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EXHIBIT 10.2
AMENDED AND RESTATED
TRADE RECEIVABLES PURCHASE AND SALE AGREEMENT
Dated as of February 12, 1997
DIAL RECEIVABLES CORPORATION, a Delaware corporation (the
"Seller"), THE DIAL CORPORATION, a Delaware corporation ("Dial"), as Collection
Agent (as defined below), XXXXXX X.X., a New York limited partnership (the
"Investor"), and CITICORP NORTH AMERICA, INC., a Delaware corporation
("Citicorp"), as agent for the Investor and the other Owners (the "Agent"),
agree as follows:
PRELIMINARY STATEMENTS: (1) Certain terms which are
capitalized and used throughout this Agreement (in addition to those defined
above) are defined in Article I of this Agreement.
(2) Dial, the Investor and Citicorp, as Agent, were each party
to that certain Trade Receivables Purchase and Sale Agreement dated as of August
15, 1996 (such Agreement being the "Original Seller Agreement"), whereby Dial
had from time to time sold to the Investor, and the Investor had from time to
time purchased from Dial, "Eligible Assets" (as defined in the Original Seller
Agreement) -- namely undivided percentage ownership interests in all the
outstanding "Pool Receivables" as defined therein and all "Related Security" and
"Collections" as defined therein and other proceeds thereof and with respect
thereto.
(3) On the Effective Date, the Seller and Dial each will have
entered into, and fully performed, the Purchase and Sale Assignment and
Assumption Agreement dated as of February 12, 1997 (the "Assignment and
Assumption"), whereby the Seller takes the place of Dial in and under the
Original Seller Agreement.
(4) The Seller will from time to time purchase from Dial
additional Pool Receivables in which the Seller intends to sell interests
represented by Eligible Assets hereunder.
(5) The parties hereto have agreed to amend and restate the
Original Seller Agreement, as modified by the Assignment and Assumption, on the
terms and conditions hereinafter set forth, to provide for, among other things,
the sale of such additional Pool Receivables.
(6) Dial has been requested and is willing to act as
Collection Agent.
(7) Citicorp has been requested and is willing to act as
Agent.
ACCORDINGLY, the parties hereby agree that, effective as of
the Effective Date and subject to the satisfaction of the conditions precedent
set forth in Section 3.01, the Original Seller Agreement is hereby amended and
restated in its entirety to read as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Accounting Period" means those periods set forth for the
Seller and Dial in Schedule V hereto.
"Adjusted LIBO Rate" means, for any Fixed Period, an interest
rate per annum equal to the rate per annum obtained by dividing (i) the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of Citibank in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Fixed Period for a period equal to such
Fixed Period by (ii) a percentage equal to 100% minus Citibank's
Eurodollar Reserve Percentage for such Fixed Period.
"Administration Fee" has the meaning assigned to that term in
Section 2.11.
"Adverse Claim" means a lien, security interest, charge, or
encumbrance, or other right or claim of any Person.
"Affiliate" when used with respect to a Person means any other
Person controlling, controlled by or under common control with such
Person.
"Affiliated Obligor" means any Obligor which is an Affiliate
of another Obligor.
"Agent's Account" means the special account (account number
3901-1882) of the Agent maintained at the office of Citibank at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
"Alternate Base Rate" means, for each day in any period, a
fluctuating interest rate per annum as shall be in effect from time to
time, which rate per annum shall at all times for such day during such
period be equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time as
Citibank's base rate for such day; or
(b) the sum (adjusted to the nearest 1/4 of one
percent or, if there is no nearest 1/4 of one percent, to the
next higher 1/4 of one percent) of (i) 1/2 of one percent per
annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of
365 or 366 days, as the case may be) being determined weekly
on each Monday (or, if such day is not a Business Day on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on
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the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New
York or, if such publication shall be suspended or terminated,
on the basis of quotations for such rates received by Citibank
from three New York certificate of deposit dealers of
recognized standing, by (B) a percentage equal to 100% minus
the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank in respect of liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
nonpersonal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of Citibank in the United States; or
(c) the Federal Funds Rate in effect from time to
time.
"Assignee" means Citibank, Citicorp or the Investor or any of
their respective Affiliates, or, with the consent of the Seller, any
other Person, as the assignee of an Eligible Asset pursuant to Section
9.01.
"Assignee Rate" means, for any Fixed Period for any Eligible
Asset, an interest rate per annum equal to 0.25 of 1% per annum above
the Adjusted LIBO Rate for such Fixed Period; provided, however, that:
(i) In the case of any such Fixed Period of one to
and including 13 days, the "Assignee Rate" for such Fixed
Period for such Eligible Asset shall be an interest rate per
annum equal to the Alternate Base Rate in effect on the first
day of such Fixed Period; and
(ii) If either (A) the introduction of or any change
in or in the interpretation of any law or regulation shall
make it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Owner to obtain
funds in the London interbank market during such Fixed Period
or (B) Citibank is unable for any reason to establish its
Adjusted LIBO Rate for such Fixed Period or (C) the Adjusted
LIBO Rate will not adequately reflect the cost to the Owner
thereof of making a Purchase of or maintaining such Eligible
Asset during such Fixed Period, then the "Assignee Rate" for
such Fixed Period for such Eligible Asset shall be the
interest rate per annum equal to the Alternate Base Rate in
effect from time to time;
provided, further, that the Agent and the Seller may agree in writing
from time to time upon a different "Assignee Rate"; and provided,
further, that the Assignee Rate for any Fixed Period for any Eligible
Asset shall in no event be lower than the Federal Funds Rate.
"Assignment" means an assignment, in substantially the form of
Exhibit A hereto, by which an Eligible Asset may be assigned pursuant
to Section 9.01.
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"Assignment and Assumption" has the meaning assigned to that
term in Preliminary Statement (3).
"Average Maturity" means, on any day, that period (expressed
in days) equal to the average maturity of the Pool Receivables as shall
be calculated by the Collection Agent as set forth in the most recent
Investor Report in accordance with the provisions thereof; provided,
however, that, if the Agent shall disagree with any such calculation,
the Agent may recalculate the Average Maturity for such day.
"Breakage Fee" has the meaning specified in Section 2.14.
"Breakage Reserve" means, (i) for any Eligible Asset for which
the Investor Rate for any Fixed Period shall be either an MTN Fixed
Rate, or an initial MTN Floating Rate, which is in either case less
than 12% per annum and at any time during such Fixed Period, an amount
equal to the Breakage Fee for such Eligible Asset at such time,
computed in accordance with the formula contained in Section 2.14(a)
but giving effect to the Breakage Reserve Adjustments described below,
(ii) for any Eligible Asset for which the Investor Rate for any Fixed
Period shall be either an MTN Fixed Rate, or an initial MTN Floating
Rate, which is in either case equal to or higher than 12% per annum and
at any time during such Fixed Period, an amount to be determined by a
computation to which the Agent and the Seller shall have agreed in
writing pursuant to Section 2.04(c), and (iii) for any Eligible Asset
at any other time, zero. The "Breakage Reserve Adjustments" shall, in
the determination at any time of the Breakage Reserve for any Eligible
Asset for any Fixed Period, be:
"C" in the formula contained in Section 2.14(a) shall
equal the entire amount of the Capital of such Eligible Asset
at such time, and
"R" in such formula shall equal the fixed interest
rate per annum borne by Medium Term Notes, if any, issued by
the Owner of such Eligible Asset on the date of such
determination and having a term equal to the period from such
date to the last day of such Fixed Period, or, if there shall
be no such Medium Term Notes, the fixed interest rate per
annum which would be borne by Medium Term Notes if issued by
such Owner on the date of such determination for such a term,
such rate to be the average of quotations for such rate
received by the Agent from two securities dealers of
recognized standing selected by the Agent, adjusted to the
nearest 1/8 of 1% per annum or, if there is no nearest 1/8 of
1% per annum, to the next higher 1/8 of 1% per annum.
"Business Day" means any day on which banks are not authorized
or required to close in Xxx Xxxx Xxxx xx Xxx Xxxxxxx, Xxxxxxxxxx and,
if the applicable Business Day relates to any computation made with
respect to the Assignee Rate, on which dealings are carried on in the
London interbank market.
"Capital" of any Eligible Asset means the original amount paid
to the Seller for such Eligible Asset at the time of its acquisition by
the Investor pursuant to Sections 2.01 and 2.02 (including, without
limitation, under Sections 2.01 and 2.02 of the Original Seller
Agreement), or such amount divided or combined by any dividing or
combining of such Eligible Asset pursuant to Section 2.10 (including,
without limitation, under Section 2.10 of the Original Seller
Agreement), in each case reduced
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from time to time by Collections received and distributed on account of
such Capital pursuant to Section 2.07 (including, without limitation,
under Section 2.07 of the Original Seller Agreement); provided,
however, that such Capital of such Eligible Asset shall not be reduced
by any distribution of any portion of Collections if at any time such
distribution is rescinded or must otherwise be returned for any reason.
"Capital Adequacy Fee" means, for any Indemnified Party, the
amounts, if any, specified by such Indemnified Party to the Agent, and
by the Agent to the Seller, from time to time sufficient to compensate
such Indemnified Party if either (i) the introduction of or any change
in or in the interpretation of any law or regulation or (ii) compliance
by such Indemnified Party with any guideline or request from any
central bank or other governmental authority charged with the
administration or interpretation of such guideline or request (whether
or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Indemnified Party
or any corporation controlling such Indemnified Party and such
Indemnified Party determines that the amount of such capital is
increased by or based upon the existence of the Facility under this
Agreement, or, in the case of any Indemnified Party which is a
Participant, under any agreement entered into by such Participant with
respect hereto or with respect to the Participant Agreement, or the
existence of the Participant Agreement and facilities of similar types.
Such amounts are to be sufficient to compensate such Indemnified Party
in the light of such circumstances to the extent that such Indemnified
Party reasonably determines such increase in capital to be allocable to
the existence of the Facility under this Agreement or such other
agreement or the existence of the Participant Agreement. A certificate
as to such amounts submitted to the Seller by the Agent shall, in the
absence of manifest error, be conclusive and binding for all purposes.
"Certificate" means a certificate of assignment, by the Seller
to the Agent, in the form of Exhibit B hereto, evidencing each Eligible
Asset purchased by the Investor (including, without limitation, under
the Original Seller Agreement).
"Citibank" means Citibank, N.A., a national banking
association.
"Collateral" has the meaning assigned to that term in Section
11.01.
"Collection Agent" means at any time the Person (including the
Agent) then authorized pursuant to Article VI to service, administer
and collect Pool Receivables.
"Collection Agent Fee" has the meaning assigned to that term
in Section 2.11.
"Collection Agent Fee Reserve" for any Eligible Asset at any
time means the sum of (i) the Liquidation Collection Agent Fee for such
Eligible Asset at such time plus (ii) the unpaid Collection Agent Fee
relating to such Eligible Asset accrued to such time.
"Collection Delay Period" means 10 days or such other number
of days as the Agent may select upon three Business Days' notice to the
Seller.
"Collections" means, with respect to any Pool Receivable, all
cash collections and other cash proceeds of such Pool Receivable,
including, without limitation, all cash
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proceeds of Related Security with respect to such Pool Receivable, and
any Collection of such Pool Receivable deemed to have been received
pursuant to Section 2.08 or Section 10.02 (including, without
limitation, under Sections 2.08 and 10.02 of the Original Seller
Agreement).
"Commercial Paper Note" means a promissory note having a term
not exceeding 270 days.
"Concentration Limit" for any Obligor means at any time 4%, or
such other percentage ("Special Concentration Limit") for any Obligor
designated by Agent in a writing delivered to the Seller; provided,
however, that in the case of an Obligor with any Affiliated Obligor,
the Concentration Limit, the Receivables related thereto and the
Outstanding Balance thereof shall be calculated as if such Obligor and
such Affiliated Obligor are one Obligor; provided, however, that the
Agent may cancel any Special Concentration Limit upon three Business
Days' notice to the Seller.
"Consent and Agreement" means a consent and agreement, in
substantially the form of Exhibit H hereto, with respect to the
Contribution and Sale Agreement.
"Contract" means an agreement between Dial and an Obligor, in
substantially the form of one of the forms of written contract set
forth in Schedule IV hereto or otherwise approved by the Agent, or in
the case of an open account agreement, as evidenced by one of the forms
of invoices set forth in Schedule IV hereto or otherwise approved by
the Agent, pursuant to or under which such Obligor shall be obligated
to pay for merchandise, insurance or services from time to time.
"Contribution and Sale Agreement" means the Receivables
Contribution and Sale Agreement dated as of the date hereof between the
Seller and Dial, as the same may, from time to time, be amended,
modified or supplemented with the prior written consent of the Agent.
"CP Rate" for any Fixed Period for any Eligible Asset means
the interest rate per annum equivalent to the rate (or if more than one
rate, the weighted average of the rates) at which Commercial Paper
Notes of the Owner thereof having a term equal to such Fixed Period and
to be issued to fund the Purchase or maintenance of such Eligible Asset
by such Owner may be sold by any placement agent or dealer selected by
such Owner, as agreed between each such agent or dealer and such Owner
and notified by such Owner to the Agent and the Collection Agent;
provided, however, if the rate (or rates) as agreed between any such
agent or dealer and such Owner with regard to any Fixed Period for any
Eligible Asset is a discount rate (or rates), the "CP Rate" for such
Fixed Period shall be the rate (or if more than one rate, the weighted
average of the rates) resulting from converting such discount rate (or
rates) to an interest-bearing equivalent rate per annum.
"Credit and Collection Policy" means those credit and
collection policies and practices in effect on the date hereof relating
to Contracts and Receivables described in Schedule III hereto, as
modified in compliance with Section 5.03(c).
"Debt" means, for any Person, (i) indebtedness for borrowed
money or for the deferred purchase price of property or services, (ii)
obligations as lessee under leases
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which shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases, (iii)
obligations under guaranties in respect of indebtedness or obligations
of others of the kinds referred to in clause (i) or (ii) above, (iv)
liabilities in respect of unfunded vested benefits under plans covered
by Title IV of ERISA, and (v) withdrawal liability incurred under ERISA
by such Person or any of its Affiliates to any Multiemployer Plan.
"Default Ratio" means the ratio (expressed as a percentage)
computed as of the last day of each Accounting Period of the Seller by
dividing (i) the aggregate Outstanding Balance of all Pool Receivables
that were Defaulted Receivables (other than Defaulted Receivables that
were Disputed Items) on such date by (ii) the aggregate Outstanding
Balance of all Pool Receivables on such date.
"Defaulted Receivable" means a Receivable that is not a
Disputed Item: (i) as to which any payment, or part thereof, remains
unpaid for 61 days or more from the original due date for such payment;
(ii) as to which the Obligor thereof has taken any action, or suffered
any event to occur, of the type described in Section 7.01(g); or (iii)
which, consistent with the applicable Credit and Collection Policy,
would be written off the Seller's books as uncollectible.
"Delinquency Ratio" means the ratio (expressed as a
percentage) computed as of the last day of each Accounting Period of
the Seller by dividing (i) the aggregate Outstanding Balance of all
Pool Receivables that were Delinquent Receivables on such date by (ii)
the aggregate Outstanding Balance of all Pool Receivables on such date.
"Delinquent Receivable" means a Receivable that is not a
Defaulted Receivable or a Disputed Item and:
(i) as to which any payment, or part thereof, remains
unpaid for 31 days or more from the original due date for such
payment; or
(ii) which, consistent with the applicable Credit and
Collection Policy, would be classified as delinquent by the
Seller.
"Designated Obligor" means, at any time, all Obligors;
provided, however, that any Obligor shall cease to be a Designated
Obligor upon three Business Days' notice by the Agent to the Seller.
"Dial" has the meaning assigned to that term in the recital of
parties hereto.
"Disputed Item" means that portion of any Receivable the
payment of which is subject to a dispute, claim, offset or defense of
an Obligor.
"Disputed Item Ratio" means the ratio (expressed as a
percentage) computed as of the last day of each Accounting Period of
the Seller by dividing (i) the aggregate Outstanding Balance of all
Pool Receivables that became Disputed Items during the period of three
consecutive Accounting Periods ending on such date, by (ii) the
aggregate Outstanding Balance of all Pool Receivables which arose
during the period of three consecutive Accounting Periods ending on the
last day of the immediately preceding Accounting Period.
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"Distribution" means the distribution of approximately 94.5
million shares of common stock of Dial, constituting 100% of the
outstanding common stock of Dial, to the holders of the common stock of
Viad Corp pursuant to the Distribution Agreement together with the
consummation of the other transactions to occur in connection with such
distribution, as set forth in the Distribution Agreement.
"Distribution Agreement" means that certain Distribution
Agreement dated as of July 25, 1996, by and among Viad Corp, Dial and
Exhibitgroup/Giltspur, Inc., in the form of Exhibit A to the Form 10.
"Effective Date" has the meaning assigned to that term in
Section 3.01.
"Eligible Asset" means, at any time, an undivided percentage
ownership interest at such time in (i) all then outstanding Pool
Receivables arising prior to the time of the most recent computation or
recomputation of such undivided percentage interest pursuant to Section
2.05, (ii) all Related Security with respect to such Pool Receivables
and (iii) all Collections with respect to, and other proceeds of, such
Pool Receivables. Such undivided percentage interest for such Eligible
Asset shall be computed as
C + YR + LR + CAFR
NRPB
where:
C = the Capital of such Eligible Asset at the
time of such computation.
YR = the Yield Reserve of such Eligible Asset at
the time of such computation.
LR = the Loss Reserve of such Eligible Asset at
the time of such computation.
CAFR = the Collection Agent Fee Reserve of such
Eligible Asset at the time of such
computation.
NRPB = the Net Receivables Pool Balance at the time
of such computation.
Each Eligible Asset shall be determined from time to time pursuant to
the provisions of Section 2.05. Each "Eligible Asset" under and as
defined in the Original Seller Agreement shall be an Eligible Asset
under this Agreement having the interests in the Pool Receivables and
the Related Security and Collections and other proceeds with respect
thereto as described in clauses (i), (ii) and (iii) above and being
computed from time to time as set forth above in this definition of
"Eligible Asset".
"Eligible Receivable" means, at any time and with respect to
any Eligible Asset, a Receivable, or any portion of any Receivable:
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(i) the Obligor of which is a United States resident
and is not an Affiliate of any of the parties hereto and is
not a government or a governmental subdivision or agency;
(ii) the Obligor of which at the time of the initial
creation of an interest therein hereunder (including, without
limitation, under the Original Seller Agreement) is a
Designated Obligor;
(iii) the Obligor of which at the time of the initial
creation of an interest therein hereunder (including, without
limitation, under the Original Seller Agreement) is not the
Obligor of any Defaulted Receivables (other than any Defaulted
Receivable all or any portion of which is a Disputed Item) in
the aggregate amount of 10% or more of the aggregate
Outstanding Balance of all Pool Receivables of such Obligor;
(iv) which at the time of the initial creation of an
interest therein hereunder (including, without limitation,
under the Original Seller Agreement) is not a Defaulted
Receivable;
(v) which, according to the Contract related thereto,
is required to be paid in full within 61 days of the original
billing date therefor;
(vi) which is an account receivable representing all
or part of the sales price of merchandise, insurance and
services within the meaning of Section 3(c)(5) of the
Investment Company Act of 1940, as amended;
(vii) a purchase of which with the proceeds of notes
would constitute a "current transaction" within the meaning of
Section 3(a)(3) of the Securities Act of 1933, as amended;
(viii) which is an "account" within the meaning of
Section 9-106 of the UCC of the State of Arizona;
(ix) which is denominated and payable only in United
States dollars in the United States;
(x) which arises under a Contract which has been duly
authorized and which, together with such Receivable, is in
full force and effect and constitutes the legal, valid and
binding obligation of the Obligor of such Receivable
enforceable against such Obligor in accordance with its terms,
and either is not a Disputed Item (except as a result of the
discharge in bankruptcy of such Obligor) or, in the case of
any Tool Receivable which is a Disputed Item (but has not been
a Disputed Item for more than 61 days), the Outstanding
Balance of which, when combined with the aggregate Outstanding
Balance of all other such Disputed Items on the day of
determination, does not exceed $25,000,000;
(xi) which, together with the Contract related
thereto, does not contravene in any material respect any laws,
rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to truth in
lending, fair credit billing, fair credit reporting, equal
credit
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opportunity, fair debt collection practices and privacy) and
with respect to which no party to the Contract related thereto
is in violation of any such law, rule or regulation in any
material respect;
(xii) which (A) satisfies all applicable requirements
of the Credit and Collection Policy and (B) complies with such
other criteria and requirements (other than those relating to
the collectibility of such Receivable) as the Agent may from
time to time specify to the Seller upon 30 days' notice; and
(xiii) as to which, at or prior to the time of the
initial creation of an interest therein through a Purchase,
the Agent has not notified the Seller that the Agent has
determined, in its sole discretion, that such Receivable (or
class of Receivables) is not acceptable for purchase by the
Investor hereunder.
"ERISA" means the U.S. Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurodollar Reserve Percentage" of Citibank for any Fixed
Period means the reserve percentage applicable during such Fixed Period
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or, if more than one such percentage shall
be so applicable, the daily average of such percentages for those days
in such Fixed Period during which any such percentage shall be so
applicable) for determining the maximum reserve requirement (including,
but not limited to, any emergency, supplemental or other marginal
reserve requirement) for Citibank in respect of liabilities or assets
consisting of or including Eurocurrency liabilities (as that term is
defined in Regulation D of the Board of Governors of the Federal
Reserve System as in effect from time to time) having a term equal to
such Fixed Period.
"Event of Investment Ineligibility" has the meaning assigned
to that term in Section 7.01.
"Event of Purchase Ineligibility" means any failure to satisfy
the condition(s) set forth in Section 3.02(b)(iii) or (iv).
"Expiry Date" means the date which is 364 days after August
15, 1996 or such later date as shall be determined pursuant to Section
2.13.
"Extension Period" has the meaning assigned to that term in
Section 2.13.
"Extension Request" has the meaning assigned to that term in
Section 2.13.
"Facility" means the willingness of the Investor to consider,
in its sole discretion pursuant to Article II, the purchase from the
Seller of undivided percentage interests in Pool Receivables by making
Purchases of Eligible Assets from time to time.
"Facility Termination Date" means the earlier of the Expiry
Date or the date of termination of the Facility pursuant to Section
2.03 or Section 7.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per
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annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing
selected by the Agent.
"Fee Determination Date" means (i) for any Eligible Asset for
purposes of the computation of the Breakage Fee for such Eligible Asset
under Section 2.14, each day on which an amount of Capital of such
Eligible Asset is reduced and (ii) for any Eligible Asset for purposes
of the computation of the Breakage Fee under the definition of
"Breakage Reserve" contained in this Section 1.01, each time such
calculation is made.
"Fee Letter" means the letter dated the date hereof between
the Seller and the Agent with respect to certain fees which the Seller
agrees to pay to the Agent pursuant to Section 2.11 of this Agreement.
"Fixed Period" means with respect to any Eligible Asset, a
period determined pursuant to Section 2.02 or 2.04; provided, however,
that:
(i) any Fixed Period in respect of which Yield is
computed by reference to the Assignee Rate shall be a period
of from one to and including 14 days, or a period of one, two,
three or six months as the Seller may select as provided for
above;
(ii) any such Fixed Period (other than of one day)
which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day, except
that, if such Fixed Period relates to the Adjusted LIBO Rate
and such extension would cause the last day of such Fixed
Period to occur in the next succeeding month, the last day of
such Fixed Period shall occur on the immediately preceding
Business Day;
(iii) in the case of Fixed Periods of one day for any
Eligible Asset, (a) if such Fixed Period is such Eligible
Asset's initial Fixed Period, such Fixed Period shall be the
day of the related Purchase; (b) any subsequently occurring
Fixed Period which is one day shall, if the immediately
preceding Fixed Period is more than one day, be the last day
of such immediately preceding Fixed Period, and, if the
immediately preceding Fixed Period is one day, be the day next
following such immediately preceding Fixed Period; and (c)
which occurs on a day immediately preceding a day which is not
a Business Day shall be extended to the next succeeding
Business Day; and
(iv) in the case of any Fixed Period for any Eligible
Asset which commences before the Termination Date for such
Eligible Asset and would otherwise end on a date occurring
after such Termination Date, such Fixed Period shall end on
such Termination Date and the duration of each Fixed Period
which commences on or after the Termination Date for such
Eligible Asset shall be of such duration as shall be selected
by the Agent.
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"Form 10" means that certain Registration Statement on Form 10
filed by Dial with the Securities and Exchange Commission on July 30,
1996.
"Government Receivable" means, at any time and with respect to
any Eligible Asset, a Receivable, which is not an Eligible Receivable,
that would qualify as an Eligible Receivable except that the Obligor of
which is a government or a governmental subdivision or agency.
"Indemnified Amounts" has the meaning assigned to that term in
Section 10.01.
"Indemnified Party" means each of the Investor, the other
Owners, the Agent and the Participants and the Affiliates of any of the
foregoing.
"Investor Investment Fee" has the meaning assigned to that
term in Section 2.11.
"Investor Rate" for any Fixed Period for any Eligible Asset
means one of the following rates, as determined for such Fixed Period
in accordance with the terms and conditions of Section 2.02 or 2.04:
(i) the CP Rate for such Fixed Period, or
(ii) the MTN Fixed Rate for such Fixed Period, or
(iii) the MTN Floating Rate in effect from time to
time for such Fixed Period;
provided, however, that if the Owner of such Eligible Asset shall not,
at any time and for any reason, fund its Purchase or maintenance of
such Eligible Asset for such Fixed Period by its issuing Commercial
Paper Notes or Medium Term Notes, the "Investor Rate" for such Fixed
Period shall then be the Assignee Rate for such Fixed Period or such
other rate as the Agent and the Seller shall agree to in writing; and
provided, further, however, that if such Owner so requests and the
Seller consents thereto, the "Investor Rate" for any Fixed Period of
one day shall be the Assignee Rate for such Fixed Period.
"Investor Report" means a report, in substantially the form of
Exhibit C hereto, furnished by the Collection Agent to the Agent for
each Owner pursuant to Section 2.08.
"Liquidation Collection Agent Fee" means for any Eligible
Asset at any date an amount equal to (i) the Capital of such Eligible
Asset as at such date multiplied by (ii) the product of (a) the
percentage per annum as at such date of the Collection Agent Fee and
(b) a fraction having as its numerator the number of days in the period
equal to the sum of the Average Maturity plus the Collection Delay
Period (each as in effect at such date) and 360 as its denominator.
"Liquidation Day" for any Eligible Asset means either (i) each
day during any Settlement Period for such Eligible Asset on which the
conditions set forth in Section
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3.02 are not satisfied (and such failure of conditions is not waived in
writing by the Agent), provided that such conditions are also not
satisfied (and such failure of conditions is not waived in writing by
the Agent) on any succeeding day during such Settlement Period, or (ii)
each day which occurs on or after the Termination Date for such
Eligible Asset.
"Liquidation Fee" means, for each Eligible Asset for any Fixed
Period (computed without regard to clause (iv) of the definition of
"Fixed Period") during which any Liquidation Day or Termination Date
for such Eligible Asset occurs and for which the Investor Rate shall be
neither the MTN Fixed Rate nor the MTN Floating Rate, the amount, if
any, by which (i) the additional Yield (calculated without taking into
account any Liquidation Fee) which would have accrued on the reductions
of Capital of such Eligible Asset during such Fixed Period (as so
computed) if such reductions had remained as Capital, exceeds (ii) the
income, if any, received by the Owner of such Eligible Asset from such
Owner's investing the proceeds of such reductions of Capital.
"Liquidation Yield" means, for any Eligible Asset at any date,
an amount equal to the Rate Variance Factor as at such date multiplied
by the product of (i) the Capital of such Eligible Asset as at such
date and (ii) the product of (a) the Assignee Rate for such Eligible
Asset for a Fixed Period deemed to commence at such time for a period
of 30 days and (b) a fraction having as its numerator the number of
days in the period equal to the sum of the Average Maturity plus the
Collection Delay Period (each as in effect at such date) and 360 as its
denominator.
"Lock-Box Account" means a lock-box account or any other
account maintained for the purpose of receiving Collections.
"Lock-Box Bank" means any of the banks holding one or more
Lock-Box Accounts.
"Lock-Box Notice" means a notice, in substantially the form of
Exhibit D hereto, from the Seller or Dial, as applicable, to any
Lock-Box Bank.
"Loss Percentage" means, for any Eligible Asset at any date,
the greatest of (i) three times the highest Default Ratio for the Pool
Receivables as of the last day of any Accounting Period of the Seller
during the twelve Accounting Periods of the Seller (or, to the extent
that there are an insufficient number of prior Accounting Periods of
the Seller, Dial) immediately preceding such date, (ii) 1.5 times the
highest Disputed Item Ratio as of the last day of any Accounting Period
of the Seller during the twelve Accounting Periods of the Seller (or,
to the extent that there are an insufficient number of Accounting
Periods of the Seller, Dial) immediately preceding such date, and (iii)
12%.
"Loss Reserve" means, for any Eligible Asset at any date, an
amount equal to
LP x (C + YR)
where:
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LP = the Loss Percentage for such Eligible Asset
at the close of business of the Collection
Agent on such date.
C = the Capital of such Eligible Asset at the
close of business of the Collection Agent on
such date.
YR = the Yield Reserve for such Eligible Asset at
the close of business of the Collection
Agent on such date.
"Loss-to-Liquidation Ratio" means, for the Pool Receivables
with respect to any Accounting Period of the Seller for which an
Investor Report is sent to the Agent, the ratio (expressed as a
percentage and set forth on page three of the Investor Report) computed
by dividing (i) the aggregate Outstanding Balance of Pool Receivables
written off by the Seller during the three Accounting Periods of the
Seller (or, to the extent that there are an insufficient number of
Accounting Periods of the Seller, Dial) immediately preceding the last
day of such Accounting Period, by (ii) the aggregate Collections during
such preceding period of three Accounting Periods of the Seller (or, to
the extent that there are an insufficient number of Accounting Periods
of the Seller, Dial) for all Pool Receivables.
"Medium Term Note" means a promissory note having a term
exceeding 270 days but not exceeding three years.
"MTN Fixed Rate" for any Fixed Period for any Eligible Asset
means the fixed interest rate per annum offered by the Owner of such
Eligible Asset in respect of Medium Term Notes issued or to be issued
by such Owner for a term (or a remaining term) equal to such Fixed
Period and to be used by such Owner to fund the Purchase or maintenance
of such Eligible Asset, such fixed interest rate per annum to be
notified by or on behalf of such Owner to the Agent and the Collection
Agent.
"MTN Floating Rate" for any Fixed Period for any Eligible
Asset means the floating interest rate per annum (determined by
reference to an interest rate formula) in effect from time to time
offered by the Owner of such Eligible Asset in respect of Medium Term
Notes issued or to be issued by such Owner for a term (or a remaining
term) equal to such Fixed Period and to be used by such Owner to fund
the Purchase or maintenance of such Eligible Asset, such floating
interest rate per annum to be notified by or on behalf of such Owner to
the Agent and the Collection Agent.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA.
"Net Receivables Pool Balance" means at any time the
Outstanding Balance of the Eligible Receivables and Government
Receivables in the Receivables Pool at such time reduced by the sum of
(i) the aggregate Outstanding Balance of the Defaulted Receivables in
the Receivables Pool at such time, (ii) the aggregate Outstanding
Balance of Pool Receivables at such time which are Disputed Items and
have been Disputed Items for more than 61 days, (iii) the aggregate
amount by which the Outstanding Balance of all Government Receivables
exceeds 10% of the sum of (A) the aggregate Capital of Eligible Assets
outstanding at such time, and (B) the aggregate "Capital" of "Eligible
Assets" outstanding under the Participant Agreement at such
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time, and (iv) the aggregate amount by which the Outstanding Balance of
all Pool Receivables of each Obligor exceeds the product of the
Concentration Limit for such Obligor at such time multiplied by the sum
of the aggregate Capital of all Eligible Assets outstanding at such
time plus the aggregate "Capital" of all "Eligible Assets" outstanding
at such time under the Participant Agreement.
"Notice of Purchase and/or Investor Rate" has the meaning
assigned to that term in Section 2.04.
"Obligations" has the meaning assigned to that term in Section
11.02.
"Obligor" means a Person obligated to make payments pursuant
to a Contract.
"Original Seller Agreement" has the meaning assigned to that
term in Preliminary Statement (2).
"Outstanding Balance" of any Receivable at any time means the
then outstanding principal balance thereof.
"Owner" means, for each Eligible Asset, upon its purchase the
Investor as the purchaser thereof and, if applicable, each Participant
which shall have purchased from the Investor or any Assignee thereof an
undivided interest in such Eligible Asset from time to time; provided,
however, that, upon any assignment thereof pursuant to Article IX, the
Assignee thereof shall be the Owner thereof.
"Parent Group" means Dial and all of its consolidated
subsidiaries other than the Seller.
"Participant" means a financial institution either as a
Participant as defined in and under the Participant Agreement or, at
any time for each Eligible Asset, any other Person which at such time
shall have purchased from the Investor or any Assignee thereof an
undivided interest in such Eligible Asset or shall have made a
commitment to the Agent to so purchase such an interest.
"Participant Agreement" means the Amended and Restated Trade
Receivables Purchase and Sale Agreement, dated as of the date hereof
among the Seller, Dial, as collection agent, the financial institutions
party thereto as Participants thereunder and Citicorp, individually and
as Agent, as the same may, from time to time, be amended, modified or
supplemented.
"Permitted Transaction" means any transaction permitted under
the certificate of incorporation and bylaws of the Seller delivered to
the Agent pursuant to Section 3.01, as the same may, from time to time,
be amended, modified or otherwise supplemented with the prior written
consent of the Agent.
"Person" means an individual, partnership, limited liability
company, corporation (including a business trust), joint stock company,
trust, unincorporated association, joint venture or other entity.
"Pool Receivable" means a Receivable in the Receivables Pool.
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"Provisional Liquidation Day" means any day which could be a
Liquidation Day but for the proviso in clause (i) of the definition of
"Liquidation Day".
"Purchase" means a purchase by the Investor of an Eligible
Asset from the Seller pursuant to Article II (including, without
limitation, Article II of the Original Seller Agreement).
"Purchase Documents" means this Agreement, the Certificate,
the Lock-Box Notices, the Contribution and Sale Agreement, the Consent
and Agreement, the Assignment and Assumption and the Fee Letter,
collectively.
"Purchase Limit" means $90,000,000, as such amount may be
reduced pursuant to Section 2.03.
"Rate Variance Factor" means that number which reflects the
potential variance in selected interest rates over a period of time
designated by the Agent, as shall be computed by the Collection Agent
each Accounting Period as set forth in the Investor Report in
accordance with the provisions thereof; provided, however, that the
"factor" in column 3 of the "Rate Variance Factor" section of such
Investor Report may be changed from time to time upon at least five
days' prior notice by the Agent to the Collection Agent.
"Receivable" means the indebtedness of any Obligor under a
Contract arising from a sale by Dial (including, as of August 15, 1996,
any and all such indebtedness acquired by Dial from Viad Corp in
connection with the Distribution), and includes the right to payment of
any interest or finance charges and other obligations of such Obligor
with respect thereto.
"Receivables Pool" means at any time the aggregation of each
then outstanding Receivable in respect of which the Obligor is a
Designated Obligor or, as to any Receivable in existence on such date,
was a Designated Obligor on the date of any Purchase or reinvestment
pursuant to Section 2.06 (including, without limitation, Section 2.06
of the Original Seller Agreement).
"Reinvestment Termination Date" for any Eligible Asset means
that Business Day which the Seller designates or, if the conditions
precedent in Section 3.02 are not satisfied, such Business Day which
the Agent designates, as the Reinvestment Termination Date for such
Eligible Asset by notice to the Agent (if the Seller so designates) or
to the Seller (if the Agent so designates) at least one Business Day
prior to such Business Day.
"Related Security" means with respect to any Receivable:
(i) all of the interest of the Seller or Dial in the
merchandise (including returned merchandise), if any, relating
to the sale which gave rise to such Receivable;
(ii) all other security interests or liens and
property subject thereto from time to time purporting to
secure payment of such Receivable, whether pursuant
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to the Contract related to such Receivable or otherwise,
together with all financing statements signed by an Obligor
describing any collateral securing such Receivable; and
(iii) all guarantees, insurance and other agreements
or arrangements of whatever character from time to time
supporting or securing payment of such Receivable whether
pursuant to the Contract related to such Receivable or
otherwise.
"Settlement Period" for any Eligible Asset means each period
commencing on the first day of each Fixed Period for such Eligible
Asset and ending on the last day of such Fixed Period, and, on and
after the Termination Date for such Eligible Asset, such period
(including, without limitation, a daily period) as shall be selected
from time to time by the Agent or, in the absence of any such
selection, each period of thirty days from the last day of the
immediately preceding Settlement Period; provided, however, that until
the Termination Date for such Eligible Asset, during any Fixed Period
for such Eligible Asset for which the Investor Rate shall be the MTN
Fixed Rate or the MTN Floating Rate, "Settlement Period" for such
Eligible Asset means each period ending May 31st or November 30th in
each year (or a shorter period if the last day of such Fixed Period
shall earlier occur) during such Fixed Period, the initial Settlement
Period during such Fixed Period for such Eligible Asset commencing on
the first day of such Fixed Period and ending on the earlier of the
next May 31st or November 30th of any year, and each subsequent
Settlement Period during such Fixed Period for such Eligible Asset
commencing on the last day of the immediately preceding Settlement
Period for such Eligible Asset and ending on the earlier of (i) the
next May 31st of any year, (ii) the next November 30th of any year or
(iii) the last day of such Fixed Period.
"Subordinated Note" means a subordinated promissory note in
the form of Exhibit B to the Contribution and Sale Agreement.
"Termination Date" for any Eligible Asset means the earlier of
(i) the Reinvestment Termination Date for such Eligible Asset and (ii)
the Facility Termination Date.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the specified jurisdiction.
"Viad Corp" means Viad Corp, a Delaware corporation.
"Yield" means for each Eligible Asset for any Fixed Period the
product of
IR x C x ED + LF + BF
BI
where:
IR = the Investor Rate for such Eligible Asset
for such Fixed Period (which rate shall be
the Assignee Rate, if the Owner of such
Eligible Asset shall not, for any reason,
fund its Purchase or maintenance of such
Eligible Asset for such Fixed Period by its
issuing Commercial Paper Notes or
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Medium Term Notes and the Seller and the
Agent shall not have agreed on another
rate).
C = the Capital of such Eligible Asset during
such Fixed Period.
BI = that number of days comprising a year which
is the basis for computing the Investor Rate
for such Eligible Asset for such fixed
period.
ED = the actual number of days elapsed during
such Fixed Period.
LF = the Liquidation Fee, if any, for such
Eligible Asset for such Fixed Period.
BF = the Breakage Fee, if any, for such Eligible
Asset for such Fixed Period;
provided, however, that no provision of this Agreement or the
Certificate shall require the payment or permit the collection of Yield
in excess of the maximum permitted by applicable law; and provided,
further, that Yield for any Eligible Asset shall not be considered paid
by any distribution if at any time such distribution is rescinded or
must otherwise be returned for any reason.
"Yield Reserve" for any Eligible Asset at any time means the
sum of (i) the Liquidation Yield at such time for such Eligible Asset,
plus (ii) the accrued and unpaid Yield for such Eligible Asset, plus
(iii) the Breakage Reserve for such Eligible Asset.
SECTION 1.02. Other Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles. All terms used in Article 9 of the UCC in the
State of New York, and not specifically defined herein, are used herein as
defined in such Article 9.
SECTION 1.03. Computation of Time Periods. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding".
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01. Facility. On the terms and conditions
hereinafter set forth, the Investor may, in its sole discretion, make Purchases
from time to time during the period from the Effective Date to the Facility
Termination Date. Under no circumstances shall the Investor make any Purchase
if, after giving effect to such Purchase, the aggregate outstanding Capital of
Eligible Assets, together with the aggregate outstanding "Capital" of "Eligible
Assets" under the Participant Agreement, would exceed the Purchase Limit. The
Owner of each Eligible Asset shall, with the proceeds of Collections
attributable to such Eligible Asset, reinvest, pursuant to Section 2.06, in
additional undivided percentage interests in the Pool Receivables by making an
appropriate readjustment of such Eligible Asset. Nothing in this Agreement shall
be deemed to be or construed as a commitment by the Investor to purchase
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any Eligible Asset at any time.
SECTION 2.02. Making Purchases. Each Purchase shall be made on
notice from the Seller to the Agent, given not later than 11:00 A.M. (New York
City time) on the third Business Day before the date of such Purchase if the
Seller requests as the Investor Rate the CP Rate or the Assignee Rate in
connection with such Purchase and not later that 11:00 A.M. (New York City time)
on the fifth Business Day before the date of such Purchase if the Seller
requests as the Investor Rate either the MTN Fixed Rate or the MTN Floating Rate
in connection with such Purchase. Each such notice of a proposed Purchase (i) if
the Seller requests as the Investor Rate the CP Rate or the Assignee Rate in
connection with such Purchase, shall be by telephone, telecopier, telex or
cable, specifying the requested (A) amount of such Purchase to be paid to the
Seller and (B) Business Day of such Purchase and duration of the initial Fixed
Period for the Eligible Asset to be purchased and (ii) if the Seller requests as
the Investor Rate either the MTN Fixed Rate or the MTN Floating Rate in
connection with such Purchase, shall be by telephone (confirmed immediately in
writing) or by telecopier, telegraph, telex or cable, confirmed immediately in
writing, in substantially the form of a Notice of Purchase and/or Investor Rate
referred to in Section 2.04, specifying therein the requested (A) amount of such
Purchase to be paid to the Seller, (B) Business Day of such Purchase and
duration of the initial Fixed Period for the Eligible Asset to be purchased and
(C) the other information to establish such Investor Rate as required by Section
2.04. The Investor shall promptly notify the Agent whether it has determined to
make such Purchase. The Agent shall promptly thereafter notify the Seller
whether the Investor has determined to make such Purchase and whether the
conditions for the requested Investor Rate set forth in Section 2.04 have been
satisfied. On the date of each Purchase, the Investor shall, upon satisfaction
of the applicable conditions set forth in Article III, make available to the
Agent the amount of its Purchase by deposit of such amount in same day funds to
the Agent's Account, and, after receipt by the Agent of such funds, the Agent
will cause such funds to be made immediately available to the Seller at
Citibank's office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. The Investor shall on
the date of each Purchase, and the Owner of each Eligible Asset shall on the
first day of each Fixed Period (other than the initial Fixed Period) for such
Eligible Asset, notify the Agent of the Investor Rate for such Fixed Period.
SECTION 2.03. Termination or Reduction of the Purchase Limit.
(a) Optional. The Seller may, upon at least three Business
Days' notice to the Agent, terminate in whole or reduce in part the unused
portion of the Purchase Limit; provided, however, that for purposes of this
Section 2.03(a), the unused portion of the Purchase Limit shall be computed as
the excess of (A) the Purchase Limit immediately prior to giving effect to such
termination or reduction over (B) the sum of (i) the aggregate Capital of
Eligible Assets outstanding at the time of such computation and (ii) the
aggregate "Capital" of "Eligible Assets" outstanding under the Participant
Agreement at such time; provided, further, that each partial reduction shall be
in an amount equal to $1,000,000 or an integral multiple thereof.
(b) Mandatory. On each day on which the Seller shall, pursuant
to Section 2.03(a) of the Participant Agreement, reduce in part the unused
portion of the Commitments (as defined in the Participant Agreement), the
Purchase Limit shall automatically reduce by an equal amount. The Purchase Limit
shall automatically terminate in whole on any day on which the Seller shall
terminate in whole the Commitments pursuant to Section 2.03(a) of the
Participant Agreement.
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SECTION 2.04. Determination of Investor Rate and Fixed Periods
Therefor. (a) The Seller shall request the Investor Rate for each Fixed Period
for each Eligible Asset by notice from the Seller to the Agent (i) in the case
of the initial Fixed Period for such Eligible Asset, in the notice of the
proposed Purchase of such Fixed Asset given by the Seller pursuant to Section
2.02 and (ii) in the case of each subsequent Fixed Period for such Eligible
Asset, given not later than 11:00 A.M. (New York City time) on the first day of
such Fixed Period if the Seller requests as such Investor Rate the CP Rate and
not later than 11:00 A.M. (New York City time) on the fifth Business Day before
the first day of such Fixed Period if the Seller requests as such Investor Rate
either the MTN Fixed Rate or the MTN Floating Rate. Each such notice (i) if the
Seller requests as the Investor Rate the CP Rate, shall be by telephone,
telecopier, telex or cable, specifying in accordance with the other provisions
of this Section 2.04 the requested Fixed Period and Investor Rate therefor and
(ii) if the Seller requests as the Investor Rate either the MTN Fixed Rate or
the MTN Floating Rate, shall be by telephone (confirmed immediately in writing)
or by telecopier, telegraph, telex or cable, confirmed immediately in writing,
in substantially the form of Exhibit G hereto (a "Notice of Purchase and/or
Investor Rate", specifying therein, in accordance with the other provisions of
this Section 2.04, the requested Fixed Period and Investor Rate therefor
(including, in the case of a requested MTN Floating Rate, the requested "Spread"
or "Spread Multiplier", "Interest Rate Base", "Index Maturity", and "Interest
Reset Dates", specified in such Notice of Purchase and/or Investor Rate).
(b) If the Seller shall request as the Investor Rate for any
Fixed Period the CP Rate for such Fixed Period in accordance with subsection (a)
above and if the Agent shall approve such request, (i) such Investor Rate shall
be the CP Rate for such Fixed Period and (ii) such Fixed Period shall be such
number of days, not exceeding 270 days, as the Seller shall request, and the
Agent shall so approve; provided, however, that if the Agent shall not have
received a notice requesting such Investor Rate, or the Agent shall not have
approved such Fixed Period, before 11:00 A.M. (New York City time) on the first
day of such Fixed Period and no other Fixed Period or Investor Rate shall be
otherwise applicable pursuant to the provisions of this Agreement, such Fixed
Period shall be one day and the Investor Rate for such Fixed Period shall be the
CP Rate.
(c) If the Seller shall request as the Investor Rate for any
Fixed Period the MTN Fixed Rate or the MTN Floating Rate for such Fixed Period
in accordance with subsection (a) above and if the Agent shall approve such
request and if (in the event that clause (ii) of the definition of "Breakage
Reserve" contained in Section 1.01 applies) the Seller and the Agent shall have
agreed in writing to the computation of the Breakage Reserve for such Fixed
Period, (i) such Investor Rate shall be the MTN Fixed Rate or the MTN Floating
Rate (with, in the case of the MTN Floating Rate, the "Spread" or "Spread
Multiplier", "Interest Rate Base", "Index Maturity", and "Interest Reset Dates",
specified in such Notice of Purchase and/or Investor Rate), as so requested, for
such Fixed Period and (ii) such Fixed Period shall be such duration, exceeding
270 days but not exceeding three years, as the Seller shall request, and the
Agent shall approve, in the Notice of Purchase and/or Investor Rate related
thereto; provided, however, that if either (A) the Agent shall not have received
such Notice of Purchase and/or Investor Rate, or the Agent shall not have
approved such Investor Rate or such Fixed Period, before 11:00 A.M. (New York
City time) on the fifth Business Day before the first day of such Fixed Period
or (B) on or before the first day of such Fixed Period any Person who has agreed
to purchase the Medium Term Notes with reference to which such MTN Fixed Rate or
MTN Floating Rate is to be determined hereunder refuses to purchase and pay for
such
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Medium Term Notes, then such Fixed Period shall be one day and the Investor Rate
for such Fixed Period shall be the CP Rate.
(d) Anything herein to the contrary notwithstanding, if the
provisions of the definition of "Investor Rate" contained in Section 1.01 shall
specify that the Investor Rate for any Fixed Period shall be the Assignee Rate
(or such other rate as the Agent and the Seller may agree to in writing), the
Investor Rate for such Fixed Period shall be the Assignee Rate (or such other
rate) for such Fixed Period.
SECTION 2.05. Eligible Asset. (a) Each Eligible Asset shall be
initially computed as of the opening of business of the Collection Agent on the
date of Purchase of such Eligible Asset. Thereafter until the Termination Date
for such Eligible Asset, such Eligible Asset shall be automatically adjusted as
of the close of business of the Collection Agent on each day (other than a
Liquidation Day). Such Eligible Asset shall remain constant from the time as of
which any such adjustment or readjustment is made until the time as of which the
next such readjustment, if any, shall be made. Any Eligible Asset, as adjusted
as of the day immediately preceding the Termination Date for such Eligible
Asset, shall remain constant at all times on and after such Termination Date.
Such Eligible Asset shall become zero at such time as the Owner of such Eligible
Asset shall have received the accrued Yield for such Eligible Asset and shall
have recovered the Capital of such Eligible Asset, and the Collection Agent
shall have received the accrued Collection Agent Fee for such Eligible Asset.
(b) If any Eligible Asset would otherwise be reduced on any
day on account of Receivables arising as or becoming Pool Receivables, the Owner
of such Eligible Asset may prevent such reduction by giving notice to the
Collection Agent, before the close of business of the Collection Agent on such
day, that such Eligible Asset's interest in such Receivables is to be limited so
as to prevent such reduction. If such notice is given for any day for any
Eligible Asset, the Receivables Pool for such Eligible Asset, and the Net
Receivables Pool Balance for such Eligible Asset, will include, with respect to
Receivables arising as or becoming Pool Receivables on such day, only such
number of such Receivables or such portion of such Receivables as shall cause
such Eligible Asset to remain constant, such Receivables or portion thereof
being included in the Receivables Pool for such Eligible Asset in the order of
the Seller's account numbers for such Receivables up to an aggregate amount so
as to cause such Eligible Asset to remain constant, and the remainder of such
Receivables or portion thereof shall be treated as Receivables arising on the
next succeeding Business Day.
SECTION 2.06. Non-Liquidation Settlement Procedures. On each
day (other than a Liquidation Day or a Provisional Liquidation Day) during each
Settlement Period for each Eligible Asset, the Collection Agent shall: (i) out
of Collections of Pool Receivables attributable to such Eligible Asset received
on such day, set aside and hold in trust for the Owner of such Eligible Asset an
amount equal to the Yield and Collection Agent Fee accrued through such day for
such Eligible Asset and not so previously set aside and (ii) reinvest the
remainder of such Collections, for the benefit of such Owner, by recomputation
of such Eligible Asset pursuant to Section 2.05 as of the end of such day and
the payment of such remainder to the Seller; provided, however, that, to the
extent that the Agent or any Owner shall be required for any reason to pay over
any amount of Collections which shall have been previously reinvested for the
account of such Owner pursuant hereto, such amount shall be deemed not to have
been so applied but rather to have been retained by the Seller and paid over for
the account of such Owner and, notwithstanding any provision hereof to the
contrary, such Owner shall have a claim for such amount. On the last day of each
Settlement Period for each
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Eligible Asset, the Collection Agent shall deposit to the Agent's Account for
the account of the Owner of such Eligible Asset the amounts set aside as
described in clause (i) of the first sentence of this Section 2.06. Upon receipt
of such funds by the Agent, the Agent shall distribute them to the Owner of such
Eligible Asset in payment of the accrued Yield for such Eligible Asset and to
the Collection Agent in payment of the accrued Collection Agent Fee payable with
respect to such Eligible Asset. If there shall be insufficient funds on deposit
for the Agent to distribute funds in payment in full of the aforementioned
amounts, the Agent shall distribute funds, first, in payment of the accrued
Yield for such Eligible Asset, and second, in payment of the accrued Collection
Agent Fee payable with respect to such Eligible Asset.
SECTION 2.07. Liquidation Settlement Procedures. On each
Liquidation Day and on each Provisional Liquidation Day during each Settlement
Period for each Eligible Asset, the Collection Agent shall set aside and hold in
trust for the Owner of such Eligible Asset the Collections of Pool Receivables
attributable to such Eligible Asset received on such Day. On the last day of
each Settlement Period for each Eligible Asset, the Collection Agent shall
deposit to the Agent's Account for the account of the Owner of such Eligible
Asset the amounts set aside pursuant to the preceding sentence but not to exceed
the sum of (i) the accrued Yield for such Eligible Asset (including, without
limitation, the Breakage Fee for such Eligible Asset then payable pursuant to
Section 2.14), (ii) the Capital of such Eligible Asset, (iii) the accrued
Collection Agent Fee payable with respect to such Eligible Asset and (iv) the
aggregate amount of other amounts owed hereunder by the Seller to the Owner of
such Eligible Asset. Any amounts set aside pursuant to the first sentence of
this Section 2.07 and not required to be deposited to the Agent's Account
pursuant to the preceding sentence shall be paid to the Seller by the Collection
Agent; provided, however, that if amounts are set aside pursuant to the first
sentence of this Section 2.07 on any Provisional Liquidation Day which is
subsequently determined not to be a Liquidation Day, such amounts shall be
applied pursuant to the first sentence of Section 2.06 on the day of such
subsequent determination. Upon receipt of funds deposited to the Agent's Account
pursuant to the second sentence of this Section 2.07, the Agent shall distribute
them (i) to the Owner of such Eligible Asset (a) in payment of the accrued Yield
for such Eligible Asset, (b) in reduction (to zero) of the Capital of such
Eligible Asset and (c) in payment of any other amounts owed by the Seller
hereunder to such Owner and (ii) to the Collection Agent in payment of the
accrued Collection Agent Fee payable with respect to such Eligible Asset. If
there shall be insufficient funds on deposit for the Agent to distribute funds
in payment in full of the aforementioned amounts, the Agent shall distribute
funds, first, in payment of the accrued Yield for such Eligible Asset (but, in
the case of the Breakage Fee for such Eligible Asset, only to the extent the
Agent shall elect to pay such Breakage Fee from Collections attributable to such
Eligible Asset under this Section 2.07 rather than from other funds pursuant to
Section 2.14), second, in reduction of Capital of such Eligible Asset, third, in
payment of other amounts payable to such Owner, and fourth, in payment of the
accrued Collection Agent Fee payable with respect to such Eligible Asset.
SECTION 2.08. General Settlement Procedures. If on any day the
Outstanding Balance of a Pool Receivable is either (a) reduced as a result of
any defective, rejected or returned merchandise, insurance or services, any cash
discount, or any adjustment by the Seller or any of its Affiliates, or (b)
reduced or cancelled as a result of a setoff in respect of any claim by the
Obligor thereof against the Seller or any of its Affiliates (whether such claim
arises out of the same or a related transaction or an unrelated transaction),
the Seller shall be deemed to have
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received on such day a Collection of such Receivable in the amount of such
reduction or cancellation. If on any day any of the representations or
warranties in Section 4.01(g) is no longer true with respect to a Pool
Receivable, the Seller shall be deemed to have received on such day a Collection
in full of such Pool Receivable. Except as stated in the preceding sentences of
this Section 2.08 or as otherwise required by law or the underlying Contract,
all Collections received from an Obligor of any Receivable shall be applied to
Receivables then outstanding of such Obligor in the order of the age of such
Receivables, starting with the oldest such Receivable, except if payment is
designated by such Obligor for application to specific Receivables. Prior to the
twelfth Business Day following each Accounting Period, the Collection Agent
shall prepare and forward to the Agent for each Owner of an Eligible Asset an
Investor Report, relating to each Eligible Asset, as of the close of business of
the Collection Agent on the last day of the immediately preceding Accounting
Period. On or prior to the day the Collection Agent is required to make a
deposit with respect to a Settlement Period pursuant to Section 2.06 or 2.07,
the Seller will advise the Agent of each Liquidation Day and each Provisional
Liquidation Day occurring during such Settlement Period and of the allocation of
the amount of such deposit to each outstanding Eligible Asset; provided,
however, that, if the Seller is not the Collection Agent, the Seller shall
advise the Collection Agent of the occurrence of each such Liquidation Day and
each Provisional Liquidation Day occurring during such Settlement Period on or
prior to such day.
SECTION 2.09. Payments and Computations, Etc. All amounts to
be paid or deposited by the Seller hereunder shall be paid or deposited in
accordance with the terms hereof no later than 11:00 A.M. (New York City time)
on the day when due in lawful money of the United States of America in same day
funds to the Agent's Account. The Seller shall, to the extent permitted by law,
pay to the Agent interest on all amounts not paid or deposited when due
hereunder at 2% per annum above the Alternate Base Rate in effect from time to
time, payable on demand, provided, however, that such interest rate shall not at
any time exceed the maximum rate permitted by applicable law. Such interest
shall be retained by the Agent except to the extent that such failure to make a
timely payment or deposit has continued beyond the date for distribution by the
Agent of such overdue amount to an Owner of an Eligible Asset, in which case
such interest accruing after such date shall be for the account of, and
distributed by the Agent to, the Owners ratably in accordance with their
respective interests in such overdue amount. All computations of interest and
all computations of Yield, Liquidation Yield and fees hereunder shall be made on
the basis of a year of 360 days for the actual number of days (including the
first but excluding the last day) elapsed except that (i) computations of the
MTN Fixed Rate and Yield computed by reference to the MTN Fixed Rate shall be
made on the basis of a 360-day year consisting of twelve 30-day months and (ii)
computations of any MTN Floating Rate and Yield computed by reference to any MTN
Floating Rate shall be made on the basis for the computation of interest
applicable to the Medium Term Notes with reference to which such MTN Floating
Rate is determined hereunder.
SECTION 2.10. Dividing or Combining of Eligible Assets. The
Seller may, on notice received by the Agent not later than 11:00 A.M. (New York
City time) three Business Days before the last day of any Fixed Period for any
then existing Eligible Asset ("Existing Eligible Asset"), divide such Existing
Eligible Asset on such last day into two or more new Eligible Assets, each such
new Eligible Asset having Capital as designated in such notice and all such new
Eligible Assets collectively having aggregate Capital equal to the Capital of
such Existing Eligible Asset. The Seller may, on notice received by the Agent
not later than 11:00 A.M. (New York City time) three Business Days before the
last day of any Fixed Periods ending on the same day for two or more Existing
Eligible Assets owned by the same Owner or the date of any proposed Purchase (if
the last day of such Fixed Period is the date of such proposed Purchase), either
(i) combine such Existing Eligible Assets or (ii)
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combine such Existing Eligible Asset or Eligible Assets, if owned by the
Investor, and such proposed Eligible Asset to be purchased, on such last day
into one new Eligible Asset, such new Eligible Asset having Capital equal to the
aggregate Capital of such Existing Eligible Assets, or such Existing Eligible
Asset or Eligible Assets and such proposed Eligible Asset, as the case may be.
On and after any division or combination of Eligible Assets as described above,
each of the new Eligible Assets resulting from such division, or the new
Eligible Asset resulting from such combination, as the case may be, shall be a
separate Eligible Asset having Capital as set forth above, and shall take the
place of such Existing Eligible Asset or Eligible Assets or proposed Eligible
Asset, as the case may be, in each case under and for all purposes of this
Agreement, and the Agent shall annotate the Certificate accordingly.
SECTION 2.11. Fees. (a) The Seller shall pay, from the
Effective Date until the later of the Facility Termination Date or the date on
which all Capital of all Eligible Assets is reduced to zero, the following fees:
(i) to the Agent an administration fee (the
"Administration Fee") referred to and in the amount specified
in the Fee Letter, and
(ii) to the Agent for the account of the Investor the
Investor investment fee (the "Investor Investment Fee"),
referred to and in the amount specified in the Fee Letter.
The Administration Fee is payable in arrears monthly on the last day of each
month during the term of this Agreement and on the later of the Facility
Termination Date or the date on which all Capital of all Eligible Assets is
reduced to zero. The Investor Investment Fee is payable in arrears annually on
the last Business Day of November of each year and on the later of the Facility
Termination Date or the date on which all Capital of all Eligible Assets is
reduced to zero.
(b) Each Owner shall pay to the Collection Agent a collection
fee (the "Collection Agent Fee") of 1/4 of 1% per annum on the average daily
amount of Capital of each Eligible Asset owned by such Owner, from the date
thereof until the later of the Facility Termination Date or the date on which
such Capital is reduced to zero, payable on the last day of each Settlement
Period for such Eligible Asset; provided, however, that, upon three Business
Days' notice to the Agent, the Collection Agent may (if not the Seller or any of
its Affiliates) elect to be paid, as such fee, another percentage per annum on
the average daily amount of Capital of each such Eligible Asset, but in no event
in excess of 110% of the costs and expenses referred to in Section 6.02(b); and
provided, further, that such fee shall be payable only from Collections pursuant
to, and subject to the priority of payment set forth in, Sections 2.06 and 2.07.
(c) The Seller shall also pay to the Agent for the account of
each Indemnified Party, from time to time on demand by the Agent, the Capital
Adequacy Fee for such Indemnified Party as specified by the Agent.
SECTION 2.12. Increased Costs. If, due to either (i) any
change in Regulation D of the Board of Governors of the Federal Reserve System
(to the extent any cost incurred pursuant to such regulation is not included in
the calculation of Adjusted LIBO Rate), (ii) the introduction of or any change
in or in the interpretation of any law or regulation or (iii) the compliance
with any guideline or request from any central bank or other governmental
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authority (whether or not having the force of law), there shall be any increase
in the cost to (or, in the case of Regulation D of the Board of Governors of the
Federal Reserve System, there shall be imposed a cost on) any Indemnified Party
of agreeing to make or making the Purchases or purchases of interests therein or
maintaining Eligible Assets hereunder or interests therein hereunder or under
the Participant Agreement, or, in the case of any Indemnified Party which is a
Participant, under any agreement entered into by such Participant with respect
to this Agreement or the Participant Agreement, then the Seller shall from time
to time, upon demand, and delivery to the Seller of the certificate referred to
in the last sentence of this Section 2.12, by such Indemnified Party (or by the
Agent for the account of such Indemnified Party) (with a copy of such demand and
certificate to the Agent), pay to the Agent for the account of such Indemnified
Party additional amounts sufficient to compensate such Indemnified Party for
such increased or imposed cost. Each Indemnified Party party hereto agrees to
use its best efforts promptly to notify the Seller of any event referred to in
clause (i), (ii) or (iii) above, provided that the failure to give such notice
shall not affect the rights of any Indemnified Party under this Section 2.12. A
certificate in reasonable detail as to the basis for and the amount of such
increased cost, submitted to the Seller and the Agent by such Indemnified Party
(or by the Agent for the account of such Indemnified Party) shall be conclusive
and binding for all purposes, absent manifest error. Amounts required to be paid
by the Seller pursuant to this Section 2.12 shall be paid in addition to, and
without duplication of, any amounts required to be paid pursuant to Section
2.11(c).
SECTION 2.13. Extension of Expiry Date. On or after the date
30 days prior to the Expiry Date then in effect, but prior to the date 20 days
prior to such Expiry Date, the Seller may, at its option, deliver to the Agent a
signed copy of an extension request (an "Extension Request") in the form of
Exhibit F annexed hereto requesting an extension of the Expiry Date for a period
of 364 days (each an "Extension Period"). On or before the date which occurs 10
days after the date on which the Agent shall have received an Extension Request,
the Agent may, in its sole discretion, elect to extend the Expiry Date for the
Extension Period. If the Agent does so elect to extend the Expiry Date for an
Extension Period, the Expiry Date will be extended for such Extension Period. If
the Agent has not replied in writing to the Seller by the date 10 days after the
date on which the Agent shall have received an Extension Request, the Agent
shall be deemed not to have consented to the extension of the Expiry Date and
the Expiry Date then in effect shall remain in effect and shall not be extended.
SECTION 2.14. Breakage Fee and Indemnity. If any Liquidation
Day, or the Termination Date, for any Eligible Asset shall occur during any
Fixed Period (computed, for purposes of this Section 2.14, without regard to
clause (iv) of the definition of "Fixed Period" contained in Section 1.01) for
such Eligible Asset and the Investor Rate for such Fixed Period for such
Eligible Asset shall be the MTN Fixed Rate or the MTN Floating Rate for such
Fixed Period, the Seller hereby agrees as follows:
(a) The Seller shall, if "F" (as defined below) shall
be greater than "R" (as defined below), pay to the Owner a fee
(the "Breakage Fee" for such Eligible Asset) to be computed
cumulatively as of each Fee Determination Date for such
Eligible Asset as follows:
[C x (F-R)] x [1 - (1 + R/f)-n]
[ f ] [ R/f ]
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where:
C = the amount by which Capital of such Eligible
Asset is reduced on such Fee Determination
Date.
F = if the Investor Rate for such Fixed Period
shall be the MTN Fixed Rate, the MTN Fixed
Rate for such Eligible Asset for such Fixed
Period; and if the Investor Rate for such
Fixed Period shall be the MTN Floating Rate,
the MTN Floating Rate for such Eligible
Asset in effect on such Fee Determination
Date for such Eligible Asset.
R = the highest rate of interest (which will be
a fixed interest rate if the MTN Fixed Rate
shall apply for such Fixed Period, and which
will be a floating interest rate, based on
the same "Interest Rate Base" (as identified
in the related Notice of Purchase and/or
Investor Rate) and in effect on such Fee
Determination Date, if the MTN Floating Rate
shall apply for such Fixed Period) at which
the Agent on behalf of the Owner shall be
permitted under the Owner's credit and
investment policy to reinvest on such Fee
Determination Date the amount of "C" above;
provided, however, that "R" shall not be
less than the yield to maturity of U.S.
Treasury notes trading closest to par value
and maturing within three months of the last
day of such Fixed Period.
f = the frequency per year (maximum amount of
times per year) that Yield for such Eligible
Asset for such Fixed Period shall be
payable.
n = the number of originally scheduled
Settlement Periods (in whole or in part)
remaining in such Fixed Period from such Fee
Determination Date to the last day of such
Fixed Period.
The portion of the Breakage Fee for such Eligible Asset computed as of
each Fee Determination Date for such Eligible Asset shall be payable by
the Seller within three Business Days after such Fee Determination
Date.
(b) The Seller shall, in addition to paying the Breakage Fee
for such Eligible Asset for such Fixed Period, indemnify and hold
harmless the Owner of such Eligible Asset for all losses, costs,
liabilities and expenses which such Owner may incur as a result of the
occurrence of such Liquidation Day or Termination Date and for which
such Owner is not compensated by the payment of such Breakage Fee.
ARTICLE III
CONDITIONS TO PURCHASES
SECTION 3.01. Conditions Precedent to Initial Purchase. This
Amended and Restated Trade Receivables Purchase and Sale Agreement shall become
effective upon, and only upon, the Agent's receipt of (i) counterparts of this
Agreement executed by the Seller, the Collection Agent, the Investor and the
Agent, (ii) payment of the "Administrative Fee" and the
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"Investor Investment Fee" under and as defined in the Original Seller Agreement,
accrued to and including the Effective Date (as defined below), and (iii) the
following, each (unless otherwise indicated) dated, or dated as of or effective
as of, February 12, 1997 (such date being the "Effective Date"), in form and
substance satisfactory to the Agent:
(a) The Certificate, executed by the Seller;
(b) The Contribution and Sale Agreement, duly executed by Dial
and the Seller, together with:
(i) Proper financing statements (Form UCC-1) naming
Dial, as seller, the Seller, as purchaser, and the Agent, as
assignee, to be filed within 10 days following the Effective
Date, or other similar instruments or documents, as may be
necessary or, in the opinion of the Agent, desirable under the
UCC of all appropriate jurisdictions or any comparable law to
perfect the Seller's interests created or purported to be
created by the Contribution and Sale Agreement;
(ii) Acknowledgment copies or stamped receipt copies
of proper Financing Statements (Form UCC-3), if any, necessary
to release all security interests and similar rights of any
Person in the Receivables, Related Security, Collections or
Contracts previously granted by Dial;
(iii) Completed requests for information, dated a
date reasonably near to the Effective Date, listing all
effective financing statements which name Dial (under its
present name and any previous names) as debtor or seller and
which are filed in the jurisdictions in which filings were
made pursuant to subsection (c)(i) or (c)(ii) above, together
with copies of such financing statements (none of which,
except those filed pursuant to subsection (c)(i) above and
except those filed pursuant to the Original Seller Agreement,
shall cover any Receivables, Related Security, Collections or
Contracts); and
(iv) The Consent and Agreement with respect hereto
and to the Certificate, the Participant Agreement and the
"Certificate" thereunder, duly executed by Dial.
(c) A copy of the resolutions adopted by either the Board of
Directors, or in the case of Dial, the Executive Committee of the Board
of Directors of (i) Dial approving this Agreement, the Contribution and
Sale Agreement and the other Purchase Documents and other documents to
be delivered by it hereunder and the transactions contemplated hereby
and (ii) the Seller approving this Agreement, the Certificate and the
other Purchase Documents and other documents to be delivered by it
hereunder and the transactions contemplated hereby, in each case
certified by its Secretary or Assistant Secretary;
(d) A certificate of the Secretary or Assistant Secretary of
(i) Dial, certifying the names and true signatures of the officers
authorized on its behalf to sign this Agreement, the Contribution and
Sale Agreement and the other Purchase Documents and the other documents
to be delivered by it hereunder and thereunder and (ii) the Seller
certifying the names and true signatures of the officers authorized on
its behalf to
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sign this Agreement, the Certificate and the other Purchase Documents
and other documents to be delivered by it hereunder and thereunder (on
which certificates the Agent and each Owner may conclusively rely until
such time as the Agent shall receive from Dial or the Seller, as the
case may be, a revised certificate meeting the requirements of this
subsection (d));
(e) A copy of the charter of Dial and the Seller, in each case
certified to be a true and correct copy by the Secretary of State of
its state of incorporation;
(f) A copy of the by-laws of Dial and the Seller, in each case
certified to be a true and correct copy by its Secretary or Assistant
Secretary;
(g) Acknowledgment copies of proper Financing Statements
naming the Seller as debtor and Citicorp, as Agent, as secured party,
with respect to Receivables sold and to be sold by the Seller and duly
filed under the UCC of the State of Arizona;
(h) Acknowledgment copies of proper financing statement
releases, if any, necessary to release all security interests and other
rights of any Person in the Receivables, Contracts or Related Security
previously granted by the Seller;
(i) UCC Search Report dated a date reasonably near to the
Effective Date, certified by the Secretary of State of Arizona by a
search service acceptable to the Agent, together with copies of all
financing statements on file with the office of such Secretary of State
(none of which shall cover any Receivables, Contracts or Related
Security);
(j) Undated copies of Lock-Box Notices to the Lock-Box Banks,
executed by the Seller;
(k) The Fee Letter, executed by the Seller;
(l) (i) A favorable opinion of Xxxxxxx X. Xxxxxxxx, Associate
General Counsel of Dial, in substantially the form of Exhibit E-1
hereto and (ii) a favorable opinion of Xxxxx & Xxxx, special Arizona
counsel to Dial, in substantially the form of Exhibit E-2 hereto, and,
in each case, as to such other matters as the Agent may reasonably
request;
(m) A favorable opinion of Shearman & Sterling, counsel for
the Agent, as the Agent may reasonably request; and
(n) The Assignment and Assumption, duly executed by Dial and
the Seller and consented to by the Investor, Citibank, Citicorp and the
Agent.
SECTION 3.02. Conditions Precedent to All Purchases and
Reinvestments. Each Purchase hereunder and the right of the Collection Agent to
reinvest in Pool Receivables those Collections attributable to an Eligible Asset
pursuant to Sections 2.06 or 2.07 shall be subject to the conditions precedent
that (a) with respect to any such Purchase, on or prior to the date of such
Purchase, the Collection Agent shall have delivered to the Agent, in form and
substance satisfactory to the Agent, a completed Investor Report, dated within
30 days prior to the date of such Purchase, together with a listing by Obligor
of all Pool Receivables and such
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additional information as may be reasonably requested by the Agent, and (b) on
the date of such Purchase or reinvestment the following statements shall be true
(and the Seller by accepting the amount of such Purchase or by receiving the
proceeds of such reinvestment shall be deemed to have certified that):
(i) The representations and warranties contained in Section
4.01 hereof and in the Contribution and Sale Agreement are correct on
and as of such day as though made on and as of such date,
(ii) No event has occurred and is continuing, or would result
from such Purchase or reinvestment, which constitutes an Event of
Investment Ineligibility or would constitute an Event of Investment
Ineligibility but for the requirement that notice be given or time
elapse or both,
(iii) The Agent shall not have delivered to the Seller a
notice that the Investor shall not make any further Purchases hereunder
and/or that the Collection Agent shall not reinvest in any Pool
Receivables on behalf of the Investor, and
(iv) On such date, all of Dial's long-term public senior debt
securities are rated (A) at least BBB- by Standard & Poor's Ratings
Group and (B) if such a rating has been issued by Xxxxx'x Investors
Service and is then in effect, at least Baa3 by Xxxxx'x Investors
Service,
and (c) the Agent shall have received such other approvals, opinions or
documents as the Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller.
The Seller represents and warrants as follows:
(a) The Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to do business, and is in good
standing, in every jurisdiction where the nature of its business
requires it to be so qualified except where the failure to so qualify
would not have a material adverse effect on the business of the Seller.
All the issued and outstanding shares of stock of the Seller are owned
by Dial free and clear of any Adverse Claim.
(b) The execution, delivery and performance by the Seller of
this Agreement, the Certificate and all Purchase Documents and other
instruments and documents to be delivered by it hereunder, and the
transactions contemplated hereby and thereby, and the Seller's use of
the proceeds of Purchases, are within the Seller's corporate powers,
have been duly authorized by all necessary corporate action, do not
contravene (i) the Seller's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Seller, and do not
result in or require the creation of any Adverse Claim (other than
pursuant hereto) upon or with respect to any of its
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properties; and no transaction contemplated hereby requires compliance
with any bulk sales act or similar law.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Seller of this Agreement, the Certificate or any other Purchase
Document or other document or instrument to be delivered hereunder,
except for the filing of the Financing Statements referred to in
Sections 3.01(b) and (g), all of which shall have been duly made and
shall be in full force and effect.
(d) This Agreement constitutes, and the Certificate and each
other Purchase Document to be delivered by the Seller when delivered
hereunder shall constitute, the legal, valid and binding obligations of
the Seller enforceable against the Seller in accordance with their
respective terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally.
(e) There are no actions, suits or proceedings pending, or to
the knowledge of the Seller threatened, against or affecting the Seller
or any subsidiary, or the property of the Seller or of any subsidiary,
in any court, or before any arbitrator of any kind, or before or by any
governmental body, which might reasonably be expected to materially
adversely affect the financial condition of the Seller or the Seller
and its consolidated subsidiaries taken as a whole or materially
adversely affect the ability of the Seller to perform its obligations
under this Agreement or the Certificate or any other Purchase Document,
or which purports to affect the legality, validity or enforceability of
any Purchase Document; neither the Seller nor any subsidiary is in
default with respect to any order of any court, arbitrator or
governmental body except for defaults with respect to orders of
governmental agencies which defaults are not material to the business
or operations of the Seller or any subsidiary.
(f) No proceeds of any Purchase will be used by the Seller to
acquire any security in any transaction which is subject to Sections 13
and 14 of the Securities Exchange Act of 1934.
(g) Each Pool Receivable is (i) together with the Contract
related thereto owned by the Seller free and clear of any Adverse Claim
except as provided for herein and (ii) an Eligible Receivable or a
Government Receivable; upon each Purchase or reinvestment, the Owner
making such Purchase or reinvestment will acquire a valid and perfected
first priority undivided percentage ownership interest to the extent of
the pertinent Eligible Asset in each Pool Receivable then existing or
thereafter arising and in the Related Security and Collections with
respect thereto free and clear of any Adverse Claim except as provided
hereunder; and no effective financing statement or other instrument
similar in effect covering any Pool Receivable or the Related Security
or Collections with respect thereto is on file in any recording office
except such as may be filed in favor of Citicorp, as Agent, in
accordance with this Agreement (or the Original Seller Agreement) or
the Participant Agreement.
(h) The pro-forma balance sheet of the Seller as at February
12, 1997, copies of which have been furnished to the Agent and the
Investor fairly present the
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financial condition of the Seller as at such date, all in accordance
with generally accepted accounting principles consistently applied, and
as of the Effective Date there has been no material adverse change in
such condition.
(i) Each Investor Report (if prepared by Dial, the Seller or
any Affiliate thereof, or to the extent that information contained
therein is supplied by Dial, the Seller or any Affiliate thereof),
information, exhibit, financial statement, document, book, record or
report furnished at any time by the Seller to the Agent or any Owner in
connection with this Agreement is accurate in all material respects as
of its date or (except as otherwise disclosed to the Agent or such
Owner, as the case may be, at such time) as of the date so furnished,
and no such document contains any material misstatement of fact or
omits to state a material fact or any fact necessary to make the
statements contained therein not materially misleading.
(j) The chief place of business and chief executive office of
the Seller and the offices where the Seller keeps all its books,
records and documents evidencing Pool Receivables or the related
Contracts are located at the addresses specified for the Seller in
Schedule I hereto (or at such other locations, notified to the Agent in
accordance with Section 5.01(f), in jurisdictions where all action
required by Section 6.05 has been taken and completed).
(k) The names and addresses of all the Lock-Box Banks,
together with the account numbers of the lock-box or other accounts of
the Seller or Dial at such Lock-Box Banks, are specified for the Seller
and Dial, respectively, in Schedule II hereto (or at such other
Lock-Box Banks and/or with such other lock-box or other accounts as
have been notified to the Agent in accordance with Section 5.03(d)).
(l) Each purchase of an Eligible Asset hereunder, and each
reinvestment of Collections in Pool Receivables made hereunder, will
constitute (i) a "current transaction" within the meaning of Section
3(a)(3) of the Securities Act of 1933, as amended, and (ii) a purchase
or other acquisition of notes, drafts, acceptances, open accounts
receivable or other obligations representing part or all of the sales
price of merchandise, insurance or services within the meaning of
Section 3(c)(5) of the Investment Company Act of 1940, as amended.
(m) The Seller has no subsidiaries and does not own or hold,
directly or indirectly, any capital stock or equity security of, or any
equity interest in, any other Person and has conducted no other
business except for the execution and delivery of the Contribution and
Sale Agreement, the Assignment and Assumption and this Agreement and
the Participant Agreement and the acquisition of Receivables and sales
of interests therein contemplated thereunder and hereunder, and such
other activities as are incidental to the foregoing.
(n) The Contribution and Sale Agreement and the Assignment and
Assumption are the only agreements pursuant to which the Seller
purchases Receivables from Dial and each Receivable in which an
interest is sold hereunder has been purchased under the Contribution
and Sale Agreement or the Assignment and Assumption. The Seller has
given the Agent true, correct and complete copies of the Contribution
and Sale Agreement and the Assignment and Assumption, which agreements
are in full force and effect, and there are no written or oral
understandings
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which would vary, waive or otherwise modify the terms thereof except
those which have been approved in writing by the Agent.
(o) The Seller is not a party to any indenture, loan or credit
agreement or any lease or other agreement or instrument or subject to
any charter or corporate restriction that could reasonably be expected
to have, and no provision of applicable law or governmental regulation
could reasonably be expected to have, a material adverse effect on the
condition (financial or otherwise), business, operations, properties or
prospects of the Seller, or may reasonably be expected to have such an
effect on the ability of the Seller to carry out its obligations
hereunder or under the Contribution and Sale Agreement, and (ii)
neither the Seller nor, to the best of the knowledge of the Seller, any
other party is in default under or with respect to the Contribution and
Sale Agreement or any other contract, agreement, lease or other
instrument to which the Seller is a party and which is material to the
Seller's condition (financial or otherwise), business, operations,
properties or prospects, and neither the Seller nor any such other
party has delivered or received any notice of default thereunder.
(p) The Seller has advised its independent certified public
accountants that the Agent and the Owners have been authorized to
review and discuss with such accountants, upon the written request of
the Agent, any and all financial statements and other information that
they may have reasonably requested with respect to the Seller and has
directed such accountants to comply with any reasonable request of the
Agent for such information.
(q) The Seller has no tradenames, fictitious names, assumed
names or "doing business as" names.
(r) The Seller is operated as an entity separate from Dial and
each other member of the Parent Group and, towards such end, the
Seller:
(i) has its own board of directors the composition of
which is not identical to that of the Board of Directors of
any member of the Parent Group, even though some if not all of
the Seller's directors serve as directors of various members
of the Parent Group;
(ii) has at least one officer who is responsible for
the day-to-day management of its affairs;
(iii) has separate and clearly delineated office
space evidenced by a written lease or sub-lease;
(iv) maintains books and records of account
(including financial records) which are separate from each
other member of the Parent Group and maintains its assets in a
manner which facilitates their identification and segregation
from those of any other member of the Parent Group;
(v) has a separate telephone number which will be
answered only in its own name and has all office furniture,
fixtures and equipment necessary to operate its business which
furniture, fixtures and equipment are either owned by the
Seller or leased pursuant to written leases or otherwise
subject to access
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through written servicing arrangements;
(vi) conducts all intercompany transactions with all
members of the Parent Group on a separate and independent
basis;
(vii) has not guaranteed any obligations of any
member of the Parent Group, and has not held itself out as
responsible for debts of any such Person or for the decisions
or actions with respect to the business and affairs of any
such Person;
(viii) has not permitted the commingling or pooling
of its funds or other assets with the funds or assets of any
member of the Parent Group;
(ix) has separate deposit and other bank accounts in
its own name (or in the name of the Agent) to which no member
of the Parent Group (other than the Collection Agent) has
access and does not at any time pool any of its funds with
those of the Parent Group;
(x) pays its own operating expenses and liabilities
from its own funds;
(xi) has agreed with other members of the Parent
Group to reimburse such members for shared corporate operating
services and expenses, including legal and auditing expenses,
accounting and payroll services, and the participation, if
any, of the Seller's employees in the pension plans of the
Parent Group) on a basis reasonably related to actual use or
the value of services rendered, except that expenses of Dial
which relate to its duties as Collection Agent shall be
reimbursed through payment of the Collection Agent Fee;
(xii) conducts all of its business (whether in
writing or orally) solely in its own name and, in the case of
written correspondence, under its own letterhead; and
(xiii) practices and adheres to corporate formalities
such as complying with its certificate of incorporation and
bylaws, the holding of regularly scheduled board of director
meetings and the keeping of corporate minutes to reflect the
same.
(s) The Seller has been adequately capitalized in light of its
business and, at the time of each Purchase hereunder, (i) is not
"insolvent" (as such term is defined in the United States Bankruptcy
Code), (ii) is able to pay its debts as they mature and (ii) does not
have unreasonably small capital for the business in which it is
engaged.
ARTICLE V
GENERAL COVENANTS OF THE SELLER
SECTION 5.01. Affirmative Covenants of the Seller. Until the
later of the Facility Termination Date and the date upon which no Capital for
any Eligible Asset shall be
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existing, the Seller will, unless the Agent shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders with respect to
it, its business and properties and all Pool Receivables and related
Contracts.
(b) Preservation of Corporate Existence. Preserve and maintain
its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in
good standing as a foreign corporation in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises,
privileges and qualification would materially adversely affect the
interests of the Owners or the Agent hereunder or in the Pool
Receivables, or the ability of the Seller or the Collection Agent to
perform their respective obligations hereunder or under any other
Purchase Document or any Contract.
(c) Audits. (i) At any time and from time to time during
regular business hours, permit the Agent, or its agents or
representatives, (A) to examine and make copies of and abstracts from
all books, records and documents (including, without limitation,
computer tapes and disks) in the possession or under the control of the
Seller or Dial relating to Pool Receivables, including, without
limitation, the related Contracts, and (B) to visit the offices and
properties of the Seller or Dial for the purpose of examining such
materials described in clause (A) above, and to discuss matters
relating to Pool Receivables or the Seller's or Dial's performance
hereunder with any of the officers or employees of the Seller or Dial
having knowledge of such matters.
(ii) Within 120 days after the end of each fiscal year of the
Seller, cause its independent auditors to perform, at the Seller's
expense, an audit (in a scope and form reasonably requested by the
Agent) of the records in respect of the Pool Receivables and
Collections thereof and the performance by the Seller of its
obligations, covenants and duties under this Agreement and the other
Purchase Documents.
(d) Keeping of Records and Books of Account. Maintain and
implement or cause to be maintained and implemented, administrative and
operating procedures (including, without limitation, an ability to
recreate records evidencing Pool Receivables in the event of the
destruction of the originals thereof), and keep and maintain all
documents, books, records and other information reasonably necessary or
advisable for the collection of all Pool Receivables (including,
without limitation, records adequate to permit the daily identification
of each new Pool Receivable and all Collections of and adjustments to
each existing Pool Receivable).
(e) Performance and Compliance with Receivables and Contracts.
At its expense, timely and fully perform and comply with all material
provisions, covenants and other promises required to be observed by it
under the Contracts related to the Pool Receivables.
(f) Location of Records. Keep its chief place of business and
chief executive office, and the offices where it keeps its records
concerning the Pool Receivables and all Contracts related thereto (and
all original documents relating thereto), at the address(es) of the
Seller referred to in Section 4.01(j) or, upon 30 days'
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prior written notice to the Agent, at such other locations in a
jurisdiction where all action required by Section 6.05 shall have been
taken and completed.
(g) Credit and Collection Policies. Comply in all material
respects with the Credit and Collection Policy in regard to each Pool
Receivable and the related Contract.
(h) Collections. Instruct all Obligors to cause all
Collections to be deposited directly to a Lock-Box Account or paid to
the Seller, and if the Seller shall receive any Collections (including
without limitation Collections deemed to have been received pursuant to
Section 2.08 or Section 10.02), deposit, or cause to be deposited, such
Collections directly to a Lock-Box Account within one Business Day
following its receipt (or deemed receipt) thereof.
(i) Separate Identity. Take all actions reasonably required to
maintain itself as an entity separate from the members of the Parent
Group, including such actions as are necessary to ensure that the
representations and warranties contained in Section 4.01(r) remain true
and correct at all times.
(j) Purchase of Pool Receivables from Dial. With respect to
each Pool Receivable outstanding from time to time pay to Dial (in
accordance with the Contribution and Sale Agreement or the Assignment
and Assumption) an amount which constitutes fair consideration and
approximates fair market value for such Pool Receivable and in a sale
the terms and conditions of which (including, without limitation, the
purchase price thereof) reasonably approximate an arm's-length
transaction between unaffiliated parties.
(k) Nature of Business and Permitted Transactions. Engage
solely in the following businesses and transactions, directly or
indirectly: (i) purchasing Receivables and Related Security from Dial
and selling interests in such Receivables and Related Security to the
Owners hereunder and under the Participant Agreement and the other
transactions permitted or contemplated hereby and thereby and (ii)
taking actions, and engaging in the transactions, necessary in
connection with any Permitted Transaction.
(l) Receivables Contribution and Sale Agreement. 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 Contribution and Sale Agreement, maintain the
Contribution and Sale Agreement in full force and effect, enforce the
Contribution and Sale Agreement in accordance with its terms, take all
such action to such end as may be from time to time reasonably
requested by the Agent, and make to any party to the Contribution and
Sale Agreement such demands and requests for information and reports or
for action as the Seller is entitled to make thereunder and as may be
from time to time reasonably requested by the Agent.
(m) Compliance with Charter and Bylaws. Without limiting the
generality of Section 5.01(i) above, maintain in place all policies and
procedures, and take and continue to take, all actions described in and
forming the basis of Section 4.01(r), and comply with, and cause
compliance with, the provisions of its certificate of incorporation and
bylaws delivered to the Agent pursuant to Section 3.01 as the same may,
from time to time, be amended, modified or otherwise supplemented with
the
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prior written consent of the Agent.
(n) Assignment of Lock-Box Accounts. Within 30 days of the
Effective Date, obtain the written consent (dated the date set forth
therein) of each Lock-Box Bank (as defined in the Original Seller
Agreement) to the assignment by Dial to the Seller of Dial's rights and
obligations with respect to the Lock-Box Accounts (as defined in the
Original Seller Agreement) maintained with such Lock-Box Banks and the
related Lock-Box Agreements (as defined in the Original Seller
Agreement).
SECTION 5.02. Reporting Requirements of the Seller. Until the
later of the Facility Termination Date and the date upon which no Capital for
any Eligible Asset shall be existing, the Seller will, unless the Agent shall
otherwise consent in writing, furnish to the Agent:
(a) as soon as available and in any event within 90 days after
the end of each of the first three quarters of each fiscal year of the
Seller, a consolidated balance sheet of the Seller and its consolidated
subsidiaries as of the end of such quarter, and consolidated statements
of income and retained earnings and of cash flows of the Seller and its
consolidated subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, certified
by the chief financial officer or chief accounting officer of the
Seller;
(b) as soon as available and in any event within 120 days
after the end of each fiscal year of the Seller, a consolidated balance
sheet of the Seller and its consolidated subsidiaries as of the end of
such year and the related consolidated statements of income and
retained earnings and of cash flows of the Seller and its consolidated
subsidiaries for such year, reported on by nationally recognized
independent public accountants acceptable to the Agent;
(c) promptly after the sending or filing thereof, copies of
all reports and registration statements which the Seller files with the
Securities and Exchange Commission or any national securities exchange
other than registration statements relating to employee benefit plans
and to registrations of securities for selling security holders;
(d) promptly after the filing or receiving thereof, copies of
all reports and notices with respect to any Reportable Event defined in
Title IV of ERISA which the Seller or any subsidiary files under ERISA
with the Internal Revenue Service or the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or which the Seller or any
subsidiary receives from such Corporation;
(e) as soon as possible and in any event within five days
after the occurrence of each Event of Investment Ineligibility or each
event which, with the giving of notice or lapse of time or both, would
constitute an Event of Investment Ineligibility, the statement of the
chief financial officer or chief accounting officer of the Seller
setting forth details of such Event of Investment Ineligibility or
event and the action which the Seller proposes to take with respect
thereto;
(f) promptly and in any event within five Business Days after
the Seller's receipt of delivery thereof, copies of all notices,
requests, reports, certificates, and
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other information and documents delivered or received by the Seller
from time to time under or in connection with the Contribution and Sale
Agreement; and
(g) promptly, from time to time as the Agent may reasonably
request, such other information, documents, records or reports
respecting the Receivables or the conditions or operations, financial
or otherwise, of the Seller or Dial or any subsidiary of Dial as the
Agent may from time to time request in order to protect any Owner's or
the Agent's interests under or contemplated by this Agreement or the
Certificate or any other Purchase Document.
SECTION 5.03. Negative Covenants of the Seller. Until the
later of the Facility Termination Date and the date upon which no Capital for
any Eligible Asset shall be existing, the Seller will not, without the written
consent of the Agent:
(a) Sales, Liens, Etc. Except as otherwise provided herein or
pursuant to the Participant Agreement, sell, assign (by operation of
law or otherwise) or otherwise dispose of, or create or suffer to exist
any Adverse Claim, upon or with respect to, any Pool Receivable or
Related Security or the Seller's undivided interest therein or any
related Contract, or upon or with respect to any lock-box or other
account to which any Collections of any Pool Receivable are sent, or
assign any right to receive income in respect thereof.
(b) Extension or Amendment of Receivables. Except as otherwise
permitted in Section 6.02, extend, amend or otherwise modify the terms
of any Pool Receivable, or amend, modify or waive any term or condition
of any Contract related thereto.
(c) Change in Business or Credit and Collection Policy. Make
any change in the character of its business or in its Credit and
Collection Policy, which change would, in either case, impair in any
material respect the collectibility of any Pool Receivable.
(d) Change in Payment Instructions to Obligors. Add or
terminate any bank as a Lock-Box Bank or any lock-box or other account
as a Lock-Box Account from those listed for the Seller or Dial in
Schedule II hereto or make any change in its instructions to Obligors
regarding payments to be made to the Seller or payments to be made to
any Lock-Box Bank or Lock-Box Account, unless the Agent shall have
received notice of such addition, termination or change and undated
executed copies of Lock-Box Notices to each new Lock-Box Bank or with
respect to each new Lock-Box Account, as applicable.
(e) Deposits to Lock-Box Accounts. Deposit or otherwise
credit, or cause or permit to be so deposited or credited, to any
Lock-Box Account cash or cash proceeds other than Collections of Pool
Receivables except for immaterial amounts the deposit of which is
beyond the control of the Seller.
(f) Change in Corporate Name. Make any change to its corporate
name, identity or structure, or use any tradenames, fictitious names,
assumed names or "doing business as" names, unless within 30 days after
the effective date of such change or use, the Seller delivers to the
Agent (i) notice of such change or use and such proper Financing
Statements or amendments to Financing Statements executed by the Seller
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which the Agent may request to reflect such change or use, and (ii) in
the case of any such change, undated copies of new Lock-Box Notices, in
each case executed by the Seller to reflect such change, together with
such other documents and instruments that the Agent may request in
connection therewith.
(g) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to, any Person,
except that the Seller may merge or consolidate with or into any other
Person provided that (i) immediately after giving effect to such merger
or consolidation, no Event of Investment Ineligibility or event which,
with the giving of notice or lapse of time, or both, would constitute
an Event of Investment Ineligibility, shall occur and be continuing and
(ii) if the Seller is not the surviving corporation, the corporation
into which the Seller shall be merged or consolidated or which is
otherwise formed pursuant to such merger or consolidation shall assume
the Seller's obligations and grants of interests under the Purchase
Documents and other documents delivered by the Seller hereunder in a
manner satisfactory to the Agent.
(h) Subsidiaries. Establish or acquire any subsidiaries.
(i) Capital Stock. Issue to, or permit to be transferred to,
any Person (other than Dial) any shares of the Seller's capital stock.
(j) Receivables Contribution and Sale Agreement. (i) Cancel or
terminate the Contribution and Sale Agreement or consent to or accept
any cancellation or termination thereof, (ii) amend or otherwise modify
any term or condition of the Contribution and Sale Agreement or give
any consent, waiver or approval thereunder, (iii) waive any default
under or breach of the Contribution and Sale Agreement or (iv) take any
other action under the Contribution and Wale Agreement not required by
the terms thereof that would impair the value of any Collateral or the
rights or interests of the Seller thereunder or of the Agent or any
Owner or Indemnified Party hereunder or thereunder.
(k) Amendment to Certificate of Incorporation. Amend, modify,
or otherwise make any change to its certificate of incorporation which
change requires the consent of 100% of the directors pursuant to the
terms therefor which change in any way would otherwise nullify or
circumvent the limitations on its business activities, the nature of
its separate existence from its affiliates and the requisite directors'
consents for taking certain actions.
(l) Transactions with Shareholders and Affiliates. Enter into
or permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of
any service) with Dial or with any other Affiliate of the Seller, other
than as necessary in connection with any Permitted Transactions and on
terms that are fair and reasonable in the circumstances and that
reasonably approximate an arm's length transaction between unaffiliated
parties.
(m) Debt. Create, incur, assume or suffer to exist any Debt,
other than (i) Debt (if any) arising hereunder, (ii) the obligation to
pay the purchase price under the Contribution and Sale Agreement and
(iii) Debt evidenced by the Subordinated Note.
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(n) Permitted Investments. Make any loans to, advances to,
investments in or otherwise acquire any capital stock or equity
security of, or any equity interest in, any other Person.
(o) Restricted Payments. Make any cash payments to, or
otherwise transfer any funds to, any of its Affiliates, except for (i)
payments of the purchase price under the Contribution and Sale
Agreement and the Assignment and Assumption; (ii) repayments of amounts
owed under the Subordinated Note; (iii) payments owed for shared
operating expenses or allocated tax liabilities which are not in
violation of the representations and warranties set forth in Section
4.01(r); and (iv) dividends which are declared by the Seller's board of
directors in accordance with all formalities of corporate law.
(p) Limited Business. Conduct any business with any Person, or
enter into any transactions with Affiliates or other Persons, except
those that are specifically contemplated under the Contribution and
Sale Agreement, the Assignment and Assumption and this Agreement and to
the extent consistent with the representations and warranties set forth
in Section 4.01(r).
(q) Contribution and Sale Agreement; Assignment and
Assumption. Amend, waive, modify or otherwise terminate any terms or
provisions of the Contribution and Sale Agreement or the Assignment and
Assumption, which right to amend, modify, waive or terminate has been
assigned to the Agent for the benefit of the Owners and the other
Indemnified Parties pursuant to Section 11.01.
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Collection Agent. The servicing,
administering and collection of the Pool Receivables shall be conducted by such
Person (the "Collection Agent") so designated from time to time in accordance
with this Section 6.01. Until the Agent gives notice to the Seller of a
designation of a new Collection Agent, Dial is hereby designated as, and hereby
agrees to perform the duties and obligations of, the Collection Agent pursuant
to the terms hereof. If an event has occurred and is continuing which
constitutes an Event of Investment Ineligibility or would constitute an Event of
Investment Ineligibility but for the requirement that notice be given or time
elapse or both, or if at any time the Agent is reasonably insecure as to the
ability of the Collection Agent to perform under this Agreement or reasonably
dissatisfied with the collection performance of the Pool Receivables, or at any
time after the Termination Date, the Agent may designate as Collection Agent any
Person (including itself) to succeed Dial or any successor Collection Agent, on
the condition in each case that any such Person so designated shall agree to
perform the duties and obligations of the Collection Agent pursuant to the terms
hereof. The Collection Agent may, with the prior consent of the Agent,
subcontract with any other Person for servicing, administering or collecting the
Pool Receivables, provided that the Collection Agent shall remain liable for the
performance of the duties and obligations of the Collection Agent pursuant to
the terms hereof.
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SECTION 6.02. Duties of Collection Agent. (a) The Collection
Agent shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Pool Receivable from time to time, all in accordance
with applicable laws, rules and regulations, with reasonable care and diligence,
and in accordance with the applicable Credit and Collection Policy. Each of the
Seller, the Investor and the Agent hereby appoints as its agent the Collection
Agent, from time to time designated pursuant to Section 6.01, to enforce its
respective rights and interests in and under the Pool Receivables, the Related
Security and the Contracts. The Collection Agent shall set aside and hold in
trust for the account of the Seller and each Owner their respective allocable
shares of the Collections of Pool Receivables in accordance with Sections 2.06
and 2.07 but shall not be required (unless otherwise requested by the Agent) to
segregate the funds constituting such portion of such Collections prior to the
remittance thereof in accordance with said Sections. In addition to the
foregoing, the Collection Agent shall be required to set aside all other
Collections of Pool Receivables for the benefit of the Seller, and nothing in
this Section 6.02(a) shall be deemed to relax the requirements elsewhere in this
Agreement that the Seller maintain its bank accounts separate from those of its
Affiliates. The Seller shall have the right, at any time, to demand the
immediate segregation of its funds from those of the Parent Group to such other
accounts which the Agent has approved in writing. The Collection Agent shall (i)
not deposit the Seller's funds in its own bank accounts or those of the Seller's
other Affiliates without properly evidencing such investments by written
instruments payable to the Seller; (ii) ensure that any of the Seller's funds
deposited by it will be readily identifiable at all times from the funds of the
other members of the Parent Group so as to facilitate the prompt and separate
identification of the Seller's assets and (iii) account to the Seller for any
funds not so properly evidenced or identified. If instructed by the Agent, the
Collection Agent shall segregate and deposit with a bank (which may be Citibank)
designated by the Agent such allocable share of Collections of Pool Receivables,
set aside for each Owner, on the first Business Day following receipt by the
Collection Agent of such Collections. Provided no Event of Investment
Ineligibility or Event of Purchase Ineligibility shall have occurred and be
continuing, the Collection Agent (to the extent that Dial is the Collection
Agent) may, in accordance with the Credit and Collection Policy, extend the
maturity or adjust the Outstanding Balance of any Defaulted Receivable as the
Seller may determine to be appropriate to maximize Collections thereof. The
Seller shall deliver to the Collection Agent, and the Collection Agent shall
hold in trust for the Seller and each Owner in accordance with their respective
interests, all documents, instruments and records (including, without
limitation, computer tapes or disks) which evidence or relate to Pool
Receivables.
(b) The Collection Agent shall as soon as practicable
following receipt turn over to the Seller (i) that portion of Collections of
Pool Receivables representing the Seller's undivided interest therein, less, in
the event the Seller is not the Collection Agent, all reasonable and appropriate
out-of-pocket costs and expenses of such Collection Agent of servicing,
collecting and administering the Pool Receivables to the extent not covered by
the Collection Agent Fee received by it and (ii) the Collections of any
Receivable which is not a Pool Receivable. The Collection Agent shall as soon as
practicable upon demand deliver to the Seller all documents, instruments and
records in its possession which evidence or relate to Receivables of the Seller
other than Pool Receivables, and copies of documents, instruments and records in
its possession which evidence or relate to Pool Receivables. The Collection
Agent's authorization under this Agreement shall terminate, after the Facility
Termination Date, upon receipt by each Owner of an Eligible Asset of an amount
equal to the Capital plus accrued Yield for such Eligible Asset plus all other
amounts owed to the Agent, each Owner and the Seller and (unless otherwise
agreed by the Agent and the Collection Agent) the
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Collection Agent under this Agreement.
SECTION 6.03. Rights of the Agent. (a) At any time (i) if the
Agent is reasonably insecure as to the ability of the Collection Agent to
perform under this Agreement or reasonably dissatisfied with the collection
performance of the Pool Receivables, (ii) after the occurrence and during the
continuance of an Event of Investment Ineligibility or an event that would
constitute an Event of Investment Ineligibility but for the requirement that
notice be given or time elapse or both or (iii) after the Termination Date, the
Agent is hereby authorized to date, and to deliver to the Lock-Box Banks, the
Lock-Box Notices delivered hereunder. The Seller hereby, when the Agent shall
deliver the Lock-Box Notices to the Lock-Box Banks, transfers to the Agent the
exclusive ownership and control of the lock-box accounts to which the Obligors
of Pool Receivables shall make payments, and shall take any further action that
the Agent may reasonably request to effect such transfer. In case any authorized
signatory of the Seller whose signature shall appear on any Lock-Box Notice
shall cease to have such authority before the delivery of such Lock-Box Notice,
such signature shall nevertheless be valid and sufficient for all purposes as if
such authority had remained in force at the time of such delivery. Further, the
Agent may notify at any time and at the Seller's expense the Obligors of Pool
Receivables, or any of them, of the ownership of Eligible Assets by the Owners.
(b) At any time following the designation of a Collection
Agent other than Dial or any of its Affiliates pursuant to Section 6.01:
(i) The Agent may direct the Obligors of Pool
Receivables, or any of them, that payment of all amounts
payable under any Pool Receivable be made directly to the
Agent or its designee.
(ii) The Seller shall, at the Agent's request and at
the Seller's expense, give notice of such ownership to each
said Obligor and direct that payments be made directly to the
Agent or its designee.
(iii) The Seller shall, at the Agent's request, (A)
assemble all of the documents, instruments and other records
(including, without limitation, computer tapes and disks)
which evidence the Pool Receivables, and the related Contracts
and Related Security, or which are otherwise necessary or
desirable to collect such Pool Receivables, and shall make the
same available to the Agent at a place selected by the Agent
or its designee, and (B) segregate all cash, checks and other
instruments received by it from time to time constituting
Collections of Pool Receivables in a manner acceptable to the
Agent and shall promptly upon receipt, remit all such cash,
checks and instruments, duly endorsed or with duly executed
instruments of transfer, to the Agent or its designee.
(iv) The Agent may take any and all steps in the
Seller's name and on behalf of the Seller and the Owners
necessary or desirable, in the determination of the Agent, to
collect all amounts due under any and all Pool Receivables,
including, without limitation, endorsing the Seller's name on
checks and other instruments representing Collections and
enforcing such Pool Receivables and the Related Contracts.
SECTION 6.04. Responsibilities of the Seller. Anything herein
to the contrary
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notwithstanding:
(a) The Seller shall perform all of its obligations under the
Contribution and Sale Agreement related to the Pool Receivables to the
same extent as if Eligible Assets had not been sold hereunder and the
exercise by the Agent of its rights hereunder shall not relieve Seller
from such obligations or its obligations with respect to Pool
Receivables; and
(b) Neither the Agent nor the Owners shall have any obligation
or liability with respect to any Pool Receivables or related Contracts
or the Contribution and Sale Agreement, nor shall any of them be
obligated to perform any of the obligations of Dial or the Seller
thereunder.
SECTION 6.05. Further Action Evidencing Purchases. The Seller
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 Agent may reasonably request in order to perfect, protect or more fully
evidence the Eligible Assets purchased by the Owners hereunder, or to enable any
of them or the Agent to exercise or enforce any of their respective rights
hereunder or under the Certificate. Without limiting the generality of the
foregoing, the Seller will upon the request of the Agent: (i) execute 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; (ii) xxxx conspicuously each invoice evidencing each Pool
Receivable and the related Contract with a legend, acceptable to the Agent,
evidencing that such Eligible Assets have been sold in accordance with this
Agreement; and (iii) xxxx its master data processing records evidencing such
Pool Receivables and related Contracts with such legend. The Seller hereby
authorizes the Agent to file one or more financing or continuation statements,
and amendments thereto and assignments thereof, relative to all or any of the
Pool Receivables and the Related Security now existing or hereafter arising
without the signature of the Seller where permitted by law. If the Seller fails
to perform any of its agreements or obligations under this Agreement, the Agent
may (but shall not be required to) itself perform, or cause performance of, such
agreement or obligation, and the expenses of the Agent incurred in connection
therewith shall be payable by the Seller as provided in Section 10.01 or Section
12.06, as applicable.
ARTICLE VII
EVENTS OF INVESTMENT INELIGIBILITY
SECTION 7.01. Events of Investment Ineligibility. If any of
the following events ("Events of Investment Ineligibility") shall occur and be
continuing:
(a) The Collection Agent (if Dial or any of its Affiliates)
(i) shall fail to perform or observe any term, covenant or agreement
hereunder (other than as referred to in clause (ii) of this Section
7.01(a)) and such failure shall remain unremedied for three Business
Days after written notice thereof shall have been given by the Agent to
such Collection Agent or (ii) shall fail to make any payment or deposit
to be made by it hereunder when due; or
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(b) The Seller shall fail to perform or observe any term,
covenant or agreement contained in Section 5.03(e) or Section 6.03(a);
or
(c) Any representation or warranty made or deemed to be made
by the Seller or Dial (in its individual capacity or as the Collection
Agent) (or any of their respective officers) under or in connection
with this Agreement or any other Purchase Document or any Investor
Report or the Receivables Activity Report or other information or
report delivered pursuant hereto shall prove to have been false or
incorrect in any material respect when made or deemed made; or
(d) The Seller or Dial shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement or any
other Purchase Document on its part to be performed or observed and any
such failure shall remain unremedied for ten Business Days after
written notice thereof shall have been given by the Agent to the Seller
or Dial, as the case may be; or
(e) The Seller or Dial shall fail to pay any Debt of the
Seller or Dial in an aggregate principal amount outstanding in excess
of $15,000,000, or any interest or premium thereon, when due (whether
by scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt; or any other default under any agreement or instrument
relating to any such Debt, or any other event, shall occur and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such
Debt; or any such Debt shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(f) Any Purchase or any reinvestment pursuant to Section 2.06
shall for any reason, except to the extent permitted by the terms
hereof, cease to create, or any Eligible Asset shall for any reason
cease to be, a valid and perfected first priority undivided percentage
ownership interest to the extent of the pertinent Eligible Asset in
each applicable Pool Receivable and the Related Security and
Collections with respect thereto or the Certificate shall for any
reason cease to evidence in the Owner of such Eligible Asset legal and
equitable title to, and ownership of, an undivided percentage ownership
interest in Pool Receivables and Related Security to the extent of such
Eligible Asset; or
(g) (i) The Seller or Dial shall generally not pay its debts
as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or
against the Seller or Dial seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and, if
instituted against the Seller or Dial, either such proceeding shall not
be stayed or dismissed for 45 days or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for
relief against it or the appointment of a receiver, trustee, custodian
or other similar official for it or for
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any substantial part of its property) shall occur; or (ii) the Seller
or Dial shall take any corporate action to authorize any of the actions
set forth in clause (i) above in this subsection (g); or
(h) (i) The Default Ratio as at the last day of any Accounting
Period of the Seller shall exceed 1.0%, or (ii) the Delinquency Ratio
as at the last day of any Accounting Period of the Seller shall exceed
2.0%, or (iii) the Loss-to-Liquidation Ratio as at the last day of any
Accounting Period of the Seller shall exceed 1.0% or (iv) the product
of 1.5 times the Disputed Item Ratio as at the last day of any
Accounting Period of the Seller shall exceed 16.0%; or
(i) The Net Receivables Pool Balance shall be less than 102%
of the sum of the aggregate outstanding Capital and the aggregate
outstanding "Capital", respectively, plus the aggregate Loss Reserve
and the aggregate "Loss Reserve", respectively, plus the aggregate
Yield Reserve and the aggregate "Yield Reserve", respectively, plus the
aggregate Collection Agent Fee Reserve and the aggregate "Collection
Agent Fee Reserve", respectively, in each case for all Eligible Assets
and all "Eligible Assets" under the Participant Agreement; or
(j) There shall have been any material adverse change in the
financial condition or operations of Dial since August 15, 1996 or on a
pro forma basis (after giving effect to the Distribution on a pro forma
basis as at and for the period ending December 30, 1995) since December
30, 1995, or there shall have occurred any event which materially
adversely affects the collectibility of the Pool Receivables, or there
shall have occurred any other event which materially adversely affects
the ability of the Seller or Dial to collect Pool Receivables or the
ability of the Seller or Dial to perform hereunder or under any other
Purchase Document; or
(k) Dial's long-term public senior debt securities shall be
rated (i) lower than BBB- by Standard & Poor's Ratings Group and (ii)
if such a rating has been issued by Xxxxx'x Investors Service and is
then in effect, lower than Baa3 by Xxxxx'x Investors Service; or
(l) Any provision of the Contribution and Sale Agreement or
the Assignment and Assumption shall for any reason cease to be valid
and binding on Dial or the Seller, or Dial or the Seller shall so state
in writing; or
(m) Any purchase of a Receivable under the Contribution and
Sale Agreement shall for any reason, except to the extent permitted by
the terms hereof, cease to create a valid and perfected first priority
ownership interest as against Dial in each Pool Receivable and the
Related Security and Collections with respect thereto, free and clear
of any Adverse Claims (except to the extent contemplated hereunder or
under the Participant Agreement) in favor of the Seller;
then, and in any such event, the Agent shall, at the request, or may with the
consent, of the Investor, by notice to the Seller declare the Facility
Termination Date to have occurred, except that, in the case of any event
described above in clause (i) of subsection (g) or described above in subsection
(f) or (k), the Facility Termination Date shall be deemed to have occurred
automatically upon the occurrence of such event. Upon any such termination of
the Facility, the Agent and the Owners shall have, in addition to all other
rights and remedies under this
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Agreement or otherwise, all other rights and remedies provided under the UCC of
the applicable jurisdiction and other applicable laws, which rights shall be
cumulative. Without limiting the foregoing or the general applicability of
Article IX hereof, any Owner may elect to assign any Eligible Asset owned by
such Owner to an Assignee following the occurrence of any Event of Investment
Ineligibility.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. The Investor hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the other Purchase Documents as
are delegated to the Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them as Agent under or in connection with
this Agreement or any other Purchase Document (including, without limitation,
the Agent's servicing, administering or collecting Pool Receivables as
Collection Agent pursuant to Section 6.01), except for its or their own gross
negligence or willful misconduct. Without limiting the foregoing, the Agent: (i)
may consult with legal counsel (including counsel for the Seller or any of its
Affiliates), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (ii)
makes no warranty or representation to any Owner and shall not be responsible to
any Owner for any statements, warranties or representations made in or in
connection with this Agreement or any other Purchase Document or other
instrument or document furnished pursuant hereto; (iii) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement or any other Purchase Document
or other instrument or document furnished pursuant hereto on the part of the
Seller or to inspect the property (including the books and records) of the
Seller; (iv) shall not be responsible to any Owner for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, the Certificate or any other Purchase Document or other instrument or
document furnished pursuant hereto or the perfection, priority or value of any
ownership interest created or purported to be created hereunder; and (v) shall
incur no liability under or in respect of this Agreement or any other Purchase
Document or other instrument or document furnished pursuant hereto by acting
upon any notice (including notice by telephone), consent, certificate or other
instrument or writing (which may be by telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 8.03. Citicorp and Affiliates. With respect to any
Eligible Asset owned by Citicorp, Citicorp shall have the same rights and powers
under this Agreement as would any Owner and may exercise the same as though it
were not the Agent. Citicorp and its Affiliates may generally engage in any kind
of business with the Seller or any Obligor, any of
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their respective Affiliates and any Person who may do business with or own
securities of the Seller or any Obligor or any of their respective Affiliates,
all as if Citicorp were not the Agent and without any duty to account therefor
to the Owners.
SECTION 8.04. Investor's Purchase Decision. The Investor
acknowledges that it has, independently and without reliance upon the Agent, any
of its Affiliates or any other Owner and based on such documents and information
as it has deemed appropriate, made its own evaluation and decision to enter into
this Agreement and, if it so determines, to purchase an undivided ownership
interest in Pool Receivables hereunder. Each Owner also acknowledges that it
will, independently and without reliance upon the Agent, any of its Affiliates
or any other Owner and based on such documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not
taking action under this Agreement.
ARTICLE IX
ASSIGNMENT OF ELIGIBLE ASSETS
SECTION 9.01. Assignment of Eligible Assets. The Investor may
assign to any Assignee, and any such or other Assignee may assign to any other
Assignee, any Eligible Asset and, upon any such assignment, the Assignee shall
become the Owner of such Eligible Asset. Such assignments shall be upon such
terms and conditions as the assignor and the Assignee of such Eligible Asset may
mutually agree, the parties thereto shall deliver to the Agent an Assignment,
duly executed by such parties, assigning such Eligible Asset to the Assignee,
and such assignor shall promptly execute and deliver all further instruments and
documents, and take all further action, that the Assignee may reasonably
request, in order to perfect, protect or more fully evidence the Assignee's
right, title and interest in and to such Eligible Asset, and to enable the
Assignee to exercise or enforce any rights hereunder or under the Certificate.
The Agent shall provide notice to the Seller of any assignment of an Eligible
Asset hereunder.
SECTION 9.02. Assignments. By executing and delivering an
Assignment, the Owner assignor thereunder and the Assignee thereunder confirm to
and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment, such assigning Owner makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Purchase Document or other instrument or document
furnished pursuant hereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the Certificate or any
other Purchase Document or other instrument or document furnished pursuant
hereto or the perfection, priority or value of any ownership interest created or
purported to be created hereunder; (ii) such assigning Owner makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of Dial or the Seller or the performance or observance by
Dial or the Seller of any of their respective obligations under this Agreement,
the Certificate or any other Purchase Document or other instrument or document
furnished pursuant hereto; (iii) such Assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and in Section 3.01 of the Contribution and Sale
Agreement and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such Assignment and
to purchase such Eligible Asset; (iv) such Assignee
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will, independently and without reliance upon the Agent, any of its Affiliates,
such assigning Owner or any other Owner and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Purchase Documents; (v) such Assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement and the other Purchase Documents as are delegated to the Agent by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto; (vi) such Assignee appoints as its agent the Collection Agent from time
to time designated pursuant to Section 6.01 to enforce its respective rights and
interests in and under the Pool Receivables, the Related Security and the
related Contracts; and (vii) such Assignee agrees that it will not institute
against the Investor any proceeding of the type referred to in Section 7.01(g)
so long as any Commercial Paper Notes or Medium Term Notes issued by the
Investor shall be outstanding or there shall not have elapsed one year plus one
day since the last day on which any such Commercial Paper Notes or Medium Term
Notes shall have been outstanding.
SECTION 9.03. Authorization of Agent. The Agent shall annotate
the Certificate to reflect any assignments made pursuant to Section 9.01 or
otherwise.
ARTICLE X
INDEMNIFICATION
SECTION 10.01. Indemnities by the Seller. Without limiting any
other rights which any Indemnified Party may have hereunder or under the
Contribution and Sale Agreement or under applicable law, the Seller hereby
agrees to indemnify each Indemnified Party from and against any and all damages,
losses, claims, liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being collectively
referred to as "Indemnified Amounts") awarded against or incurred by any of them
arising out of or as a result of this Agreement (including, without limitation,
the Original Seller Agreement) or any other Purchase Document, the use of
proceeds of Purchases or the ownership of or interest in Eligible Assets or in
respect of any Receivable or Related Security or any Contract, excluding,
however, (i) Indemnified Amounts to the extent resulting from gross negligence
or willful misconduct on the part of such Indemnified Party or any Person which
the Agent appoints as Collection Agent other than the Seller or any Affiliate of
the Seller or (ii) recourse (except as otherwise specifically provided in this
Agreement) for uncollectible Receivables or (iii) any income taxes incurred by
any of them arising out of or as a result of this Agreement or the ownership of
Eligible Assets or in respect of any Receivable or Related Security or any
Contract. Without limiting the foregoing, the Seller shall pay on demand to any
Indemnified Party any and all amounts necessary to indemnify such Indemnified
Party for Indemnified Amounts relating to or resulting from:
(i) the creation of an undivided percentage ownership interest
in any Receivable which is not at the date of the creation of such
interest an Eligible Receivable or which thereafter ceases to be an
Eligible Receivable or which is on such date or thereafter becomes a
Disputed Item which is an Eligible Receivable;
(ii) reliance on any representation or warranty made by the
Seller (or any of its officers) under or in connection with this
Agreement (including, without limitation, the Original Seller
Agreement), any other Purchase Document, any Investor Report or any
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other information or report delivered by Dial or the Seller pursuant
hereto, which shall have been false or incorrect in any material
respect when made or deemed made;
(iii) the failure by Dial or the Seller to comply with any
applicable law, rule or regulation with respect to any Pool Receivable
or the related Contract, or the nonconformity of any Pool Receivable or
the related Contract with any such applicable law, rule or regulation;
(iv) the failure to vest continuously in the Owner of an
Eligible Asset an undivided percentage ownership interest, to the
extent of such Eligible Asset, in the Receivables in, or purporting to
be in, the Receivables Pool, free and clear of any Adverse Claim; or
the failure of the Seller to have obtained a perfected interest in the
Pool Receivables, Related Security and Collections with respect thereto
transferred or purported to be transferred to the Seller under the
Contribution and Sale Agreement, free and clear of any Adverse Claim;
(v) the failure by Dial or the Seller to file, or any delay in
filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws
with respect to any Receivables in, or purporting to be in, the
Receivables Pool, whether at the time of any Purchase or reinvestment
or at any subsequent time;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment
of any Receivable in, or purporting to be in, the Receivables Pool
(including, without limitation, a defense based on such 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 the sale of the merchandise or services
related to such Receivable or the furnishing or failure to furnish such
merchandise or services;
(vii) any failure of the Seller or Dial, as Collection Agent
or otherwise, to perform its duties or obligations in accordance with
the provisions of Article VI or under any Contract or Purchase
Document, as applicable;
(viii) any products liability claim arising out of or in
connection with merchandise, insurance or services which are the
subject of any Contract;
(ix) any investigation, litigation or proceeding related to
this Agreement or any other Purchase Document or the use of proceeds of
Purchases or the ownership of Eligible Assets or in respect of any
Receivable or Related Security or any Contract; or
(x) the commingling of Collections of Pool Receivables at any
time with any other funds.
SECTION 10.02. Repurchase of Certain Receivables. (a) The
Seller shall, upon not less than five Business Days' notice from the Agent,
repurchase (for cash at the repurchase price specified in Section 10.02(b), on
the date specified in such notice) the interest created by each Eligible Asset
in any and all Pool Receivables which are Disputed Items, whether now or in the
future.
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(b) The repurchase price for any interest in any Pool
Receivable to be repurchased pursuant to subsection (a) of this Section 10.02
shall be an amount equal to the percentage ownership interest (as of the date of
such repurchase) created by the relevant Eligible Asset in the Outstanding
Balance of such Pool Receivable. The proceeds of such repurchase shall be deemed
to be a Collection of such Pool Receivable attributable to such Eligible Asset,
and the amount of such Collection shall be paid by the Seller to the Agent's
Account to be applied as provided in Section 2.06 or 2.07, as applicable, at the
time of repurchase. Any such repurchase shall be made without recourse or
warranty, express or implied.
ARTICLE XI
GRANT OF SECURITY INTEREST
SECTION 11.01. Grant of Security Interest. The Seller hereby
assigns and pledges to the Agent for the benefit of itself, the Investor, the
other Owners and each other Indemnified Party from time to time, and hereby
grants to the Agent for the benefit of itself, the Investor, the other Owners
and each other Indemnified Party from time to time, a security interest in and
to, all of the Seller's right, title and interest in and to the following
(collectively the "Collateral"):
(a) all Pool Receivables now existing and hereafter arising
and Related Security with respect thereto; provided, however, that it
is understood that the Seller has sold to the Agent for the account of
the Owners, pursuant to Article II, all of the Seller's right, title or
interest in or to each Eligible Asset;
(b) all present and future Lock-Box Accounts, and all present
and future other deposit accounts (general or special) with Lock-Box
Banks and any other financial institutions to the extent Collections
from Pool Receivables are from time to time deposited therein;
(c) the Contribution and Sale Agreement and the Assignment and
Assumption;
(d) all rights to receive moneys due and to become due under
or pursuant to the Contribution and Sale Agreement and the Assignment
and Assumption;
(e) all rights to receive proceeds of any indemnity, warranty
or guaranty with respect to the Contribution and Sale Agreement and the
Assignment and Assumption;
(f) claims for damages arising out of or for breach of or
default under the Contribution and Sale Agreement and the Assignment
and Assumption;
(g) the right to perform under the Contribution and Sale
Agreement and the Assignment and Assumption and to compel performance
and otherwise exercise all remedies thereunder; and
(h) all proceeds of any and all of the foregoing Collateral
(including, without
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limitation, proceeds which constitute property of the types described
in clauses (a) through (g) of this Section 11.01) and all Collections,
it being understood that the Seller has no right, title or interest in
or to any Collections or other proceeds attributable to any Eligible
Asset except to the extent covered by the right of the Seller to
receive Collections, if any, attributable to any Eligible Asset after
the aggregate outstanding Capital of all Eligible Assets shall have
been reduced to zero and all accrued and unpaid Yield and Collection
Agent Fee, and all other amounts owing to the Owners hereunder, shall
have been paid in full).
SECTION 11.02. Security for Obligations. The assignment,
pledge and security interest granted under this Article XI secures the payment
of all obligations of the Seller now or hereafter existing from time to time
under this Agreement and the Fee Letter and otherwise in connection with this
Agreement, whether for Collections received or deemed to have been received or
otherwise payable by the Seller, either individually or as Collection Agent,
repurchases of interests in Pool Receivables, interest, fees, costs, expenses,
taxes, indemnification or otherwise (all such obligations being the
"Obligations").
SECTION 11.03. Seller Remains Liable. Anything herein to the
contrary notwithstanding, (a) the Seller shall remain liable under the
Contribution and Sale Agreement and the Assignment and Assumption to the extent
set forth therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed, (b) the exercise by the
Agent of any of the rights hereunder shall not release the Seller from any of
its duties or obligations under the Contribution and Sale Agreement and the
Assignment and Assumption, and (c) neither the Agent nor the Investor nor any
other Indemnified Party shall have any obligation or liability under the
Contribution and Sale Agreement or the Assignment and Assumption by reason of
this Article XI, nor shall the Agent or the Investor or any other Indemnified
Party be obligated to perform any of the obligations or duties of the Seller
thereunder.
SECTION 11.04. Further Assurances. (a) The Seller agrees that
from time to time, at the expense of the Seller, the Seller will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Agent may reasonably
request, in order to perfect and protect the assignment and security interest
granted or purported to be granted hereby or to enable the Agent to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, the Seller will: (i) execute
and file such financing or continuation statements, or amendments thereto, and
such other instruments or notices, as may be necessary or desirable, or as the
Agent may reasonably request, in order to perfect and preserve the assignment
and security interest granted or purported to be granted hereby; and (ii) xxxx
conspicuously each copy of each chattel paper which evidences any Collateral
and, at the request of the Agent, each of its records pertaining to the
Collateral with a legend, in form and substance satisfactory to the Agent,
indicating that such chattel paper or Collateral is subject to the assignment
and security interest granted pursuant hereto.
(b) The Seller hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto, relating to all or
any part of the Collateral without the signature of the Seller where permitted
by law. A photocopy or other reproduction of this Agreement or any financing
statement covering the Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law.
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SECTION 11.05. Payments With Respect to Collateral. (a) The
Seller agrees, and has effectively so instructed each other party to the
Contribution and Sale Agreement and the Assignment and Assumption, that upon the
occurrence of an Event of Investment Ineligibility or event which, with the
giving of notice or lapse of time, or both, would constitute an Event of
Investment Ineligibility, all payments due or to become due to it under or in
connection with the Contribution and Sale Agreement and the Assignment and
Assumption shall be made directly to the Agent by direct deposit to the Agent's
Account specified in the Consent and Agreement. If the Seller receives any such
payments, within two Business Days following its receipt thereof, it will
deposit such payments to the appropriate Agent's Account.
(b) Except as set forth in Section 11.09, all moneys received
or collected pursuant to subsection (a) above shall be applied to the payment of
any Obligations payable, and remaining unpaid, by the Seller at the time of such
receipt or collection, and all remaining moneys shall be released by the Agent
or, pursuant to Section 6.02(b), the Collection Agent, as applicable, to the
Seller or at its order.
SECTION 11.06. Agent Appointed Attorney-in-Fact. The Seller
hereby appoints the Agent the Seller's attorney-in-fact, with full authority in
the place and stead of the Seller and in the name of the Seller or otherwise,
from time to time in the Agent's discretion to take any action and to execute
any instrument which the Agent may deem necessary or advisable to accomplish the
purposes of the assignment, grant and security interest granted hereunder,
including, without limitation:
(a) to ask, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in connection with the Collateral,
(b) to receive, indorse and collect any drafts or other
instruments, documents and chattel paper in connection therewith, and
(c) to file any claims or take any action or institute any
proceedings which the Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce compliance
with the terms and conditions of the Contribution and Sale Agreement or
the Assignment and Assumption or the rights of the Agent with respect
to any of the Collateral.
SECTION 11.07. Agent May Perform. If the Seller fails to
perform any agreement contained herein, the Agent may itself perform, or cause
performance of, such agreement, and the expenses of the Agent incurred in
connection therewith shall be payable by the Seller under Section 12.06(a).
SECTION 11.08. The Agent's Duties. The powers conferred on the
Agent hereunder are solely to protect its interest in the Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the safe
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Agent shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
any parties or any other rights pertaining to any Collateral. The Agent shall be
deemed to have exercised reasonable care in the custody and preservation of any
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which it accords its own
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property.
SECTION 11.09. Remedies. If any Event of Investment
Ineligibility shall have occurred and be continuing:
(a) The Agent may exercise any and all rights and remedies of
the Seller in respect of the Collateral.
(b) The Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on
default under the UCC in effect in the State of New York (whether or
not the UCC applies to the affected Collateral).
(c) All payments received by the Seller in respect of the
Collateral shall be received in trust for the benefit of the Agent,
shall be segregated from other funds of the Seller and shall be
forthwith paid over to the Agent in the same form as so received (with
any necessary indorsement).
(d) All payments made in respect of the Collateral, and all
cash proceeds in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral, received by the
Agent may, in the discretion of the Agent, be held by the Agent as
collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Agent pursuant to Section
12.06(a)) in whole or in part by the Agent for the Owners or the
applicable Indemnified Parties against, all or any part of the
Obligations in such order as the Agent shall elect. Any surplus of such
payments or cash proceeds held by the Agent and remaining after payment
in full of all the Obligations shall be paid over to the Seller or to
whomsoever may be lawfully entitled to receive such surplus.
ARTICLE XI
MISCELLANEOUS
SECTION 12.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement nor consent to any departure by the Seller or the
Collection Agent therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Agent and the Investor and, in the case of
any amendment, the Seller and the Collection Agent, and then such amendment,
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
SECTION 12.02. Notices, Etc. All notices and other
communications provided for hereunder shall, unless otherwise stated herein, be
in writing (including telefax communication) and mailed or telefaxed or
delivered, as to each party hereto, at its address set forth under its name on
the signature pages hereof or at such other address as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective, in the case of notice by mail, when deposited
in the mails, and, in the case of notice by telefax, when telefaxed, in each
case addressed as aforesaid, except that notices and communications to the Agent
pursuant to Article II shall not be effective until received.
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SECTION 12.03. No Waiver; Remedies. No failure on the part of
any Owner or the Agent to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 12.04. Binding Effect; Assignability. This Agreement
shall be binding upon and inure to the benefit of the Seller, the Collection
Agent, the Agent and each Owner and their respective successors and assigns;
provided, however, that neither the Seller nor the Collection Agent may assign
its rights or obligations hereunder or any interest herein without the prior
written consent of the Agent. 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, after the Facility
Termination Date, as no Capital of any Eligible Asset shall be outstanding;
provided, however, that rights and remedies with respect to any breach of any
representation and warranty made by the Seller pursuant to Article IV and the
indemnification provisions of Article X and Section 12.06 shall be continuing
and shall survive any termination of this Agreement.
SECTION 12.05. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York, except
to the extent that perfection or the effect of non-perfection of the interests
of the Owners in the Receivables, or remedies hereunder, in respect thereof, are
governed by the laws of a jurisdiction other than the State of New York.
SECTION 12.06. Costs, Expenses and Taxes. (a) In addition to
the rights of indemnification granted to the Indemnified Parties under Article X
hereof, the Seller agrees to pay on demand all costs and expenses in connection
with the preparation, execution, delivery and administration (including periodic
auditing) of this Agreement, the Certificate and the other Purchase Documents
and other documents to be delivered hereunder, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Owner and the
Agent with respect thereto and with respect to advising such Owner and the Agent
as to their respective rights and remedies under this Agreement, and all costs
and expenses, if any (including reasonable counsel fees and expenses) of such
Owner and the Agent, in connection with the enforcement against the Seller or
Dial (whether through negotiations, legal or bankruptcy proceedings or
otherwise) of this Agreement, the Certificate and the other Purchase Documents
and the other documents to be delivered hereunder by the Seller and Dial,
respectively.
(b) In addition, the Seller shall pay any and all commissions
of placement agents and dealers in respect of Commercial Paper Notes, or Medium
Term Notes, or both, of any Owner issued to fund the Purchase or maintenance of
any Eligible Asset and any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing and
recording of this Agreement, the Certificate or the other documents to be
delivered hereunder, and agrees to indemnify each Owner and the Agent against
any liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
(c) In addition, the Seller shall pay on demand all other
costs, expenses and taxes (excluding income taxes) incurred by the Owner or any
general or limited partner or
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shareholder of the Owner ("Other Costs"), including, without limitation, the
cost of auditing the Owner's books by certified public accountants, the cost of
rating the Owner's Commercial Paper Notes or Medium Term Notes, or both, by
independent financial rating agencies, the issuance fee in respect of the
Owner's Medium Term Notes charged by and payable to the Agent, the cost of
issuing the Owner's Commercial Paper Notes or Medium Term Notes, or both, the
taxes (excluding income taxes) resulting from the Owner's operations, and the
reasonable fees and out-of-pocket expenses of counsel for the Owner or any
counsel for any general or limited partner or shareholder of the Owner with
respect to (i) advising the Owner or any general or limited partner or
shareholder of the Owner as to its rights and remedies under this Agreement,
(ii) the enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the Certificate and the other documents to be
delivered hereunder, (iii) advising the Owner or any general or limited partner
or shareholder of the Owner as to matters relating to the Owner's operations, or
(iv) advising the Owner or any general or limited partner or shareholder of the
Owner as to the issuance of the Owner's Commercial Paper Notes or Medium Term
Notes, or both, and acting in connection with such issuance; provided, however,
that if the Owner enters into agreements for the purchase of interests in
receivables from one or more other Persons ("Other Sellers"), the Seller and
such Other Sellers shall each be liable for such Other Costs ratably in
accordance with the usage under the respective facilities of the Owner to
purchase receivables or interests therein from the Seller and each Other Seller;
and provided, further, that if such Other Costs are attributable to the Seller
and not attributable to any Other Seller, the Seller shall be solely liable for
such Other Costs. Any party claiming payment for any amount under this Section
12.06(c) shall provide to the Seller such information as the Seller may
reasonably request as to the basis for the calculation by such party of any such
amount.
(d) The Seller agrees to indemnify and hold harmless each of
the Indemnified Parties and their respective officers, directors, employees and
agents from and against any and all claims, damages, liabilities and expenses
(including, without limitation, reasonable fees and disbursements of counsel) to
which any Indemnified Party may become subject or liable or which may be
incurred by or asserted against any Indemnified Party, in each case in
connection with or arising out of or by reason of any investigation, litigation
or proceeding arising out of, related to or in connection with any acquisition
or proposed acquisition by the Seller or Dial or any of their respective
Affiliates of all or any of the portion of the stock or substantially all the
assets of any Person, whether or not an Indemnified Party is a party thereto.
SECTION 12.07. No Proceedings. The Seller and the Agent each
hereby agrees that it will not institute against the Investor any proceeding of
the type referred to in clause (i) of Section 7.01(g) so long as any Commercial
Paper Notes or Medium Term Notes issued by the Investor shall be outstanding or
there shall not have elapsed one year plus one day since the last day on which
any such Commercial Paper Notes or Medium Term Notes shall have been
outstanding.
SECTION 12.08. Confidentiality. Except to the extent otherwise
required by applicable law, each of the Seller and the Collection Agent agrees
to maintain, and cause the maintenance of, the confidentiality of this Agreement
and the other Purchase Documents (and all drafts thereof) in communications with
third parties and otherwise; provided, however, that the Agreement may be
disclosed to third parties to the extent such disclosure is (i) required in
connection with a sale of securities of the Seller or Dial, (ii) made solely to
persons who are legal counsel for the purchaser or underwriter of such
securities, (iii) limited in scope to the
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provisions of Articles V, VII, X and, to the extent defined terms are used in
Articles V, VII and X, such terms defined in Article I of this Agreement and
(iv) made pursuant to a written agreement of confidentiality in form and
substance reasonably satisfactory to the Agent; provided, further, however, that
this Agreement and the other Purchase Documents may be disclosed to the Seller's
legal counsel pursuant to an agreement of the type referred to in clause (iv),
above; and provided, further, however, that the Seller and Dial shall have no
obligation of confidentiality in respect of any information which may be
generally available to the public or becomes available to the public through no
fault of the Seller or Dial. Each of the Agent and each Owner agrees to use
reasonable efforts to keep in confidence all financial data and other
information identified by the Seller or Dial as confidential relative to the
affairs of Dial and its subsidiaries heretofore or hereafter furnished to it
under this Agreement; provided that the requirements of this sentence shall not
apply to any such information that is made available to the public by the Seller
or Dial or any other Person, and provided further that this sentence shall not
prohibit any disclosure (a) required by applicable laws or regulations or
pursuant to subpoena or other legal process, (b) to government regulators,
auditors, accountants, legal counsel and other professional consultants and
advisors, (c) to actual or prospective assignees or participants, or (d) as may
otherwise be reasonably necessary or appropriate in connection with the
transactions set forth herein or the enforcement thereof or any dispute or
litigation in connection therewith.
SECTION 12.09. Execution in Counterparts; Etc. This Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement or any other Purchase Document by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement or such Purchase
Document. In case any provision in or obligation under this Agreement or the
Certificate shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
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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.
SELLER: DIAL RECEIVABLES CORPORATION
By:___________________
Title:
0000 X. Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention:
Telefax No.: (602) 207-
COLLECTION AGENT: THE DIAL CORPORATION
By:___________________
Title:
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Senior Vice President - Finance and
Chief Financial Officer
Telefax No.: (000) 000-0000
INVESTOR: XXXXXX X.X.
By: Citicorp North America, Inc., as Attorney-in-
Fact
By:______________________
Managing Director
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
Telefax No.: (000) 000-0000
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AGENT: CITICORP NORTH AMERICA, INC.,
as Agent
By:_________________________
Managing Director
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Corporate Asset Funding Department
Telefax No.: (000) 000-0000
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