$750,000,000
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of October 13, 1999
Among
G-P RECEIVABLES, INC.
as the Seller
GEORGIA-PACIFIC CORPORATION
as the Collection Agent
ASSET SECURITIZATION COOPERATIVE CORPORATION,
CORPORATE ASSET FUNDING COMPANY, INC.,
AND
FALCON ASSET SECURITIZATION CORPORATION
as the Purchasers
and
CANADIAN IMPERIAL BANK OF COMMERCE
as the Administrative Agent
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TABLE OF CONTENTS
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Section Page
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ARTICLE I. DEFINITIONS
SECTION 1.01 Certain Defined Terms.......................................................................1
SECTION 1.02 Other Terms................................................................................18
ARTICLE II. AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01 Purchase Facility..........................................................................18
SECTION 2.02 Making Purchases...........................................................................20
SECTION 2.03 Receivable Interest Percentage.............................................................21
SECTION 2.04 Settlement Procedures......................................................................22
SECTION 2.05 Fees.......................................................................................24
SECTION 2.06 Payments and Computations, Etc.............................................................25
SECTION 2.07 Dividing or Combining Receivable Interests.................................................25
SECTION 2.08 Yield Protection...........................................................................26
SECTION 2.09 Sharing of Payments, Etc...................................................................27
SECTION 2.10 Effect of Early Payments...................................................................27
ARTICLE III. CONDITIONS OF PURCHASES
SECTION 3.01 Conditions Precedent to Initial Purchase...................................................28
SECTION 3.02 Conditions Subsequent......................................................................29
SECTION 3.03 Conditions Precedent to All Purchases and Reinvestments....................................29
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Seller and the Collection Agent......................30
ARTICLE V. COVENANTS
SECTION 5.01 Covenants of the Seller and the Collection Agent...........................................35
ARTICLE VI. ADMINISTRATION AND COLLECTION
SECTION 6.01 Designation of Collection Agent............................................................42
SECTION 6.02 Duties of Collection Agent.................................................................42
SECTION 6.03 Rights of the Administrative Agent.........................................................44
SECTION 6.04 Responsibilities of the Seller.............................................................45
SECTION 6.05 Further Actions Evidencing Purchases.......................................................45
SECTION 6.06 Collection Agent Fee.......................................................................46
ARTICLE VII. EVENTS OF TERMINATION
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SECTION 7.01 Events of Termination......................................................................46
ARTICLE VIII. INDEMNIFICATION
SECTION 8.01 Indemnities by the Seller..................................................................50
SECTION 8.02 Contribution...............................................................................52
ARTICLE IX. THE ADMINISTRATIVE AGENT
SECTION 9.01 Authorization and Action...................................................................52
SECTION 9.02 UCC Filings................................................................................53
SECTION 9.03 Administrative Agent's Reliance, Etc.......................................................53
SECTION 9.04 CIBC and Affiliates........................................................................54
SECTION 9.05 Purchasers' Purchase Decisions.............................................................54
SECTION 9.06 Successor Administrative Agent.............................................................54
ARTICLE X. ASSIGNMENT OF RECEIVABLE INTERESTS
SECTION 10.01 Assignment.................................................................................55
SECTION 10.02 Effects of Assignment......................................................................55
ARTICLE XI. MISCELLANEOUS
SECTION 11.01 Amendments, Etc............................................................................56
SECTION 11.02 Notices, Etc...............................................................................56
SECTION 11.03 Assignability; Termination.................................................................57
SECTION 11.04 Costs, Expenses and Taxes..................................................................57
SECTION 11.05 No Proceedings.............................................................................58
SECTION 11.06 Confidentiality............................................................................58
SECTION 11.07 No Recourse................................................................................58
SECTION 11.08 Governing Law; Execution in Counterparts...................................................58
SECTION 11.09 Construction of Agreement..................................................................59
</TABLE>
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SCHEDULES
SCHEDULE I - Lock-Box Banks
SCHEDULE II - Depositary Banks
SCHEDULE III - Concentration Banks
SCHEDULE IV - Credit and Collection Policy
SCHEDULE V - Originators
SCHEDULE VI - Georgia-Pacific's Interests in Originators
SCHEDULE VII - Defaulted Receivables
SCHEDULE VIII - Agreed Procedures
EXHIBITS
EXHIBIT A - Form of Investor Report
EXHIBIT B - Form of Lock-Box Agreement
EXHIBIT C - Form of Transfer Agreement
EXHIBIT D - Form of Assignment Agreement
EXHIBIT E - Form of Consent and Acknowledgment
EXHIBIT F - Form of Depositary Notice
EXHIBIT G - Form of Concentration Notice
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of October
13, 1999 among G-P Receivables, Inc., a Delaware corporation (the "Seller"),
GEORGIA-PACIFIC CORPORATION, a Georgia corporation ("Georgia-Pacific"), ASSET
SECURITIZATION COOPERATIVE CORPORATION ("ASCC"), CORPORATE ASSET FUNDING
COMPANY, INC. ("CAFCO") and FALCON ASSET SECURITIZATION CORPORATION ("Falcon")
(each of ASCC, CAFCO, Falcon and their respective successors and permitted
assigns, individually, a Purchaser, and, collectively, the "Purchasers"), and
CANADIAN IMPERIAL BANK OF COMMERCE ("CIBC"), as agent (the "Administrative
Agent") for the Purchasers. Unless defined elsewhere herein, capitalized terms
used in this Agreement shall have the meanings assigned to such terms in Article
I hereof.
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):
"Adjusted LIBOR Rate" means, with respect to a Purchaser for any Fixed
Period, the rate per annum obtained by dividing (a) the arithmetic average
(rounded upwards, if necessary, to the nearest multiple of one-sixteenth of one
percent per annum) of (i) the offered rates for deposits in United States
dollars which appear on the display designated as page "LIBO" (or any successor
page quoting the offered rates for United States dollars in the London interbank
market) on the Reuter Monitor Money Rates Service, or (ii) if such rates are not
obtainable from the Reuter Monitor Money Rates Service, the respective rates
notified to the Purchaser by each of the Reference Banks as the rate at which it
would offer deposits in United States dollars to prime banks in the London
interbank market, in either case for a period equal to such Fixed Period as such
Purchaser shall select and in an amount comparable to the aggregate amount of
Capital of the Receivable Interest to be funded or maintained at or about 11:00
a.m. (London time) on the second Business Day before (and for value on) the
first day of such period by (b) a percentage equal to (i) 100% minus (ii) the
Eurodollar Reserve Percentage for such Fixed Period.
"Administrative Priority" means an administrative priority granted
under Section 364(a) of the Bankruptcy Code.
"Adverse Claim" means a lien, security interest, claim or other charge
or encumbrance, or any other type of preferential arrangement.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person or is a director or officer of such Person.
"Affiliated Obligor" means any Obligor that is an Affiliate of another
Obligor.
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"Aggregate Capital" means, at the time of any determination thereof
with respect to a Purchaser, the sum of the Capital for all Receivable Interests
of such Purchaser.
"Assignment" has the meaning specified in Section 10.01(a).
"Average Maturity" means, on any day, that period (expressed in days)
equal to the weighted average maturity of the Pool Receivables, as calculated by
the Collection Agent and as set forth in the most recent Investor Report;
provided, however, that if any Purchaser shall reasonably disagree with any such
calculation, the Purchasers may recalculate the Average Maturity with respect to
such day (which calculation shall be conclusive absent demonstrative error).
"Bankruptcy Code" means Title 11 of the United States Code (11
U.S.C.ss.101 et seq.), as amended from time to time, or any successor statute.
"Bankrupt Receivable" means a Receivable the Obligor of which has taken
any action, or suffered to occur any event, of the type described in Section
7.01(i).
"Base Rate" means, for any day, the per annum rate of interest
published on such day (or, if not then published, on the most recently preceding
day) in The Wall Street Journal as the "Prime Rate." Changes in the Base Rate
shall be effective on each date on which a change in the "Prime Rate" is
published.
"Business Day" means any day on which banks are not authorized or
required to close in Chicago, Illinois or New York, New York and, if the
applicable Business Day relates to any computation or payment to be made with
respect to the Adjusted LIBOR Rate, any day on which dealings in dollar deposits
are carried on in the London interbank market.
"Capital" of any Receivable Interest owned by a Purchaser means the
original amount paid by such Purchaser to the Seller for such Receivable
Interest at the time of its purchase by such Purchaser pursuant to this
Agreement, or such amount divided or combined in accordance with Section 2.07,
in each case reduced from time to time by Collections distributed on account of
such Capital pursuant to Section 2.04; provided, that if such Capital shall have
been reduced by any distribution and thereafter all or a portion of such
distribution is rescinded or must otherwise be returned for any reason, such
Capital shall be increased by the amount of such rescinded or returned
distribution, as though it had not been made; provided, further, that such
Capital shall not be reduced for the purposes of this Agreement to the extent
and so long as Collections to be used to effect an Optional Reduction or a
Mandatory Reduction are retained by the Collection Agent (if the Seller or an
Affiliate thereof).
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance
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sheet of such Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collection Agent" means at any time the Person (which may include the
Administrative Agent) then authorized pursuant to Article VI to service,
administer and collect Pool Receivables.
"Collection Agent Fee" has the meaning specified in Section 6.06.
"Collection Agent Fee Reserve" means, on any date, the sum of (i) 1% of
the Total Aggregate Capital on such date plus (ii) the accrued and unpaid
Collection Agent Fee on such date.
"Collection Delay Period" means 10 days or such other number of days as
the Administrative Agent may select (acting upon the direction of the Required
Purchasers) upon three Business Days' notice to the Seller.
"Collection Event" means any event which causes Georgia-Pacific's
long-term unsecured debt rating to be withdrawn or fall below BBB-, in the case
of S&P, or Baa3, in the case of Moody's.
"Collections" means, with respect to any Pool Receivable, all cash
collections and other cash proceeds in respect of such Pool Receivable,
including, without limitation, all cash 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 2.04(d).
"Concentration Account" means a concentration account maintained at a
Concentration Bank for the purpose of, among other things, receiving the
proceeds of Collections initially deposited into Lock-box Accounts and
Depositary Accounts.
"Concentration Bank" means, at any time, any of the banks holding one
or more Concentration Accounts (as of the date hereof being those banks
specified in Schedule III hereof).
"Concentration Limit" means, at any time, for any Obligor, 3.33% of the
Total Aggregate Capital outstanding at such time, or such other amount (a
"Special Concentration Limit") for such Obligor designated by the Administrative
Agent in a writing delivered to the Seller at the instruction of all of the
Purchasers; provided, that in the case of an Obligor with any Affiliated
Obligor, the Concentration Limit shall be calculated as if such Obligor and such
Affiliated Obligor are one Obligor; provided, further, that the Administrative
Agent (acting upon the instructions of any Purchaser) may, upon not less than
three Business Days' notice to the Seller, cancel any Special Concentration
Limit.
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"Concentration Notice" means a notice, in substantially the form of
Exhibit G, from the Seller or Originator to a Concentration Bank.
"Consent and Acknowledgment" means the agreement, in substantially the
form attached hereto as Exhibit E, by each Originator in favor of the
Purchasers, the Secondary Purchasers and the Seller pursuant to which such
Originator consents to and acknowledges the transactions contemplated hereby.
"Contract" means an agreement between an Originator and an Obligor,
substantially in a form permitted by the Credit and Collection Policy, pursuant
to or under which such Obligor shall be obligated to pay for merchandise, goods,
insurance or services from time to time.
"Credit and Collection Policy" means those receivables credit and
collection policies and practices of the Originators in effect on the date
hereof and approved by the Purchasers, summarized on Schedule IV hereto, as the
same may be modified in strict compliance with this Agreement.
"Current Default Ratio" means, at the time any determination thereof is
to be made, a fraction, expressed as a percentage, the numerator of which is the
aggregate Outstanding Balance of all Pool Receivables that were Defaulted
Receivables at such time and the denominator of which is the aggregate
Outstanding Balance of all Pool Receivables at such time.
"Dealer Fee" means, with respect to a Purchaser, any and all
commissions of placement agents and commercial paper dealers in respect of Notes
issued by such Purchaser to fund the purchase or maintenance by such Purchaser
of any Receivable Interest.
"Debt" of any Person means, without duplication, (a) all obligations of
such Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (d) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable incurred in the ordinary course of business), (e) all Debt of others
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Debt secured thereby has been
assumed, (f) all Guarantees by such Person of Debt of others, (g) all Capital
Lease Obligations of such Person, (h) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters
of guaranty, (i) liabilities in respect of unfunded vested benefits under plans
covered by Title IV or ERISA and (j) all obligations, contingent or otherwise,
of such Person in respect of bankers' acceptances. The Debt of any Person shall
include the Debt of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Debt provide that such Person is
not liable therefor.
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"Default Ratio" means, at the time any determination thereof is to be
made, a fraction, expressed as a percentage, the numerator of which is 1/12 of
the aggregate Outstanding Balance of all Pool Receivables that were Defaulted
Receivables on the last Business Day of the month most recently ended and the
last Business Day of each of the immediately preceding eleven (11) calendar
months or that would have been Defaulted Receivables on such last Business Days
had they not been written off the books of the Seller or an Originator during
such months (such Outstanding Balances of such Defaulted Receivables for the
eleven (11) calendar months immediately preceding the date hereof as set forth
on Schedule VII hereto), and the denominator of which is 1/12 of the aggregate
Outstanding Balance of all Pool Receivables on the last Business Day of the
month most recently ended and the last Business Day of each of the immediately
preceding eleven (11) calendar months (such Outstanding Balances for the eleven
(11) calendar months immediately preceding the date hereof as set forth on
Schedule VII hereto).
"Defaulted Receivable" means a Receivable:
(i) as to which any payment, or part thereof, remains unpaid for more
than 90 days from the invoice date of such Receivable;
(ii) which is a Bankrupt Receivable and (a) is not entitled to the
benefit of an Administrative Priority (regardless of the Outstanding
Balance of such Receivable) or (b) the Outstanding Balance of which,
together with all other Bankrupt Receivables of the same Obligor, is
greater than $500,000 (whether or not one or more of such Bankrupt
Receivables is entitled to an Administrative Priority); or
(iii) which, consistent with the Credit and Collection Policy, would be
written off the Seller's or an Originator's books as uncollectible.
"Delinquency Ratio" means, at the time any determination thereof is to
be made, the ratio, expressed as a percentage, computed by dividing (i) the
aggregate Outstanding Balance of all Pool Receivables that were Delinquent
Receivables at such time by (ii) the aggregate Outstanding Balance of all Pool
Receivables at such time.
"Delinquent Receivable" means a Receivable as to which any payment, or
part thereof, remains unpaid for 60 days or more from the original invoice date
thereof.
"Depositary Account" means a depositary account maintained at a
Depositary Bank, the primary purpose of which is to receive the proceeds of
Collections from the Seller or an Originator.
"Depositary Bank" means, at any time, any of the banks holding one or
more Depositary Accounts (as of the date hereof being those banks specified on
Schedule II hereof).
"Depositary Notice" means a notice, in substantially the form of
Exhibit F, from the Seller or Originator to a Depositary Bank.
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"Designated Obligor" means, at any time, each Obligor; provided,
however, that any Obligor shall, upon not less than three Business Days' notice
given to the Seller by the Administrative Agent at the instruction of any
Purchaser, cease to be a Designated Obligor.
"Dilution Horizon Ratio" means, as of the last day of any month, a
fraction, expressed as a percentage, the numerator of which is the aggregate
Outstanding Balance of all Pool Receivables as of such day, and the denominator
of which is the aggregate Outstanding Balance of all Eligible Receivables as of
such day.
"Dilution Ratio" means, as of any date of determination, a fraction,
expressed as a percentage, the numerator of which is the aggregate amount of
Dilutions for the most recently completed calendar month and the denominator of
which is the aggregate sales of the Originators for the prior calendar month.
"Dilution Reserve" means, as of any date, the product of (1) the
quotient of (x) the Dilution Reserve Percentage on such date and (y) 1 minus
such Dilution Reserve Percentage, and (2) the Total Aggregate Capital on such
date.
"Dilution Reserve Percentage" means, as of any date of determination,
the amount equal to
[(2.0 x ADR) + {(HDR - ADR) x (HDR/ADR)}] x DHR
where:
ADR = the average Dilution Ratio for the then most recently completed
twelve-month period.
HDR = the highest Dilution Ratio occurring during any of the twelve
months then most recently completed.
DHR = the Dilution Horizon Ratio as of such date.
"Dilutions" means the aggregate amount of any reductions and
cancellations of Receivables which have been reduced or canceled, respectively,
for any reason other than that (1) the Obligors have made payments thereon or
(2) the Seller has charged-off such Receivables for credit reasons in accordance
with the Credit and Collection Policy.
"Eligible Receivable" means, at any time, a Receivable:
(i) the Obligor of which is not an Affiliate of any of the parties
hereto;
(ii) which, at the time of the initial creation of a Receivable
Interest therein under this Agreement is not a Defaulted Receivable;
(iii) which is an obligation representing all or part of the sales
price of merchandise, insurance and services within the meaning of Section
3(c)(5) of the
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Investment Company Act of 1940, as amended, and the nature of which is such
that its purchase 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;
(iv) which is an "account" within the meaning of Section 9-106 of the
UCC of the applicable jurisdiction governing the perfection of the interest
in such Receivable created by a Receivable Interest;
(v) which arises in the ordinary course of an Originator's business
under a Contract 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 and is not subject to any known dispute, offset,
counterclaim or defense whatsoever or any Adverse Claim other than those of
the Purchasers, the Secondary Purchasers and the Administrative Agent;
(vi) which, together with the Contract related thereto, does not
contravene or violate in any respect any laws, rules or regulations
applicable thereto (including, without limitation, laws, rules and
regulations relating to usury, truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection practices
and privacy) (other than any contravention or violation which would not
have a material adverse effect on the collectibility of such Receivable in
the full Outstanding Balance thereof) and with respect to which no party to
the Contract related thereto is in violation of any such law, rule or
regulation in any respect (other than any contravention or violation which
would not have a material adverse effect on the collectibility of such
Receivable in the full Outstanding Balance thereof);
(vii) which satisfies all applicable requirements of the Credit and
Collection Policy;
(viii) as to which, at the time of the initial creation of a Receivable
Interest therein under this Agreement, the Administrative Agent, at the
instruction of any Purchaser, has not notified the Seller that such
Receivable (or class of Receivables) is no longer acceptable for purchase
by the Purchasers hereunder;
(ix) as to which all right, title and interest of an Originator in such
Receivable was transferred to the Seller from such Originator pursuant to a
Transfer Agreement;
(x) which is denominated and payable in United States dollars in the
United States;
(xi) the Obligor of which is not the Obligor of any Receivable which
has been referred to the collection department of the Seller or an
Originator;
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(xii) as to which the Seller has good and marketable title thereto,
freely assignable by the Seller to the Administrative Agent for the benefit
of the Purchasers;
(xiii) which, if a Bankrupt Receivable, is entitled to the benefit of
an Administrative Priority and the Outstanding Balance of which, together
with all other Bankrupt Receivables of the same Obligor entitled to the
benefit of an Administrative Priority, is equal to or less than $500,000;
and
(xiv) the Obligor of which is a U.S. resident.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is treated as a single employer with the Seller under Section
414 of the Code.
"Eurodollar Reserve Percentage" for any Purchaser and for any Fixed
Period means the reserve percentage applicable to such Purchaser, its Related
Secondary Purchaser or the bank or banks providing liquidity, back-up purchase
or credit support for the Purchaser during such Fixed Period under regulations
issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) (or, if more than one such percentage shall be so applicable,
the weighted daily averages 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 of such Purchaser, its Related Secondary
Purchaser or the bank or banks providing liquidity, back-up purchase or credit
support for the Purchaser (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) with respect to liabilities
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 Termination" has the meaning specified in Article VII.
"Facility Termination Date" has the meaning specified in Section
2.01(i).
"Fee Letter" means that certain letter agreement among the Seller, the
Purchasers and the Secondary Purchasers dated October 13, 1999, as the same may,
from time to time, be amended, modified or supplemented.
"Fixed Period" means, with respect to any Receivable Interest in
respect of which Yield is computed by reference to the Adjusted LIBOR Rate, a
period from one to and including 30 days, as a Purchaser, after consultation
with the Seller, shall select, provided, that (i) any 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 extension
would cause the last day of such Fixed Period to occur
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in the next succeeding month, the last day of such Fixed Period shall occur on
the immediately preceding Business Day; and (ii) in the case of any Fixed Period
for any Receivable Interest which commences before the Facility Termination Date
for such Receivable Interest and would otherwise end on a date occurring after
such Facility Termination Date, such Fixed Period shall end on such Facility
Termination Date.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Government Obligor" means any Obligor that is an agency, a department,
an instrumentality or a political subdivision of the United States or of any
state or local government.
"Government Obligor Concentration Limit" means 5% or such other
percentage as shall be designated by the Administrative Agent in a writing
delivered to the Seller at the instruction of the Required Purchasers.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Debt or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other
obligation or to purchase (or to advance or supply funds for the purchase of )
any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Debt or
other obligation of the payment thereof or (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Debt or other
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof determined in good faith by the guarantor (assuming the
guarantor is required to perform thereunder).
"Investor Rate" for any day in a Settlement Period for any Receivable
Interest means
(a) the weighted average of
(i) the weighted average, determined on such day, of the sum of (a) the
discount rates on all Notes of such Purchaser issued at a discount
outstanding on such day (other than Notes the proceeds of which are used by
such Purchaser to (x) purchase receivables (other than the Receivables), or
extend financing secured thereby, at a fixed interest rate or (y) conduct
any arbitrage activities of such Purchaser) plus (b) the Dealer Fee with
respect to such Purchaser plus (c) other costs associated with funding
small or odd-lot amounts with respect to all receivable purchase or loan
facilities which are funded by Notes of such
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Purchaser (other then Notes the proceeds of which are used by such
Purchaser for the purposes described in clauses (x) and (y) above),
converted to an annual yield-equivalent rate on the basis of a 360-day
year;
(ii) the weighted average, determined on such day, of the sum of (a)
the annual interest rates payable on all interest-bearing Notes of such
Purchaser outstanding on such day (other than the Notes the proceeds of
which are used by such Purchaser for the purposes described in clauses (x)
and (y) of paragraph (i) above) plus (b) the Dealer Fee with respect to
such Purchaser plus (c) other costs associated with funding small or
odd-lot amounts with respect to all receivable purchase or loan facilities
which are funded by Notes of such Purchaser (other then Notes the proceeds
of which are used by such Purchaser for the purposes described in clauses
(x) and (y) in paragraph (i) above), on the basis of a 360-day year; and
(iii) the weighted average, determined on such day, of the Adjusted
LIBOR Rate on such day, plus 1.25%, to the extent that such Purchaser has
any borrowings outstanding under a Liquidity Facility on such day or such
Purchaser is the provider of such Liquidity Facility, on the basis of a
360-day year; and
(b) In addition to the foregoing, if the Seller shall request any
Purchase (other than a reinvestment Purchase) during any period of time
determined by the Administrative Agent in its sole discretion to result in
incrementally higher costs applicable to such Purchase, the Capital associated
with any such Purchase shall, during such period, be deemed to be funded by a
Purchaser in a special pool (which may include capital associated with other
receivable purchase or loan facilities) for purposes of determining such
additional costs.
"Investor Report" means a report, in substantially the form of Exhibit
A hereto (appropriately completed), furnished by the Collection Agent to each
Purchaser and the Administrative Agent pursuant to Section 6.02(g) hereof.
"Investor Report Date" means, with respect to each Settlement Period,
the 23rd day of the month immediately following a Settlement Date (or if such
day is not a Business Day, the next succeeding Business Day) or such other date
or dates as shall be notified to the Seller from time to time by the
Administrative Agent at the direction of the Required Purchasers.
"Liquidation Day" means, for any Receivable Interest, (i) each day
during a Settlement Period for such Receivable Interest on which the conditions
set forth in Section 3.02 are not satisfied (or expressly waived by the
Purchasers), provided such conditions remain unsatisfied (or are not expressly
waived by the Purchasers) during such Settlement Period, or (ii) each day which
occurs on or after the Reinvestment Termination Date for such Receivable
Interest.
"Liquidity Facilities" means each of the committed loan facilities,
lines of credit and other financial accommodations available to a Purchaser to
provide liquidity in support of such Purchaser's Notes and medium-term notes.
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"Liquidation Fee" means, for any Purchaser and for any Settlement
Period during which a Liquidation Day occurs, the amount, if any, by which (i)
the additional Yield (calculated without taking into account any Liquidation Fee
or any shortened duration of a Fixed Period pursuant to clause (ii) of the
definition thereof) which would have accrued during the remainder of such
Settlement Period on all reductions of Capital of the Receivable Interest during
such Settlement Period exceeds (ii) the income received by such Purchaser's
investing the proceeds of such reductions of Capital.
"Liquidation Yield Reserve" means, on any date, an amount equal to the
product of (1) the Total Aggregate Capital on such date, (2) the Adjusted LIBOR
Rate for a 30-day Fixed Period to commence on such date multiplied by 1.3 and
(3) a fraction having the sum of the Average Maturity plus the Collection Delay
Period (each as in effect at such date) as its numerator and 360 as its
denominator.
"Lock-Box Account" means a lock-box account maintained at a Lock-Box
Bank, the primary purpose of which is to receive Collections.
"Lock-Box Agreement" means an agreement, in substantially the form of
Exhibit B, among an Originator, the Administrative Agent and a Lock-Box Bank.
"Lock-Box Bank" means, at any time, any of the banks holding one or
more Lock-Box Accounts (as of the date hereof being those specified on Schedule
I hereof).
"Lock-Box Notice" means a notice, in substantially the form of
Attachment A to Exhibit B, from the Seller or an Originator to any Lock-Box
Bank.
"Loss Reserve" means, on any date, the product of (a) a fraction
expressed as a percentage, the numerator of which will equal 300% of the greater
of (i) the Concentration Limit for any Obligor (other than any Special
Concentration Limit) and (ii) the Default Ratio for the 12-month period
immediately preceding such date and the denominator of which will equal 1 minus
the numerator and (b) the Total Aggregate Capital on such date.
"Loss-to-Liquidation Ratio" means, at the time of any determination
thereof, a fraction, expressed as a percentage, the numerator of which is equal
to 1/3 of the aggregate Outstanding Balance (net of recoveries) of all
Receivables that were written-off of the books of the Seller or an Originator as
uncollectible in accordance with the Credit and Collection Policy during the
month most recently ended and during the immediately preceding two calendar
months and the denominator of which is equal to 1/3 of the aggregate Collections
received during the month most recently ended and during the immediately
preceding two calendar months less the aggregate amount of Collections deemed to
have been received during such period pursuant to Section 2.04(d).
"Mandatory Reduction" means the required reduction of the Aggregate
Capital of a Purchaser as a result of the occurrence of a Mandatory Reduction
Day.
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"Mandatory Reduction Amount" means, with respect to the Receivable
Interests of any Purchaser on any Mandatory Reduction Day, the lowest dollar
amount of a reduction in the Aggregate Capital of such Purchaser which is
necessary to cause such Receivable Interests (if greater than the Pro Rata Share
of such Purchaser to reduce to an amount equal to the Pro Rata Share of such
Purchaser.
"Mandatory Reduction Day" means each day during a Settlement Period on
which the Receivable Interests of a Purchaser exceed an amount equal to the Pro
Rata Share of such Purchaser.
"Member" means a Person who holds membership in ASCC other than as an
associate member.
"Moody's" means Moody's Investors Service, Inc.
"Net Receivables Pool Balance" means, at any time with respect to any
Receivables Pool, the Outstanding Balance of Eligible Receivables then in the
Receivables Pool reduced by the sum of (i) the Outstanding Balance of such
Eligible Receivables that have become Defaulted Receivables, (ii) the aggregate
amount by which the Outstanding Balance of Eligible Receivables (other than
Defaulted Receivables) of each Obligor then in the Receivables Pool exceeds the
Concentration Limit or Special Concentration Limit for such Obligor, and (iii)
the result of the aggregate amount by which the Outstanding Balance of Eligible
Receivables (other than Defaulted Receivables) of all Government Obligors then
in the Receivables Pool exceeds the product of (A) the Government Obligor
Concentration Limit and (B) the Outstanding Balance of the Eligible Receivables
then in the Receivables Pool, less the amount specified in clause (ii) with
respect to any Government Obligor.
"Notes" means, with respect to a Purchaser, commercial paper notes or
other short-term promissory notes issued by such Purchaser in the United States
commercial paper market from time to time.
"Obligor" means a Person obligated to make payments pursuant to a
Contract.
"Optional Reduction" means the election of the Seller to reduce the
Total Aggregate Capital by directing the Collection Agent and the Purchasers to
terminate temporarily the reinvestment of Collections.
"Optional Reduction Amount" means the dollar amount specified in a
notice given by the Seller in accordance with Section 2.01(c) hereof as being
the amount by which the Seller would like to reduce temporarily the Total
Aggregate Capital.
"Optional Reduction Day" means for each Receivable Interest, each day
during a Settlement Period on which a portion of the Collections which would
ordinarily be reinvested as a return of the Capital thereof are paid to the
Purchaser or held by the Collection Agent for the account of such Purchaser in
order to effect the reduction of the Capital with respect thereto.
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"Optional Reduction Effective Date" means the day on which the
Purchasers and the Collection Agent shall commence the temporary termination of
reinvestments of Collections pursuant to Section 2.01(c) hereof.
"Originator" means Georgia-Pacific and any direct or indirect
Subsidiary of Georgia-Pacific party to a Transfer Agreement and approved by the
Purchasers (as of the date hereof being those subsidiaries specified on Schedule
V hereof).
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Pool Receivable" means a Receivable in a Receivables Pool.
"Potential Termination Event" means an event which, with the passage of
time or notice or both, would constitute an Event of Termination.
"Pro Rata Share" means, for each Purchaser other than ASCC, 33.333333%,
and, for ASCC, 33.333334%, or such other percentage for such Purchaser as shall
result from any reallocation in accordance with Section 2.01(d).
"Provisional Liquidation Day" means each day that would be a
Liquidation Day but for the proviso in clause (i) of the definition of
"Liquidation Day."
"Purchase" has the meaning specified in Section 2.01(a).
"Purchase Limit" means, for all Purchasers in the aggregate, an amount
equal to $750,000,000 initially, or such lesser amount as shall reflect any
reduction pursuant to Section 2.01(b), and for each Purchaser, its Pro Rata
Share of such aggregate amount. References to the unused portion of the Purchase
Limit shall mean, at any time, the Purchase Limit in effect at such time, less
the sum of the Total Aggregate Capital under this Agreement and the "Total
Aggregate Capital" under the Secondary Purchase Agreement. Furthermore, on any
day on which the Seller reduces the unused portion of (or terminates) the
"Commitment" under the Secondary Purchase Agreement, the Purchase Limit
automatically shall reduce by the same amount (or so terminate).
"Receivable" means the indebtedness of any Obligor under a Contract
(other than a Contract with respect to the sale by an Originator of gypsum at
the minehead) and includes the right to payment of any interest or finance
charges and other obligations of such Obligor with respect thereto.
"Receivable Interest" means, at any time, an undivided percentage
ownership interest of a Purchaser in (i) all then outstanding Pool Receivables
arising prior to the time of the most recent computation or recomputation of
such undivided
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percentage interest pursuant to Section 2.03, (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
shall be a fraction, expressed as a percentage, the numerator of which is the
sum of (i) the Capital of such Receivable Interest at the time of computation
and (ii) a number equal to the product of (x) the Reserve and (y) a fraction,
expressed as a percentage, the numerator of which is the Capital of such
Receivable Interest, and the denominator of which is the Total Aggregate
Capital, and the denominator of which is the Net Receivables Pool Balance at the
time of computation. Each Receivable Interest shall be determined from time to
time pursuant to the provisions of Section 2.03.
"Receivables Pool" means at any time the aggregation of each then
outstanding Receivable in respect of which the Obligor is a Designated Obligor
at such time or was a Designated Obligor on the date of the initial creation of
an interest in such Receivable under this Agreement.
"Records" means, with respect to any Receivable, all Contracts and
other documents, books, records and other information (including, without
limitation, computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Receivable and the
related Obligor.
"Reference Banks" means Canadian Imperial Bank of Commerce, Citibank,
N.A. and Bank One, NA (Chicago Office), or such other banks as the Purchasers
shall designate with the consent of the Seller.
"Reinvestment Termination Date" means, with respect to any Receivable
Interest, that Business Day which the Administrative Agent at the instruction of
any Purchaser so designates by notice to the Seller as being the first day on
which reinvestments will not be made with respect to such Receivable Interest.
"Related Secondary Purchaser" means, with respect to each Purchaser set
forth below, the Person set forth opposite its name.
ASCC Canadian Imperial Bank of Commerce
CAFCO Citibank, N.A.
Falcon Bank One, NA (Chicago Office)
"Related Security" means with respect to any Receivable:
(i) all of the Seller's interest in any merchandise (including returned
merchandise) relating to any sale giving 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 to the Contract related to such Receivable or otherwise, together
with all financing statements describing any collateral securing such
Receivable;
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(iii) all guaranties, 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;
(iv) all Records relating to such Receivable.
"Required Purchasers" means, at a particular time, the Purchasers, the
aggregate Purchase Limit of which equals at least 66.666666% of the overall
Purchase Limit; provided, that the Purchase Limit for any Purchaser that has
breached a material provision of this Agreement shall be zero for so long as
such breach has not been cured.
"Reserve" means, on any date, the sum of (a) the Loss Reserve on such
date, (b) the Liquidation Yield Reserve on such date, (c) the Collection Agent
Fee Reserve, if any, on such date, and (d) the Dilution Reserve on such date.
"Responsible Officer" means, as to the Seller and the Originators, any
officer (including, for the purpose of this Agreement, any assistant secretary
and any assistant treasurer) of such entity or any person designated in writing
by any such officer.
"S&P" means Standard & Poor's Rating Services, a division of McGraw
Hill Companies, Inc., and any successor thereto.
"Sale Documents" means this Agreement, the Secondary Purchase
Agreement, the Transfer Agreement, the Consent and Acknowledgment, each Lock-Box
Agreement and the other documents delivered in connection herewith or therewith.
"Secondary Purchase Agreement" means the Amended and Restated
Receivables Purchase Agreement, dated as of the date hereof, among the Seller,
Georgia-Pacific, the Secondary Purchasers and Canadian Imperial Bank of
Commerce, as administrative agent, as the same may, from time to time, be
amended, modified or supplemented.
"Secondary Purchasers" means collectively Canadian Imperial Bank of
Commerce, Citibank, N.A. and Bank One, NA (Chicago Office)
"Settlement Date" means, the following:
(a) with respect to any Settlement Period in which the Investor Rate is
determined in accordance with paragraphs (i) or (ii) of the definition "Investor
Rate", the date which is the second Business Day following the end of such
Settlement Period;
(b) with respect to any Settlement Period in which the Purchaser Rate
is determined in accordance with paragraph (iii) of the definition "Investor
Rate", the last day of such Settlement Period;
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(c) if the Required Purchasers determine, in their sole discretion,
that (i) an Event of Termination or Potential Termination Event has occurred or
(ii) a Purchaser's commercial paper program is being liquidated, each day
designated as a Settlement Date by the Required Purchasers;
(d) each Business Day on which a Purchaser's Investment is reduced in
accordance with Section 2.01(b), (c) or (d); and
(e) any date on which a reduction in the Total Aggregate Capital is
required to prevent the sum of the Total Aggregate Capital and the "Total
Aggregate Capital" under the Secondary Purchase Agreement from exceeding the
Purchase Limit.
"Settlement Period" means a period equal to one calendar month,
provided, however, that the first Settlement Period shall commence on the date
hereof and terminate on the last day of the calendar month in which such
Settlement Period commenced.
"Solvent" means, when used with respect to any Person, that, as of any
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise," as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim," and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Subsidiary" means, with respect to any Person, any corporation of
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors (or others performing a
comparable function) of such corporation is at the time directly or indirectly
owned by such Person, by such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such Person.
"Termination Date" means the earlier of (i) the Reinvestment
Termination Date and (ii) the Facility Termination Date.
"Total Aggregate Capital" means, at any time of determination, the sum
of the Aggregate Capital for the Purchasers.
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"Transfer Agreement" means each agreement, in substantially the form
attached hereto as Exhibit C, between the Seller and each Originator pursuant to
which the Seller will purchase Receivables from the Originators.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the specified jurisdiction.
"Year 2000 Plan" has the meaning specified in Section 4.01(y).
"Year 2000 Problem" means, with respect to any Person, the risk that
computer applications in use by that Person cannot or will not: (a) handle date
information involving any and all dates before, during and/or after January 1,
2000, including accepting input, providing output and performing date
calculations in whole or in part; (b) operate accurately without interruption on
and in respect of any and all dates before, during and/or after January 1, 2000;
and (c) store and provide date input information without creating any ambiguity
as to the century.
"Yield" means for each Receivable Interest for any Settlement Period
IR x C x ED + LF
--
360
where:
C = the daily average (calculated at the close of business each
day) Capital of such Receivable Interest during such
Settlement Period
IR = Investor Rate for such Receivable Interest for such
Settlement Period
ED = the actual number of days elapsed during such Settlement
Period
LF = the Liquidation Fee, if any, for such Receivable Interest
for such Settlement Period;
provided, that no provision of this Agreement shall require the payment or
permit the collection of Yield in excess of the maximum permitted by applicable
law; and provided, further, that Yield for any Receivable Interest shall not be
considered paid by any distribution to the extent that at any time all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
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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.
ARTICLE II.
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01 Purchase Facility.
(a) On the terms and conditions hereinafter set forth, each Purchaser
may, in its sole discretion, purchase Receivable Interests from the Seller from
time to time during the period from the date hereof to the Termination Date.
Each purchase (each, a "Purchase") of Receivable Interests with respect to a
Receivables Pool requested by the Seller shall be made by the Purchasers
electing to Purchase at such time simultaneously and ratably according to their
respective Pro Rata Shares. Under no circumstances shall a Purchaser make any
Purchase if after giving effect to such Purchase, such Purchaser's Aggregate
Capital, together with the Related Secondary Purchaser's "Aggregate Capital"
under the Secondary Purchase Agreement, would exceed such Purchaser's Purchase
Limit. Notwithstanding anything to the contrary contained herein, until such
time as the parties expressly agree, all Purchases of Receivable Interests
hereunder and under the Secondary Purchase Agreement shall be made with respect
to a single Receivables Pool.
(b) The Seller may, upon at least five Business Days' notice to the
Administrative Agent and the Purchasers, terminate in whole or reduce in part
the unused portion of the Purchase Limit; provided, that each partial reduction
shall be in the amount of at least $5,000,000 or an integral multiple thereof
and shall be applied pro rata among the Purchasers according to their Pro Rata
Shares; provided, further, that any partial reduction of the Purchase Limit for
any Purchaser must not result in a remaining Purchase Limit of less than
$25,000,000 or the Purchase Limit for such Purchaser shall be reduced to zero.
Any reductions in the Purchase Limit pursuant to this subsection (b) shall be
permanent.
(c) The Seller may, upon at least five Business Days' written notice to
the Administrative Agent and the Purchasers specifying an Optional Reduction
Amount and an Optional Reduction Effective Date, effect an Optional Reduction.
Commencing on the Optional Reduction Effective Date, the Collection Agent shall
cease the reinvestment of Collections for a period of time such that after
giving effect to the amount of Collections which are not reinvested in
accordance with the provisions of Section 2.04(b)(ii), the amount of Total
Aggregate Capital on the day immediately preceding the Optional Reduction
Effective Date is reduced by an amount equal to the Optional Reduction Amount.
Any Optional Reduction under this subsection (c) shall be applied pro rata among
the Purchasers according to their Pro Rata Shares. The Seller shall indemnify
any Purchaser for all losses, expenses and liabilities, if any (including,
without limitation, any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds required by any Purchaser in connection
with such Purchaser's funding or maintenance of the Receivable Interests), which
such
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Purchaser may sustain as a result of any Optional Reduction pursuant to
this subsection (c).
(d) The Seller may, upon 60 days' prior written notice to the
Purchasers, request the reallocation of the Pro Rata Shares of the Purchasers;
provided, however, that the Seller shall not be able to request such
reallocation after the occurrence of an Event of Termination or a Potential
Termination Event. Any reallocation of a Purchaser's Pro Rata Share as in effect
prior to such reallocation which increases the Purchase Limit of such Purchaser
shall be at the sole discretion of such Purchaser and shall be effective only if
the Related Secondary Purchaser increases its "Commitment" under the Secondary
Purchase Agreement by an amount corresponding to the amount of the increase, if
any, in the Purchaser's Purchase Limit arising from such reallocation. If, as a
result of any reallocation, a Purchaser's Aggregate Capital exceeds its Pro Rata
Share (as proposed to be reallocated) of the Purchase Limit, such Purchaser
shall transfer a Receivable Interest or Receivables Interest computed on the
basis of such excess Capital to the Purchaser or Purchasers whose Pro Rata Share
has increased as a result of such reallocation in exchange for a cash payment in
an amount equal to the aggregate Capital of the Receivable Interests so
transferred.
(e) The Seller may, upon thirty days' prior written notice to the
Administrative Agent and the Purchasers and the written signed consent of the
Administrative Agent and the Purchasers, cease purchasing Receivables from any
Originator, and after the Seller ceases purchasing Receivables from such
Originator, such Originator shall no longer have the obligations of an
Originator for all purposes of this Agreement other than with respect to those
obligations which are expressly intended to survive the termination of this
Agreement, including, without limitation, the indemnities contained in Section
8.01 as incorporated by reference in the Consent and Acknowledgement to which
such Originator is a party. If, as a result of the Seller's decision to cease
purchasing Receivables from any Originator, the Required Purchasers determine,
in their sole discretion, that the Events of Termination in Section 7.01(j) are
no longer reasonable or protective, the Required Purchasers may modify the
provisions of such Section 7.01(j) with the consent of the Seller (which consent
shall not be unreasonably withheld or delayed).
(f) The Seller may, upon thirty days' prior written notice to the
Administrative Agent and the Purchasers and the written signed consent of the
Administrative Agent and the Purchasers (which consent shall not be unreasonably
withheld or delayed), cease purchasing from any Originator all Receivables
generated by any division of such Originator (an "Originator Division"), and
after the Seller ceases purchasing from such Originator all Receivables
generated by such Originator Division, any agreement arising thereafter between
such Originator and an Obligor pursuant to or under which such Obligor shall be
obligated to pay for merchandise, insurance or services provided by such
Originator Division, shall not be a "Contract" for purposes of this Agreement;
provided, that any Contract generated by such Originator Division prior to the
date the Seller ceases purchasing such Originator Division's Receivables shall
remain a "Contract" for purposes of this Agreement. If, as a result of the
Seller's decision to cease purchasing from any Originator all Receivables
generated by an
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Originator Division pursuant to this Section 2.01(f), the Required Purchasers
determine, in their sole discretion, that the Events of Termination in Section
7.01(j) are no longer reasonable or protective, the Required Purchasers may
modify the provisions of such Section 7.01(j) with the consent of the Seller
(which consent shall not be unreasonably withheld or delayed).
(g) The Seller may, upon ninety days' prior written notice to the
Administrative Agent and the Purchasers and the written signed consent of the
Administrative Agent and the Purchasers, commence purchasing from any Originator
all Receivables generated by any Originator Division, and after the Seller
commences purchasing from such Originator all Receivables generated by such
Originator Division, all related agreements between the Originator, and an
Obligor pursuant to or under which such Obligor shall be obligated to pay for
merchandise, insurance or service provided by such Originator Division shall be
"Contracts" for all purposes of this Agreement. If, as a result of the Seller's
decision to commence purchasing from any Originator all Receivables generated by
an Originator Division pursuant to this Section 2.01(g), the Required Purchasers
determine, in their sole discretion, that the Events of Termination in Section
7.01(j) are no longer reasonable or protective, the Required Purchasers may
modify the provisions of such Section 7.01(j) with the consent of the Seller
(which consent shall not be unreasonably withheld or delayed).
(h) If Georgia-Pacific sells or otherwise conveys or disposes of the
stock of any Originator, upon the effective date of such sale, such Originator
shall no longer be an Originator under this Agreement; provided, that, if the
Required Purchasers determine, in their sole discretion, that the Events of
Termination in Section 7.01(j) are no longer reasonable or protective as a
result of such sale, the Required Purchasers may modify the provisions of such
Section 7.01(j) with the consent of the Seller (which consent shall not be
unreasonably withheld or delayed).
(i) The Facility Termination Date shall be 364 days from the date
hereof; provided, that the Facility Termination Date may be extended for an
additional 364-day period at the end of each 364-day period from the date hereof
if the Seller gives each Purchaser written notice not later than 90 days prior
to each such annual anniversary (beginning with the first such period) and each
Purchaser provides the Seller with its written consent to such extension not
later than 60 days after receipt of the Seller's notice.
SECTION 2.02 Making Purchases.
(a) Each Purchase shall be made on at least three Business Days' notice
from the Seller to each Purchaser. Each such notice shall specify (i) the amount
requested to be paid to the Seller (which shall not be less than $5,000,000),
and (ii) the date of such Purchase (which shall be a Business Day). Each
Purchaser shall notify the Seller whether it has determined to make such
Purchase not later than 10:00 A.M., New York City time, on the second Business
Day prior to the proposed purchase date.
(b) On the date of each Purchase, each Purchaser shall, upon
satisfaction of the applicable conditions set forth in Section 3.01 and Section
3.02, make
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available to the Seller in same day funds, at the Seller's account with [Bank of
America N.A.], account number [12334-01430], an amount equal to the initial
Capital of such Receivable Interest purchased by the Purchaser. Each notice
given by the Seller pursuant to subsection (a) above shall be irrevocable and
binding on the Seller and the Seller shall indemnify each Purchaser against any
loss or expense incurred by such Purchaser as a result of any failure by the
Seller to accept the amount requested to be paid by such Purchaser, including,
without limitation, any loss (including loss of anticipated profits) or expense
incurred by such Purchaser by reason of the liquidation or reemployment of funds
acquired or requested by such Purchaser to fund such requested amount.
SECTION 2.03 Receivable Interest Percentage.
(a) Each Receivable Interest shall be initially computed on its date of
purchase. Thereafter, until the Reinvestment Termination Date for such
Receivable Interest, such Receivable Interest shall be automatically recomputed
(or deemed to be recomputed) on each day other than a Liquidation Day. Any
Receivable Interest as computed (or deemed recomputed) as of the close of
business on the day immediately succeeding the Reinvestment Termination Date for
such Receivable Interest shall remain constant at all times after such
Reinvestment Termination Date. Such Receivable Interest shall become zero when
the Capital thereof, Yield thereon and all other amounts due and payable to the
Purchasers and the Agent under and in connection with this Agreement shall have
been paid in full and the Collection Agent (if not the Seller or an Affiliate
thereof) shall have received the accrued Collection Agent Fee thereon.
(b) If any Receivable Interest would otherwise be reduced on any day on
account of newly arising Pool Receivables, the Purchasers may prevent such
reduction by notifying the Collection Agent on such day that the Receivables
Pool and the Net Receivables Pool Balance for such Receivable Interest will
include, with respect to Receivables arising as Pool Receivables on such day,
only such number or portion of such Receivables as shall cause such Receivable
Interest to remain constant. The remainder of such Receivables or portion
thereof shall be treated as Receivables arising on the next succeeding Business
Day (subject to reapplication of this subsection (b)).
(c) If any Investor Report indicates that the last day of the prior
Settlement Period was a Mandatory Reduction Day, the Collection Agent shall
promptly notify the Purchasers and the Seller and shall specify the Mandatory
Reduction Amount. In addition, if on any Business Day the Seller knows such day
to be a Mandatory Reduction Day, it shall promptly notify the Purchasers and the
Collection Agent and shall specify the Mandatory Reduction Amount. On the
Business Day next succeeding the Investor Report Date or such notification to
the Purchasers and the Collection Agent, unless the Seller can demonstrate to
the satisfaction of the Purchasers that such day is not a Mandatory Reduction
Day, the Seller shall pay to each Purchaser its full Mandatory Reduction Amount
to the extent that the Mandatory Reduction Amount represents Collections which
should have been set aside and held in the trust for such Purchaser pursuant to
Section 2.04 hereof but were previously deemed to be reinvested on behalf of
such Purchaser. If the full Mandatory Reduction Amount is not so paid, the
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Collection Agent shall continue the suspension of the reinvestment of
Collections on each Mandatory Reduction Day until such time that, after giving
effect to the amount of Collections which are not reinvested in accordance with
the provisions of Section 2.04(b)(ii) and the recomputation of the Receivable
Interests pursuant to Section 2.03, the amount of the Aggregate Capital of such
Purchaser on the day immediately preceding any Mandatory Reduction Day is
reduced by an amount equal to the Mandatory Reduction Amount for such Mandatory
Reduction Day. The Seller shall indemnify any Purchaser for all losses, expenses
and liabilities, if any (including, without limitation, any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Purchaser in connection with such Purchaser's funding or
maintenance of the Receivable Interests), which such Purchaser may sustain as a
result of any Mandatory Reduction.
SECTION 2.04 Settlement Procedures.
(a) Collection of the Pool Receivables shall be administered by the
Collection Agent in accordance with the terms of this Agreement. The Seller
shall provide to the Collection Agent on a timely basis all information needed
for such administration, including notice of the occurrence of any Liquidation
Day or Provisional Liquidation Day and current computations of each Receivable
Interest.
(b) The Collection Agent shall, on each day on which Collections of
Pool Receivables are received by it with respect to any Receivable Interest
owned by a Purchaser:
(i) set aside and hold in trust for such Purchaser, out of the
percentage of such Collections represented by such Receivable Interest, an
amount equal to such Purchaser's Yield and Pro Rata Share of the Collection
Agent Fee and fees payable pursuant to the Fee Letter, if any, accrued
through such day for such Receivable Interest and not previously set aside;
provided, that notwithstanding the preceding clause, unless the
Administrative Agent shall have given notice at the direction of the
Required Purchasers to the contrary, such amounts may be commingled with
the Collection Agent's other funds prior to their payment to the
Purchasers;
(ii) if such day is neither a Liquidation Day nor a Provisional
Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction
Day, reinvest on behalf of such Purchaser the remainder of such percentage
of Collections, to the extent representing a return of Capital, by
recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day or a Provisional Liquidation
Day, refrain from making reinvestments and set aside and hold in trust for
such Purchaser the entire remainder of such percentage of Collections;
provided, that amounts set aside and held in trust on any Provisional
Liquidation Day that is subsequently determined not to be a Liquidation Day
thereupon shall, to the extent representing a return of Capital, be
reinvested in accordance with the preceding subsection (ii);
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(iv) if such day is an Optional Reduction Day, set aside and hold in
trust for the Purchaser the entire remainder of such percentage of
Collections or, if the remainder of such Collections exceeds the remaining
amount of the Optional Reduction Amount, the portion of the remainder of
such Collections equal to such remaining amount of the Optional Reduction
Amount; provided, that, notwithstanding the preceding clause, unless the
Administrative Agent shall have given notice at the direction of the
Required Purchasers to the contrary, such amounts may be commingled with
the Collection Agent's other funds prior to their payment to the
Purchasers;
(v) if such day is a Mandatory Reduction Day, set aside and hold in
trust for the Purchaser the entire remainder of such percentage of
Collections, or if the remainder of such Collections exceeds the remaining
amount of the Mandatory Reduction Amount for such day, the portion of the
remainder of such Collections equal to such remaining amount of the
Mandatory Reduction Amount; provided, that, notwithstanding the preceding
clause, unless the Administrative Agent shall have given notice at the
direction of the Required Purchasers to the contrary, such amounts may be
commingled with the Collection Agent's other funds prior to their payment
to the Purchasers; and
(vi) release to the Seller for its own account any Collections in
excess of such amounts allocated pursuant to subsections (i) through (v)
above.
(c) The Collection Agent shall deposit into an account designated by
each Purchaser, on each Settlement Date, unless the Required Purchasers, in
their sole discretion, require more frequent deposits, all amounts held by the
Collection Agent for each Purchaser in accordance with Section 2.04(b), unless
deposited earlier as provided in the next succeeding sentence; provided,
however, if Collections have been commingled with the Collection Agent's other
funds prior to their payment to the Purchasers as permitted by the terms of this
Agreement, any deposits made pursuant to the preceding clause shall be made by
the Collection Agent from and to the extent of the Collections with respect to a
Receivable Interest owned by such Purchaser. If a Liquidation Day or a
Provisional Liquidation Day has occurred and is continuing, all amounts held by
the Collection Agent for each Purchaser in accordance with Section 2.04(b) shall
be deposited on the first Business Day following receipt by the Collection Agent
into an account designated by such Purchaser. The aggregate amount so deposited
with respect to a Receivable Interest owned by a Purchaser shall not exceed the
sum of such Purchaser's Capital of, and accrued Yield and Pro Rata Share of the
Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of
any other amounts then owed by the Seller to such Purchaser hereunder. If the
amounts so deposited are insufficient to pay in full all amounts due to such
Purchaser hereunder, such amounts shall be applied in the following order of
priority (whether or not such funds are sufficient to pay in full all such
amounts): first to the Collection Agent (if other than Georgia-Pacific or its
designee) in payment of all accrued and unpaid Collection Agent Fee, if any,
second to such Purchaser in payment in full of all accrued and unpaid Yield,
third to such Purchaser in reduction to zero of the Aggregate Capital of such
Purchaser, fourth to such Purchaser in payment of any other amounts owed by
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the Seller to such Purchaser under this Agreement, fifth to the Administrative
Agent in payment of amounts owed by the Seller to the Administrative Agent under
this Agreement and sixth to the Collection Agent (if Georgia-Pacific or its
designee).
After the Capital and Yield with respect to a Receivable Interest, and
any other amounts payable by the Seller to the Purchasers or the Administrative
Agent hereunder, have been paid in full, all additional Collections with respect
to such Receivable Interest shall be paid to the Seller for its own account.
(d) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is
reduced or adjusted as a result of any defective, rejected, returned,
repossessed or foreclosed merchandise or services, or any cash discount or
other adjustment made by the Seller or an Originator, or any right of
setoff is exercised by the Obligor thereunder, the Seller shall be deemed
to have received on such day a Collection of such Pool Receivable in the
amount of such reduction or adjustment;
(ii) if on any day either (w) any of the representations or warranties
contained in Sections 4.01(h) or 4.01(n) are no longer true with respect to
any Pool Receivable, (x) the Seller shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d), or (y) the Seller
or any Originator or the Collection Agent (if Georgia-Pacific or an
Affiliate thereof) shall extend, amend or otherwise modify the terms of any
Pool Receivable, or amend, modify or waive the terms or conditions of the
Contract under which such Pool Receivable arises in a manner which
materially and adversely affects the collectibility of such Pool
Receivable, the Seller shall be deemed to have received on such day a
Collection of such Pool Receivable in full;
(iii) except as provided in subsection (i) or (ii) of this Section
2.04(d), or as otherwise required by applicable law or the relevant
Contract, all Collections received from an Obligor of any Receivable shall
be applied to the Receivables of such Obligor in order of the age of such
Receivables, starting with the oldest such Receivable, unless such Obligor
designates its payment for application to specific Receivables; and
(iv) if and to the extent any Purchaser shall be required for any
reason to pay over to an Obligor any amount received on its behalf
hereunder, such amount shall be deemed not to have been so received but
rather to have been retained by the Seller and, accordingly, such Purchaser
shall have a claim against the Seller for such amount, payable when and to
the extent that any distribution from or on behalf of such Obligor is made
in respect thereof.
SECTION 2.05 Fees.
(a) The Seller shall pay to the Purchasers fees in the amounts and at
the times specified in the Fee Letter.
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(b) The Collection Agent shall be paid a Collection Agent Fee as set
forth in Section 6.06 hereof.
(c) The Seller shall pay to the Administrative Agent a fee as
separately agreed between the Seller and the Administrative Agent.
Each Purchaser shall, on the first Business Day of each calendar month,
provide to the Seller and the Collection Agent a statement specifying, for the
most recently completed Settlement Period, the amount and calculation of such
Purchaser's Yield and Pro Rata Share of the fees payable pursuant to the Fee
Letter. The failure of any Purchaser to provide any such statement to the Seller
or the Collection Agent shall not relieve the Seller of its obligations to pay
such Purchaser's Yield or Pro Rata Share of such fees.
SECTION 2.06 Payments and Computations, Etc.
(a) All amounts to be paid or deposited by the Seller or the Collection
Agent hereunder shall be paid or deposited no later than 3:00 P.M. (New York
City time) on the day when due in same day funds to each Purchaser's account (as
designated by each such Purchaser).
(b) The Seller shall, to the extent permitted by law, pay on demand
from time to time interest on any amount not paid or deposited by the Seller or
the Collection Agent when due hereunder at an interest rate per annum equal to
2% per annum above the Base Rate in effect from time to time; provided, however,
that such interest rate shall not at any time exceed the maximum rate permitted
by applicable law.
(c) All computations of interest under subsection (b) above and all
computations of Yield, fees, and other amounts hereunder shall be made on the
basis of a year of 360 days and the actual number of days elapsed. Whenever any
payment or deposit to be made hereunder shall be due on a day other than a
Business Day, such payment or deposit shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
such payment or deposit.
SECTION 2.07 Dividing or Combining Receivable Interests. The Seller
may, on notice to and consent by a Purchaser received at least three Business
Days prior to the last day of any Settlement Period, divide any Receivable
Interest of such Purchaser into two or more Receivable Interests having
aggregate Capital equal to the Capital of such divided Receivable Interest. The
Seller may, on notice to and consent by a Purchaser received at least three
Business Days prior to the last day of any Settlement Period either (i) combine
two or more existing Receivable Interests of such Purchaser or (ii) combine an
existing Receivable Interest or existing Receivable Interests and a proposed
Receivable Interest, all of such Purchaser, in each case on such last day into a
single Receivable Interest having Capital equal to the aggregate Capital of such
existing Receivable Interest or such existing Receivable Interests and such
proposed Receivable Interest, as the case may be.
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SECTION 2.08 Yield Protection.
(a) If, after the date hereof, the adoption of any applicable law, rule
or regulation, or any change therein, including Regulation D of the Board of
Governors of the Federal Reserve System, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Purchaser or any Person controlling any thereof, any permitted assignee
under this Agreement or any Person maintaining any liquidity, purchase or credit
enhancement facility for any Purchaser (each of which being an "Affected Party")
with any request or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency,
(A) shall subject an Affected Party to any tax (except for taxes on the
overall net income of such Affected Party), duty or other charge with respect to
the Receivable Interests or any right to make purchases, or shall change the
basis of taxation of payments to an Affected Party of its Capital or Yield or
any other amounts due under this Agreement in respect of its Capital or its
rights, if any, to make purchases; or
(B) shall impose, modify or deem applicable any reserve requirement
(including, without limitation, any reserve requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding any reserve requirement,
if any, included in the determination of Yield), special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Affected Party; or
(C) shall impose any other condition affecting the Receivable Interests
or the Purchaser's rights, if any, to make purchases;
and the result of any of the foregoing is (i) to increase the cost to, or, in
the case of Regulation D referred to above, to impose a cost on an Affected
Party funding or making or maintaining any Receivable Interest, or (ii) to
reduce the amount of any sum received or receivable by an Affected Party under
this Agreement with respect thereto, then within ten days after demand by such
Affected Party (which demand shall be accompanied by a statement setting forth
the basis for such demand), the Seller shall pay directly to such Affected Party
such additional amount or amounts as will compensate such Affected Party for
such additional or increased cost incurred or such reduction suffered.
(b) If an Affected Party shall reasonably determine that the adoption
of any applicable law, rule, regulation, directive or guideline regarding
capital adequacy, or any change in or phase-in of any applicable law, rule,
regulation, directive or guideline or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by an Affected
Party with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on the
capital of any Affected Party as a consequence of its obligations hereunder or
arising in
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connection herewith to a level below that which any such Affected Party could
have achieved but for such adoption, change or compliance (taking into
consideration the policies of such Affected Party with respect to capital
adequacy) by an amount deemed by such Affected Party to be material, then from
time to time, within ten days after demand by such Affected Party, the Seller
shall pay to such Affected Party such additional amount or amounts as will
compensate such Affected Party for such reduction.
(c) Each Affected Party will promptly notify the Seller of any event of
which it has knowledge occurring after the date hereof which will entitle such
Affected Party to compensation pursuant to this Section 2.08. If an Affected
Party fails to give such notice within 90 days after it obtains actual knowledge
of such event and such result, such Affected Party shall be entitled to
compensation pursuant to this Section 2.08 only to the extent such additional
amount or reduction accrues on or after the date 90 days prior to the date on
which such Affected Party gives such notice.
(d) In determining any amount provided for in this Section 2.08, the
Affected Party may use any reasonable averaging and attribution methods. Any
Affected Party making a claim under this Section 2.08 shall submit to the Seller
a certificate as to such additional or increased cost or reduction, which
certificate shall be conclusive absent demonstrable error; provided, that the
failure to deliver any such certificate shall not affect the Affected Party's
right to payment hereunder unless notice as required by Section 2.08(c) has not
been given.
SECTION 2.09 Sharing of Payments, Etc. If any Purchaser shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of setoff, or otherwise) on account of Pool Receivables covered by a Receivable
Interest (other than pursuant to Section 2.08) in excess of payments on account
of Pool Receivables allocable to such Receivable Interest, such Purchaser shall
forthwith purchase from the other Purchasers such participations in the Pool
Receivables as shall be necessary to cause such purchasing Purchaser to share
the excess payment ratably with each of them, provided, however, that if all or
any portion of each excess payment is thereafter recovered from such purchasing
Purchaser, such purchase from each Purchaser shall be rescinded and such
Purchaser shall repay to the purchasing Purchaser the purchase price to the
extent of such recovery together with an amount equal to each Purchaser's Pro
Rata Share of any interest or other amount paid or payable by the purchasing
Purchaser in respect of the total amount so recovered.
SECTION 2.10 Effect of Early Payments. In the event any Purchaser: (i)
has the Capital of a Receivable Interest reduced without compliance by the
Seller with the notice requirements hereunder or (ii) does not become subject to
a Mandatory Reduction or an Optional Reduction upon the occurrence of a
Mandatory Reduction Day or an Optional Reduction Day, then the Seller agrees to
pay to the relevant Purchaser an amount equal to the excess, if any, of:
(A) Yield that would have accrued during the remainder of the
Settlement Period or the tranche periods for Notes determined by such Purchaser
to relate to such Receivable Interest (as applicable) subsequent to the date of
such reduction (or in
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respect of clause (ii) above, the date such Mandatory Reduction or Optional
Reduction took effect pursuant to the occurrence of a Mandatory Reduction Day or
an Optional Reduction Day) on such Capital if such reduction or such Mandatory
Reduction Day or Optional Reduction Day had not occurred,
over
(B) the income, if any, actually received during the remainder of such
period by such Purchaser from investing the amount received as a reduction of
such Capital, in accordance with such Purchaser's normal investment policies.
All payments made pursuant to this Section 2.10 shall be due and payable
hereunder upon demand. The determinations made by any Purchaser pursuant to this
Section 2.10 shall be binding absent demonstrable error.
ARTICLE III.
CONDITIONS OF PURCHASES
SECTION 3.01 Conditions Precedent to Initial Purchase. The initial
Purchase of Receivable Interests under this Agreement is subject to the
conditions precedent that the Purchasers shall have received on or before the
date of such Purchase the following, each (unless otherwise indicated) dated
such date and in form and substance satisfactory to the Purchasers and the
Administrative Agent:
(a) Certificates of the Secretary or Assistant Secretary of the Seller
and each Originator certifying the names and true signatures of their respective
officers authorized to sign this Agreement and the other documents to be
delivered by them hereunder or in connection herewith, evidence of corporate
authorization of the transactions contemplated hereby, the articles of
incorporation (attached and appropriately certified by the Secretary of State of
the Seller's and each Originator's jurisdiction of incorporation) and the
by-laws and all amendments thereto of the Seller and each Originator.
(b) Executed financing statements (including any assignments of and
amendments to financing statements previously filed), to be filed on or before
the date of such initial Purchase under the UCC of all jurisdictions that the
Purchasers or the Administrative Agent may deem necessary or desirable in order
(i) to perfect the ownership interests contemplated by this Agreement and (ii)
to perfect the ownership interests of the Seller in the receivables purchased by
the Seller from the Originators pursuant to the Transfer Agreements.
(c) Executed UCC termination statements, if any, necessary to release
all security interests and other rights of any Person (other than the Purchasers
and the Secondary Purchasers) in the Receivables, Contracts or Related Security
previously granted by the Seller or any Originator.
(d) Evidence (including Uniform Commercial Code search reports) that
all Receivables and all proceeds thereof are free and clear of liens, security
interests,
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claims and encumbrances other than those held by the Purchasers and the
Secondary Purchasers.
(e) An executed Transfer Agreement and Consent and Acknowledgment from
each Originator.
(f) [Notices, in form the form of Exhibit F and Exhibit G to each
Depository Bank and each Concentration Bank, respectively.]
SECTION 3.02 Conditions Subsequent. The Seller shall, no later than
November 1, 1999, deliver to the Purchasers and the Administrative Agent:
(a) A favorable opinion of Troutman Sanders LLP, counsel for the Seller
and the Originators, in form and substance reasonably satisfactory to the
Purchasers.
(b) A favorable opinion of local counsel for each Originator which has
a principal place of business or, if such Originator has more than one principal
place of business, a chief executive office in a state other than Georgia, in
form and substance reasonably satisfactory to the Purchasers.
SECTION 3.03 Conditions Precedent to All Purchases and Reinvestments.
Each Purchase (including the initial Purchase) and each reinvestment shall be
subject to the further conditions precedent that (a) in the case of each
Purchase, the Collection Agent shall have delivered to the Purchasers and the
Administrative Agent on or prior to the date of such Purchase, in form and
substance satisfactory to the Purchasers, all Investor Reports as and when due
under Section 6.02(g) and, on or prior to the date of the initial Purchase, an
Investor Report containing then current information acceptable to the
Purchasers, and (b) on the date of each Purchase or reinvestment, the following
statements shall be true (and acceptance of the proceeds of such Purchase or
reinvestment shall be deemed a representation and warranty by the Seller that
such statements are then true):
(i) the representations and warranties contained in Article IV are
correct on and as of the date of such Purchase or reinvestment 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, that constitutes an Event of Termination or a
Potential Termination Event,
(iii) Georgia-Pacific is a Member,
(iv) the Internal Revenue Service shall not have filed a notice of lien
pursuant to Section 6323 of the Code with regard to any assets of the
Seller or any Originator, and the Pension Benefit Guaranty Corporation
shall not have filed a notice of lien pursuant to Section 4068 of ERISA
with regard to any assets of the Seller or any Originator, unless such
liens (1) have been suspended or (2)
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are being contested in good faith by the Seller or such Originator and have
been bonded in the full amount thereof; provided, however, that with
respect to any Originator, the amount of such lien shall be greater than
$50,000,000, and
(v) the Facility Termination Date shall not have occurred,
and (c) the Purchasers shall have received such other approvals, opinions or
documents as they may reasonably request.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Seller and the
Collection Agent. Each of the Seller and the Collection Agent makes, with
respect to itself, the following representations and warranties to each
Purchaser and the Administrative Agent on the date of each Purchase and on the
date of each reinvestment as follows:
(a) It is duly incorporated, validly existing and in good standing
under the laws of its state of incorporation, and is duly qualified to do
business, and is in good standing, in every jurisdiction where the nature of its
business or the ownership of its properties requires it to be so qualified where
the failure to be so qualified could materially adversely affect its ability to
perform its obligations hereunder or under any Transfer Agreement or the
Secondary Purchase Agreement. As of the date hereof, Georgia-Pacific owns
directly or indirectly 100% of the issued and outstanding common stock of the
Seller.
(b) The execution, delivery and performance by the Seller and the
Collection Agent of the Sale Documents to which it is a party, and the Seller's
use of the proceeds of purchases and reinvestments, are within its corporate
powers, have been duly authorized by all necessary corporate action, do not
contravene or violate (i) its certificate of incorporation or articles of
incorporation or by-laws; or (ii) any law, rule or regulation or any contractual
restriction binding on or affecting it the breach of which could reasonably be
expected to have a material adverse effect on the Receivables or the transaction
contemplated hereby, or as may restrict or limit the assignment of Receivables
of Government Obligors, and do not result in or require the creation of any lien
(other than pursuant hereto and pursuant to the Secondary Purchase Agreement)
upon or with respect to any of its properties; and no transaction contemplated
hereby requires compliance with any bulk sales act or similar law. Each Sale
Document to which the Seller or the Collection Agent is a party has been duly
executed, authorized and delivered by the Seller or the Collection Agent, as the
case may be.
(c) Other than the filings of the financing statements under the UCC of
the jurisdictions that the Purchasers or the Administrative Agent deem
necessary, all of which, on or prior to the date of the initial Purchase
hereunder, will have been duly made and be in full force and effect, and other
than such filings, registrations and notices as may be required under applicable
law with respect to the assignment of Receivables of Government Obligors no
authorization or approval or other action by,
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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 or the
Collection Agent of this Agreement or any other Sale Document to which the
Seller or the Collection Agent is a party or for the perfection of or exercise
by the Purchaser of its rights and remedies under this Agreement or any other
Sale Document to be delivered hereunder.
(d) Each of this Agreement and each other Sale Document to which the
Seller or the Collection Agent is a party constitutes the legal, valid and
binding obligation of the Seller and the Collection Agent, respectively,
enforceable against the Seller and the Collection Agent in accordance with their
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or limiting
creditors' rights generally.
(e) The unaudited consolidated financial statements of the Collection
Agent and its subsidiaries as of July 3, 1999, copies of which have been
furnished to the Purchasers, fairly present the financial condition of the
Collection Agent and its subsidiaries as of such date and the consolidated
results of their operations for the period ended on such date, and have been
prepared in accordance with GAAP consistently applied in all material respects
by the Collection Agent and its subsidiaries throughout the period involved,
except as set forth in the notes thereto and there has been no material adverse
change in such financial position or operations as they existed as of such date.
(f) There is no pending or threatened action or proceeding affecting
the Seller or the Collection Agent or any of their respective subsidiaries or
properties before any court, governmental agency or arbitrator which could
reasonably be expected to materially adversely affect (i) the financial
condition or operations of the Seller or the Collection Agent and its
subsidiaries or (ii) the ability of the Seller or the Collection Agent to
perform their obligations under this Agreement or any other Sale Document to
which it is a party or (iii) the legality, validity or enforceability of this
Agreement or any other Sale Document to which it is a party or (iv) any
Purchaser's interest in the Pool Receivables generally or in any significant
portion of the Pool Receivables, the Related Security or the Collections with
respect thereto, or (v) the collectibility of the Pool Receivables generally or
of any significant portion of the Pool Receivables. Neither the Seller nor the
Collection Agent is in default with respect to any order of any court,
arbitrator or governmental body. No Event of Termination, or event which, with
the passage of time or the giving of notice, or both, would be an Event of
Termination, is continuing.
(g) No proceeds of any purchase or reinvestment will be used (i) for a
purpose which violates, or would be inconsistent with regulations T, U or X
promulgated by the Board of Governors of the Federal Reserve System from time to
time or (ii) to acquire any security in any transaction which is subject to
Section 13 and 14 of the Securities Exchange Act of 1934, as amended.
(h) Immediately prior to a Purchase hereunder, the Seller shall be the
legal and beneficial owner of the Pool Receivables and Related Security with
respect
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thereto (except with respect to Related Security and with respect to
Receivables of Government Obligors, the transfer of which may be limited by
applicable law), free and clear of any Adverse Claim, except as created by this
Agreement and the Secondary Purchase Agreement and the documents entered into in
connection herewith and therewith. This Agreement is effective to, and shall,
upon each purchase or reinvestment, transfer to each Purchaser (and each
Purchaser shall acquire from the Seller) a valid and perfected first priority
undivided percentage ownership interest to the extent of such Purchaser's
Receivable Interest in each Pool Receivable existing or hereafter arising and in
the Related Security and Collections with respect thereto, except as may be
limited by applicable law with respect to the Related Security and with respect
to Receivables of Government Obligors, free and clear of any Adverse Claim,
except as created by this Agreement and the Secondary Purchase Agreement and the
documents entered into in connection herewith and therewith. No effective
financing statement or other instrument similar in effect covering any Contract
or any Pool Receivable or the Related Security or Collections with respect
thereto is on file in any recording office, except those filed in favor of the
Administrative Agent pursuant to this Agreement and the Secondary Purchase
Agreement and those filed in favor of the Seller pursuant to a Transfer
Agreement. Upon the filing of UCC-1 financing statements naming the
Administrative Agent as secured party and the Seller as debtor, the
Administrative Agent, as agent for the Purchasers, shall have a first priority
perfected security interest in the Pool Receivables, Related Security and
Collections, to the extent of each Purchaser's Receivable Interest, to the
extent a security interest in such items of property can be perfected under the
UCC.
(i) Prior to a transfer pursuant to a Transfer Agreement, the related
Originator shall be the legal and beneficial owner of the Receivables and the
Related Security sold to the Seller pursuant to such Transfer Agreement free and
clear of any Adverse Claim. Each Transfer Agreement is effective to, and shall,
upon the creation of a Receivable owing to such Originator party to such
Transfer Agreement, transfer to the Seller (and the Seller shall acquire) from
such Originator all right, title and interest of such Originator in each such
Receivable and in the Related Security and Collections with respect thereto,
except as may be limited by applicable law with respect to the Related Security
and with respect to Receivables of Government Obligors, free and clear of any
Adverse Claim, except as contemplated by this Agreement and the Secondary
Purchase Agreement.
(j) Each Investor Report (if prepared by the Seller, an Originator or
one of their Affiliates, or to the extent that information contained therein is
supplied by the Seller, an Originator or an Affiliate), information, exhibit,
financial statement, document, book, record or report (other than projections
prepared in good faith) furnished or to be furnished at any time by a
Responsible Officer of the Seller or an Originator to the Administrative Agent
or the Purchasers in connection with this Agreement was, is, or will be accurate
in all material respects as of its date or (except as otherwise disclosed to the
Administrative Agent or the Purchasers, as the case may be, at such time) as of
the date so furnished, and no such document contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
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necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
(k) The principal places of business and chief executive offices of the
Seller and the Originators, and the office where the Seller keeps its records
concerning the Receivables are, as of the date hereof, located at the addresses
referred to in Section 11.02 and on Schedule V hereof, respectively.
(l) The names and addresses of all Lock-Box Banks, Depositary Banks and
Concentration Banks, together with the account numbers of the Lock-Box Accounts,
the Depositary Accounts and the Concentration Accounts of the Seller and the
Originators at such Lock-Box Banks, such Depositary Banks and such Concentration
Banks, are, as of the date hereof, specified in Schedule I hereto, Schedule II
hereto and Schedule III hereto, respectively (or at such other Lock-Box Banks,
Depositary Banks or Concentration Banks and/or with such other Lock-Box
Accounts, Depositary Accounts or Concentration Accounts as have been notified to
the Administrative Agent and the Purchasers in writing in accordance herewith).
(m) Each purchase of a Receivable Interest and each reinvestment of
Collections in Pool Receivables hereunder, and each Purchase by the Seller from
an Originator of a Receivable under the Transfer Agreement to which such
Originator is a party, 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.
(n) Each Pool Receivable at the time it first becomes covered by a
Receivable Interest, shall be an Eligible Receivable. Each Pool Receivable used
in computing the Net Receivables Pool Balance shall, at the time of such
computation, be an Eligible Receivable. No event has occurred which materially
and adversely affects the collectibility of the Pool Receivables generally or
the collectibility of a significant portion of the Pool Receivables.
(o) No event has occurred which could reasonably be expected to
materially adversely affect the operations of the Seller or the Collection Agent
and its subsidiaries considered on a consolidated basis as it existed as of July
3, 1999 or the ability of the Seller or the Collection Agent to perform its duty
to collect the Pool Receivables or the ability of the Seller or the Collection
Agent to perform its obligations under this Agreement or any other Sale Document
to which it is a party.
(p) With respect to each Receivable sold by an Originator to the Seller
and included in a Receivables Pool, the Seller shall have paid or promised to
pay to such Originator at the time of such sale an amount equal to the
Outstanding Balance of such Receivable.
(q) The Seller and each Originator are treating the conveyance of the
Receivables Interest in the Receivables, the Related Security and the
Collections under
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this Agreement and each sale of a Receivable under the Transfer Agreements,
respectively, as a sale for purposes of GAAP.
(r) Neither the Seller nor the Collection Agent has extended or
modified the terms of any Pool Receivable or the invoice under which any such
Pool Receivable arose except in accordance with the Credit and Collection
Policy.
(s) The obligations of the Seller hereunder to make payment in respect
of fees payable to the Purchasers, deemed Collections under Section 2.04(d) and
indemnities rank at least equally with Debt of the Seller which is not
contractually subordinated.
(t) Neither the Seller nor the Collection Agent has granted any Person
dominion and control of any Lock-Box Account, Depositary Account or
Concentration Account, or the right to take dominion and control of any Lock-Box
Account, Depositary Account or Concentration Account at a future time or upon
the occurrence of a future event.
(u) The transactions under this Agreement and the other Sale Documents
executed and delivered by the Seller do not and will not render the Seller not
Solvent.
(v) The Seller and the Collection Agent have filed or caused to be
filed all tax returns which, to their knowledge, are required to be filed or has
filed timely extensions therefor. The Seller and the Collection Agent have paid
all taxes and all assessments made against them or any of its property when due
and payable (other than any amount of tax the validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in accordance with GAAP have been provided on the books of the
Seller or the Collection Agent, as the case may be), and no tax lien has been
filed and, to the Seller's or the Collection Agent's knowledge, no claim is
being asserted, with respect to any such tax, fee or other charge, provided,
that, with respect to the Collection Agent (if Georgia-Pacific), the amount of
such claim is at least $75,000,000.
(w) Since April 15, 1999, there have been no changes to the Credit and
Collection Policy which could reasonably be expected to have materially
adversely affect the collectibility of any Receivable.
(x) Neither the Seller nor the Collection Agent is an "investment
company" or a company controlled by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(y) The Seller and the Collection Agent shall have reviewed areas
within its business and operations which could be adversely affected by, and
have developed a plan (a "Year 2000 Plan") to address on a timely basis, the
Year 2000 Problem. The Seller and the Collection Agent shall take all actions
necessary to meet the schedule and goals of its Year 2000 Plan, and do not
anticipate that the Year 2000 Problem will have a material adverse effect on the
transaction.
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Upon discovery by the Seller, the Collection Agent, any Purchaser or
the Administrative Agent of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the others.
ARTICLE V.
COVENANTS
SECTION 5.01 Covenants of the Seller and the Collection Agent. Until
the date on which no Capital of any Receivable Interest shall be outstanding and
no further Purchases are to be made under this Agreement:
(a) Compliance with Laws, Etc. Each of the Seller and the Collection
Agent shall comply in all material respects with its certificate of
incorporation and by-laws and all applicable laws, rules, regulations and orders
with respect to it, its properties, and all Receivables in which the Purchasers
have a Receivable Interest, and shall preserve and maintain its corporate
existence, rights, franchises, qualifications, 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 be
so qualified could materially adversely affect its ability to perform its
obligations hereunder and under the other Sale Documents to which it is a party.
(b) Offices, Records and Books of Accounts. The Seller shall keep its
principal place of business and chief executive office at the address of the
Seller referred to in Section 11.02, or, upon 30 days' prior written notice to
the Administrative Agent and the Purchasers, at any other locations in a
jurisdiction where all action required by Section 6.05(a) shall have been taken.
The Seller and the Collection Agent shall maintain and implement administrative
and operating procedures (including, without limitation, an ability to recreate
records evidencing Pool Receivables and related Contracts in the event of the
destruction of the originals thereof), and keep and maintain 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 Pool Receivable and all
Collections of and adjustments to each existing Pool Receivable).
(c) Performance and Compliance with Contracts and Credit and Collection
Policy. The Seller and the Collection Agent shall, at their own respective
expense, timely and fully perform and comply with all material provisions,
covenants and other promises required to be observed by them under the Contracts
related to the Pool Receivables, and timely and fully comply in all material
respects with the Credit and Collection Policy in regard to each Pool Receivable
and the related Contract.
(d) Sales, Liens, Etc. Neither the Seller nor the Collection Agent
shall sell, assign (by operation of law or otherwise) or otherwise dispose of,
or create or suffer to exist any Adverse Claim (other than as contemplated
hereunder) upon or with respect to, any Pool Receivable, Related Security
(except returned or reclaimed merchandise), related Contract or Collections, or
upon or with respect to any account to which any Collections of any Pool
Receivable are sent, or assign any right to receive income in
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respect thereof, except as contemplated hereunder and under the Secondary
Purchase Agreement and the Transfer Agreements.
(e) Extension or Amendment of Receivables. Except as provided in
Section 6.02(c), neither the Seller nor the Collection Agent shall 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 other than in accordance
with the Credit and Collection Policy, except with the prior written consent of
the Required Purchasers.
(f) Change in Business or Credit and Collection Policy. Neither the
Seller nor the Collection Agent shall make any change in the character of its
business or in the Credit and Collection Policy that could, in either case, have
a material adverse effect on (i) its business or properties, (ii) the ability of
the Seller or the Collection Agent to perform its obligations under this
Agreement or any Sale Document to which it is a party or (iii) the
collectibility of the Pool Receivables generally or of any significant portion
of the Pool Receivables.
(g) Audits. The Seller and the Collection Agent shall, at any
reasonable time, permit each Purchaser, or its agents or representatives, (i) to
examine and make copies of and abstracts from all Records in the possession or
under the control of the Seller or the Collection Agent relating to Pool
Receivables and the Related Security, including, without limitation, the related
Contracts, and (ii) to visit and inspect the offices and properties of the
Seller and the Collection Agent for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to the Seller's
and the Collection Agent's financial condition or the Pool Receivables and the
Related Security or the Seller's or the Collection Agent's performance hereunder
or under the Contracts with any of the officers or employees of the Seller or
the Collection Agent having knowledge of such matters.
(h) Change in Payment Instructions to Obligors. The Seller and the
Collection Agent shall not, and shall not permit any Originator to, add or
terminate any bank as a Lock-Box Bank or a Depositary Bank or as a Concentration
Bank from those listed in Schedule I hereto or Schedule II hereto or Schedule
III hereto, respectively, or make any change in its instructions to Obligors
regarding payments to be made to the Seller, the Collection Agent or an
Originator or payments to be made to any Lock-Box Bank or Depositary Bank,
unless the Administrative Agent and the Purchasers shall have received, at least
10 days before the proposed effective date therefor, written notice of such
addition, termination or change and, with respect to the addition of the
Lock-Box Bank, an executed Lock-Box Agreement from, and undated executed copies
of Lock-Box Notices to, such new Lock-Box Bank, and with respect to a Depositary
Bank, undated executed copies of Depositary Notices and, with respect to a
Concentration Bank, undated executed copies of Concentration Notices; provided,
however, that the Seller, the Collection Agent or an Originator shall be
permitted to make changes in instructions to Obligors regarding payments if such
new instructions require such Obligor to make payments to another existing
Lock-Box Account or Depositary Account.
(i) Deposits to Depositary Accounts and Concentration Accounts. The
Seller shall, and shall cause each Originator to, deposit, or cause to be
deposited, all
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Collections of Pool Receivables received by the Seller or an Originator into
Lock-Box Accounts, Depositary Accounts or Concentration Accounts.
(j) Reporting Requirements. The Seller will provide to the Purchasers
the following:
(i) as soon as available and in any event within 45 days after the end
of the first three quarters of each fiscal year of Georgia-Pacific, balance
sheets of Georgia-Pacific and its subsidiaries as of the end of such
quarter and statements of income and cash flows of Georgia-Pacific and its
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 of Georgia-Pacific;
(ii) as soon as available and in any event within 90 days after the end
of each fiscal year of Georgia-Pacific, a copy of the annual report for
such year for Georgia-Pacific and its subsidiaries, containin