Buyer on the subsequent Settlement Date after each such Payment Date.
SECTION 3.3Settlement as to Specific Receivables and Dilution.
(a)    If, (i) on the day of purchase of any Receivable from an Originator hereunder, any of the representations or warranties set forth in Sections 5.8, 5.11, 5.13, 5.14, 5.20, 5.22, 5.23 and 5.24 are not true with respect to such Receivable, or (ii) as a result of any action or inaction (other than solely as a result of the failure to collect or delay in collecting any portion of such Receivable due to the filing of or a discharge in a bankruptcy or similar insolvency proceeding, financial inability or other credit related reasons with respect to the relevant Obligor) of an Originator, on any subsequent day, any of such representations or warranties set forth in Sections 5.8, 5.11, 5.13, 5.14, 5.20, 5.22, 5.23 and 5.24 is no longer true with respect to such Receivable, then the Purchase Price with respect to such Receivable shall be reduced by an amount equal to the Outstanding Balance of such Receivable and shall be accounted to such Originator as provided in clause (c) below; provided, that if the Buyer thereafter receives payment on account of Collections due with respect to such Receivable, the Buyer promptly shall deliver or credit such funds to such Originator.
(b)    If, on any day, the Outstanding Balance of any Receivable purchased hereunder is reduced or adjusted as a result of any defective, rejected, returned, repossessed or foreclosed goods or services, or any revision, cancellation, allowance, rebate, credit memo, discount or other adjustment made by the Buyer, any Originator, the Servicer, or any Affiliate of the Servicer, or any setoff, counterclaim or dispute between or among the Buyer or any Affiliate of the Buyer, an Originator or any Affiliate of an Originator, or the Servicer or any Affiliate of the Servicer, and an Obligor (other than, in each case in this clause (b), solely as a result of the failure to collect or delay in collecting any portion of such Receivable due to the filing of or a discharge in a bankruptcy or similar insolvency proceeding, financial inability or other credit related reasons with respect to the relevant Obligor), then the Purchase Price with respect to such Receivable shall be reduced by the amount of such net reduction or adjustment and shall be accounted to such Originator as provided in clause (c) below.
(c)    Subject to clause (d) below, any reduction in the Purchase Price of any Receivable pursuant to clause (a) or (b) above shall be applied as a credit for the account of the Buyer against the Purchase Price of Receivables subsequently purchased by the Buyer from such Originator hereunder; provided, however if as of any Settlement Date there have been insufficiently large purchases of Receivables from any Originator to create a Purchase Price
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sufficient to so apply such aggregate credits against, then on such Settlement Date the aggregate amount of such excess credits shall be paid in either cash to the Buyer by such Originator or an intercompany credit for the Buyer in the books and records of such Originator and the Buyer, at the election of the Buyer.
(d) At any time (i) at and following the request of the Buyer (either with respect to any specific payment or all such payments) or (ii) when an Event of Default or an Unmatured Event of Default exists under the Receivables Financing Agreement, (iii) when the Aggregate Capital exceeds the Borrowing Base at such time under the Receivables Financing Agreement or (iv) on or after the Purchase and Sale Termination Date or the Termination Date, the amount of any such credit described in clause (c) shall be paid by such Originator to the Buyer by deposit in immediately available funds into a Collection Account for application by the Servicer to the same extent as if Collections of the applicable Receivable in such amount had actually been received on such date.
SECTION 3.4Reconveyance of Receivables. In the event that an Originator has paid to the Buyer the full Outstanding Balance of any Receivable pursuant to Section 3.3, the Buyer shall use its best efforts to repurchase such Receivable from the Borrower and reconvey such Receivable to such Originator, without representation or warranty, but free and clear of all liens, security interests, charges, and encumbrances created by the Buyer or the Borrower.
ARTICLE IV
CONDITIONS OF PURCHASES; ADDITIONAL ORIGINATORS
SECTION 4.1Conditions Precedent to the Closing Date. The Closing Date hereunder is subject to the condition precedent that the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee) shall have received, on or before the Closing Date, the following, each (unless otherwise indicated) dated as of the Closing Date, and each in form and substance reasonably satisfactory to the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee):
(a)A copy of the resolutions or written consent of the board of directors or managers or other equivalent governing body of each Originator approving this Agreement and the other Transaction Documents to be executed and delivered by it and the transactions contemplated thereby, certified by the Secretary or Assistant Secretary (or equivalent) of such Originator;
(b)Good standing certificates, or an equivalent certificate, for each Originator issued as of a recent date reasonably acceptable to the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee) by the Secretary of State, or other equivalent authority, of the jurisdiction of such Originator’s organization;
(c)A certificate of the Secretary or Assistant Secretary (or equivalent) of each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee) may conclusively rely until such time as the Servicer, the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee) shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(d)The certificate or articles of incorporation, certificate of formation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State, or other equivalent authority, of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws, limited
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liability company agreement, or equivalent governing document of such Originator (including all amendments and modifications thereto), each duly certified by the Secretary or an Assistant Secretary (or equivalent) of such Originator;
(e)The forms of financing statements (Form UCC-1) that name each Originator as the debtor/seller and the Buyer as the buyer/assignee of the Receivables sold by such Originator as may be necessary or, in the Buyer’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership interest in all Receivables and Related Rights (including, without limitation, Related Security) in which an ownership or security interest has been assigned to the Buyer hereunder;
(f)Written lien search results listing all effective financing statements that name the Originators as debtors or sellers and that are filed in each Originator’s jurisdiction of organization, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, on or prior to the Initial Funding Date), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search results showing no evidence of such liens filed against any Originator;
(g)Favorable opinions of counsel to the Originators, in form and substance reasonably satisfactory to the Buyer, the Borrower, the Administrative Agent (as the Borrower’s assignee), and each Group Agent;
(h)[Reserved]; and
(i)Evidence of (i) the execution and delivery by each Originator and the Buyer of this Agreement and each of the other Transaction Documents to be executed and delivered in connection herewith; and (ii) that each of the conditions precedent to the execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Buyer’s, the Borrower’s and the Administrative Agent’s (as the Borrower’s assignee) satisfaction.
SECTION 4.2Certification as to Representations and Warranties. Each Originator, by accepting the Purchase Price related to each purchase of Receivables generated by such Originator, shall be deemed to have certified that the representations and warranties of such Originator contained in Article V, as from time to time amended in accordance with the terms hereof, are true and correct in all material respects (unless such representation or warranty contains a materiality qualification and, in such case, such representation or warranty shall be true and correct as made) on and as of the date of such purchase, with the same effect as though made on and as of such date (except for representations and warranties which apply to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (unless such representation or warranty contains a materiality qualification and, in such case, such representation or warranty shall be true and correct as made) as of such earlier date).
SECTION 4.3Additional Originators. (a) Additional Persons may be added as Originators hereunder, with the prior written consent of the Buyer, the Borrower, the Administrative Agent and each Group Agent (which consents may be granted or withheld in their sole discretion); provided that the following conditions are satisfied or waived in writing by the Buyer, the Borrower, the Administrative Agent and each Group Agent on or before the date of such addition:
(i)    the Servicer shall have given the Buyer, the Borrower, the Administrative Agent and each Group Agent at least thirty (30) days’ prior written notice of such proposed addition and the identity of the proposed additional Originator and shall have
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provided such other information with respect to such proposed additional Originator as the Buyer, the Borrower, the Administrative Agent or any Group Agent may reasonably request;
(ii)    such proposed additional Originator shall have executed and delivered to the Buyer, the Borrower, the Administrative Agent, each Group Agent and the Servicer an agreement substantially in the form attached hereto as Exhibit B (a “Joinder Agreement”);
(iii)    [reserved];
(iv)    such proposed additional Originator shall have delivered to the Buyer, the Borrower, and the Administrative Agent (as the Borrower’s assignee) each of the documents with respect to such Originator described in Section 4.1, in each case in form and substance reasonably satisfactory to the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee);
(v)    no Purchase and Sale Termination Event shall have occurred and be continuing; and
(vi)    no Event of Default shall have occurred and be continuing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
In order to induce the Buyer to enter into this Agreement and to make purchases hereunder, each Originator hereby makes with respect to itself the representations and warranties set forth in this Article V.
SECTION 5.1Existence and Power. Each Originator is a corporation, limited liability company or limited partnership, as applicable. Each Originator is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation, (ii) and has full power and authority under its organizational documents and under the laws of the jurisdiction of its organization or formation to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted and (iii) is duly qualified to do business, is in good standing as a foreign entity (if applicable), and has obtained all necessary licenses and approvals in all jurisdictions (if any) in which the conduct of its business requires such qualification, licenses or approvals, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.2Power and Authority; Due Authorization. Each Originator (i) has all necessary limited liability company or corporate, as applicable, power and authority to (A) execute and deliver this Agreement and the other Transaction Documents to which it is a party, (B) perform its obligations under this Agreement and the other Transaction Documents to which it is a party and (C) sell or grant a security interest in the Receivables and the Related Rights to the Buyer on the terms and subject to the conditions herein provided, and (ii) has duly authorized by all necessary limited liability company or corporate, as applicable, action such sale or grant and the execution, delivery and performance of, and the consummation of the transactions provided for in, this Agreement and the other Transaction Documents to which it is a party.
SECTION 5.3Binding Obligations. This Agreement and each of the other Transaction Documents to which each Originator is a party constitutes the legal, valid and binding obligations of each such Originator, enforceable against each such Originator in
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accordance with their respective terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) as such enforceability may be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
SECTION 5.4No Violation. The execution, delivery and performance of, and the consummation of the transactions contemplated by, this Agreement and the other Transaction Documents to which each Originator is a party, and the fulfillment of the terms hereof and thereof, will not (i) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under its organizational documents or any indenture, sale agreement, credit agreement, loan agreement, security agreement, mortgage, deed of trust, or other material agreement or instrument to which such Originator is a party or by which it or any of its properties is bound, (ii) result in the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such indenture, credit agreement, loan agreement, security agreement, mortgage, deed of trust, or other agreement or instrument other than this Agreement and the other Transaction Documents or (iii) conflict with or violate any Applicable Law, except in each case to the extent that any such conflict, breach, default, Adverse Claim or violation could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.5Litigation and Other Proceedings. (i) There is no action, suit, proceeding or investigation pending, or to such Originator’s knowledge threatened, against such Originator before any Governmental Authority and (ii) such Originator is not subject to any order, judgment, decree, injunction, stipulation or consent order of or with any Governmental Authority that, in the case of either of the foregoing clauses (i) and (ii), (A) asserts the invalidity of this Agreement or any other Transaction Document, (B) seeks to prevent the grant of a security interest in any Receivables or Related Rights transferred by such Originator to the Buyer, the ownership or acquisition by the Buyer of any Receivables or Related Rights or the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document, (C) seeks any determination or ruling that could materially and adversely affect the performance by each Originator of its obligations under, or the validity or enforceability of, this Agreement or any other Transaction Document or (D) individually or in the aggregate for all such actions, suits, proceedings and investigations could reasonably be expected to have a Material Adverse Effect. All material pending litigation against such Originator is disclosed in the public filings of the Buyer with the Securities Exchange Commission.
SECTION 5.6Governmental Approvals. Except where the failure to obtain or make such authorization, consent, order, approval or action could not reasonably be expected to have a Material Adverse Effect, all authorizations, consents, orders and approvals of, or other actions by, any Governmental Authority that are required to be obtained by each Originator in connection with the sale or grant of a security interest in the Receivables or Related Rights to the Buyer hereunder or the due execution, delivery and performance by each Originator of this Agreement or any other Transaction Document to which it is a party and the consummation by each Originator of the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party have been obtained or made and are in full force and effect.
SECTION 5.7Margin Regulations. No Originator is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meanings of Regulations T, U and X of the Board of Governors of the Federal Reserve System).
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SECTION 5.8Valid Sale. Each sale of Receivables and the Related Rights made by each Originator pursuant to this Agreement shall constitute a valid sale, transfer and assignment of Receivables and Related Rights to the Buyer, enforceable against creditors of, and purchasers from, each such Originator, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) as such enforceability may be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
SECTION 5.9Names and Location. Except as described in Schedule III, each Originator has not used any company or corporate names, trade names or assumed names since the date occurring five calendar years prior to the Closing Date other than its name set forth on the signature pages hereto. Each Originator is “located” (as such term is defined in the applicable UCC) in the jurisdiction specified in Schedule I and since the date occurring five calendar years prior to the Closing Date, has not been “located” (as such term is defined in the applicable UCC) in any other jurisdiction (except as specified in Schedule I). The office(s) where each Originator keeps its records concerning the Receivables is at the address(es) set forth on Schedule II.
SECTION 5.10No Material Adverse Effect. Since December 31, 2021, there has been no Material Adverse Effect with respect to such Originator.
SECTION 5.11Accuracy of Information. All certificates, reports, financial statements, documents and other information furnished to the Buyer, the Borrower, the Administrative Agent or any other Credit Party in writing by or on behalf of each Originator pursuant to any provision of this Agreement or any other Transaction Document, or in connection with or pursuant to any amendment or modification of, or waiver under, this Agreement or any other Transaction Document, is, at the time the same are so furnished, complete and correct in all material respects on the date the same are furnished to the Buyer, the Borrower, the Administrative Agent or such other Credit Party, and does not contain any untrue statement of a material fact or omit to state a material fact or any fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; provided, that, with respect to projected business plans, forecasts and other projected financial information, each Originator represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, such Originator’s reasonable estimate of its plans, forecasts or projections, as applicable, based on the information available at the time (it being acknowledged that actual results may vary, and such variations may be material).
SECTION 5.12Compliance with Law. Each Originator has complied in all material respects with all Applicable Laws to which it may be subject.
SECTION 5.13Eligible Receivables. Each Receivable sold, transferred or assigned hereunder is an Eligible Receivable on the date of such sale, transfer or assignment, unless otherwise specified in the first Information Package or Interim Report that includes such Receivable.
SECTION 5.14Credit and Collection Policy. Each Originator has complied in all material respects with the Credit and Collection Policy with regard to each Receivable sold by it hereunder and the related Contracts.
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SECTION 5.15Investment Company Act. No Originator is an “investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act.
SECTION 5.16Anti-Money Laundering/International Trade Law Compliance.
(a) Sanctions and other Anti-Terrorism Laws. No: (x) Covered Entity, nor any employees, officers, directors, affiliates, consultants, brokers, or agents acting on a Covered Entity’s behalf in connection with this Agreement: (i) is a Sanctioned Person; (ii) directly, or indirectly to the Covered Entity's knowledge, through any third party, is engaged in any transactions or other dealings with or for the benefit of any Sanctioned Person or Sanctioned Jurisdiction, or any transactions or other dealings that otherwise are prohibited by any Anti-Terrorism Laws; (y) Receivables nor Related Rights are Embargoed Property.
(b) Anti-Corruption Laws. Each Covered Entity has (i) conducted its business in compliance with all Anti-Corruption Laws and (ii) has instituted and maintains policies and procedures reasonably designed to promote compliance with such Laws.
SECTION 5.17Financial Condition.
(a)The audited consolidated balance sheets of the Buyer and its consolidated Subsidiaries as of December 31, 2021, and the related audited statements of income and shareholders’ equity of the Buyer and its consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent and the Group Agents, present fairly in all material respects the consolidated financial position of the Buyer and its consolidated Subsidiaries for the period ended on such date, all in accordance with GAAP.
(b)On the date hereof, and on the date of each purchase hereunder (both before and after giving effect to such purchase), each Originator is, and will be on such date, Solvent and no Insolvency Proceeding with respect to such Originator is, or will be on such date, pending.
SECTION 5.18Taxes. Each Originator has (i) timely filed or caused to be filed all tax returns (federal, state and local) required to be filed by it and (ii) paid, or caused to be paid, all taxes, assessments and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, if any, other than (a) taxes, assessments and other governmental charges being contested in good faith by appropriate proceedings, (b) as to which adequate reserves have been provided in accordance with GAAP or (c) to the extent that failure to do so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.19Bulk Sales Act. No transaction contemplated by this Agreement requires compliance by it with any bulk sales act or similar law.
SECTION 5.20No Fraudulent Conveyance. No sale or transfer hereunder constitutes a fraudulent transfer or conveyance under any United States federal or applicable state bankruptcy or insolvency laws or is otherwise void or voidable under such laws or similar laws or principles or for any other reason.
SECTION 5.21Ordinary Course of Business. If notwithstanding the intention of the parties hereto, the transactions are characterized as loans and not sales, each of the Originators represents and warrants as to itself that each remittance of Collections by or on behalf of such Originator to the Buyer under this Agreement will have been (i) in payment of a debt incurred by such Originator in the ordinary course of business or financial affairs of such
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Originator and (ii) made in the ordinary course of business or financial affairs of such Originator.
SECTION 5.22Good Title Perfection.
(a)Immediately preceding its sale of each Receivable hereunder, the applicable Originator was the owner of such Receivable sold or purported to be sold, free and clear of any Adverse Claims, and each such sale hereunder constitutes a valid sale, transfer and assignment of all of such Originator’s right, title and interest in, to and under the Receivables sold by it, free and clear of any Adverse Claims.
(b)On or before the Closing Date and before the generation by such Originator of any new Receivable to be sold or otherwise conveyed hereunder, all financing statements and other documents, if any, required to be recorded or filed in order to perfect and protect the Buyer’s ownership interest in Receivables to be sold or otherwise conveyed hereunder against all creditors of and purchasers from such Originator will have been duly filed in each filing office necessary for such purpose, and all filing fees and taxes, if any, payable in connection with such filings shall have been paid in full.
(c)Upon the creation of each new Receivable sold or otherwise conveyed or purported to be conveyed hereunder and on the Initial Funding Date for then existing Receivables, the Buyer shall have a valid and perfected first priority ownership or security interest in each Receivable sold to it hereunder, free and clear of any Adverse Claim.
SECTION 5.23Perfection Representations.
(a)    This Agreement creates a valid and continuing ownership or security interest (as defined in the applicable UCC) in each Originator’s right, title and interest in, to and under the Receivables and Related Rights transferred hereunder which (A) ownership or security interest has been perfected and is enforceable against creditors of and purchasers from each Originator and (B) will be free of all Adverse Claims in such Receivables and Related Rights.
(b)    The Receivables transferred hereunder constitute “accounts” or “general intangibles” within the meaning of Section 9-102 of the UCC.
(c)    Prior to the sale of, or grant of security interest in, the Receivables and Related Rights transferred hereunder, each Originator owned and had good and marketable title to such Receivables and Related Rights free and clear of any Adverse Claim of any Person.
(d)    All appropriate financing statements, financing statement amendments and continuation statements have been filed in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect (and continue the perfection of) the sale of and/or grant of a security interest in the Receivables and Related Rights from each Originator to the Buyer pursuant to this Agreement.
(e)    Other than the ownership or security interest granted to the Buyer pursuant to this Agreement, no Originator has pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Receivables or Related Rights transferred hereunder except as permitted by this Agreement and the other Transaction Documents. Each such Originator has not authorized the filing of and is not aware of any financing statements filed against such Originator that include a description of collateral covering the Receivables or Related Rights transferred hereunder other than any financing statement (i) in favor of the Administrative Agent, (ii) that has been terminated or amended to reflect the release of any security interest in such Receivables and Related Rights or (iii) which, in respect of any Receivables or Related Rights
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covered under such financing statement or other lien filing, such Receivables or Related Rights have been or will be, upon the sale of such Receivables or Related Rights pursuant to this Agreement or the Transaction Documents, released under the governing documents establishing the lien or security interest described by such financing statement or other lien filing. No Originator is aware of any judgment lien, ERISA lien or tax lien filings against such Originator.
(f)    Notwithstanding any other provision of this Agreement or any other Transaction Document, the representations contained in this Section 5.23 shall be continuing and remain in full force and effect until the Final Payout Date.
SECTION 5.24Enforceability of Contracts. Each Contract related to any Receivable sold by an Originator hereunder is effective to create, and has created, a legal, valid and binding obligation of the related Obligor to pay the outstanding balance of such Receivable, enforceable against the Obligor in accordance with its terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) as such enforceability may be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, without being subject to any defense, deduction, offset or counterclaim and such Originator has fully performed its obligations under such Contract.
SECTION 5.25Opinions. The facts regarding such Originator, the Receivables sold by it hereunder, the Related Rights and the related matters set forth or assumed in each of the opinions of counsel delivered in connection with this Agreement and the Transaction Documents are true and correct in all material respects.
SECTION 5.26Other Transaction Documents. Each representation and warranty made by each Originator under each other Transaction Document to which it is a party is true and correct in all material respects (or if already qualified by materiality or Material Adverse Effect, in all respects) as of the date when made.
SECTION 5.27Reaffirmation of Representations and Warranties by each Originator. On each day that a new Receivable is sold to the Buyer hereunder, such Originator shall be deemed to have certified that all representations and warranties of such Originator hereunder are true and correct in all material respects (or if already qualified by materiality or Material Adverse Effect, in all respects) on and as of such day as though made on and as of such day, except for representations and warranties which apply as to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or if already qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date).
SECTION 5.28Healthcare Matters. Except where the failure to comply with any applicable Health Care Law could not reasonably be expected to have a Material Adverse Effect, the Buyer and each of its Subsidiaries is, and at all times since the date hereof has been, in compliance with all Health Care Laws applicable to it, its assets, business or operations. No circumstance exists or event has occurred with respect to a violation of any Health Care Law that could reasonably be expected to have a Material Adverse Effect. Neither the Buyer nor any Subsidiary thereof has received any notice of communication from any Governmental Authority alleging noncompliance with any applicable Health Care Law that could reasonably be expected to have a Material Adverse Effect. For the avoidance of doubt, no notice or any information provided by any Governmental Authority pursuant to this clause shall need to be provided to the Administrative Agent or any of the Lenders if such action would be prohibited by Applicable Law.
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SECTION 5.29ERISA.
(i)    None of the following events or conditions has occurred: (a) a Reportable Event; (b) the adoption of an amendment to a Pension Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code; (c) the existence with respect to any Multiemployer Plan of an “accumulated funding deficiency” (as defined in Section 431 of the Code or Section 304 of ERISA), whether or not waived; (d) the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA with respect to any Pension Plan (e) the incurrence of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or the withdrawal or partial withdrawal of such Originator or any of its ERISA Affiliates from any Multiemployer Plan; (f) the receipt by such Originator or any of its ERISA Affiliates from the PBGC or any plan administrator of any notice relating to the intention to terminate any Pension Plan or Multiemployer Plan or to appoint a trustee to administer any Pension Plan or Multiemployer Plan; (g) the receipt by such Originator or any of its ERISA Affiliates of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA; (h) the occurrence of a nonexempt prohibited transaction with respect to such Originator or its ERISA Affiliates (pursuant to Section 4975 of the Code); or (i) the occurrence or existence of any other similar event or condition with respect to a Pension Plan or a Multiemployer Plan, with respect to each of clause (a) through (h), either individually or in the aggregate, that could reasonably be expected to result in a Material Adverse Effect.
(ii)    Each of such Originator and its ERISA Affiliates is in compliance (i) with all applicable provisions of law and all applicable regulations and published interpretations thereunder with respect to any defined benefit plan (within the meaning of Section 3(35) of ERISA) governed by the laws of a jurisdiction other than the United States and (ii) with the terms of any such plan, except, in each case, for such noncompliance that would not reasonably be expected to have a Material Adverse Effect.
ARTICLE VI
COVENANTS OF THE ORIGINATORS
SECTION 6.1Covenants of the Originators.
At all times from the Closing Date until the Final Payout Date, each Originator will, unless the Administrative Agent, the Majority Group Agents, the Buyer and the Borrower shall otherwise consent in writing, perform the following covenants:
(a)Existence. Each Originator will preserve and maintain its legal existence, rights, franchises, qualifications and privileges except where the failure to preserve and maintain such existence, rights, franchises, qualifications and privileges could not reasonably be expected to result in a Material Adverse Effect.
(b)Financial Reporting. Each Originator will maintain a system of accounting established and administered in accordance with GAAP, and each Originator shall furnish to the Buyer, the Borrower, the Administrative Agent and each Group Agent such information regarding the operations, business affairs and financial condition of such Originator as the Buyer, the Borrower, the Administrative Agent or any Group Agent may from time to time reasonably request, including any information available to such Originator as the Buyer, the Borrower, the Administrative Agent or any Group Agent may from time to time reasonably request.
(c)Notices. Each Originator will notify the Buyer, the Borrower, the Administrative Agent and each Group Agent in writing of any of the following events promptly
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upon (but in no event later than two (2) Business Days after (other than with respect to clause (v) below)) a Financial Officer or other officer of such Originator learning of the occurrence thereof:
(i)Notice of Purchase and Sale Termination Events, Unmatured Purchase and Sale Termination Events, Events of Default or Unmatured Events of Default. A statement of a Financial Officer of such Originator setting forth details of any Purchase and Sale Termination Event (as defined in Section 8.1), Unmatured Purchase and Sale Termination Event (as defined in Section 8.1), Event of Default or Unmatured Event of Default that has occurred and is continuing and the action which the applicable Originator has taken or proposes to take with respect thereto.
(ii)Representations and Warranties. The failure of any representation or warranty made or deemed to be made by such Originator under this Agreement or any other Transaction Document to be true and correct in any material respect (or if already qualified by materiality or Material Adverse Effect, in all respects) when made or deemed made.
(iii)Litigation. The commencement of any litigation, arbitration proceeding or governmental proceeding with respect to such Originator which could reasonably be expected to have a Material Adverse Effect.
(iv)Adverse Claim. (A) Any Person shall obtain an Adverse Claim upon the Receivables or Related Rights transferred hereunder or any material portion thereof, (B) any Person other than the Buyer, the Borrower, the Servicer or the Administrative Agent shall obtain any rights or direct any action with respect to any Collection Account (or related Lock-Box) or (C) any Obligor shall receive any change in payment instructions with respect to Receivable(s) from a Person other than the Buyer or the Borrower, the Originators at the request of the Buyer or the Borrower, or the Servicer or the Administrative Agent.
(v)Name Changes. At least thirty (30) days before any change in any Originator’s or the Buyer’s name, jurisdiction of organization or any other change requiring the amendment of UCC financing statements, a notice setting forth such changes and the effective date thereof.
(vi)Change in Accountants or Accounting Policy. Any change in (i) the external accountants of such Originator or (ii) any material accounting policy of any Originator that is relevant to the transactions contemplated by this Agreement or any other Transaction Document (it being understood that any change to the manner in which any Originator accounts for the Receivables shall be deemed “material” for such purpose).
(vii)Material Adverse Effect. Any Material Adverse Effect with respect to such Originator.
(d)Conduct of Business. Each Originator will carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted, and will do all things necessary to remain duly organized, validly existing and in good standing as a domestic organization in its jurisdiction of organization and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted if the failure to have such authority could reasonably be expected to have a Material Adverse Effect.
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(e)Compliance with Laws. Each Originator will comply with all Applicable Laws to which it may be subject if the failure to comply could reasonably be expected to have a Material Adverse Effect.
(f)Furnishing of Information and Inspection of Receivables. Each Originator will furnish or cause to be furnished to the Buyer, the Borrower, the Administrative Agent and each Group Agent from time to time such information with respect to the Receivables and Related Rights transferred hereunder as the Buyer, the Borrower, the Administrative Agent, any Group Agent or any Lender may reasonably request. Each Originator will, at such Originator’s expense, during regular business hours with reasonable prior written notice (i) permit the Buyer, the Borrower, the Administrative Agent and each Group Agent or their respective agents or representatives to (A) examine and make copies of and abstracts from all books and records relating to the Pool Receivables or Related Rights, (B) visit the offices and properties of such Originator for the purpose of examining such books and records and (C) discuss matters relating to the Pool Receivables, the Related Rights or such Originator’s performance hereunder or under the other Transaction Documents to which it is a party with any of the officers, directors, employees or independent public accountants of such Originator having knowledge of such matters and (ii) without limiting the provisions of clause (i) above, during regular business hours, at such Originator’s expense, upon reasonable prior written notice from the Buyer, the Borrower or the Administrative Agent, permit certified public accountants or other auditors acceptable to the Buyer, the Borrower or the Administrative Agent to conduct a review of its books and records with respect to such Pool Receivables and Related Rights; provided, that such Originator shall be required to reimburse the Buyer, the Borrower, the Administrative Agent or any Group Agent for only one (1) such review pursuant to clause (ii) above in any twelve-month period, unless an Event of Default has occurred and is continuing.
(g)Payments on Receivables, Collection Accounts. Each Originator will, on and after the Initial Funding Date, instruct all Obligors to deliver payments on the Pool Receivables to a Collection Account or a Lock-Box. Each Originator will, at all times, maintain such books and records necessary to identify Collections received from time to time on Pool Receivables and to segregate such Collections from other property of such Originator. If any payments on the Pool Receivables or other Collections are received by an Originator, the Buyer or the Servicer, it shall hold such payments in trust for the benefit of the Administrative Agent, the Group Agents, the Lenders and the other Secured Parties and promptly (but in any event within two (2) Business Days after receipt) remit such funds into a Collection Account. At all times after the Closing Date, each Originator shall not permit funds other than Collections on Pool Receivables and Related Rights to be deposited into any Collection Account. If such funds are nevertheless deposited into any Collection Account, such Originator will, within two (2) Business Days, identify and transfer such funds to the appropriate Person entitled to such funds. The Originators will not, and will not permit any other Person to, commingle Collections or other funds to which the Buyer, the Administrative Agent, any Group Agent or any other Secured Party is entitled with any other funds. The Originators shall only add a Collection Account (or a related Lock-Box) or a Collection Account Bank to those listed on Schedule II to the Receivables Financing Agreement, if the Administrative Agent has received notice of such addition and an executed and acknowledged copy of an Account Control Agreement (or an amendment thereto) in form and substance reasonably acceptable to the Administrative Agent from the applicable Collection Account Bank. An Originator shall only terminate a Collection Account Bank or close a Collection Account (or a related Lock-Box) with the prior written consent of the Administrative Agent. Each Originator shall ensure that no disbursements are made from any Collection Account, other than such disbursements that are made at the direction and for the account of the Borrower.
(h)Sales, Liens, etc. Except as otherwise provided herein, no Originator will sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist
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any Adverse Claim upon (including, without limitation, the filing of any financing statement) or with respect to, any Pool Receivable or Related Rights, or assign any right to receive income in respect thereof.
(i)Extension or Amendment of Pool Receivables. Except as otherwise permitted in Section 9.02 of the Receivables Financing Agreement, no Originator will, or will permit the Servicer to, alter the delinquency status or adjust the Outstanding Balance or otherwise modify the terms of any Pool Receivable in any material respect, or amend, modify or waive, in any material respect, any term or condition of any related Contract that affects or could affect any Pool Receivable. Each Originator shall at its expense, timely and fully perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the Contracts related to the Pool Receivables, and timely and fully comply with the Credit and Collection Policy with regard to each Pool Receivable and the related Contract.
(j)Change in Credit and Collection Policy. No Originator will make any material change in the Credit and Collection Policy, without the prior written consent of the Administrative Agent. Promptly following any change in the Credit and Collection Policy, such Originator will deliver a copy of the updated Credit and Collection Policy to the Buyer, the Borrower, the Administrative Agent and each Group Agent.
(k)Fundamental Changes. No Originator shall make any change in such Originator’s name or location or make any other change in such Originator’s identity or corporate structure that could impair or otherwise render any UCC financing statement filed in connection with this Agreement or any other Transaction Document “seriously misleading” as such term (or similar term) is used in the applicable UCC, in each case, unless the Buyer, the Borrower, the Administrative Agent and each Group Agent have each (A) received at least 30 days’ prior written notice thereof, (B) received such other information and documentation as may reasonably be requested by the Buyer, the Borrower, the Administrative Agent or the Group Agents for purposes of compliance with Applicable Laws, (C) received executed copies of all documents, certificates and opinions (including opinions relating to UCC matters) as the Buyer, the Borrower, the Administrative Agent or the Majority Group Agents shall reasonably request and (D) been reasonably satisfied that all other action to perfect and protect the interests of the Buyer, the Borrower and the Administrative Agent, on behalf of the Secured Parties, in and to the Receivables to be sold hereunder and the Related Rights, as reasonably requested by the Buyer, the Borrower, the Administrative Agent or the Majority Group Agents shall have been taken by, and at the expense of, such Originator (including the filing of any UCC financing statements, the receipt of certificates and other requested documents from public officials and all such other actions required pursuant to Section 7.3).
(l)Books and Records. Each Originator shall maintain and implement (or cause the Servicer to maintain and implement) administrative and operating procedures (including an ability to recreate records evidencing Pool Receivables and related Contracts in the event of the destruction of the originals thereof), and keep and maintain (or cause the Servicer to keep and maintain) all documents, books, records, computer tapes and disks and other information reasonably necessary or advisable for the collection of all Pool Receivables (including records adequate to permit the daily identification of each Pool Receivable and all Collections of and adjustments to each existing Pool Receivable); provided, that the Originators, the Servicer and the Buyer shall have until each Settlement Date to reconcile the records of the Pool Receivables and all Collections of and adjustments thereto to account for purchases of Receivables by the Buyer from the Originators during the most recently completed Fiscal Month.
(m)Security Interest, Etc. Each Originator shall (and shall cause the Servicer to), at its expense, take all action necessary or reasonably desirable to establish and maintain a
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valid and enforceable ownership or security interest in the Pool Receivables, the Related Rights and Collections with respect thereto, and a first priority perfected security interest in such Receivables and the Related Rights, in each case free and clear of any Adverse Claim, in favor of the Buyer and the Borrower as the Buyer’s assignee, including taking such action to perfect, protect or more fully evidence the security interest of the Buyer and the Borrower as the Buyer’s assignee as the Buyer or the Borrower (as applicable) may reasonably request. In order to evidence the security interests of the Buyer under this Agreement and the Borrower under the Subsequent Purchase Agreement, each Originator shall, from time to time take such action, or execute and deliver such instruments as may be necessary (including, without limitation, such actions as are reasonably requested by the Buyer or the Borrower to maintain and perfect, as a first-priority interest, the Buyer’s or the Borrower’s (as applicable) security interest in the Pool Receivables, Related Rights and Collections. Such Originator shall, from time to time and within the time limits established by applicable law, prepare and present to the Administrative Agent for the Administrative Agent’s authorization and approval, all financing statements, amendments, continuations or initial financing statements in lieu of a continuation statement, or other filings necessary to continue, maintain and perfect the Buyer’s and the Borrower’s as the Buyer’s assignee security interest as a first-priority interest. The Administrative Agent’s approval of such filings shall authorize such Originator to file such financing statements under the UCC without the signature of the Buyer or the Borrower (as applicable), any Originator or the Administrative Agent where allowed by Applicable Law. Notwithstanding anything else in the Transaction Documents to the contrary, such Originator 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 filed in connection with the Transaction Documents, without the prior written consent of the Buyer, the Administrative Agent and the Borrower.
(n)Further Assurances. (i) Each Originator hereby authorizes and hereby agrees from time to time, at its own expense, promptly to execute (if necessary) and deliver all further instruments and documents, and to take all further actions, that may be necessary or desirable, or that the Buyer, the Borrower or the Administrative Agent may reasonably request, to perfect, protect or more fully evidence the transfers made hereunder and the security interest granted pursuant to this Agreement or any other Transaction Document, or to enable the Buyer, the Borrower or the Administrative Agent (on behalf of the Secured Parties) to exercise and enforce their respective rights and remedies under this Agreement and the other Transaction Documents. Without limiting the foregoing, each Originator hereby authorizes, and will, upon the request of the Buyer, the Borrower or the Administrative Agent, at such Originator’s own expense, execute (if necessary) and file such financing statements or continuation statements, or amendments thereto, and such other instruments and documents, that may be necessary or desirable, or that the Buyer, the Borrower or the Administrative Agent may reasonably request, to perfect, protect or evidence any of the foregoing. Upon the occurrence and during the continuance of an Event of Default, each Originator shall take such actions and provide such documentation (and hereby authorizes the Administrative Agent to do the same) as may be requested by the Administrative Agent in order to satisfy the requirements of the Assignment of Claims Act of 1940, and any similar state legislation, with respect to any Receivable the Obligor of which is a United States federal, state or local Governmental Authority.
    (ii) Each Originator authorizes the Buyer, the Borrower, the Servicer or the Administrative Agent to file financing statements, continuation statements and amendments thereto and assignments thereof, relating to the Receivables transferred hereunder and the Related Rights, the related Contracts, Collections with respect thereto and the other Collateral without the signature of such Originator. A photocopy or other reproduction of this Agreement shall be sufficient as a financing statement where permitted by law.
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(o)Mergers, Acquisitions, Sales, etc. No Originator shall (i) be a party to any merger, consolidation or other restructuring, except a merger, consolidation or other restructuring where the Buyer, the Borrower, the Administrative Agent and each Group Agent have each (A) received 30 days’ prior notice thereof, (B) received such other information and documentation as may reasonably be requested by the Buyer, the Borrower, the Administrative Agent and each Group Agent for purposes of compliance with Applicable Laws, (C) received executed copies of all documents, certificates and opinions (including opinions relating to bankruptcy, insolvency, and UCC matters) as the Buyer, the Borrower, the Administrative Agent and the Majority Group Agents shall reasonably request and (D) been satisfied that all other action to perfect and protect the interests of the Buyer, the Borrower and the Administrative Agent, on behalf of the Secured Parties, in and to the Receivables to be sold by it hereunder and the Related Rights, as reasonably requested by the Buyer, the Borrower, the Administrative Agent or the Majority Group Agents shall have been taken by, and at the expense of, such Originator (including the filing of any UCC financing statements, the receipt of certificates and other requested documents from public officials and all such other actions required pursuant to Section 7.3) or (ii) directly or indirectly sell, transfer, assign, convey or lease (A) whether in one or a series of transactions, all or substantially all of its assets or (B) any Receivables or any interest therein (other than pursuant to this Agreement).
(p)Receivables Not to Be Evidenced by Promissory Notes or Chattel Paper. No Originator shall take any action to cause or permit any Receivable created, acquired or originated by it to become evidenced by any “instrument” or “chattel paper” (as defined in the applicable UCC) without the prior written consent of the Buyer, the Borrower, the Administrative Agent and the Majority Group Agents.
(q)Anti-Money Laundering/International Trade Law Compliance.
(i) Such Originator covenants and agrees that (A) it shall promptly notify the Administrative Agent and each of the Lenders in writing upon the occurrence of a Reportable Compliance Event; and (B) if, at any time, any Collateral becomes Embargoed Property, then, in addition to all other rights and remedies available to the Administrative Agent and each of the Lenders, upon request by the Administrative Agent or any of the Lenders, such Originator shall provide substitute Collateral acceptable to the Lenders that is not Embargoed Property.
(ii) Such Originator shall, and shall require each Covered Entity to conduct its business in compliance with all Anti-Corruption Laws and remain subject to policies and procedures designed to promote compliance with such Laws.
(iii) Such Originator hereby covenants and agrees it will not: (a) become a Sanctioned Person or allow any employees, officers, directors, affiliates, consultants, brokers, or agents acting on its behalf in connection with this Agreement to become a Sanctioned Person; (b) directly, or, knowingly, indirectly through a third party, engage in any transactions or other dealings with or for the benefit of any Sanctioned Person or Sanctioned Jurisdiction, including any use of the proceeds of the facilities to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Person or Sanctioned Jurisdiction; (c) repay any amounts due hereunder with Embargoed Property or funds derived from any unlawful activity; (d) permit any Collateral to become Embargoed Property; or (e) cause any Lender or Administrative Agent to violate any Anti-Terrorism Law.
(iv) Such Originator hereby covenants and agrees that it will not, and will not permit any its Subsidiaries to directly or, knowingly, indirectly, use the Loans or any
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proceeds thereof for any purpose which would breach any Anti-Corruption Laws in any jurisdiction in which any Covered Entity conducts business.
(r)Legend. Each Originator shall identify (or cause the Servicer to identify) the Pool Receivables in its master data processing records relating to the Pool Receivables and related Contracts, or in the alternative in notes describing the Pool Receivables and related Contracts in both the separate financial statements of each Originator and the consolidated financial statements of the Buyer and its Affiliates, in each case with a legend that indicates that the Pool Receivables and Related Rights have been sold and/or pledged in accordance with this Agreement, the Subsequent Purchase Agreement and the Receivables Financing Agreement.
(s)Insurance. Such Originator will maintain in effect, at such Originator’s expense, such casualty and liability insurance as such Originator deems appropriate in its good faith business judgment.
(t)Healthcare Matters. Each Originator and each of its Subsidiaries will comply in all material respects with all applicable Health Care Laws relating to the operation of such Person’s business. Each Originator and each of its Subsidiaries shall maintain a corporate and health care regulatory compliance program (“CCP”) which addresses the requirements of Health Care Laws, including without limitation HIPAA. Each Originator and each of its Subsidiaries shall modify such CCPs from time to time, as may be necessary to ensure material compliance with all applicable Health Care Laws. Each Originator shall take steps as reasonably necessary to comply with the requirements of all applicable Health Care Laws, including without limitation HIPAA.
(u)Employee Benefit Plans. Each Originator shall: (x) maintain, and, if applicable, cause each of its respective ERISA Affiliates, to maintain, each Pension Plan and each Foreign Pension Plan in compliance with all applicable requirements of law, except where the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (y) make, and cause each of their respective ERISA Affiliates to make, on a timely basis, all required contributions to any Multiemployer Plan, except where the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (z) not, and not permit any of their respective ERISA Affiliates to, (A) seek a waiver of the minimum funding standards of ERISA, (B) terminate or withdraw from any Pension Plan or Multiemployer Plan or (C) take any other action with respect to any Pension Plan that would reasonably be expected to entitle the PBGC to terminate, impose liability (other than timely payment of PBGC premiums) in respect of, or cause a trustee to be appointed to administer, any Pension Plan, unless the actions or events described in clauses (A), (B) and (C) would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(v)Other Additional Information. Each Originator will provide to the Administrative Agent and the Lenders such information and documentation as may reasonably be requested by the Administrative Agent or any Lender from time to time for purposes of compliance by the Administrative Agent or such Lender with applicable laws (including without limitation the PATRIOT Act and other “know your customer” and anti-money laundering rules and regulations), and any reasonable policy or procedure implemented by the Administrative Agent or such Lender to comply therewith.
SECTION 6.2Substantive Consolidation. Each Originator hereby acknowledges that the transactions contemplated by this Agreement and the other Transaction Documents are being entered into in reliance upon the Borrower’s identity as a legal entity separate from such Originator and its Affiliates. Therefore, each Originator shall take all steps specifically required by this Agreement and the other Transaction Documents or reasonably required by the Buyer,
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the Borrower, the Administrative Agent, any Group Agent or any Lender to continue the Borrower’s identity as a separate legal entity and to make it apparent to third Persons that the Borrower is an entity with assets and liabilities distinct from those of such Originator, its Affiliates and any other Person, and is not a division of such Originator, its Affiliates or any other Person. Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Originator shall take such actions as shall be required in order that:
(a)such Originator shall maintain separate records and books of account from the Borrower and otherwise will observe corporate formalities;
(b)the financial statements and books and records of such Originator shall reflect the separate existence of the Borrower; provided, that the Borrower’s assets and liabilities may be included in a consolidated financial statement issued by an Affiliate or Affiliates of the Borrower; provided, however, that any such consolidated financial statement or the notes thereto shall make clear that the Borrower’s assets are not available to satisfy the obligations of such Affiliate or Affiliates;
(c)except as contemplated hereby or permitted by the Receivables Financing Agreement, (i) such Originator shall maintain its assets (including deposit accounts) separately from the assets (including deposit accounts) of the Borrower and (ii)  the Borrower’s assets, and records relating thereto, have not been, are not, and shall not be, commingled with those of such Originator;
(d)such Originator shall not act as an agent for the Borrower, other than in the capacity of a Servicer or a Sub-Servicer, as applicable;
(e)such Originator shall not conduct any of the business of the Borrower in its own name (except in the capacity of a Servicer or a Sub-Servicer, as applicable);
(f)other than with respect to initial organization expenses, such Originator shall not pay any liabilities of the Borrower out of its own funds or assets;
(g)except as contemplated by the Transaction Documents, such Originator shall maintain an arm’s-length relationship with the Borrower;
(h)such Originator shall not assume or guarantee or become obligated for the debts of the Borrower or hold out its credit as being available to satisfy the obligations of the Borrower;
(i)such Originator shall not acquire obligations of the Borrower;
(j)such Originator shall allocate fairly and reasonably overhead or other expenses that are properly shared with the Borrower, as applicable;
(k)such Originator shall identify and hold itself out as a separate and distinct entity from the Borrower;
(l)such Originator shall correct any known misunderstanding respecting its separate identity from the Borrower;
(m)such Originator shall not enter into, or be a party to, any transaction with the Borrower, except in the ordinary course of its business and on terms which could be obtained in a comparable arm’s-length transaction with an unrelated third party; and
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(n)such Originator shall not pay the salaries of the Borrower’s employees, if any.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS
IN RESPECT OF RECEIVABLES
SECTION 7.1Rights of the Buyer and the Borrower. Each Originator hereby authorizes the Buyer, the Borrower and the Servicer or their respective designees or assignees under the Receivables Financing Agreement (including, without limitation, the Administrative Agent) to take any and all steps in such Originator’s name reasonably necessary or desirable, in their respective determination, to collect all amounts due under any and all Receivables sold or otherwise conveyed or purported to be conveyed by it hereunder, including, without limitation, endorsing the name of such Originator on checks and other instruments representing Collections and enforcing such Receivables and the provisions of the related Contracts that concern payment and/or enforcement of rights to payment; provided, however, the Administrative Agent (or any other assignee under this Agreement) shall not take any of the foregoing actions unless a Purchase and Sale Termination Event or an Event of Default has occurred and is continuing.
SECTION 7.2Responsibilities of the Originators. Anything herein to the contrary notwithstanding:
(a)Each Originator shall perform its obligations hereunder, and the exercise by the Buyer or its designee of its rights hereunder shall not relieve such Originator from such obligations.
(b)None of the Buyer, the Borrower, the Servicer, the Group Agents, or the Administrative Agent shall have any obligation or liability to any Obligor or any other third Person with respect to any Receivables, Contracts related thereto or any other related agreements, nor shall the Buyer, the Borrower, the Servicer, the Group Agents, or the Administrative Agent be obligated to perform any of the obligations of any Originator thereunder.
(c)Each Originator hereby grants to the Administrative Agent an irrevocable power of attorney, with full power of substitution, coupled with an interest, during the occurrence and continuation of an Event of Default to take in the name of such Originator all steps necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind held or transmitted by such Originator or transmitted or received by the Buyer or the Borrower (whether or not from such Originator) in connection with any Receivable sold or otherwise conveyed or purported to be conveyed by it hereunder or Related Right.
SECTION 7.3Further Action Evidencing Purchases. Each Originator agrees that from time to time, at its expense, it will promptly execute and deliver all further instruments and documents, and take all further action that the Buyer, the Borrower, the Servicer or the Administrative Agent may reasonably request in order to perfect, protect or more fully evidence the Receivables and Related Rights purchased by the Buyer hereunder, or to enable the Buyer to exercise or enforce any of its rights hereunder or under any other Transaction Document. Without limiting the generality of the foregoing, upon the request of the Buyer, the Borrower or the Administrative Agent, such Originator will execute (if applicable), authorize and file such financing or continuation statements, or amendments thereto or assignments thereof, and such other instruments or notices, as may be necessary or appropriate.
Each Originator hereby authorizes the Buyer or its designee or assignee (including, without limitation, the Borrower and the Administrative Agent) to file one or more financing or
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continuation statements, and amendments thereto and assignments thereof, without the signature of such Originator, relative to all or any of the Receivables and Related Rights sold or otherwise conveyed or purported to be conveyed by it hereunder, whether now existing or hereafter generated by such Originator. If any Originator fails to perform any of its agreements or obligations under this Agreement, the Buyer or its designee or assignee (including, without limitation, the Borrower and the Administrative Agent) may (but shall not be required to) itself perform, or cause the performance of, such agreement or obligation, and the expenses of the Buyer or its designee or assignee (including, without limitation, the Borrower and the Administrative Agent) incurred in connection therewith shall be payable by such Originator.
SECTION 7.4Application of Collections. Any payment by an Obligor in respect of any indebtedness owed by it to any Originator shall, except as otherwise specified by such Obligor or required by applicable law and unless otherwise instructed by the Servicer (with the prior written consent of the Administrative Agent) or the Administrative Agent, be applied as a Collection of any Receivable or Receivables of such Obligor to the extent of any amounts then due and payable thereunder (applied in order from the oldest outstanding Receivable to the newest outstanding Receivable) before being applied to any other indebtedness of such Obligor.
ARTICLE VIII
PURCHASE AND SALE TERMINATION EVENTS
SECTION 8.1Purchase and Sale Termination Events. Each of the following events or occurrences described in this Section 8.1 shall constitute a “Purchase and Sale Termination Event” (each event which with notice or the passage of time or both would become a Purchase and Sale Termination Event being referred to herein as an “Unmatured Purchase and Sale Termination Event”):
(a)the Termination Date shall have occurred;
(b)any Originator shall fail to make when due any payment or deposit to be made by it under this Agreement or any other Transaction Document to which it is a party and such failure shall continue unremedied for two (2) Business Days;
(c)any representation or warranty made or deemed to be made by any Originator (or any of its officers) under or in connection with this Agreement, any other Transaction Document to which it is a party or any information or report delivered by an Originator pursuant hereto or thereto shall prove to have been incorrect or untrue in any material respect (or if already qualified by materiality or Material Adverse Effect, in all respects) when made or deemed made or delivered; or
(d)any Originator shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document to which it is a party to be performed or observed by such Originator (other than any such failure which would constitute a Purchase and Sale Termination Event under clause (a) or (b) of this Section 8.1), and such failure, solely to the extent capable of cure, shall continue for ten (10) Business Days.
SECTION 8.2Remedies.
(a)Optional Termination. Upon the occurrence and during the continuation of a Purchase and Sale Termination Event, the Buyer, with the prior written consent of the Administrative Agent and the Majority Group Agents, shall have the option, by notice to the Originators (with a copy to the Administrative Agent and the Group Agents), to declare the Purchase Facility as terminated.
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(b)Remedies Cumulative. Upon any termination of the Purchase Facility pursuant to Section 8.2(a), the Buyer (and the Borrower and the Administrative Agent as the Borrower’s assignee) shall have, in addition to all other rights and remedies under this Agreement, all other rights and remedies provided under the UCC of each applicable jurisdiction and other applicable laws, which rights shall be cumulative.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1Indemnities by the Originators. Without limiting any other rights which the Buyer may have hereunder or under Applicable Law, each Originator hereby agrees to indemnify and hold harmless, on an after-tax basis, the Buyer (and its assigns, including the Borrower and the Administrative Agent) and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), on demand, from and against any and all damages, losses, claims, judgments, liabilities, penalties, Taxes, reasonable costs and expenses (including Attorney Costs) (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the failure of such Originator to perform its obligations under this Agreement or any other Transaction Document, or arising out of the claims asserted against a Purchase and Sale Indemnified Party relating to the transactions contemplated herein or therein or the use of proceeds thereof or therefrom, excluding, only Purchase and Sale Indemnified Amounts to the extent, (i) a final non-appealable judgment of a court of competent jurisdiction holds that such Purchase and Sale Indemnified Amounts resulted from the gross negligence or willful misconduct by the Purchase and Sale Indemnified Party seeking indemnification, (ii) resulting from a claim brought by any Originator or the Servicer against a Purchase and Sale Indemnified Party for breach in bad faith of such Purchase and Sale Indemnified Party’s obligations hereunder or under any other Transaction Document, if such party has obtained a final and nonappealable judgment in its favor on such claim against the Purchase and Sale Indemnified Party as determined by a court of competent jurisdiction, (iii) due to Pool Receivables that are uncollectible or delayed in collection solely on account of the insolvency, bankruptcy, lack of creditworthiness or other financial inability to pay of the related Obligor or otherwise due to the credit risk of the Obligor, or (iv) such Purchase and Sale Indemnified Amounts include Taxes imposed or based on, or measured by, the gross or net income or receipts of such Purchase and Sale Indemnified Party by the jurisdiction under the laws of which such Purchase and Sale Indemnified Party is organized (or any political subdivision thereof); provided, that nothing contained in this sentence shall limit the liability of such Originator or limit the recourse of any Purchase and Sale Indemnified Party to such Originator for any amounts otherwise specifically provided to be paid by such Originator hereunder. Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (i), (ii) and (iii) of the previous sentence, each Originator shall indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a)any representation, warranty or statement made or deemed made by such Originator (or any officer of such Originator) under or in connection with this Agreement, any of the other Transaction Documents or any other information or report delivered by or on behalf of such Originator pursuant hereto or thereto which shall have been untrue or incorrect when made or deemed made;
(b)the failure by such Originator to comply with its covenants, obligations and agreements contained in this Agreement or any other Transaction Document or with any Applicable Law with respect to any Pool Receivable or the related Contract; or the failure of any Pool Receivable or the related Contract to conform to any such Applicable Law;
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(c)the failure of any Receivable sold by such Originator and included in the calculation of Net Receivables Pool Balance as an Eligible Receivable to be an Eligible Receivable as of the date of such sale;
(d)the transfer by such Originator of any interest in any Pool Receivable or Related Right other than the transfer of any Pool Receivable and Related Rights to the Buyer pursuant to this Agreement and the grant of a security interest to the Buyer pursuant to this Agreement;
(e)the lack of an enforceable ownership interest, or a first priority perfected lien, in the Pool Receivables (and all Related Rights) originated by such Originator against all Persons (including any bankruptcy trustee or similar Person), in either case, free and clear of any Adverse Claim;
(f)the failure to have filed, or any delay in filing, financing statements, financing statement amendments, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Laws with respect to any Pool Receivable or the Related Rights;
(g)any suit or claim related to the Pool Receivables originated by such Originator (including any products liability or environmental liability claim arising out of or in connection with the property, products or services that are the subject of any Pool Receivable originated by such Originator);
(h)any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor to the payment of any Pool Receivable (including a defense based on such Pool Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from or relating to collection activities with respect to such Pool Receivable or any other claim resulting from the sale of goods or the rendering of services related to such Pool Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the financial inability of any Obligor to pay undisputed indebtedness;
(i)the commingling of Collections of Pool Receivables at any time with other funds;
(j)the failure or delay to provide any Obligor with an invoice or other evidence of indebtedness;
(k)any failure of such Originator to perform any of its duties or obligations in accordance with the provisions hereof and of each other Transaction Document related to Pool Receivables, or of such Originator to timely and fully comply with the Credit and Collection Policy in regard to each Pool Receivable;
(l)any investigation, litigation or proceeding (actual or threatened) related to this Agreement or any other Transaction Document or in respect of any Pool Receivable or any Related Rights;
(m)any claim brought by any Person other than a Purchase and Sale Indemnified Party arising from any activity by such Originator or any Affiliate of such Originator in servicing, administering or collecting any Pool Receivable; or
(n)the failure by an Originator to pay when due any taxes, including, without limitation, material sales, excise or personal property taxes.
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If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Originator shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.
ARTICLE X
MISCELLANEOUS
SECTION 10.1Amendments, etc.
(a)The provisions of this Agreement may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and executed by the Buyer and the Originators, with the prior written consent of the Administrative Agent and the Majority Group Agents.
(b)No failure or delay on the part of the Buyer, the Servicer, any Originator or any third party beneficiary in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. No notice to or demand on the Buyer, the Servicer or any Originator in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Buyer, the Servicer, any Originator or any third party beneficiary under this Agreement shall, except as may otherwise be stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval under this Agreement shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.
(c)The Transaction Documents contain a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter thereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter thereof, superseding all prior oral or written understandings.
SECTION 10.2Notices, etc. All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including facsimile and email communication) and shall be delivered or sent by facsimile, email, or by overnight mail, to the intended party at the mailing or email address or facsimile number of such party set forth under its name on the signature pages hereof or at such other address or facsimile number as shall be designated by such party in a written notice to the other parties hereto, or in the case of the Administrative Agent and each Lender, at its address for notices pursuant to the Receivables Financing Agreement. All such notices and communications shall be effective (i) if delivered by overnight mail, when received, and (ii) if transmitted by facsimile or email, when sent, receipt confirmed by telephone or electronic means.
SECTION 10.3No Waiver; Cumulative Remedies. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. Without limiting the foregoing, each Originator hereby authorizes the Buyer, the Borrower, the Administrative Agent and each Lender (collectively, the “Set-Off Parties”), at any time and from time to time, to the fullest extent permitted by law, to set off, against any obligations of such Originator to such Set-Off Party arising in connection with the Transaction Documents (including, without limitation, amounts payable pursuant to Section 9.1) that are then due and payable or that are not then due and payable but have accrued, any and all deposits (general or special, time or demand, provisional or final) at any time held by, and any and all indebtedness at any time owing by any Set-Off Party to or for the credit or the account of such Originator.
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SECTION 10.4Binding Effect; Assignability. This Agreement shall be binding upon and inure to the benefit of the Buyer and each Originator and their respective successors and permitted assigns, and the Borrower and the Administrative Agent (as the Borrower’s assignee) and their respective successors and permitted assigns as third party beneficiaries. No Originator may assign any of its rights hereunder or any interest herein without the prior written consent of the Buyer, the Administrative Agent and each Group Agent except as otherwise herein specifically provided. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time as the parties hereto shall agree. The rights and remedies with respect to any breach of any representation and warranty made by any Originator pursuant to Article V and the indemnification and payment provisions of Article IX and Section 10.6 shall be continuing and shall survive any termination of this Agreement.
SECTION 10.5Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 10.6Costs, Expenses and Taxes. In addition to the obligations of the Originators under Article IX, each Originator, jointly and severally, agrees to pay on demand, except to the extent arising from or relating to any Pool Receivables becoming uncollectible or delayed in collection solely on account of the insolvency, bankruptcy, lack of creditworthiness or other financial inability to pay of the related Obligor or otherwise due to the credit risk of the Obligor:
(a)to the Buyer (and any successor and permitted assigns thereof) and any third-party beneficiary of the Buyer’s rights hereunder all reasonable and documented out-of-pocket costs and expenses in connection with the preparation, negotiation, execution, delivery and administration of this Agreement (together with all amendments, restatements, supplements, consents and waivers, if any, from time to time hereto), including, without limitation, (i) the reasonable Attorney Costs for the Buyer (and any successor and permitted assigns thereof) and any third-party beneficiary of the Buyer’s rights hereunder with respect thereto and with respect to advising any such Person as to their rights and remedies under this Agreement and the other Transaction Documents and (ii) subject to Section 6.1(f), reasonable and documented accountants’, auditors’ and consultants’ fees and expenses for the Buyer (and any successor and permitted assigns thereof) and any third-party beneficiary of the Buyer’s rights hereunder incurred in connection with the administration and maintenance of this Agreement or advising any such Person as to their rights and remedies under this Agreement or as to any actual or reasonably claimed breach of this Agreement or any other Transaction Document;
(b)to the Buyer (and any successor and permitted assigns thereof) and any third-party beneficiary of the Buyer’s rights hereunder all reasonable and documented costs and expenses incurred by such Person in connection with the enforcement of any of their respective rights or remedies under the provisions of this Agreement and the other Transaction Documents; and
(c)all stamp and other taxes and fees payable in connection with the execution, delivery, filing and recording of this Agreement or the other Transaction Documents to be delivered hereunder, and agrees to indemnify each Purchase and Sale Indemnified Party
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against any liabilities with respect to or resulting from any delay in paying or omitting to pay such taxes and fees.
SECTION 10.7SUBMISSION TO JURISDICTION.     (a) EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK CITY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED, IN EACH CASE, IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. NOTHING IN THIS SECTION 10.7 SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY OTHER CREDIT PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST ANY ORIGINATOR OR THE SERVICER OR ANY OF THEIR RESPECTIVE PROPERTY IN THE COURTS OF OTHER JURISDICTIONS. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(b)EACH PARTY HERETO CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO IT AT ITS ADDRESS SPECIFIED HEREIN. NOTHING IN THIS SECTION 10.7 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 10.8WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT.
SECTION 10.9Captions and Cross References; Incorporation by Reference. The various captions (including, without limitation, the table of contents) in this Agreement are included for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. References in this Agreement to any underscored Article, Section, Schedule or Exhibit are to such Article, Section, Schedule or Exhibit of this Agreement, as the case may be. The Schedules and Exhibits hereto are hereby incorporated by reference into and made a part of this Agreement.
SECTION 10.10Execution in Counterparts. 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. The parties agree to electronic contracting and signatures with respect to this Agreement. Delivery of an electronic signature to, or a signed copy of, this Agreement by facsimile, email or other electronic transmission shall be fully binding on the parties to the same extent as the delivery of the signed originals and shall be admissible into evidence for all purposes. The words “execution,” “execute,” “signed,”
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“signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the other Transaction Documents shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Buyer, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Notwithstanding the foregoing, if the Buyer, the Administrative Agent or any Group Agent shall request manually signed counterpart signatures to this Agreement, the Buyer and each Originator hereby agrees to use its reasonable endeavors to provide such manually signed signature pages as soon as reasonably practicable (but in any event within 30 days of such request or such longer period as the requesting Buyer, Administrative Agent or Group Agent and the Buyer and the Originators may mutually agree).
SECTION 10.11Acknowledgment and Agreement. By execution below, each Originator expressly acknowledges and agrees that all of the Buyer’s rights, title, and interests in, to, and under this Agreement (but not its obligations), shall be assigned by the Buyer to the Borrower pursuant to the Subsequent Purchase Agreement, and by the Borrower to the Administrative Agent (for the benefit of the Secured Parties) pursuant to the Receivables Financing Agreement, and such Originator consents to each such assignment. Each of the parties hereto acknowledges and agrees that the Borrower, the Secured Parties and the Administrative Agent are third party beneficiaries of the rights of the Buyer arising hereunder and under the other Transaction Documents to which such Originator is a party, and notwithstanding anything to the contrary contained herein or in any other Transaction Document, during the occurrence and continuation of an Event of Default under the Receivables Financing Agreement, the Administrative Agent, and not the Buyer, shall have the sole right to exercise all such rights and related remedies.
SECTION 10.12No Proceeding. Each Originator hereby agrees that it will not institute, or join any other Person in instituting, against the Buyer or the Borrower any Insolvency Proceeding so long as any obligations of the Borrower pursuant to the Receivables Financing Agreement or any other Transaction Document remains outstanding and for at least one year and one day following the day on which such obligations are paid in full. This Section 10.12 shall survive any termination of this Agreement.
SECTION 10.13Limited Recourse. Except as explicitly set forth herein, the obligations of each Originator and the Buyer under this Agreement or any other Transaction Documents to which it is a party are solely the obligations of such Originator and the Buyer. No recourse under any Transaction Document shall be had against, and no liability shall attach to, any officer, employee, director, or beneficiary, whether directly or indirectly, of the Originators or the Buyer. The agreements in this Section 10.13 shall survive any termination of this Agreement.
SECTION 10.14Severability. If any provision of this Agreement is held to be in conflict with any applicable statute or rule of law or is otherwise held to be unenforceable for any reason whatsoever, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatsoever.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written.
Exact Sciences Corporation,
as the Buyer
By:/s/ Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:Executive Vice President and Chief Financial Officer
Address:
0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Exact Sciences Laboratories, LLC,
as the Servicer
By:/s/ Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:Chief Financial Officer
Address:
0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000




Exact Sciences Laboratories, LLC
as an Originator
By:/s/ Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:Chief Financial Officer
Address:
0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Genomic Health, Inc.
as an Originator
By:/s/ Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:Chief Financial Officer
Address:
0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000

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Filed: June 30th, 2022
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