MULTICURRENCY
RECEIVABLES TRANSFER AGREEMENT
DATED AS OF JANUARY 29, 1996
BETWEEN
STORAGE TECHNOLOGY CORPORATION
AS TRANSFEROR AND INITIAL SERVICING AGENT
AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
AS TRANSFEREE
TABLE OF CONTENTS
Page
ARTICLE I
TRANSFERS AND PAYMENTS
1.01 Agreement to Transfer and Acquire 2
1.02 Procedures for Designation and Transfer 2
1.03 Purchase Price Calculation 10
1.04 Payment; Discount; Assignment Certificate 12
1.05 Facility Limit 13
1.06 Voluntary Termination of Facility; Reduction of
Facility Limit or Base Foreign Currency Amount 13
1.07 Termination Date; Extension of Termination Date 14
1.08 Early Termination or Reduction Payments 14
1.09 Reductions of Base Foreign Currency Amount below
Letter of Credit Amount. 17
1.10 No Assumption 17
ARTICLE II
COLLECTIONS; SETTLEMENT
2.01 Deemed Collections; Substitution of Receivables 17
2.02 Treatment of Collections and Deemed Collections;
Reconveyance 18
2.03 Settlement Procedures 19
2.04 Settlement of Forward Contracts 20
2.05 Netting of Payments on Certain Settlement Dates 20
2.06 Drawings on Letter of Credit 21
2.07 Payments and Computations, Etc 22
ARTICLE III
FEES AND YIELD PROTECTION
3.01 Fees 22
3.02 Yield Protection 22
3.03 Inability to Determine Eurodollar Rate; Failure to
Specify Settlement Date 23
3.04 Funding Losses 24
3.05 Taxes, Etc 25
3.06 Set-off 26
ARTICLE IV
CONDITIONS TO EFFECTIVENESS AND TRANSFERS
4.01 Conditions Precedent to Effectiveness 26
4.02 Conditions Precedent to each Supplement 27
4.03 Conditions Precedent to All Transfers 27
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Representations and Warranties of Transferor 28
ARTICLE VI
GENERAL COVENANTS OF TRANSFEROR
6.01 Affirmative Covenants of Transferor 31
6.02 Negative Covenants of Transferor 35
6.03 Grant of Security Interest 35
ARTICLE VII
ADMINISTRATION AND COLLECTION
7.01 Designation of the Servicing Agent 36
7.02 Duties of the Servicing Agent 36
7.03 Rights of Transferee 37
7.04 Responsibilities of Transferor 39
ARTICLE VIII
TERMINATION EVENTS
8.01 Termination Events 40
8.02 Remedies 43
8.03 Drawing on Letter of Credit 44
ARTICLE IX
INDEMNIFICATION; EXCULPATION
9.01 Indemnities by Transferor 45
9.02 Exculpation 46
ARTICLE X
GUARANTEE
10.01 Guarantee 46
10.02 Waivers 47
10.03 No Impairment 47
10.04 Waiver of Resort 47
10.05 Reinstatement 48
10.06 Subrogation, Waivers, Etc 48
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Waivers, Etc 49
11.02 Notices, Etc 50
11.03 Binding Effect; Assignability; Survival of Provisions 50
11.04 Governing Law 50
11.05 Costs, Expenses and Taxes 51
11.06 Execution in Counterparts 51
11.07 Confidentiality 52
11.08 Release 54
11.09 Severability of Provisions 54
11.10 Conflict in Agreement Documents. 54
11.11 Legal Representation of Parties. 54
11.12 Recording. 54
11.13 Judgments 55
11.14 Submission to Jurisdiction 55
11.15 Integration 55
11.16 Waiver of Jury Trial 55
LIST OF SCHEDULES AND EXHIBITS
SCHEDULE I Definitions
SCHEDULE II Determination Dates
EXHIBIT 1.02(b) Form of Supplement
EXHIBIT 1.02(f) Form of Deficiency Certificate
EXHIBIT 1.04(d) Form of Assignment Certificate
EXHIBIT 1.07(c) Form of Amendment
EXHIBIT 2.02(b)-1 Form of Request for Reconveyance
EXHIBIT 2.02(b)-2 Form of Reconveyance by Transferee
EXHIBIT 4.01(d) Form of Opinion of Counsel for Transferor
EXHIBIT 4.03(b) Form of Letter of Credit
EXHIBIT 4.03(c) List of UCC Filing Jurisdictions
EXHIBIT 4.03(e) Form of Officer's Certificate
EXHIBIT 5.01(d) Schedule of Litigation
EXHIBIT 5.01(h) List of Names Used by Transferor
THIS MULTICURRENCY RECEIVABLES TRANSFER AGREEMENT (this "Agreement"),
dated as of January 29, 1996 is between STORAGE TECHNOLOGY CORPORATION, a
Delaware corporation, as Transferor ("Transferor") and initial Servicing
Agent, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a
national banking association ("Transferee").
RECITALS
A. Transferor now owns, or from time to time hereafter will own,
certain Receivables generated in the ordinary course of its business which
Transferor wishes to transfer to Transferee.
B. Transferee has agreed to acquire such Receivables and certain
Related Assets from Transferor on the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
DEFINITIONS AND RELATED MATTERS
In this Agreement, unless otherwise specified:
(a) capitalized terms, "currency", and "foreign currency" are
used as defined in Schedule I;
(b) accounting terms shall be interpreted, and accounting
determinations and computations made, in accordance with GAAP;
(c) terms defined in Article 9 of the California UCC and not
otherwise defined herein are used as defined in such Article 9;
(d) references to any Article, Section, Exhibit or Schedule
refer to such Article or Section of, or Exhibit or Schedule to, this
Agreement, and references in any Article, Section or definition to
any subsection or clause refer to such subsection or clause of such
Article, Section or definition;
(e) "herein", "hereof", "hereto", "hereunder" and similar terms
refer to this Agreement as a whole and not to any particular Section,
paragraph or provision of this Agreement;
(f) "including" means including without limitation, and other
forms of the verb "to include" have correlative meanings;
(g) for purposes of calculating interest, any fee, discount or
any other amount accrued over a period of time, the first day of such
period shall be included and the last day excluded;
(h) a reference to any Person includes such Person's successors
and assigns, unless such successors and assigns are not permitted by
this Agreement and reference to a Person in a particular capacity
excludes such Person in any other capacity or individually;
(i) a reference to any law, rule or regulation refers to such
law, rule or regulation as amended from time to time and includes any
successor law, rule or regulation; and
(j) captions are solely for convenience of reference and shall
not affect the meaning of this Agreement.
ARTICLE I
TRANSFERS AND PAYMENTS
SECTION 1.01 Agreement to Transfer and Acquire. On the terms and
conditions hereinafter set forth, from time to time on each Transfer Date
occurring on or prior to the Termination Date, Transferor agrees to
assign, transfer and convey to Transferee, and Transferee agrees to
acquire from Transferor: (a) all of Transferor's right, title and interest
in, to and under an aggregate amount of Eligible Receivables having a
Dollar Equivalent Balance equal to the Required Dollar Receivables Amount
for such Transfer Date; (b) all Collections with respect to such
Receivables; and (c) all proceeds of any of the foregoing. The items
listed above in clauses (b) and (c) are herein collectively called the
"Related Assets." The Receivables and the Related Assets transferred or
to be transferred on a Transfer Date are herein collectively called the
"Transferred Assets". Title to the Transferred Assets which are
transferred on any Transfer Date will pass to Transferee on such Transfer
Date.
SECTION 1.02 Procedures for Designation and Transfer.
(a) Certain Definitions. As used herein:
(i) "Determination Date" means each date set forth in
Schedule II hereto, as in effect from time to time, or, if any such
date is not a Business Day, the immediately preceding Business Day.
(ii) "Transfer Date" means each date designated in any
Supplement as a Transfer Date. No Transfer Date shall fall less than
four Eurodollar Business Days after the immediately preceding
Determination Date. Not more than twelve Transfer Dates may fall in
any twelve-month period.
(iii) "LIBOR Fixing Date" means, with respect to any
Transfer Date, the third Eurodollar Business Day preceding such
Transfer Date.
(iv) "Settlement Date" means with respect to any Transfer Date,
the Business Day specified by Transferor as the Settlement Date for
such Transfer Date in the notice delivered by Transferor pursuant to
Section 1.02(d), or, if no such notice is given, in the applicable
Assignment Certificate, provided, that no Settlement Date may fall
later than the earlier of (A) 50 days after the applicable Transfer
Date and (B) the next succeeding Transfer Date. Each Settlement Date
shall be a Eurodollar Business Day.
(b) Supplements.
(i) Each agreement by the parties to make one or more Transfers
hereunder shall be made pursuant to a supplement to this Agreement (a
"Supplement") entered into by the parties hereto from time to time
prior to the third Business Day before the last Determination Date
which falls prior to the then Scheduled Termination Date, in
substantially the form of Exhibit 1.02(b), specifying therein:
(A) each Transfer Date to occur pursuant to such
Supplement,
(B) the aggregate amount, expressed in the applicable
foreign currencies, which will be used to calculate the Required
Dollar Receivables Amount pursuant to Section 1.02(c) in order
to determine the aggregate amount of Receivables that Transferee
is to acquire on such Transfer Date (each such amount of a
particular foreign currency for a particular Transfer Date being
herein called a "Base Foreign Currency Amount"),
(C) the total Purchase Price in Dollars that
Transferee is to pay Transferor on such Transfer Date for the
Transferred Assets to be acquired on such Transfer Date, and
(D) the Dollar portion of such total Purchase Price
which is allocable to each Base Foreign Currency Amount for such
Transfer Date (each an "Allocated Purchase Price").
(ii) If the Transferor wishes to enter into a Supplement,
Transferor will deliver to Transferee by facsimile at the address
specified in Section 11.02 a proposed Supplement, showing in the
spaces provided the Transfer Dates and the applicable Base Foreign
Currency Amounts requested by Transferor. Following Transferee's
receipt of such proposed Supplement, Transferee will consult with
Transferor and will notify Transferor of the Allocated Purchase Price
which Transferee is prepared to pay on each applicable Transfer Date
in respect of each Base Foreign Currency Amount shown on such
Supplement, and the total Purchase Price in Dollars which Transferee
is prepared to pay on each such Transfer Date. Such Allocated
Purchase Prices will be determined by Transferee in good faith based
on market conditions. If Transferee and Transferor agree to each
such Allocated Purchase Price and total Purchase Price, they will
enter into a Supplement reflecting such agreement. Neither
Transferor nor Transferee will have any obligation to agree to any
proposed Allocated Purchase Price or total Purchase Price.
Transferee will have no obligation to notify Transferor of any
Allocated Purchase Price for any Base Foreign Currency Amount
proposed by Transferor if Transferee informs Transferor that such
Base Foreign Currency Amount is not freely available and commercially
transferable in the relevant amount at such time or for any other
relevant period.
(iii) Notwithstanding anything contained herein to the
contrary,
(A) Transferor shall not be obligated to enter into
any Supplement at any time prior to any agreement by Transferor
and Transferee of the terms and provisions thereof; and
(B) Transferee shall not be obligated to enter into
any Supplement:
(1) if Transferee and Transferor have not
agreed to any Allocated Purchase Price or total Purchase
Price applicable to such Supplement;
(2) if the total Purchase Price for any
Transfer Date would exceed the Facility Limit, or if the
latest Transfer Date under such Supplement would fall after
the Scheduled Termination Date;
(3) at any time when any Carryforward
Amount is outstanding; or
(4) if any of the conditions precedent to
such Supplement specified in Section 4.02 have not been
met.
(c) Determination Date - Calculation of Required Dollar Receivables
Amount. On each Determination Date, the Transferee will after
consultation with Transferor determine the Required Dollar Receivables
Amount applicable to the Transfer Date which immediately follows such
Determination Date. The "Required Dollar Receivables Amount" applicable
to any Transfer Date shall in all cases be denominated in Dollars and
equal the sum of the separate Dollar amounts which would result from the
conversion of each Base Foreign Currency Amount shown on the applicable
Supplement for such Transfer Date into Dollars at a rate of exchange for
each applicable currency, for value on such Transfer Date, which is
determined by Transferee in good faith on the Determination Date based on
market conditions (each a "Determination Date Exchange Rate"). While
Transferee will consult with Transferor in determining such rates of
exchange and the Required Dollar Receivables Amount, any determination by
Transferee of any Determination Date Exchange Rate or any Required Dollar
Receivables Amount shall be conclusive and binding on the parties for all
purposes.
(d) LIBOR Fixing Date - Specification of Settlement Date and
Discount.
(i) On each LIBOR Fixing Date, no later than 10:00 a.m.,
San Francisco time, Transferor will notify Transferee in writing of
(A) the Settlement Date which will be applicable to the Transfer Date
which immediately follows such LIBOR Fixing Date and (B) whether the
Transferred Receivables Amount on such Transfer Date will be equal to
the Required Dollar Receivables Amount, or whether it will furnish a
Deficiency Certificate to Transferee. If the Transferor notifies the
Transferee of the applicable Settlement Date and that such
Transferred Receivables Amount will be equal to the Required Dollar
Receivables Amount, the Transferee will calculate the Discount which
will be applicable to the Purchase Price which is payable by
Transferee on such Transfer Date pursuant to Section 1.04, and will
notify Transferor of such Discount. Such Discount will be calculated
in Dollars, regardless of the currencies of the Receivables which are
sold to Transferee on such Transfer Date. If Transferor indicates
that it will furnish a Deficiency Certificate, Transferor will notify
Transferee in reasonable detail what ineligible Receivables may be
available for Transfer on the Transfer Date.
(ii) In the absence of any such notification pursuant to clause
(i), (A) the Settlement Date for such Transfer Date will be the date
specified in the Assignment Certificate which is delivered on the
applicable Transfer Date, and (B) the Purchase Price or Reduced
Purchase Price shall not be discounted, but instead the Transferor
will pay the Transferee yield based on the Reference Rate, as
provided in Section 3.03.
(e) Specification of Currencies and Amounts of Receivables to be
Transferred; Forward Contracts.
(i) On any Transfer Date, Transferor may transfer Receivables
to Transferee which are denominated either in Dollars or in other
currencies listed in Annex 1 to Exhibit 1.02(b) (as in effect from
time to time), provided that the aggregate amounts of the Receivables
so transferred shall be equal to the amounts required by this
Agreement.
(ii) No later than 3:00 p.m. San Francisco time on the Business
Day immediately preceding any Transfer Date, Transferor will give
written notice to Transferee specifying (A) the aggregate amount of
Dollar denominated Receivables which will be transferred on such
Transfer Date as well as (B) the currencies and amounts of foreign
currency denominated Receivables to be transferred on such Transfer
Date. Each such currency must be either Dollars or a currency listed
in Annex 1 to Exhibit 1.02(b), but such currencies are not required
to be the same currencies as the applicable Base Foreign Currency
Amounts, provided, that no Receivables to be transferred may be
denominated in any currency which the Transferee in its discretion
has determined may not be freely available and commercially
transferable in the relevant amount and for the relevant times and
periods. If Transferor does not timely give such notice, Transferor
will be deemed on such date to have requested that all Base Foreign
Currency Amounts applicable to such Transfer Date be reduced to zero,
and the parties will be obligated to make Early Termination Payments
in respect of such reduction, calculated as provided in Section 1.08.
In addition, Transferor will be obligated to make any payments
required by Section 3.04 in respect of such reductions.
(iii) If Transferee has received timely notice from
Transferor that all or some of the Receivables to be transferred on
any Transfer Date will be denominated in currencies other than
Dollars, then, on the Business Date immediately preceding such
Transfer Date:
(A) Transferor will allocate the Required Dollar
Receivables Amount applicable to such Transfer Date between (1)
the Receivables, if any, which will be transferred on such
Transfer Date and which are denominated in Dollars, and (2) the
foreign currency Receivables which will be so transferred. The
portion of the Required Dollar Receivables Amount which is
allocable to such Dollar-denominated Receivables shall be equal
to the aggregate Unpaid Balance of such Dollar-denominated
Receivables. The remainder of the Required Dollar Receivables
Amount, which shall be denominated in Dollars (the "Required
Foreign Currency Allocation"), shall be allocated to the
Transferred Receivables denominated in foreign currencies, taken
as a whole.
(B) Transferor and Transferee will enter into forward
contracts with respect to each foreign currency in which any of
such Transferred Receivables are denominated, at rates
determined by Transferee in good faith based on market
conditions for value on the applicable Settlement Date, pursuant
to which, on such Settlement Date, (1) Transferor will deliver
to Transferee an aggregate amount of Dollars equal to the
Required Foreign Currency Allocation and (2) Transferee will
deliver to Transferor (subject to payment of such amounts by the
Obligors and/or Transferor as guarantor under Article X) amounts
in the foreign currencies in which the Transferred Receivables
are denominated.
(C) Following the entry by Transferor and Transferee
into the forward contracts described in clause (B), the
aggregate amount of the foreign-currency denominated Receivables
which the Transferor will be required to transfer to Transferee
on such Transfer Date will be adjusted (whether increased or
decreased) to be equal to the amounts of such foreign currencies
which Transferee is to deliver to Transferor on the applicable
Settlement Dates pursuant to such forward contracts. The amount
of the Dollar-denominated Receivables to be transferred on such
Transfer Date (if any), the aggregate Purchase Price (or Reduced
Purchase Price, calculated according to Section 1.03(b), as
applicable) to be paid by Transferee to Transferor, and the
Discount applicable to such Purchase Price or Reduced Purchase
Price shall all remain unchanged.
(D) If Transferor and Transferee fail for any reason
to enter into the forward contracts specified in clause (B) on
the Business Day immediately preceding any Transfer Date, they
will be deemed for all purposes hereof (without further action)
to have entered into forward contracts on such Business Day
pursuant to which, on the applicable Settlement Date:
(1) Transferee delivers to Transferor an
amount in each foreign currency in which Transferred
Receivables are denominated equal to the aggregate amount
of the Transferred Receivables denominated in such currency
which were transferred on the applicable Transfer Date,
subject to payment of such amounts to Transferee on the
applicable Settlement Date by the Obligors and/or
Transferor as guarantor under Article X; and
(2) Transferor will pay to Transferee an
aggregate amount in Dollars equal to the Required Foreign
Currency Allocation.
In the event that the parties are deemed to (but do
not actually) enter into forward contracts on any Transfer Date
pursuant to this clause (D), no adjustment will be made to the
amount of foreign currency denominated Receivables which are
required to be transferred on such Transfer Date.
(E) The exchange rates at which forward contracts are
entered into pursuant to clause (B), or are deemed to be entered
into pursuant to clause (D) are called the "Transfer Exchange
Rates".
(F) All forward contracts which are entered into
pursuant to clause (B) or deemed to be entered into pursuant to
clause (D) shall be settled as provided in Section 2.04. All
such settlements shall be subject to the terms of Section
1.02(h), so that on each Settlement Date Transferor will be
obligated to pay to Transferee in Dollars the Transferred
Receivables Amount applicable to such Settlement Date.
Following such payment, Transferor and Transferee shall have no
further obligations under such forward contracts which have
value dates falling on such Settlement Date.
(f) Delivery of Deficiency Certificate.
(i) The execution and delivery of any Supplement shall obligate
Transferor to transfer to Transferee, on each Transfer Date specified
therein, Eligible Receivables having an aggregate Dollar Equivalent
Balance equal to the Required Dollar Receivables Amount applicable to
such Transfer Date. However, if, prior to 10:00 a.m. San Francisco
time on any Transfer Date, Transferor furnishes Transferee with a
certificate of Transferor's chief financial officer, treasurer, or
assistant treasurer in the form of Exhibit 1.02(f) (a "Deficiency
Certificate"), stating that the aggregate Dollar Equivalent Balance
of all Eligible Receivables which will be owned by Transferor on such
Transfer Date (after Transferor has used its best efforts to cause
its Subsidiaries to sell their respective Receivables to Transferor)
will be less than the Required Dollar Receivables Amount for such
Transfer Date, then Transferor will only be required to transfer
Eligible Receivables on such Transfer Date to the extent of the
Eligible Receivables owned by Transferor on such Transfer Date,
provided that Transferee may in its sole discretion require
Transferor to transfer ineligible Receivables on any Transfer Date,
if owned by Transferor or any of its Subsidiaries, up to the amount
of the applicable deficiency. Transferor will cooperate in good
faith with Transferee in order to identify ineligible Receivables for
possible transfer to Transferee pursuant to the foregoing proviso.
(ii) If Transferor does not deliver a Deficiency Certificate to
Transferee prior to 10:00 a.m. San Francisco time on any Transfer
Date, Transferor will be deemed to have warranted and covenanted that
on such Transfer Date Transferor will transfer Eligible Receivables
to Transferee which have an aggregate Dollar Equivalent Balance equal
to the Required Dollar Receivables Amount.
(iii) The parties agree that the fact that Eligible
Receivables or ineligible Receivables are or may be owned by a
Subsidiary of Transferor and/or are or may be subject to an Adverse
Claim shall not relieve Transferor from its obligation to transfer
such Eligible Receivables or ineligible Receivables hereunder on any
Transfer Date. Transferor expressly agrees that it (A) will use its
best efforts to cause its Subsidiaries to sell Receivables to it, and
(B) will cause any Adverse Claim on Eligible Receivables or
ineligible Receivables to be released, in each case to the extent
necessary to enable the Transferor to transfer Eligible Receivables
(or to the extent permitted by Transferee, ineligible Receivables) on
each Transfer Date in an aggregate Dollar Equivalent Balance equal to
the Required Dollar Receivables Amount applicable thereto.
Transferor may not issue any Deficiency Certificate if it is unable
to transfer Receivables hereunder because of any Adverse Claims or
because such Receivables are owned by any Subsidiary of Transferor
(unless, in the case of Receivables owned by any such Subsidiary,
Transferor has used its best efforts to cause such Subsidiary to
transfer such Receivables to Transferor but has nevertheless been
unable to do so) and no such inability may give rise to any
Carryforward Amount.
(iv) Nothing herein shall restrict Transferor from reducing any
Base Foreign Currency Amount applicable to any Transfer Date in
accordance with Section 1.06(b), whether or not Transferor has
available Eligible Receivables or ineligible Receivables to be
transferred hereunder, provided that Transferor shall make all
payments required by Section 1.08 in connection with such reduction.
(v) Unless otherwise permitted by Transferee in its sole
discretion, no Deficiency Certificate may be delivered, and no
Carryforward Amount may be created or continue to exist, following
any Change in Control or Early Termination. On each Transfer Date
following any Change of Control, Transferor will be required to
Transfer to Transferee Eligible Receivables having an aggregate
Dollar Equivalent Balance equal to the Required Dollar Receivables
Amount for such Transfer Date. If Transferor fails for any reason to
Transfer Eligible Receivables in such Dollar Equivalent Balance on
such Transfer Date, the parties will make payments to each other, as
applicable, calculated as set forth in Section 3.04(b). In addition,
promptly following any Change in Control or Early Termination,
Transferor will on demand pay to Transferee in Dollars in immediately
available funds (x) the sum of all the amounts by which: (A) all
Carryforward Amounts then in effect exceed (B) the Reduced Purchase
Prices that would be applicable thereto (determined as set forth in
the last sentence of Section 1.04(c)), plus (y) the aggregate of the
Deferral Compensation Amounts applicable to such Carryforward Amounts
that are accrued and unpaid at the date of such payment. If the
amounts described in clause (x)(B) exceed the amounts described in
clause (x)(A), Transferee will on demand pay the excess to
Transferor.
(g) Transfer of Senior Undivided Interests in Receivables. In order
to permit Transferor to transfer Eligible Receivables with an aggregate
Dollar Equivalent Balance which precisely equals the applicable Required
Dollar Receivables Amount (or any lesser amount of Receivables permitted
pursuant to Section 1.02(f)), Transferor may transfer to Transferee senior
undivided interests in one or more Eligible Receivables (or, if permitted
by Transferee, ineligible Receivables), in each case in a specified Dollar
amount, to the extent necessary to cause the Transferred Receivables
Amount to equal precisely the Required Dollar Receivables Amount (or any
such permitted lesser amount). Each such senior undivided interest and
the related Receivable shall be described in the Assignment Certificate
which is delivered in respect of such Transfer Date. All Collections in
respect of such Receivables and the Related Assets in which Transferor
transfers such a senior undivided interest shall be applied first to
Transferee's senior undivided interests therein prior to any such
application to the residual interest of Transferor therein. Transferor
warrants and covenants to Transferee that the Unpaid Balance and Dollar
Equivalent Balance of each Receivable which (or a senior undivided
interest in which) is transferred to Transferee will equal or exceed the
Unpaid Balance and Dollar Equivalent Balance of such Receivable which is
shown on the applicable Assignment Certificate as having been transferred
to Transferee.
(h) Payment in Dollars by Transferor. Notwithstanding anything in
this Agreement, or in any forward contract which is or is deemed to be
entered into pursuant to this Agreement, and notwithstanding that all or
some of the Receivables which may be transferred hereunder may be
denominated in foreign currencies, it is of the essence under this
Agreement that all amounts payable to Transferee hereunder or in respect
of any Transferred Receivables shall be payable in Dollars, so that on
each Settlement Date, after giving effect to all Collections and deemed
Collections of Transferred Receivables, all payments by Transferor
pursuant to the guarantee set forth in Article X, and all payments by
Transferor in respect of any forward contracts which are or are deemed to
be entered into by Transferor or Transferee pursuant to this agreement,
Transferor (whether as Servicing Agent, Guarantor, forward contract
counterparty or otherwise) will pay to Transferee in Dollars in
immediately available funds the Transferred Receivables Amount applicable
to such Settlement Date.
SECTION 1.03 Purchase Price Calculation.
(a) Payment of Purchase Price. On the terms and conditions hereof,
on each Transfer Date, in consideration for the Transfer to Transferee of
Transferred Assets on such Transfer Date pursuant to Section 1.01,
Transferee shall pay to Transferor in Dollars in immediately available
funds (i) the Purchase Price which is specified for such Transfer Date in
the applicable Supplement, as such Supplement may be amended from time to
time in accordance with Section 1.06 or (ii) if applicable, the Reduced
Purchase Price calculated pursuant to Section 1.03(b), in either case,
minus any applicable Discount.
(b) Calculation of Reduced Purchase Price.
(i) The "Dollar Equivalent Balance" of (A) any Dollar
denominated Receivable shall mean the Unpaid Balance thereof, and (B)
any foreign currency denominated Receivable shall mean the Dollar
amount obtained by converting the Unpaid Balance thereof into Dollars
at the Transfer Exchange Rate.
(ii) The aggregate Dollar Equivalent Balance of Receivables
transferred to Transferee on any Transfer Date is herein called the
"Transferred Receivables Amount". If the Transferred Receivables
Amount on any Transfer Date is less than the Required Dollar
Receivables Amount applicable thereto, the total Purchase Price
specified in the related Supplement that is to be paid on such
Transfer Date shall be reduced to an amount (the "Reduced Purchase
Price") equal to the product of (x) such total Purchase Price,
multiplied by (y) a fraction, the numerator of which is the
Transferred Receivables Amount on such Transfer Date and the
denominator of which is the Required Dollar Receivables Amount for
such Transfer Date.
(c) Carryforward Amount. If Transferor furnishes a proper
Deficiency Certificate to Transferee, the difference between (x) the
Required Dollar Receivables Amount for the relevant Transfer Date and (y)
the Transferred Receivables Amount for such Transfer Date (such difference
being herein called the "Carryforward Amount") shall, at the sole option
of Transferee, be added to the Required Dollar Receivables Amount for each
subsequent Transfer Date (if any) until Transferee has acquired Eligible
Receivables (or, if required by Transferee, ineligible Receivables) on
such subsequent Transfer Dates having an aggregate Dollar Equivalent
Balance that exceeds the original Required Dollar Receivables Amount for
each such subsequent Transfer Date by an aggregate amount equal to such
Carryforward Amount. The procedures described in the preceding sentence
shall be applied on each Transfer Date on which the then Transferred
Receivables Amount is less than the Required Dollar Receivables Amount.
If all Transfer Dates specified in all effective Supplements have
occurred, and any Carryforward Amount shall continue to be outstanding,
the Transferee may, in its sole option, require Transferor to designate
further Determination Dates (and related Transfer Dates), occurring at not
more than 40-day intervals, until Receivables having aggregate Dollar
Equivalent Balances equal to each outstanding Carryforward Amount have
been transferred to Transferee. In the absence of such designation by
Transferor, Transferee may specify such Determination Dates and Transfer
Dates. Transferee may in its sole discretion at any time cancel or reduce
any Carryforward Amount which may then be in effect. Each Carryforward
Amount shall be calculated separately, and the Transfer Exchange Rates
applicable to any Receivables which are transferred to reduce such
Carryforward Amount shall be calculated in the same manner as for other
Receivables which are transferred on any Transfer Date. The Reduced
Purchase Price paid for Receivables which are transferred to reduce any
Carryforward Amount shall be calculated as set forth in clause (b) based
on the original Purchase Price which was payable on the original Transfer
Date from which such Carryforward Amount arose, and the original Required
Receivables Amount applicable thereto.
(d) Deferral Compensation Amount. For each day during the period
from the Transfer Date on which a Carryforward Amount is created until the
Transfer Date on which Receivables having an aggregate Dollar Equivalent
Balance equal to such Carryforward Amount have been transferred to
Transferee pursuant to Section 1.03(c), Transferor shall pay to Transferee
on the last Business Day of each calendar month an additional amount in
respect of each then-outstanding Carryforward Amount (such additional
amount being herein called the "Deferral Compensation Amount") equal to
the product of (x) the amount of such outstanding Carryforward Amount on
such day, multiplied by (y) a percentage equal to the sum of the Reference
Rate in effect on such day plus 2.0% per annum.
SECTION 1.04 Payment; Discount; Assignment Certificate. On each
Transfer Date, Transferee shall, upon satisfaction of the applicable
conditions set forth in Article IV, make available to Transferor the
amount of the Purchase Price or Reduced Purchase Price (as applicable) to
be paid to Transferor on such Transfer Date, discounted and adjusted as
follows:
(a) On each Transfer Date, Transferee will determine the Transferred
Receivables Amount.
(b) Transferee will calculate the discount (the "Discount") on such
Transferred Receivables Amount for the period from such Transfer Date to
the corresponding Settlement Date (the "Discount Period") as follows:
Discount = TRA x (ERRA + .50%) x DP
------------------------
360
WHERE:
TRA = such Transferred Receivables Amount;
ERRA = the Eurodollar Rate (Reserve Adjusted)
for the applicable Discount Period; and
DP = the number of days in such Discount
Period.
(c) On such Transfer Date, (A) Transferee will pay to Transferor by
11:30 a.m. (San Francisco time) the Purchase Price or Reduced Purchase
Price, as applicable, in each case in Dollars, minus in each case the
amount of the Discount calculated pursuant to clause (b), and (B)
concurrently with such payment, Transferor will transfer the Transferred
Assets applicable to such Transfer Date to Transferee.
(d) Prior to 10:00 a.m. (San Francisco time) on such Transfer Date,
Transferor will deliver to Transferee a duly completed Assignment
Certificate in the form of Exhibit 1.04(d) hereto (an "Assignment
Certificate"). Such Assignment Certificate may be delivered by facsimile,
followed promptly by an original, provided, that such facsimile shall be
binding and effective for all purposes. No Assignment Certificate shall
be required to specify the invoice numbers or dates or maturities of
Transferred Receivables, but may instead show such Transferred Receivables
in aggregate by Obligor, currency and Dollar Equivalent Balance for each
currency. Transferor will make available to Transferee on request the
precise details of each Transferred Receivable. Transferor warrants that
the aggregate amounts of Transferred Receivables (by Obligor, currency and
Dollar Equivalent Balance) will be as shown on the applicable Assignment
Certificate. Each Transferred Receivables Amount will be based on such
aggregate amounts, and Transferee may draw on the Letter of Credit as
provided in Section 2.06(a) if it is not paid the Transferred Receivables
Amount which is due on any Settlement Date, regardless of whether such
aggregate amounts correctly reflect any Transferred Receivables.
SECTION 1.05 Facility Limit. Transferee shall not be obligated to
acquire any Transferred Assets on any Transfer Date to the extent that,
after giving effect to such Transfer, the Aggregate Net Investment at such
date would exceed the Facility Limit. Any outstanding Carryforward Amount
shall continue to be carried forward to the extent that transfer of
Receivables in respect thereof would result in such excess.
SECTION 1.06 Voluntary Termination of Facility; Reduction of
Facility Limit or Base Foreign Currency Amount. (a) Transferor may, upon
at least five days' (or ten days' in the case of a reduction to zero)
prior irrevocable written notice to Transferee, reduce (including to zero)
the Facility Limit, provided that the Facility Limit may not at any time
be reduced to an amount that is less than the sum of the Aggregate Net
Investment plus any outstanding Carryforward Amount at such time. If
Transferor requests any reduction in the Facility Limit below the
aggregate Purchase Price then in effect for any Transfer Date which has
not yet occurred, Transferor will specify those Base Foreign Currency
Amounts applicable to such Transfer Date which Transferor wishes to reduce
in connection with such reduction in the Facility Limit.
(b) In addition, Transferor may by irrevocable written notice which
is received by Transferee no later than 10:00 a.m. San Francisco time on
any Transfer Date, reduce (including to zero) any Base Foreign Currency
Amount applicable to such Transfer Date, without reducing the Facility
Limit.
(c) Any reduction in any Base Foreign Currency Amount for any
Transfer Date, whether in connection with a permanent reduction in the
Facility Limit or pursuant to Section 1.06(b), shall correspondingly
reduce the Required Dollar Receivables Amount applicable to such Transfer
Date, as calculated pursuant to Section 1.02(c). The parties will
promptly amend the applicable Supplement to reflect any such reduction.
(d) Each partial reduction of the Facility Limit pursuant to
Section 1.06(a) shall be in an amount equal to $1,000,000 or an integral
multiple thereof.
(e) In the event of any termination of the Facility, or any
reduction of the Facility Limit or of any Base Foreign Currency Amount
applicable to any Transfer Date, the parties shall make the Early
Termination Payments specified in Section 1.08.
SECTION 1.07 Termination Date; Extension of Termination Date.
(a) The "Termination Date" shall be the earliest to occur of
(i) January 24, 1997 (the "Scheduled Termination Date"), (ii) the
Settlement Date immediately following the date of a termination of the
Facility in whole pursuant to Section 1.06(a), (iii) the date so declared
pursuant to Section 8.02, and (iv) the date that occurs automatically
pursuant to Section 8.02.
(b) On any date which is not more than ten calendar months prior to
the then current Scheduled Termination Date, Transferor, by written notice
to Transferee, may request that the Scheduled Termination Date be extended
to a date which falls no more than 364 days from the date such extension
becomes effective. Transferor may not make any such request more than
once in any calendar quarter. Any such request shall be accompanied or
preceded by a proposed revised Schedule II hereto, showing the proposed
additional Determination Dates which Transferor desires to make applicable
during the period of the requested extension. No such proposal shall
modify the Transfer Dates or Base Foreign Currency Amounts which are shown
on any Supplement which is then in effect. Transferee will use reasonable
efforts to notify Transferor in writing, on or before the date which is 30
days after the receipt by Transferee of such request from Transferor, as
to whether Transferee will consent to such extension and, if Transferee
does consent to such extension in writing, the conditions of such consent
(including conditions relating to legal documentation). If Transferee
shall notify Transferor that it does not consent to such extension or if
Transferee fails to notify the Transferor in writing of its consent to
such request within such 30 day period, Transferee shall be deemed to have
not consented to such request and the Scheduled Termination Date shall not
be so extended. Transferor acknowledges and agrees that the granting of
any such request shall be in the sole and absolute discretion of
Transferee.
(c) If Transferee is willing, in its sole discretion, to extend the
Scheduled Termination Date as so requested by Transferor, the parties will
enter into an amendment hereto in the form of Exhibit 1.07(c), including
an amendment to Schedule II (collectively, an "Amendment"), to effect such
extension.
SECTION 1.08 Early Termination or Reduction Payments. (a) If the
Termination Date occurs prior to the Scheduled Termination Date (such
occurrence being herein called an "Early Termination"), then the rights
and obligations of Transferor to transfer, and the rights and obligations
of Transferee to acquire, Transferred Assets shall terminate and be
discharged in full with respect to all Transfer Dates that have not
occurred prior to the Termination Date, provided that Transferee may still
require Transferor to transfer Receivables to Transferee after any
Termination Date in respect of any Carryforward Amount, as provided in
Section 1.03(c).
(b) Upon the occurrence of (x) an Early Termination, (y) reduction
(in whole or in part) of the Facility Limit pursuant to Section 1.06(a),
or (z) reduction (in whole or in part) of any Base Foreign Currency Amount
applicable to any Transfer Date pursuant to Section 1.06(b), Transferor
shall pay to Transferee or Transferee shall pay to Transferor (as
applicable) at the times provided below amounts calculated as follows
(each an "Early Termination Payment"):
(i) The date on which an Early Termination occurs and the
effective date of any such reduction of the Facility Limit or of any
applicable Base Foreign Currency Amount are herein each called an
"Early Termination Date".
(ii) In the case of a reduction (in part) of the Facility Limit
pursuant to Section 1.06(a), or a reduction (in whole or in part) of
any Base Foreign Currency Amount pursuant to Section 1.06(b),
Transferor will notify Transferee in writing, no later than
10:00 a.m. San Francisco time on the effective date of any such
reduction, of the amounts, Base Foreign Currency Amounts and Transfer
Dates to which Transferor wishes such reduction to apply.
(iii) In the case of any Early Termination or any reduction
of the Facility Limit or any Base Foreign Currency Amount, for each
Base Foreign Currency Amount applicable to any Transfer Date which is
to be reduced, Transferee will determine a fraction (the "Reduction
Fraction"), (A) the numerator of which is the amount of such
reduction expressed in the applicable currency, and (B) the
denominator of which is the applicable Base Foreign Currency Amount
immediately prior to such reduction. In the case of a reduction to
zero of any Base Foreign Currency Amount for any Transfer Date, or if
an Early Termination shall occur, the applicable Reduction Fraction
shall be one.
(iv) As used in this Section 1.08, for any Base Foreign Currency
Amount which is to be reduced, including as a result of an Early
Termination,
(A) the term "Pro-Rata Base Foreign Currency Amount"
means such Base Foreign Currency Amount, multiplied by the
applicable Reduction Fraction; and
(B) the term "Pro-Rata Purchase Price" means (1) the
Allocated Purchase Price applicable to such Base Foreign
Currency Amount and Transfer Date as set forth in the related
Supplement, multiplied by (2) the Reduction Fraction.
(v) Transferee will calculate the gross Dollar amount which it
would pay if it entered into forward contracts on the Early
Termination Date for purchase by Transferee for Dollars of all the
Pro-Rata Base Foreign Currency Amounts for each Transfer Date, in
each case with value dates which are the same as such Transfer Date
and using rates determined by Transferee in good faith based on
market conditions, provided, that if such Early Termination or
reduction of the Facility Limit or any Base Foreign Currency Amount
falls after the Determination Date which is applicable to any
Transfer Date, the rates used by Transferee shall be the
Determination Date Exchange Rates applicable to such Determination
Date.
(vi) Transferee will calculate the sum of all the Dollar amounts
calculated in clause (v) which would be payable with respect to each
Transfer Date.
(vii) If such aggregate Dollar amounts are greater than the
sum of the applicable Pro-Rata Purchase Prices applicable to such
Transfer Dates, (A) in the case of any Early Termination, or if any
Termination Event or Unmatured Termination Event shall be continuing,
Transferor will pay to Transferee, within two Business Days after any
demand therefor, the discounted present value of the excess,
discounted from the applicable Transfer Dates described in
clause (v), to the date on which such amount is paid at the
Eurodollar Rate, and (B) in the case of any other reduction of the
Facility Limit or any Base Foreign Currency Amount, Transferor will
pay to Transferee the excess in cash, undiscounted, on the applicable
Transfer Dates.
(viii) If such aggregate Dollar amounts are less than the sum
of the applicable Pro-Rata Purchase Prices applicable to such
Transfer Dates, (A) in the case of any Early Termination, Transferee
will pay to Transferor, within two Business Days after any demand
therefor, the discounted present value of the absolute value of the
deficiency, discounted from the applicable Transfer Dates described
in clause (v), to the date on which such amount is paid at the
Eurodollar Rate (Reserve Adjusted), and (B) in the case of any other
reduction of the Facility Limit or any Base Foreign Currency Amount,
Transferee will pay to Transferor the absolute value of the
deficiency in cash, undiscounted, on the applicable Transfer Dates.
To the extent that payments are to be made by both Transferor and
Transferee on any day pursuant to this Section 1.08 or Section 3.04(b),
such payments will be netted against each other and only the net amount
will be paid by the appropriate party. If any Termination Event or
Unmatured Termination Event shall have occurred, or if the Termination
Date shall have occurred, Transferee will not be obligated to make any
payment to Transferor pursuant to this Section 1.08 or Section 3.04(b)
until all Transferred Receivables then outstanding, and all other
Obligations then due and owing, have been paid in full and any
Carryforward Amount has been reduced to zero or cancelled by Transferee.
Transferee agrees to pay Transferor interest on any amounts owing by
Transferee to Transferor which are not paid pursuant to the preceding
sentence, for the period from (A) the applicable Transfer Dates from which
such amounts are discounted or on which such amounts are payable, as the
case may be, to (B) the dates such amounts are paid, at the Federal Funds
Rate from time to time in effect.
SECTION 1.09 Reductions of Base Foreign Currency Amount below
Letter of Credit Amount. In the event that, for any reason the amount
available to be drawn under the Letter of Credit on any Transfer Date is
less than the Required L/C Amount applicable to such Transfer Date,
Transferor will specify in writing Base Foreign Currency Amounts
applicable to such Transfer Date which Transferor wishes to reduce, so
that, following such reduction, the amount available to be drawn under the
Letter of Credit will be equal to or greater than the Required L/C Amount
applicable to such Transfer Date. If the Transferee has not received any
such notice from Transferor prior to 10:00 a.m. San Francisco time on such
Transfer Date, Transferee may select such Base Foreign Currency Amounts,
which selection shall be conclusive and binding on Transferor for all
purposes. Following any such selection, such Base Foreign Currency
Amounts shall be so reduced, and the parties will make the payments
required by Section 1.08 in respect of such reduction.
SECTION 1.10 No Assumption. Transferee shall not have any
obligation or liability with respect to any Transferred Assets or any
agreements, Contracts, Records, or other documents related to any
Transferred Receivable, nor shall Transferee have any obligation or
liability to any Obligor or other customer or client of Transferor
(including any obligation to perform any of the obligations of Transferor
or any of its Subsidiaries under any such Transferred Assets or related
agreements or other documents). No such obligation or liability is
intended to be assumed, and any such assumption is expressly disclaimed.
<PAGE>
ARTICLE II
COLLECTIONS; SETTLEMENT
SECTION 2.01 Deemed Collections; Substitution of Receivables. (a)
Deemed Collections. If on any day the Unpaid Balance of any Transferred
Receivable (i) is reduced as a result of any defective, rejected or
returned services or goods, any cash discount, or any adjustment by
Transferor or any Affiliate of Transferor, (ii) is reduced on account of
any offsetting account payable of Transferor or any of its Affiliates to
an Obligor (whether such offsetting account payable arises out of the same
or a related or an unrelated transaction), (iii) is reduced or cancelled
as a result of a setoff in respect of any claim by, or defense or credit
of, the Obligor thereof against Transferor or any Affiliate of Transferor
(whether such claim, defense or credit arises out of the same or a related
or an unrelated transaction), or (iv) is reduced on account of the
obligation of Transferor to pay to the related Obligor any rebate or
refund, then Transferor shall be deemed to have received on such day a
Collection of such Transferred Receivable in the amount of such reduction
or cancellation. If on any day (x) any of the representations or
warranties of Transferor set forth in Section 5.01(f) is no longer true
with respect to a Transferred Receivable, or (y) any Transferred
Receivable shall become a Defaulted Receivable or is not paid in full on
the due date thereof, Transferor shall be deemed to have received on such
day a Collection of such Transferred Receivable in the full amount of such
Transferred Receivable.
(b) Substitution of Receivables. If any Transferred Receivable
shall prove to be an ineligible Receivable as of the applicable Transfer
Date, or shall prove to be subject to any Adverse Claim, then, on or
before the applicable Settlement Date, on written notice to the Transferee
describing the circumstances thereof in reasonable detail, Transferor may
substitute for such Transferred Receivables other Eligible Receivables
which have an aggregate Dollar Equivalent Balance equal to such
Transferred Receivables. If Transferor wishes to substitute any such
Eligible Receivables it will, prior to the applicable Settlement Date,
deliver to Transferee a duly completed Assignment Certificate listing such
substitute Receivables. On receipt of such Assignment Certificate,
Transferee shall reassign to Transferor without recourse, representation
or warranty of any kind, and free and clear of any Adverse Claim created
by Transferee, the Receivables for which such new Receivables are
substituted. Any new Receivables so substituted must be Eligible
Receivables. Notwithstanding anything else contained herein, no such
substitution shall relieve the Transferor from its obligations hereunder
and under any forward contracts entered into or deemed entered into
pursuant to Section 1.03 to ensure that on the applicable Settlement Date
the Transferee receives payment in cash in Dollars of the Transferred
Receivables Amount.
SECTION 2.02 Treatment of Collections and Deemed Collections;
Reconveyance.
(a) Treatment. Transferor shall, after Transferor's receipt or
deemed receipt of any Collections in respect of Transferred Assets,
deliver to the Servicing Agent an amount equal to all such Collections on
or before the applicable Settlement Date. The Servicing Agent shall hold
or distribute all deemed Collections in respect of Transferred Assets to
the same extent as if Collections in such amount had actually been
received on such day. Prior to the occurrence of a Termination Event or
an Unmatured Termination Event, Transferor may commingle Collections in
respect of Transferred Assets with other funds of Transferor. Following
the occurrence, and during the continuance, of a Termination Event or an
Unmatured Termination Event, so long as Transferor shall hold any
Collections or deemed Collections required to be paid to Transferee or to
the Servicing Agent (to be held by the Servicing Agent in trust for
Transferee), it shall hold such Collections in trust and, if there shall
also exist a Termination Event or Unmatured Termination Event under
Section 8.01(f) or 8.01(m), separate and apart from its own funds, and
shall clearly mark its records to reflect such trust.
(b) Reconveyance. Upon payment by Transferor or the Servicing Agent
to Transferee of the Transferred Receivables Amount which is payable to
Transferee on any Settlement Date, together with all yield payable thereon
pursuant to Section 3.03 and all interest payable thereon pursuant to
Section 2.07 (or following receipt by Transferee of all such amounts as a
result of any drawing by Transferee on the Letter of Credit) Transferee
may, and shall promptly, upon receipt of a request from Transferor in the
form of Exhibit 2.02(b)-1, reconvey Transferee's right, title and
interest, if any, in, to and under the Transferred Receivables (and any
proceeds thereof that have not been paid to Transferee) to which such
Settlement Date applies to Transferor by means of an instrument or other
document of reconveyance in the form of Exhibit 2.02(b)-2, which
reconveyance by Transferee shall be without recourse, representation or
warranty, and free and clear of any Adverse Claim created by Transferee.
SECTION 2.03 Settlement Procedures. (a) Prior to the occurrence of
a Termination Event or an Unmatured Termination Event, the Servicing Agent
may commingle Collections in respect of the Transferred Assets with other
funds of the Servicing Agent. Following the occurrence, and during the
continuance, of a Termination Event or an Unmatured Termination Event, on
each Business Day, the Servicing Agent shall hold in trust for Transferee
all Collections received or deemed received on such day in respect of the
Transferred Assets and, if there shall also exist a Termination Event or
Unmatured Termination Event under Section 8.01(f) or 8.01(m), shall set
aside and deposit all such Collections, within one Business Day after the
Servicing Agent's receipt thereof, to the Transferee Account. No funds
other than Collections of Transferred Assets shall be deposited into the
Transferee Account and only Transferee or the Servicing Agent, as the
agent of Transferee, shall be entitled to make withdrawals from the
Transferee Account.
(b) At the opening of business on each Settlement Date, the
Servicing Agent shall determine the amount of Collections received or
deemed received in respect of the Transferred Assets acquired by
Transferee from the immediately preceding Transfer Date to such Settlement
Date and shall pay such amount to Transferee (less any such amount
Servicing Agent has already paid to Transferee). If the aggregate amount
of such Collections is less than the aggregate Transferred Receivables
Amount specified in the Assignment Certificate relating to such
Transferred Assets, then on such Settlement Date Transferor shall pay the
amount of such difference to Transferee by wire transfer of immediately
available funds to the Transferee Account, together with all yield, if
any, payable pursuant to Section 3.03.
(c) Notwithstanding anything herein to the contrary, the obligations
of Transferor hereunder shall not be considered reduced by any
distribution of any portion of Collections or other payment to Transferee
if at any time such distribution or other payment is rescinded or must
otherwise be returned for any reason.
(d) Transferee is entitled to 100% of all Collections and other
proceeds in respect of the Transferred Assets until Transferee shall have
recovered the Transferred Receivables Amount specified in the Assignment
Certificate relating to such Transferred Assets and shall have received
all other amounts then payable to Transferee pursuant to the Agreement
Documents. Transferor is entitled on each Settlement Date to be paid, by
the Servicing Agent, any residual Collections of Receivables (as well as
earnings on Collections of Transferred Assets which accrued prior to such
Settlement Dates) after all amounts payable to Transferee pursuant to the
first sentence of this Section 2.03(d) have been paid. On the first
Business Day following the Termination Date on which all Obligations have
been finally and fully paid in Dollars and performed, and Transferee has
received payment in full in Dollars of all Transferred Receivables Amounts
in respect of all Transferred Assets, the Servicing Agent shall pay to
Transferor any remaining Collections and other proceeds of Transferred
Assets then held by the Servicing Agent, and thereafter, except to the
extent provided otherwise in Section 2.03(c), Transferee shall cease to
have any interest in any Transferred Assets. If Transferee is paid any
amounts in excess of the amounts owed to it under this Agreement, it will
promptly refund such excess to Transferor at Transferor's written request,
accompanied by supporting calculations in reasonable detail, together with
interest on such excess, from the date of the excess payment to the date
such excess payment is refunded to Transferor, at the Federal Funds Rate.
SECTION 2.04 Settlement of Forward Contracts. On each Settlement
Date, if any of the Transferred Receivables relating to such Settlement
Date are denominated in foreign currencies, the Servicing Agent shall:
(a) hold all Collections and deemed Collections on such foreign
currency Receivables in trust for Transferee;
(b) demand payment from Transferor (and Transferor agrees that it
will pay to Servicing Agent on such demand) the amount of any such foreign
currency Receivables which have not been paid by the Obligor thereof prior
to such Settlement Date, and hold any such payment in trust for
Transferee;
(c) deliver all such foreign currency amounts to Transferor against
payment of the Required Foreign Currency Allocation which is payable by
Transferor pursuant to all forward contracts which were entered into or
deemed entered into pursuant to Section 1.02(e); and
(d) pay such Required Foreign Currency Allocation to Transferee in
Dollars in immediately available funds.
SECTION 2.05 Netting of Payments on Certain Settlement Dates. If
any Settlement Date is also a Transfer Date, then, provided that all
conditions precedent to any Transfer to be made on such date have been
fulfilled prior to 10:00 a.m. (San Francisco time) on such date, (a)
Transferee will calculate the total amounts payable by Transferor and
Servicing Agent in respect of such Settlement Date and by Transferee in
respect of such Transfer Date, (b) such payments will be netted against
each other, and (c) only the net amount will be paid by the appropriate
party on such date. However, if by such time on such date any condition
precedent to the Transfer and payment of the Purchase Price or Reduced
Purchase Price applicable thereto has not been fulfilled (including non-
receipt by Transferee of any properly completed and executed Assignment
Certificate or other document required hereby) then no such netting will
be permitted and Transferor and Servicing Agent will be required to pay
Transferee on such Settlement Date the full amount payable by Transferor
and Servicing Agent in respect of such Settlement Date. Failure to pay
such full amount within three Business Days after such Settlement Date
shall constitute a Termination Event under Section 8.01(a)(i)(A) of this
Agreement.
SECTION 2.06 Drawings on Letter of Credit. (a) If for any reason
Transferee has not been paid in cash in Dollars on any Settlement Date, by
Servicing Agent or Transferor, the entire Transferred Receivables Amount
applicable to such Settlement Date together with yield, if any, payable
pursuant to Section 3.03, then, on the fourth Business Day following such
Settlement Date and at any time thereafter, Transferee may (but shall not
be required to) draw on the Letter of Credit for the full amount due on
such Settlement Date which remains unpaid, together with interest thereon
at the rate specified in Section 2.07.
(b) If on the Termination Date any Carryforward Amount is
outstanding, the Transferee may draw on the Letter of Credit for the full
undrawn amount thereof or any lesser amount determined by Transferee in
its discretion. Transferee shall deposit the proceeds of any such drawing
in an account of and in the name of Transferee. Transferee will pay
interest on the amount in such account from time to time at the Federal
Funds Rate, which interest shall be payable in arrears on the last
Business Day of each calendar month and shall be deposited in such
account. Transferee may from time to time withdraw funds from such
account (including accrued interest deposited therein) to pay (A) any
Deferral Compensation Amount which has not been paid when due hereunder,
(B) any amounts due on any Settlement Date in respect of Transferred
Receivables which are from time to time transferred to reduce any
outstanding Carryforward Amount, (C) yield, if any, payable pursuant to
Section 3.03, and (D) any interest payable pursuant to Section 2.07. When
all Obligations have been paid in full in cash and all Carryforward
Amounts have been reduced to zero or cancelled, Transferee will transfer
the balance remaining in such account to Transferor.
(c) If any Termination Event or Unmatured Termination Event under
Section 8.01(f) shall occur with respect to Transferor at any time prior
to the expiration of the Letter of Credit, Transferee may draw on the
Letter of Credit for the full undrawn amount thereof or any lesser amount
determined by Transferee in its discretion. Transferee shall deposit the
proceeds of any such drawing in an account of and in the name of
Transferee. Transferee will pay interest on the amount in such account
from time to time at the Federal Funds Rate, which interest shall be
payable in arrears on the last Business Day of each calendar month and
shall be deposited in such account. Transferee may from time to time
withdraw funds from such account (including accrued interest deposited
therein) and apply such funds to reimburse Transferee for any payment
which previously was made to Transferee hereunder or under any Agreement
Document or under any forward contract which is entered into or deemed
entered into pursuant to Section 1.02(e), if such payment is rescinded or
must otherwise be returned by Transferee as a consequence of any
Bankruptcy Event relating to the Transferor. Transferee will transfer the
balance remaining in such account to Transferor upon receipt of a final,
non-appealable order of a court of competent jurisdiction that no such
payments are rescinded or must otherwise be returned by Transferee.
(d) Each drawing under the Letter of Credit shall specify whether
such drawing is made pursuant to Section 2.06(a), 2.06(b) or 2.06(c).
However, notwithstanding any such specification, Transferee may in its
discretion retain and use the proceeds of a drawing made pursuant to any
of said Sections for a purpose specified in any other such Section.
SECTION 2.07 Payments and Computations, Etc. All amounts to be
paid or deposited (A) to or for the account of Transferee by Transferor or
the Servicing Agent hereunder or (B) to or for the account of Transferor
by Transferee hereunder, shall in each case be paid or deposited in
accordance with the terms hereof no later than 11:30 a.m. (San Francisco
time) on the day when due in Dollars in immediately available funds (i) if
to Transferee, at Account No. 1233183980 at Bank of America National Trust
and Savings Association, Concord, California and (ii) if to Transferor, at
Account No. 4191706 at Harris Trust and Savings Bank, Chicago, Illinois.
Transferor or the Servicing Agent, as applicable, shall pay to Transferee
interest on all amounts not paid or deposited when due (without giving
effect to any grace period) until paid or deposited in full at 2% per
annum above the Reference Rate from time to time in effect, payable on
demand; provided, that such interest rate shall not at any time exceed the
maximum rate permitted by applicable law. Interest, Discount and all fees
hereunder shall be made on the basis of a year of 360 days for the actual
number of days elapsed.
ARTICLE III
FEES AND YIELD PROTECTION
SECTION 3.01 Fees. (a) Facility Fee. From the Initial Closing Date
until the Termination Date, Transferor shall pay to Transferee a facility
fee ("Facility Fee") for each day in such period equal to the excess of
(i) the Facility Limit over (ii) the Aggregate Net Investment on such day
times .25% divided by 360. Such Facility Fee shall be paid quarterly in
arrears, on the last Business Day of each calendar quarter and on the
Termination Date.
(b) Structuring Fee. Transferor shall pay to Transferee a
structuring fee of $150,000 payable prior to or on the Initial Closing
Date.
SECTION 3.02 Yield Protection. If (a) Regulation D of the Board of
Governors of the Federal Reserve System or (b) any Regulatory Change
occurring after the date hereof:
(i) shall subject any Affected Party to any tax, duty or other
charge with respect to its exercise of its rights or performance of
its obligations under any Agreement Document, or shall change the
basis of taxation of payments to any Affected Party of any amounts
payable to it under any Agreement Document (except for changes in the
rate of tax on the overall net income of such Affected Party imposed
by the jurisdiction in which such Affected Party's principal
executive office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, or deposits
or obligations with or for the account of (or with or for the account
of any affiliate of), or credit extended by, any Affected Party; or
(iii) shall change the amount of capital maintained or
required or requested or directed to be maintained by any Affected
Party; or
(iv) shall impose any other condition affecting any Affected
Party in connection with any Agreement Document;
and the result of any of the foregoing is:
(x) to increase the cost to (or to impose a cost on) such
Affected Party's participating in the transactions contemplated in
any Agreement Document,
(y) to reduce the amount of any sum received or receivable by
such Affected Party under any Agreement Document, or
(z) in the sole determination of such Affected Party, to reduce
the rate of return on the capital of such Affected Party as a
consequence of its obligations arising in connection herewith to a
level below that which such Affected Party could otherwise have
achieved,
then upon written notice by the applicable Affected Party to Transferor,
Transferor shall pay directly to such Affected Party such additional
amount or amounts as will compensate it for such increased cost or such
reduction. Such written notice shall include calculations thereof in
reasonable detail and, in the absence of manifest error, be conclusive and
binding upon Transferor.
SECTION 3.03 Inability to Determine Eurodollar Rate; Failure to
Specify Settlement Date. (a) If Transferee shall have determined in good
faith, that: (i) Dollar deposits are not available to banks such as
Transferee in the London interbank eurodollar market, or (ii) by reason of
circumstances affecting the London interbank eurodollar market, adequate
means do not exist for ascertaining the applicable Eurodollar Rate, then,
Transferee shall promptly so notify Transferor, which determination shall
be conclusive and binding on Transferor, and, so long as such
circumstances shall continue, no Discount shall be determined or deducted
from the Purchase Price or Reduced Purchase Price of any Transferred
Assets, pursuant to Section 1.04, but instead the Transferor shall pay
yield to the Transferee as provided in clause (c) below.
(b) In addition, if Transferor shall fail for any reason to notify
Transferee prior to 10:00 a.m (San Francisco time) on any LIBOR Fixing
Date of the precise Transferred Receivables Amount and Settlement Date
which will apply to the Receivables to be transferred to Transferee on the
applicable Transfer Date, the Transferor will be obligated to pay yield on
the Transferred Receivables Amount, calculated as provided in clause (c).
(c) If any of the circumstances described in clause (a) or (b) above
are applicable on any Transfer Date, no Discount shall be deducted from
the Purchase Price or Reduced Purchase Price payable for the Transferred
Receivables on such Transfer Date, but instead the Transferor shall pay to
Transferee on the applicable Settlement Date yield on such Transferred
Receivables, calculated for each day during the period from such Transfer
Date to such Settlement Date at a rate per annum equal to the Reference
Rate in effect on such day, multiplied by the Transferred Receivables
Amount applicable to such Transfer Date.
SECTION 3.04 Funding Losses. (a) In the event Transferee shall
incur any loss or expense (including any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
obtained by Transferee in order to fund its acquisition of Transferred
Assets) as a result of:
(i) any termination of the Facility or any reduction of the
Facility Limit pursuant to Section 1.06 or the occurrence of an Early
Termination or the reduction of any Base Foreign Currency Amount
applicable to any Transfer Date pursuant to Section 1.06 or the
payment by Transferee of a Reduced Purchase Price pursuant to
Section 1.03(c), (in the case of each of the foregoing, to the extent
not included in the Early Termination Payments paid pursuant to
Section 1.08);
(ii) any retransfer of Transferred Receivables by Transferee to
Transferor made at the request of Transferor prior to the Termination
Date, other than pursuant to Section 2.02(b) following any applicable
Settlement Date; or
(iii) any Transfer not occurring on the applicable Transfer
Date specified in the related Supplement in the full amount required
hereby as a result of any act or omission of Transferor;
then, upon written notice by Transferee to Transferor, Transferor shall
pay directly to Transferee such amount as will reimburse Transferee for
such loss or expense. Such written notice shall include calculations
thereof in reasonable detail and shall, in the absence of manifest error,
be conclusive and binding on Transferor.
(b) Without limiting the foregoing, if for any reason Transferor
fails on any Transfer Date to transfer to Transferee Eligible Receivables
(or if permitted by Transferee ineligible Receivables) having an aggregate
Dollar Equivalent Balance which is at least equal to the Required Dollar
Receivables Amount applicable to such Transfer Date (or, but only if
Transferor has timely delivered to Transferee a Deficiency Certificate in
accordance with Section 1.02(f), such lesser amount permitted by
Section 1.02(f)), after giving effect to all reductions in any Base
Foreign Currency Amounts applicable to such Transfer Date which are made
by Transferor in accordance with Section 1.06, then on such Transfer Date,
Transferor will pay to Transferee as liquidated damages for Transferee's
loss of profit on such sale, an amount equal to the excess, if any, of (i)
the Required Dollar Receivables Amount (or lesser Dollar Equivalent Amount
permitted by Section 1.02(f) applicable to such Transfer Date), over (ii)
the Purchase Price (or, if a lesser Dollar Equivalent Amount of
Receivables is permitted to be transferred by Section 1.02(f), the Reduced
Purchase Price) applicable to such Transfer Date. Such amounts of damages
are payable in addition to, but without duplication of, any other amounts
payable by Transferor hereunder. If the amount described in clause (ii)
exceeds the amount described in clause (i), Transferee will pay such
excess to Transferor, subject to the last paragraph of Section 1.08(b).
SECTION 3.05 Taxes, Etc. Transferor hereby covenants that all
payments by Transferor to Transferee in respect of any Obligation, and all
payments by any Obligor in respect of any Transferred Assets, shall be
made without any set-off or counterclaim, and free and clear of and
without deduction or withholding for or on account of, any present or
future Taxes now or hereafter imposed on Transferor, Transferee or such
Obligor (as applicable) with respect to such payments by any governmental
or other authority, except to the extent that such deduction or
withholding is compelled by applicable laws, rules or regulations. As
used herein, the term "Taxes" shall include all excise and other taxes of
whatever nature imposed on Transferor, Transferee or such Obligor (as
applicable) with respect to such payments (other than taxes generally
assessed on the overall net income of Transferee imposed by the
jurisdiction in which Transferee's principal executive office is located),
as well as all levies, imposts, duties, charges or fees of whatever
nature.
If Transferor or any Obligor is compelled by applicable laws, rules
or regulations to make any such deduction or withholding, Transferor will:
(a) pay (or cause such Obligor to pay) to the relevant authorities
the full amount required to be so withheld or deducted;
(b) pay to Transferee such additional amounts as may be necessary in
order that the net amount received by Transferee, after such deduction or
withholding (including any required deduction or withholding on such
additional amounts) shall equal the amount Transferee would have received
had no such deduction or withholding been made; and
(c) promptly forward to Transferee an official receipt or other
documentation satisfactory to Transferee evidencing such payment to such
authorities.
Moreover, if any Taxes are directly asserted against Transferee with
respect to any payment made in respect of any Obligation or Transferred
Asset, Transferee may pay such Taxes, and Transferor agrees promptly to
pay such additional amount (including, without limitation, any penalties,
interest or expenses) as may be necessary in order that the net amount
received by Transferee after the payment of such taxes (including any
Taxes on such additional amount) shall equal the amount Transferee would
have received had no such Taxes been asserted.
SECTION 3.06 Set-off. Transferee is hereby authorized upon the
occurrence of any Termination Event, to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due), any and
all balances, credits, deposits, accounts, or moneys of Transferor then or
thereafter maintained with Transferee.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS AND TRANSFERS
SECTION 4.01 Conditions Precedent to Effectiveness. The
effectiveness of this Agreement is subject to the condition precedent that
Transferee shall have received the following, each in form and substance
satisfactory to Transferee:
(a) Original executed copies of this Agreement;
(b) A certificate of the Secretary or an Assistant Secretary of
Transferor, certifying as to (i) resolutions of Transferor's Board of
Directors approving the Agreement Documents and the transactions
contemplated therein, and authorizing Transferor to act as initial
Servicing Agent, (ii) the names and true signatures of the officers
authorized on its behalf to sign the Agreement Documents to be delivered
by it hereunder (on which certificate Transferee may conclusively rely
until such time as Transferee shall receive from Transferor a revised
certificate), (iii) a true, correct and complete copy of the Certificate
of Incorporation of Transferor duly filed with the Secretary of State of
its state of incorporation as in effect on the date of delivery of such
certificate, and (iv) a true, correct and complete copy of the Bylaws of
Transferor as in effect on the date of delivery of such certificate;
(c) A good standing certificate for Transferor issued by the
Secretary of State of its state of incorporation;
(d) An opinion of counsel for Transferor, substantially in the form
of Exhibit 4.01(d);
(e) The fees payable to Transferee pursuant to Section 3.01(b),
together with all costs and expenses due and payable pursuant to
Section 11.05, if then invoiced; and
(f) Such other approvals, opinions or documents as Transferee may
reasonably request.
SECTION 4.02 Conditions Precedent to each Supplement. The
obligation of Transferee to enter into any Supplement shall be subject to
the further conditions precedent that on the date of such Supplement the
following statements shall be true (and Transferor by entering into any
Supplement, as the case may be, shall be deemed to have certified that):
(a) The representations and warranties contained in Section 5.01 are
correct on and as of such day as though made on and as of such day,
(b) No Termination Event or Unmatured Termination Event exists or
would result from entering into such Supplement,
(c) The conditions set forth in Section 1.02(b)(iii) shall be fully
complied with after giving effect to such Supplement, and
(d) The Termination Date shall not have occurred.
SECTION 4.03 Conditions Precedent to All Transfers. The obligation
of Transferee to accept any Transfer and pay the Purchase Price or Reduced
Purchase Price therefor on any Transfer Date shall be subject to the
further conditions precedent that:
(a) Transferee shall have received the Assignment Certificate
specified in Section 1.04(d), duly completed and executed on behalf of
Transferor and satisfactory in form and substance to Transferee, from
Transferor;
(b) Transferee shall have received a Letter of Credit, issued by
BofA for the benefit of Transferee, and otherwise being in the form set
forth in Exhibit 4.03(b), with insertions in form and substance
satisfactory to Transferee (as it may be amended, modified, extended or
replaced from time to time with the consent of Transferee, the "Letter of
Credit"), which Letter of Credit (A) shall be in full force and effect,
(B) shall have an amount available for drawing thereunder of not less than
the Required L/C Amount applicable to such Transfer Date, and (C) shall
have an expiry date which is not earlier than the 120th day following the
Settlement Date applicable to such Transfer Date;
(c) In the case of the initial Transfer, Transferee shall have
received executed financing statements (Form UCC-1), naming Transferor as
the assignor of Receivables and Related Assets and Transferee as assignee
thereof, or other similar instruments or documents, as may be necessary or
desirable to perfect Transferee's interests in all Transferred Assets in
form suitable for filing in the jurisdictions set forth in Exhibit
4.03(c);
(d) In the case of the initial Transfer, Transferee shall have
received search reports listing (i) all effective financing statements
that name Transferor as debtor or assignor and that are filed in the
jurisdictions in Exhibit 4.03(c), together with (A) copies of any
financing statements which cover any Transferred Assets, and (B) executed
UCC termination statements, in form suitable for filing, releasing any
Transferred Assets from such financing statements, and (ii) tax and
judgment lien searches showing no such liens filed against Transferor in
such jurisdictions;
(e) Transferee shall have received a certificate from the chief
financial officer, treasurer or assistant treasurer of Transferor in the
form of Exhibit 4.03(e) attaching thereto true copies of all certificates
delivered to the agent under the Bank Credit Agreement in connection with
such Transfer; and
(f) On the date of such Transfer the following statements shall be
true (and Transferor by accepting each payment of Purchase Price or the
Reduced Purchase Price on each Transfer Date, shall be deemed to have
certified that):
(i) The representations and warranties contained in
Section 5.01 are correct on and as of such day as though made on and
as of such day,
(ii) No Termination Event or Unmatured Termination Event
(except, if permitted by Section 8.02(e), a Change of Control
Termination Event) exists or would result from such Transfer,
(iii) After giving effect to such Transfer the Aggregate Net
Investment at such time will not exceed the Facility Limit, and
(iv) The Termination Date shall not have occurred.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01 Representations and Warranties of Transferor.
Transferor represents and warrants as follows:
(a) Organization and Good Standing. Transferor is validly existing
as a corporation in good standing under the laws of its state of
incorporation and possesses all necessary licenses and approvals, and is
duly qualified to do business in each jurisdiction in which the nature of
its business requires such licenses and approvals to own its properties
and to conduct its business or in which the failure so to qualify would
have a Material Adverse Effect.
(b) Power, Authorization and Non-Contravention. The execution,
delivery and performance by Transferor of the Agreement Documents to which
it is a party (a) are within Transferor's corporate powers, (b) have been
duly authorized by all necessary corporate action, (c) do not contravene
(i) Transferor's charter or by-laws, (ii) any contractual restriction
binding on or affecting Transferor or any of its property, (except where
such contravention would not give rise to any Material Adverse Effect or
render any Agreement Document or the Letter of Credit unenforceable
against the Transferor or its creditors), or (iii) any law, rule,
regulation, order, judgment, injunction, decree, determination or award
binding on or affecting Transferor or its property, (d) do not result in
the imposition of any Adverse Claim on any Transferred Assets or any of
Transferor's other material properties and (e) do not require any
authorization, approval or other action by, or notice to or filing with,
any Governmental Authority or regulatory body or any other Person, except
for the filing of the financing statements referred to in Article IV.
Without limiting the generality of the foregoing, (A) Transferor had
at all relevant times, and now has, all necessary power, authority and
legal right to own Receivables, to transfer, convey and assign Receivables
and Related Assets, and to incur obligations hereunder, (B) the use of
funds obtained by Transferor under this Agreement will not violate any of
Regulations G, T, U and X of the Federal Reserve Board, (C) Transferor is
not an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940 and (D)
no transaction contemplated by any Agreement Document requires compliance
with, or will be subject to avoidance under, any bulk sales act or similar
law.
(c) Valid Transfer; Binding Obligations. Each Transfer made
pursuant to this Agreement shall constitute a valid conveyance, transfer,
and assignment of the relevant Receivables and Related Assets with respect
thereto to Transferee, or (as provided in Section 6.03) the assignment of
a security interest therein (which, to the extent that such property
constitutes Receivables or proceeds thereof and the laws of the United
States or any political subdivision thereof may be applicable, is a
perfected first priority security interest), enforceable against creditors
of, and purchasers from, Transferor; and this Agreement constitutes, and
each other Agreement Document to which Transferor is a party when duly
executed and delivered will constitute, a legal, valid and binding
obligation of Transferor enforceable against Transferor in accordance with
its terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and
general principles of equity.
(d) Litigation. There is no action, suit or proceeding pending or,
to the best of Transferor's knowledge, threatened in any court or a
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (i) except as set forth on Exhibit
5.01(d) that relates to Transferor or any of its Subsidiaries or any of
the properties of Transferor or any of its Subsidiaries and that, if
adversely determined, could create a Material Adverse Effect, or (ii) that
relates to any aspect of the transactions contemplated by this Agreement.
(e) No Material Adverse Effect. Since September 29, 1995, no event
or occurrence that individually or in the aggregate is reasonably likely
to have a Material Adverse Effect has occurred, other than as disclosed on
Transferor's quarterly report on Form 10-Q dated as of September 29, 1995
and press releases disseminated by Transferor and made available to
Transferee prior to the date hereof.
(f) Quality of Title. No Transferred Asset is subject to any
Adverse Claim except for a security interest in favor of BofA as Agent
under the Bank Credit Agreement. Before each Transfer, each Transferred
Asset which is or was then to be transferred to Transferee hereunder shall
be and has been released from such security interest, so that at the time
of such Transfer such Transferred Assets shall be and were owned by
Transferor free and clear of any Adverse Claim. Whenever Transferee
acquires or acquired Transferred Assets hereunder, it shall have and has
acquired and shall continue to have maintained a valid ownership or
security interest (which, to the extent that such property constitutes
Receivables or proceeds thereof and the laws of the United States or any
political subdivision thereof may be applicable, is a perfected first
priority interest) in such Transferred Assets, free and clear of any
Adverse Claim. No financing statement or other similar instrument
covering any of such Transferred Assets is on file in any recording office
listed in Exhibit 4.03(c) hereto except (A) those filed in favor of
Transferor in accordance with the Contracts (B) any filed in favor of
Transferee pursuant to this Agreement and (C) any filed in favor of BofA,
as agent under the Bank Credit Agreement, which financing statements in
favor of BofA, as agent, will, prior to any Transfer, provide for the
release of any Transferred Assets. No Transfer constitutes a fraudulent
transfer or fraudulent conveyance under the United States Bankruptcy Code
or applicable state bankruptcy or insolvency laws or is otherwise void or
voidable or subject to subordination under similar laws or principles or
for any other reason.
(g) Accuracy of Information. All written information supplied by or
on behalf of Transferor to Transferee for purposes of or in connection
with any Agreement Document or any transaction contemplated herein or
therein is true, complete and accurate in all material respects and such
information is not incomplete by omitting to state a material fact or any
fact necessary to make the statements contained therein not misleading in
any material respect on the date as of which such information is dated.
(h) UCC Information. The chief executive office of Transferor is
located at its address referred to in Section 11.02. Transferor uses no
name other than its actual corporate name and the trade names set forth in
Exhibit 5.01(h). Since January 1, 1989, Transferor has not been known by
any legal name other than its corporate name as of the date hereof, nor
has Transferor been the subject of any merger or other corporate
reorganization that resulted in a change in its name, identity or
corporate structure. The jurisdictions listed on Exhibit 4.03(c) are the
only jurisdictions in the United States or any political subdivision
thereof where filing of a UCC-1 financing statement or any other document
is necessary to perfect the interest of the Transferee in the Transferred
Receivables and other Transferred Assets.
(i) Eligible Receivables; Identification of Transferred Receivables.
Each Receivable transferred on a Transfer Date shall be and was an
Eligible Receivable on such date unless otherwise specifically agreed by
Transferee. Transferor has no knowledge of any fact that should have led
it to expect at the time of the applicable Transfer Date that any
Transferred Receivable then being transferred to Transferee would not be
paid in full when due.
(j) Taxes. Transferor has filed or caused to be filed all tax
returns and reports required by applicable laws, rules and regulations to
have been filed by it and has paid all taxes, assessments and governmental
charges thereby shown to be owing, except any such taxes, assessments or
charges which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books.
(k) Compliance with Applicable Laws. Transferor is in compliance
with the requirements of all applicable laws, rules, regulations, and
orders of all Governmental Authorities (federal, state, local or foreign,
and including Environmental Laws, tax laws and laws with respect to ERISA
and laws, rules and regulations applicable to the Contracts), a violation
of any of which, individually or in the aggregate for all such violations,
would be reasonably likely to have a Material Adverse Effect.
(l) ERISA. Transferor and its ERISA Affiliates have not incurred
and are not reasonably expected to incur any material liability in
connection with any Plan, other than ordinary liabilities for benefits;
neither Transferor nor any ERISA Affiliate has incurred or is reasonably
expected to incur any material Withdrawal Liability to any Plan; and no
Plan of Transferor or any ERISA Affiliate is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
ARTICLE VI
GENERAL COVENANTS OF TRANSFEROR
SECTION 6.01 Affirmative Covenants of Transferor. Until the first
day following the Termination Date on which all Carryforward Amounts have
been reduced to zero or cancelled by Transferee, and all Transferred
Receivables and all Obligations are paid in full in cash, Transferor will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws
(including Environmental Laws), rules, regulations, permits, orders,
consent decrees and judgments binding on Transferor and its Subsidiaries,
except where failure to so comply could not reasonably be expected to have
a Material Adverse Effect.
(b) Preservation of Corporate Existence and Name. (i) Preserve and
maintain, and cause its Material Subsidiaries to preserve and maintain,
its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation; (ii) qualify and remain qualified in
good standing as a foreign corporation in each jurisdiction except where
the failure to maintain a franchise or privilege or to remain qualified
would not have a Material Adverse Effect; and (iii) not change its
corporate name or the name under or by which it does business except upon
30 days' prior written notice to Transferee and the Servicing Agent and
after taking all action required by Section 6.03(b).
(c) Audits. At the expense of Transferor, upon reasonable prior
notice at any time and from time to time during regular business hours,
permit, and cause its Subsidiaries to permit, Transferee or its agents or
representatives (i) to examine and make copies of and abstracts from the
records of, and (ii) to visit the offices and properties of, Transferor,
or to the extent that Transferor is serving in the capacity of Servicing
Agent, the Servicing Agent, and to discuss matters relating to Transferred
Assets or Transferor's or the Servicing Agent's performance hereunder with
any of the officers or employees of Transferor or the Servicing Agent,
provided, that unless a Termination Event or Unmatured Termination Event
shall have occurred and be continuing, only one such audit in any calendar
year shall be at the expense of Transferor.
(d) Keeping of Records and Books of Account. Maintain (or cause the
Servicing Agent to maintain) at all times accurate and complete books,
records and accounts relating to the Receivables, Related Assets and
Contracts and all Collections thereon in which timely entries shall be
made. Transferor will, or will cause the Servicing Agent to, maintain
operating procedures (including an ability to recreate records) evidencing
the Transferred Assets and documents, books, records and other information
reasonably necessary or advisable for the collection of all Transferred
Assets.
(e) Performance and Compliance with Receivables and Contracts.
Timely and fully perform and comply and cause its Subsidiaries to timely
and fully perform and comply, with all of its obligations under the
Contracts and all purchase orders and other agreements related to the
Transferred Assets in all material respects.
(f) Location of Records. Keep its principal place of business and
chief executive office at the address(es) referred to in Section 5.01(h)
or, upon 30 days' prior written notice to Transferee, at other locations
in jurisdictions in the United States where all action required by
Section 6.03(b) shall have been taken and completed.
(g) Taxes. Pay and discharge, and cause its Subsidiaries to pay and
discharge, all taxes and governmental charges imposed upon it or its
properties, prior to the date on which penalties attach thereto, if
failure to pay such taxes or governmental charges could reasonably be
expected to have a Material Adverse Effect; except any such tax or charge
which is being contested in good faith and by appropriate proceedings if
such contest shall operate to stay the Material Adverse Effect of any such
nonpayment.
(h) Availability of Eligible Receivables. Use commercially
reasonable efforts to manage its Receivables so that it will have
available for transfer to Transferee on each Transfer Date Eligible
Receivables that have an aggregate Dollar Equivalent Balance of not less
than the Required Dollar Receivables Amount specified for such Transfer
Date and that are free of any Adverse Claims.
(i) Letter of Credit. At all times from any Transfer Date to the
day which falls 120 days after the applicable Settlement Date cause the
Letter of Credit to be in full force and effect in favor of the Transferee
in a face amount of not less than the Required L/C Amount applicable to
such Transfer Date.
(j) Reporting Requirements of Transferor. Furnish to Transferee:
(i) Quarterly Financials. As soon as available and in any
event within 55 days after the end of each fiscal quarter (except the
fourth fiscal quarter of any fiscal year), consolidated balance
sheets of Transferor and its Subsidiaries as of the end of such
fiscal quarter and consolidated statements of operations and cash
flows of Transferor and its Subsidiaries for such fiscal quarter and
for the period commencing at the end of the previous fiscal year and
ending with the end of such fiscal quarter, in each case in
reasonable detail and duly certified (subject to year-end audit
adjustments and without footnotes) by the chief financial officer,
treasurer or assistant treasurer of Transferor as having been
prepared in accordance with GAAP (applied on a consistent basis).
(ii) Annual Financials. As soon as available and in any event
within 120 days after the end of each fiscal year, a copy of
Transferor's annual report on Form 10-K (or any successor form in
substantially the same format) for such fiscal year of Transferor and
its Subsidiaries, including therein a consolidated balance sheet of
Transferor and its Subsidiaries as of the end of such fiscal year and
consolidated statements of operations and cash flows of Transferor
and its Subsidiaries for such fiscal year, certified in a manner
acceptable to the Transferee by independent public accountants of
nationally recognized standing acceptable to Transferee. The
Transferor acknowledges that (without limitation) Transferee is
relying upon the financial statements delivered from time to time
pursuant to this Agreement, including the annual audited financials
referenced in this Section;
(iii) Termination Events. Within five Business Days after
Transferor discovers the occurrence of any Termination Event or
Unmatured Termination Event continuing on the date of such statement,
a statement of a Responsible Officer setting forth details of such
Termination Event or Unmatured Termination Event and the action that
Transferor proposes to take with respect thereto;
(iv) ERISA Event. Promptly and in any event within ten days
after a Responsible Officer of Transferor or any ERISA Affiliate
knows or has reason to know that any material ERISA Event has
occurred, a statement of a Responsible Officer of Transferor
describing such ERISA Event and the action, if any, that Transferor
or such ERISA Affiliate proposes to take with respect thereto;
(v) Proceedings. Promptly after a Responsible Officer of
Transferor becomes aware of the commencement thereof, notice of all
actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting Transferor or any of its Subsidiaries
of the type described in Section 5.01(d);
(vi) SEC Reports. Promptly after the sending or filing thereof,
copies of all reports on Form 10-K, 10-Q or 8-K that Transferor files
with the Securities and Exchange Commission or any governmental
authority that may be substituted therefor;
(vii) Adverse Claim. As soon as possible after the
occurrence thereof, written notice that describes in reasonable
detail the creation or existence of any Adverse Claim (other than any
Adverse Claim arising solely as a result of any action taken by
Transferee hereunder) on or with respect to Transferred Assets, other
than the security interest in favor of BofA as Agent under the Bank
Credit Agreement; and
(viii) Other Information. Such other information respecting
the business or properties or the condition, financial or otherwise,
or operations of Transferor or any of its Subsidiaries as Transferee
may from time to time reasonably request.
Transferee agrees that delivery to BofA under the Bank Credit Agreement of
any of the documents required by this clause (j) (other than clauses
(j)(iii) and (j)(vii)) shall satisfy Transferor's obligation to deliver
such documents hereunder.
Notwithstanding the foregoing, upon the occurrence and during the
continuance of a Termination Event or a Unmatured Termination Event,
Transferor will, and will cause its Subsidiaries to, provide to the
Transferee additional information and any and all of the above information
more frequently to the extent requested by the Transferee.
SECTION 6.02 Negative Covenants of Transferor. Until the first day
following the Termination Date on which all Carryforward Amounts have been
reduced to zero or cancelled and all Transferred Receivables and all
Obligations are paid in full and in cash, Transferor will not:
(a) Sales, Adverse Claims, Etc. Sell, assign (by operation of law
or otherwise) or otherwise dispose of (with or without recourse) or suffer
to exist any Adverse Claim upon, any Transferred Assets.
(b) Extension or Amendment of Receivables or Contracts. Except to
the extent permitted in Section 7.02, extend, amend or otherwise modify or
waive the terms of any Transferred Receivable, or of any Contract related
thereto, which extension, amendment, modification or waiver would,
individually or in the aggregate for all such extensions, amendments,
modifications and waivers, be reasonably likely to have a Material Adverse
Effect, it being understood that no extension, amendment, modification or
waiver shall relieve the Transferor of its obligations under Article X.
SECTION 6.03 Grant of Security Interest. (a) To secure the prompt
payment and performance of all Obligations, whether now or hereafter
existing, due or to become due, direct or indirect, or absolute or
contingent, Transferor grants to Transferee and the other Indemnified
Parties a security interest (which, to the extent that such property
constitutes Receivables and proceeds thereof and the laws of the United
States or any political subdivision thereof may be applicable, is a first
priority security interest) in all of Transferor's right, title and
interest now or hereafter existing in, to and under all Transferred
Receivables and Related Assets. This Agreement shall constitute a
security agreement under the UCC.
(b) Further Assurances. Transferor agrees that from time to time,
at Transferor's expense, it will promptly execute and deliver all further
instruments and documents, and take all further action that Transferee may
reasonably request, in order to protect, perfect or more fully evidence
the security interest granted to Transferee pursuant to Section 6.03(a) or
to enable Transferee to enforce such security interest or to exercise any
rights or remedies under any Agreement Document. Without limiting the
generality of the foregoing, Transferor will execute and file such
financing or continuation statements, or amendments thereto or assignments
thereof, and such other instruments or notices, as Transferee may
determine is necessary or appropriate.
Transferor hereby authorizes Transferee to file one or more financing or
continuation statements, and amendments thereto and assignments thereof,
relative to all or any of the Transferred Assets now existing or hereafter
arising in the name of Transferor. If Transferor or the Servicing Agent
fails to perform any of its agreements or obligations under any Agreement
Document, Transferee may (but shall not be required to) itself perform, or
cause performance of, such agreement or obligation, and the expenses of
Transferee incurred in connection therewith shall be payable by Transferor
as provided in Section 11.05.
(c) Remedies. Upon the occurrence of a Termination Event,
Transferee shall have, with respect to the security interest granted
pursuant to subsection (a) above, and in addition to all other rights and
remedies available to Transferee under any Agreement Documents or
applicable law, all the rights and remedies of a secured party under the
UCC.
<PAGE>
ARTICLE VII
ADMINISTRATION AND COLLECTION
SECTION 7.01 Designation of the Servicing Agent. (a) The
servicing, administering and collection of the Transferred Assets shall be
conducted by the Person (the "Servicing Agent") so designated from time to
time in accordance with this Section 7.01. Until Transferee gives notice
(a "Successor Notice") to Transferor of the designation of a new Servicing
Agent, Transferee hereby designates Transferor as, and Transferor hereby
agrees to perform the duties and obligations of, the Servicing Agent
pursuant to the terms hereof and in accordance with all applicable laws.
Transferee, in its discretion, may provide Transferor with a Successor
Notice at any time after the occurrence and during the continuance of a
Termination Event described in Section 8.01(a)(i), Section 8.01(f) or
Section 8.01(m).
(b) Upon Transferor's receipt of a Successor Notice, Transferor will
terminate its activities as the Servicing Agent hereunder in a manner
which Transferee indicates will facilitate the transition of the
performance of such activities to the new Servicing Agent. Transferee (or
its designee) shall assume each and all of Transferor's obligations to
service and administer the Transferred Assets, on the terms and subject to
the conditions set forth herein, and Transferor shall use its best efforts
to assist Transferee (or its designee) in assuming such obligations.
(c) The Servicing Agent may, with the prior consent of Transferee,
subcontract with any third party to service, administer or collect the
Transferred Assets, provided that the Servicing Agent shall remain liable
for the performance of the duties and obligations of the Servicing Agent
pursuant to the terms hereof. Transferee hereby consents to the
Transferor, as the Servicing Agent, subcontracting servicing,
administrative and collection responsibilities to any of its Subsidiaries.
SECTION 7.02 Duties of the Servicing Agent. (a) Transferee hereby
appoints as its agent the Servicing Agent, to enforce Transferee's rights
and interests in, to and under the Transferred Assets and the related
Contracts on the terms and conditions hereof. The Servicing Agent shall
take or cause to be taken all such actions as may be necessary or
advisable to collect each Transferred Asset in accordance with applicable
laws, rules and regulations with the same degree of care and diligence as
the Servicing Agent uses to collect Receivables that it owns; provided
that without the express written consent of Transferee, the Servicing
Agent shall not bring suit or commence other enforcement actions or
proceedings in the name or on behalf of Transferee to collect any
Transferred Assets. The Servicing Agent shall set aside for the account
of Transferee Collections of Transferred Assets in accordance with
Section 2.03. The Servicing Agent may adjust the Unpaid Balance of any
Transferred Receivable to reflect the reductions or cancellations
described in the first sentence of Section 2.01(a). So long as Transferor
is Servicing Agent, it shall write off Transferred Receivables from time
to time in accordance with the Transferor's historical credit and
collection policies and practices as in effect on the date hereof and as
from time to time amended.
(b) Following delivery of a Successor Notice, Transferor shall
deliver to the Servicing Agent, and the Servicing Agent shall hold in
trust for Transferor and Transferee in accordance with their respective
interests, the Records, provided, that if Transferor shall not be the
Servicing Agent, Transferor shall only be required, at Transferor's
expense, to provide the Servicing Agent with copies thereof and access
thereto to the extent necessary to enable the Servicing Agent to collect
the Transferred Receivables. The Servicing Agent shall promptly after
demand, at Transferor's expense, deliver to Transferor any Records that do
not relate to Transferred Assets.
(c) The Servicing Agent's authorization under this Agreement shall
terminate on the first day after the Termination Date on which any
Carryforward Amount has been reduced to zero or cancelled, and all
Transferred Receivables and all Obligations shall have been finally and
fully paid and performed.
(d) Transferor acknowledges that Transferee has relied on
Transferor's agreement to act as the Servicing Agent hereunder in its
decisions to execute and deliver the Agreement Documents. In recognition
of the foregoing, Transferor agrees not to resign as the Servicing Agent
with respect to Transferred Receivables, unless Transferor has received an
opinion of counsel, in form and substance satisfactory to Transferee, to
the effect that Transferor is not permitted by applicable law to serve in
such capacity.
SECTION 7.03 Rights of Transferee. (a) At any time when any
Termination Event described in Section 8.01(a)(i), Section 8.01(f) or
Section 8.01(m) exists:
(i) Transferee may direct the Obligors of Transferred
Receivables, or any of them, to pay all amounts payable under any
Transferred Assets directly to Transferee or its designee.
(ii) Transferee may, and Transferor shall, at Transferee's
request and at Transferor's expense, give notice of Transferee's
interest in the Transferred Assets to each said Obligor and direct
that payments be made directly to Transferee or its designee, which
notice shall be acceptable in form and substance to Transferee.
(iii) Transferor will, at Transferee's request and at
Transferor's expense, cause each Obligor in respect of Transferred
Receivables to make payment thereof directly to a blocked account of
Transferor at Transferee.
(iv) Transferor shall, at Transferee's request, (A) assemble and
make available to Transferee at a place selected by Transferee,
copies of all of the Records which evidence Transferred Assets, or
which are otherwise necessary or desirable to collect Transferred
Assets, and (B) segregate all cash, checks and other instruments
received by it from time to time constituting Collections or other
proceeds from any Transferred Asset in a manner acceptable to
Transferee and promptly remit all such cash, checks and instruments,
duly endorsed or with duly executed instruments of transfer, to
Transferee or its designee.
(v) Transferor hereby authorizes Transferee or its designee to
take any action in the name and on behalf of Transferor (except to
the extent expressly provided otherwise in Section 7.03(a)) which is
necessary or desirable, in the reasonable determination of
Transferee, to collect all amounts due under any and all Transferred
Assets.
(b) Transferor hereby grants to Transferee an irrevocable power of
attorney, with full power of substitution, coupled with an interest, from
time to time after the occurrence and during the continuance of a
Termination Event described in Section 8.01(a)(i), 8.01(f) or 8.01(m), to
take any action and to execute any instrument that Transferee, in its
reasonable determination, may deem necessary to accomplish the purposes of
the Agreement Documents, including (i) to ask, demand, collect, sue for,
recover, compromise, receive and give acquittance and receipts for moneys
due and to become due under or in respect of any Transferred Asset; (ii)
to receive, endorse, negotiate, transfer, deposit, collect and otherwise
deal with any such drafts or other instruments, documents and chattel
paper with respect to Transferred Assets; (iii) to file any claims or take
any action or institute any proceedings which Transferee, in its
reasonable determination, may deem necessary for the collection of or
enforcement of rights with respect to any Transferred Assets; and (iv) to
perform the affirmative obligations of Transferor under any Agreement
Document. If and to the extent Transferee shall collect or receive any
amounts hereunder in excess of the Obligations, Transferee shall, at the
request of Transferor showing calculation of such excess in reasonable
detail, promptly remit such excess to Transferor.
SECTION 7.04 Responsibilities of Transferor. Anything herein to
the contrary notwithstanding:
(a) Transferor shall perform and comply with all of its obligations
under the Contracts related to the Transferred Assets and under the
related purchase orders and other agreements to the same extent as if
Transferred Assets with respect thereto had not been transferred hereunder
to Transferee, and the exercise by Transferee of its rights hereunder or
in connection herewith shall not relieve Transferor from such obligations.
(b) Transferee shall not have any obligation (other than its
obligations to Transferor which are expressly set forth in this Agreement)
or liability with respect to any Transferred Receivables, any Contracts
related thereto or any other related purchase orders or other agreements,
or any other Transferred Assets, nor shall it be obligated to perform any
of the obligations of Transferor or any of its Subsidiaries thereunder.
(c) Transferor hereby grants to the Servicing Agent (if the
Servicing Agent is not Transferor) an irrevocable power of attorney, with
full power of substitution, coupled with an interest, to take in the name
of Transferor all steps necessary or advisable to endorse, negotiate or
otherwise realize on any writing or other right of any kind held or
transmitted by Transferor or transmitted or received by Transferee
(whether or not from Transferor) in connection with any Transferred Asset;
provided that the Servicing Agent shall exercise such power of attorney in
a manner which will not conflict with the power of attorney that
Transferor has granted to Transferee pursuant to Section 7.03(b).
(d) Notwithstanding anything contained in Section 2.01 to the
contrary, if at any time Transferor shall not be the Servicing Agent,
Transferor shall deliver all Collections received or deemed received by it
in respect of the Transferred Assets to Transferee prior to the applicable
Settlement Date relating to such Transferred Assets, and Transferee shall
deal with such Collections as if such Collections had actually been
received from the related Obligor on the applicable dates. So long as
Transferor shall hold any Collections or deemed Collections required to be
paid to Transferee hereunder, it shall hold such Collections in trust and,
if a Termination Event under Section 8.01(f) or (m) shall be continuing,
separate and apart from its own funds, and shall clearly mark its records
to reflect such trust.
(e) Transferor hereby irrevocably agrees that if at any time it
shall cease to be Servicing Agent hereunder, it shall act (if the then
current Servicing Agent so requests) as the data processing agent of the
Servicing Agent and, in such capacity, Transferor shall conduct (and shall
cause each of its Affiliates whose participation is necessary to enable
Transferor to conduct) the data processing functions relating to the
servicing, collection and administration of the Transferred Assets in
substantially the same way that Transferor (or its subcontractors)
conducted such data processing functions while Transferor act