<PAGE>
EXHIBIT 10.23
AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT
DATED AS OF FEBRUARY 4, 2005
AMONG
FSI RECEIVABLES COMPANY LLC, AS TRANSFEROR,
FISHER SCIENTIFIC INTERNATIONAL INC., AS SERVICER,
ATLANTIC ASSET SECURITIZATION CORP.,
CALYON NEW YORK BRANCH, INDIVIDUALLY AND AS ATLANTIC AGENT,
LIBERTY STREET FUNDING CORP.
AND
THE BANK
OF NOVA SCOTIA, INDIVIDUALLY, AS LIBERTY STREET AGENT AND AS
ADMINISTRATIVE AGENT
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TABLE OF CONTENTS
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ARTICLE I. TRANSFER
ARRANGEMENTS.............................................
2
Section 1.1 Transfer
Facility.............................................. 2
Section 1.2
Increases......................................................
3
Section 1.3
Decreases......................................................
4
Section 1.4 Payment
Requirements...........................................
4
Section 1.5
Computations...................................................
5
Section 1.6 Extension of
Liquidity Termination
Date....................... 5
ARTICLE II. PAYMENTS AND
COLLECTIONS......................................... 5
Section 2.1
Payments.......................................................
5
Section 2.2 Collections and
Reinvestments prior to Amortization............ 6
Section 2.3 Collections Following
Amortization............................. 6
Section 2.4 Payment
Rescission.............................................
8
Section 2.5 Maximum Receivable
Interests................................... 8
Section 2.6 Clean Up
Call.................................................. 8
ARTICLE III. CONDUIT
FUNDING.................................................
8
Section 3.1 CP
Costs.......................................................
8
Section 3.2 CP Costs
Payments.............................................. 9
Section 3.3 Calculation of CP
Costs........................................ 9
ARTICLE IV. LIQUIDITY BANK
FUNDING........................................... 9
Section 4.1 Liquidity Bank
Funding......................................... 9
Section 4.2 Yield
Payments.................................................
9
Section 4.3 Selection and
Continuation of Tranche Periods.................. 9
Section 4.4 Liquidity Bank
Discount Rates.................................. 10
Section 4.5 Suspension of the LIBO
Rate.................................... 10
ARTICLE V. REPRESENTATIONS AND
WARRANTIES.................................... 11
Section 5.1 Representations and
Warranties of the Transferor Parties....... 11
ARTICLE VI. CONDITIONS OF
PURCHASES.......................................... 15
Section 6.1 Conditions Precedent
to Initial Incremental Transfer........... 15
Section 6.2 Conditions Precedent
to All Transfers and Reinvestments........ 15
ARTICLE VII.
COVENANTS.......................................................
16
Section 7.1 Affirmative Covenants
of the Transferor Parties................ 16
Section 7.2 Negative Covenants of
the Transferor Parties................... 23
ARTICLE VIII. ADMINISTRATION AND
COLLECTION.................................. 25
Section 8.1 Designation of
Servicer........................................ 25
Section 8.2 Duties of
Servicer............................................. 26
Section 8.3 Collection
Notices............................................. 28
Section 8.4 Responsibilities of
Transferor................................. 28
Section 8.5
Reports........................................................
28
Section 8.6 Servicing
Fees................................................. 29
ARTICLE IX. AMORTIZATION
EVENTS.............................................. 29
Section 9.1 Amortization
Events............................................ 29
Section 9.2
Remedies.......................................................
31
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ARTICLE X.
INDEMNIFICATION...................................................
32
Section 10.1 Indemnities by the Transferor
Parties........................ 32
Section 10.2 Withholding
Taxes............................................ 35
Section 10.3 Increased Cost and Reduced
Return............................ 37
Section 10.4 Other Costs and
Expenses..................................... 37
ARTICLE XI. THE
AGENTS.......................................................
38
Section 11.1
Appointment..................................................
38
Section 11.2 Delegation of
Duties......................................... 39
Section 11.3 Exculpatory
Provisions....................................... 39
Section 11.4 Reliance by
Agents........................................... 40
Section 11.5 Notice of Amortization
Events................................ 41
Section 11.6 Non-Reliance on Agents and Other
Transferees................. 41
Section 11.7 Indemnification of
Agents.................................... 41
Section 11.8 Agents in their Individual
Capacities........................ 42
Section 11.9 Successor Administrative
Agent............................... 42
Section 11.10 Agents' Conflict
Waivers..................................... 43
Section 11.11 UCC
Filings..................................................
43
ARTICLE XII. ASSIGNMENTS;
PARTICIPATIONS..................................... 44
Section 12.1
Assignments..................................................
44
Section 12.2
Participations...............................................
45
Section 12.3 Limitation on Assignments and
Participations................. 46
ARTICLE XIII.
MISCELLANEOUS..................................................
46
Section 13.1 Waivers and
Amendments....................................... 46
Section 13.2
Notices......................................................
47
Section 13.3 Ratable
Payments............................................. 47
Section 13.4 Protection of Ownership Interests
of the Transferees......... 47
Section 13.5
Confidentiality..............................................
48
Section 13.6 Bankruptcy
Petition.......................................... 49
Section 13.7 Limitation of
Liability...................................... 49
Section 13.8 CHOICE OF
LAW................................................ 49
Section 13.9 CONSENT TO
JURISDICTION...................................... 49
Section 13.10 WAIVER OF JURY
TRIAL......................................... 50
Section 13.11 Integration; Binding
Effect; Survival of Terms............... 50
Section 13.12 Counterparts;
Severability; Section References............... 50
Section 13.13
Characterization.............................................
50
Section 13.14 Nonrecourse Nature
of Transactions........................... 51
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EXHIBITS AND SCHEDULES
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Exhibit I Definitions
Exhibit II Form of Transfer
Notice
Exhibit III
Transferor's State of Organization; Chief Executive Office;
Locations of Records; Federal Employer and Organizational
Identification Numbers
Exhibit IV Names of Collection
Banks; Collection Accounts
Exhibit V Form of
Compliance Certificate
Exhibit VI Form of Assignment
Agreement
Exhibit VII Credit and Collection
Policy
Exhibit VIII Form of Performance
Undertaking
Exhibit IX Form of Settlement
Report
Exhibit X Form of Interim
Settlement Report
Schedule A Commitments
Schedule B Closing Documents
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<PAGE>
AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT
THIS AMENDED AND RESTATED RECEIVABLES TRANSFER AGREEMENT dated as
of
February 4, 2005 (as amended, restated or
otherwise modified from time to time,
the "AGREEMENT"), among:
(a) FSI Receivables Company LLC, a Delaware limited liability
company
formerly known as FSI Receivables Corp. ("TRANSFEROR"),
(b) Fisher Scientific International Inc., a Delaware
corporation
("PARENT"), as initial Servicer,
(c) Atlantic Asset Securitization Corp., a Delaware corporation
("ATLANTIC" or a "CONDUIT"), and Liberty Street Funding Corp., a
Delaware
corporation ("LIBERTY STREET" or a "CONDUIT"),
(d) Calyon New York Branch, a French chartered bank acting
through
its New
York branch ("CALYON"), and its assigns (collectively, the
"ATLANTIC
LIQUIDITY BANKS" and, together with Atlantic, the "ATLANTIC
GROUP"),
The Bank of Nova Scotia, a Canadian chartered bank acting
through
its New
York Agency ("SCOTIABANK"), and its assigns (collectively, the
"LIBERTY
STREET LIQUIDITY BANKS" and, together with Liberty Street, the
"LIBERTY
STREET GROUP"),
(e)
Calyon, in its capacity as agent for the Atlantic Group (the
"ATLANTIC
AGENT" or a "CO-AGENT"), Scotiabank, in its capacity as agent
for the
Liberty Street Group (the "LIBERTY STREET AGENT" or a
"CO-AGENT"),
(f) Scotiabank, in its capacity as administrative agent for the
Atlantic
Group, the Liberty Street Group and each Co-Agent (in such
capacity,
together with its successors and assigns, the "ADMINISTRATIVE
AGENT"
and, together with each of the Co-Agents, the "AGENTS"),
amends and restates that certain
Receivables Transfer Agreement dated as of
February 14, 2003, by and among Transferor,
Parent, as initial Servicer, Blue
Ridge Asset Funding Corporation, Liberty
Street, Scotiabank, individually and as
a co-agent, and Wachovia Bank, National
Association, individually, as a co-agent
and as administrative agent (the "EXISTING
AGREEMENT"). UNLESS DEFINED ELSEWHERE
HEREIN, CAPITALIZED TERMS USED IN THIS
AGREEMENT SHALL HAVE THE MEANINGS
ASSIGNED TO SUCH TERMS IN EXHIBIT I (OR, IF
NOT DEFINED IN EXHIBIT I HERETO, THE
MEANING ASSIGNED TO SUCH TERM IN EXHIBIT I
TO THE RECEIVABLES PURCHASE
AGREEMENT).
PRELIMINARY STATEMENTS
With the consent of Transferor and Servicer, on the date
hereof,
Blue Ridge
Asset Funding Corporation and Wachovia Bank, National
Association have assigned all of their right, title and interest
in, to
and under
the Existing Agreement and the other Transaction Documents to
the
Conduits and the Agents hereunder. Accordingly, the parties
hereto
desire to
amend and restate the Existing Agreement as hereinafter set
forth.
1
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Transferor desires to continue to transfer and assign from time
to
time
Receivable Interests to certain of the Transferees.
Upon a Co-Agent's receipt of a notice of proposed transfer, its
Conduit
may, in its absolute and sole discretion, acquire the
applicable
Receivable
Interest from Transferor, and in the event that such Conduit
declines
to make any such acquisition and if so requested by Transferor,
no other
Conduit is able to acquire such Receivable Interest, the
declining
Conduit's Liquidity Banks shall, at the request of Transferor,
make such
acquisition.
Calyon has been requested and is willing to act as Atlantic Agent
on
behalf of
the Atlantic Group in accordance with the terms hereof.
Scotiabank has been requested and is willing to act as Liberty
Street
Agent on behalf of the Liberty Street Group in accordance with
the
terms
hereof.
Scotiabank has also been requested and is willing to act as
Administrative Agent on behalf of the Transferees in accordance
with the
terms
hereof.
ARTICLE I.
TRANSFER ARRANGEMENTS
Section
1.1 Transfer Facility.
(a) On the terms and subject to the conditions set forth in
this
Agreement:
(i) Transferor (or the Servicer on Transferor's behalf) may
from
time to
time on and after the Closing Date and prior to the
Amortization
Date for
each applicable Group, transfer and assign Receivable Interests
to one or
more of the Groups of its choosing by delivering a Transfer
Notice to
the applicable Co-Agents in accordance with Section 1.2; and
(ii) Not later than 12:00 p.m. (New York time) on the proposed
date
of
transfer, each of the recipient Co-Agents shall determine whether
its
Conduit
will acquire its Group's Receivable Interest, and in the event
that any
applicable Conduit elects not to make any such acquisition, its
Co-Agent
shall promptly notify Transferor and that Conduit's Liquidity
Banks of
such fact, whereupon, except as set forth in Section
1.1(a)(iii),
each of
its Liquidity Banks severally agrees to acquire on such
proposed
date of
transfer its Ratable Share of such Receivable Interest, on the
terms and
subject to the conditions hereof, PROVIDED that (A) at no time
may the
Group Invested Amount of any Group at any one time outstanding
exceed
such Group's Group Limit, and (B) at no time may the Aggregate
Invested
Amount outstanding hereunder exceed the lesser of the Transfer
Limit and
the Adjusted Pool Balance.
2
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(iii) In the event that pursuant to Section 1.1(a)(ii), a
Co-Agent
notifies
Transferor that its Conduit will not acquire its Group's
Receivable
Interest on a proposed date of transfer (such Conduit, a
"DECLINING
CONDUIT"), then, Transferor may offer that Group's Receivable
Interest
to a different Group by delivery of another written Transfer
Notice (a
"SUBSTITUTE TRANSFER NOTICE") to the applicable Co-Agent not
later than
1:00 p.m. (New York time). Following receipt of a Substitute
Transfer
Notice, the recipient Co-Agent shall promptly notify Transferor
whether
its Conduit will acquire the offered Receivable Interest. If
such
Co-Agent
notifies Transferor that its Conduit will not acquire such
Receivables Interest, then Transferor (A) shall promptly and
irrevocably
cancel the
Substitute Transfer Notice by written notice delivered to the
applicable
Co-Agent not later than 2:00 p.m. (New York time) on such date
and (B)
shall either (1) cancel the original Transfer Notice by
irrevocable written notice to the applicable Co-Agent delivered not
later
than 2:00
p.m. (New York time) on such date, or (2) deliver a further
irrevocable written Transfer Notice (a "SECOND TRANSFER NOTICE") to
the
Co-Agent
that received the original Transfer Notice with respect to the
such
Receivable Interest stating that the Transferor elects to have
the
Receivable
Interest acquired by such Co-Agent's Group's Liquidity Banks,
whereupon
the applicable Liquidity Banks shall be obligated to acquire
their
respective Ratable Shares of such Receivable Interest on the
next
Business
Day following the delivery of the Second Transfer Notice.
(b) Each Group's Liquidity Banks' Commitments to Transferor
under
this Agreement shall terminate on such
Group's Amortization Date (although their
Liquidity Commitments to their respective
Conduits may continue beyond such
date). Nothing contained in this Agreement
shall, or shall be deemed to,
constitute a commitment by any Conduit to
acquire any Receivable Interest.
(c) Transferor may upon at least ten (10) Business Days'
irrevocable
notice to the applicable Co-Agent, with a
copy to the Administrative Agent,
terminate in whole or reduce in part the
unused portion of any Group's Group
Limit; PROVIDED that (i) each partial
reduction of a Group Limit shall be in an
aggregate amount at least equal to
$10,000,000 and any larger integral multiple
of $1,000,000, (ii) in no event shall any
Group's Group Limit be reduced to less
than $40,000,000 unless it is reduced to
$0, (iii) each partial reduction of a
Group Limit shall reduce that Group's
Liquidity Banks' Commitments ratably in
accordance with their respective Ratable
Shares, and (iv) each reduction of a
Group Limit shall reduce the Transfer Limit
in a like amount.
Section
1.2 Increases. Transferor shall determine to which Groups it
will
transfer Receivable Interests on any given
Business Day and provide each
applicable Co-Agent (with a copy to the
Administrative Agent) with at least one
(1) Business Day's prior written notice in
the form set forth as Exhibit II
hereto of each Incremental Transfer (each,
a "TRANSFER NOTICE"). If any Transfer
Notice is received by a Co-Agent later than
3:00 p.m. (New York time) on the
Business Day prior to the proposed transfer
date, the acquisition by its Group
of a Receivable Interest on the following
Business Day shall be on a
best-efforts basis only. Each Transfer
Notice shall be subject to Section 6.2
hereof, shall be irrevocable, and shall
specify:
3
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(a) the participating Group(s),
(b) the requested Transfer Price(s) for each Receivable
Interest
(which
shall not be less than $1,000,000 for any Group) or, to the
extent
that the
then available Transfer Limit is less than such amount, such
lesser
amount equal to such available portion of the Transfer Limit),
(c) the proposed date of transfer, and
(d) in case the Incremental Transfer is ultimately funded by
any
Group's
Liquidity Banks, the requested Discount Rate and Tranche
Period.
Following receipt of a Transfer Notice,
each recipient Co-Agent will determine
whether its Conduit agrees to acquire the
Receivable Interest being offered to
it. If any applicable Conduit declines to
make a proposed acquisition and no
other Conduit elects to acquire such
Receivable Interests, then following
delivery of a Second Transfer Notice in
accordance with Section 1.1(a)(iii) the
Incremental Transfer to that Group will be
funded by such Conduit's Liquidity
Banks. On the date of each Incremental
Transfer, subject to prior satisfaction
of the applicable conditions precedent set
forth in Article VI, each of the
applicable Conduits or its Liquidity Banks,
as applicable, shall deposit to the
Facility Account, in immediately available
funds, no later than 4:00 p.m. (New
York time), an amount equal to (i) in the
case of a Conduit, the Transfer Price
for the Receivable Interest then being
transferred to it or (ii) in the case of
a Liquidity Bank, such Liquidity Bank's
Ratable Share of such Transfer Price.
Section
1.3 Decreases. Transferor shall provide each of the affected
Co-Agents with prior written notice in
conformity with the Required Notice
Period (each, a "REDUCTION NOTICE") of any
proposed reduction in its Group's
Group Invested Amount. Each Reduction
Notice shall be irrevocable and shall
designate (a) the applicable Group or
Groups, (b) the date (the "PROPOSED
REDUCTION DATE") upon which any such
reduction shall occur (which date shall
give effect to the applicable Required
Notice Period), and (c) the amount of
each applicable Group's Group Reduction.
Only one (1) Reduction Notice per Group
shall be outstanding at any time.
Section
1.4 Payment Requirements. All amounts to be paid or deposited
by
any Transferor Party pursuant to any
provision of this Agreement shall be paid
or deposited in accordance with the terms
hereof no later than 11:00 a.m. (New
York time) on the day when due in
immediately available funds, and if not
received before 11:00 a.m. (New York time)
shall be deemed to be received on the
next succeeding Business Day. If such
amounts are payable to the Atlantic Agent
or to a member of the Atlantic Group, they
shall be paid to account no.
01-25680-0001-00-001 at Calyon New York
Branch, in New York, New York, ABA No.
026 008 073 until otherwise notified by the
Atlantic Agent (the "ATLANTIC GROUP
ACCOUNT"). If such amounts are payable to
the Liberty Street Agent, the
Administrative Agent or to a member of the
Liberty Street Group, they shall be
paid to Liberty Street Funding Corp.'s
account no. 2158-13 at The Bank of Nova
Scotia - New York Agency, in New York, New
York, ABA No. 026-002532, until
otherwise notified by the Liberty Street
Agent or the Administrative Agent (the
"LIBERTY STREET GROUP ACCOUNT"). If any
amount hereunder shall be payable on a
day which is not a Business Day, such
amount shall be payable on the next
succeeding Business Day.
4
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Section
1.5 Computations. All computations of Yield, per annum fees
calculated as part of any Conduit's CP
Costs, and per annum fees hereunder and
under the Fee Letters, shall be made on the
basis of a year of 360 days for the
actual number of days elapsed for the
Calculation Period then most recently
ended.
Section
1.6 Extension of Liquidity Termination Date. If any Conduit's
Liquidity Banks fail to approve an
extension of the applicable Group's Liquidity
Termination Date by the 60th day prior
thereto, the Transferor will first offer
such Conduit's Group's Group Limit to the
other Conduits. If neither of the
other Conduits wishes to increase its Group
Limit, the Transferor will then have
until the originally scheduled Liquidity
Termination Date for such Group to find
another A1/P1 or better rated multi-seller
commercial paper conduit (and
liquidity providers) to accept an
assignment of the non-approving Conduit's and
Liquidity Banks' Receivable Interests and,
as applicable, Commitments. If such
replacements cannot be located within such
period, the applicable Conduit's and
its Liquidity Banks' Receivable Interests
will amortize as originally scheduled,
but the remaining Conduits' Liquidity
Banks' Liquidity Termination Dates will be
extended for another 364 days. If one or
both of the other Conduits agrees to
increase its Group's Group Limit, or if
such replacements are located, the
non-approving Conduit and its Liquidity
Banks shall assign their investments and
commitments, as of the existing Liquidity
Termination Date, to such other
Conduit(s) or replacements, as the case may
be, whereupon its assignees'
Liquidity Termination Date, as well as the
Liquidity Termination Date for all
remaining Conduits and their Liquidity
Banks, shall be extended for 364-days.
Each Co-Agent shall notify each rating
agency that is then rating its Conduit's
Commercial Paper of any increase in such
Conduit's Liquidity Banks' Commitments.
ARTICLE II.
PAYMENTS AND COLLECTIONS
Section
2.1 Payments. Notwithstanding any limitation on recourse
contained
in this Agreement, Transferor shall
immediately pay to each of the Co-Agents
when due, for the account of the relevant
Transferee or Transferees in its
Group, on a full recourse basis, all of the
following (collectively, the
"OBLIGATIONS"):
(a) such fees as set forth in the Fee Letters (which fees shall
be
sufficient
to pay all fees owing to each Conduit's Liquidity Banks),
(b) all CP Costs,
(c) all amounts payable as Yield,
(d) all amounts payable as Deemed Collections (which shall be
immediately due and payable by Transferor and applied to reduce
outstanding Aggregate Invested Amount hereunder in accordance
with
Sections
2.2 and 2.3 hereof),
(e) all amounts required pursuant to Section 2.6,
5
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(f) all amounts payable pursuant to Article X, if any,
(g) all Servicer costs and expenses, including the Servicing Fee,
in
connection
with servicing, administering and collecting the Receivables,
such
amounts to be paid to the Servicer on behalf of the
Transferees,
(h) all Broken Funding Costs (which shall be immediately due
and
payable by
Transferor upon the occurrence of any Group Reduction giving
rise
thereto), and
(i) all Default Fees (which shall be immediately due and payable
by
Transferor
upon demand).
If Transferor fails to pay any of the
Obligations when due, Transferor agrees to
pay, on demand, the Default Fee in respect
thereof until paid. Notwithstanding
the foregoing, no provision of this
Agreement or the Fee Letters shall require
the payment or permit the collection of any
amounts hereunder in excess of the
maximum permitted by applicable law.
Section
2.2 Collections and Reinvestments prior to Amortization.
(a) On each day prior to a particular Group's Amortization
Date, such
Group's Outstanding Percentage as of the end of the prior
Business
Day of (i) all Deemed Collections and (ii) all Collections
received
or deemed received pursuant to the definition of Deemed
Collections by any Transferor Party on such day (such Group's
"GROUP
COLLECTIONS") shall either be set aside and held in trust by the
Servicer
(or,
following delivery of a Collection Notice, by the
Administrative
Agent) for
the payment of any accrued and unpaid Aggregate Unpaids owing
to the
members of such Group or used to make a Reinvestment by such
Group
as
provided in this Section 2.2 (which obligation of the Servicer to
hold
in trust
shall be satisfied, prior to the applicable Settlement Date,
upon
the
marking by the Servicer on its books and records to reflect the
interest
of the applicable Group in such Collections and Deemed
Collections; PROVIDED, HOWEVER, that at all times following
delivery of a
Collection
Notice and prior to such Group's Amortization Date, the
Administrative Agent shall be entitled to withhold from
Reinvestment or
payment to
the Transferor a portion of such Group's Collections equal to
the unpaid
CP Costs, Yield and fees accrued and to accrue prior to the
next
succeeding Settlement Date (such Group's "ACCRUAL AMOUNT").
(b) If on any day prior to a particular Group's Amortization
Date,
provided that no Amortization Event exists and is continuing,
any
Group
Collections are received for the account of such Group pursuant
to
Section
2.2(a) and subject to the proviso therein, Transferor hereby
requests
-- and the Transferees in that Group hereby agree to make,
simultaneously with such receipt -- a reinvestment (each, a
"REINVESTMENT") with all or a portion of such Group Collections
such that
after
giving effect to such receipt and Reinvestment, that
6
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Group's
Group Invested Amount will equal its Group Invested Amount
immediately prior to such receipt and Reinvestment.
(c) On each Settlement Date prior to the occurrence of a
particular
Group's Amortization Date, the Servicer (or, following delivery
of a
Collection Notice, the Administrative Agent) shall remit to the
applicable
Group Account such Group's Group Collections set aside pursuant
to Section
2.2(a) during the preceding Settlement Period that have not
been subject to
a Reinvestment (including, if applicable, such Group's
Accrual
Amount) and apply such amounts (if not previously paid in
accordance
with Section 2.1) to reduce unpaid Obligations owing to the
members of
that Group. Once such Group's Obligations have been reduced to
zero, any
of its remaining Group Collections shall (i) if applicable, be
remitted
to the applicable Group Account no later than 11:00 a.m. (New
York time)
to the extent required to fund any applicable Group Reduction
on such
Settlement Date and (ii) thereafter be remitted to Transferor
on
such
Settlement Date.
Section
2.3 Collections Following Amortization.
(a) On each day on or after the occurrence of an Amortization
Event
which has not been waived but which has not
yet resulted in the occurrence of a
particular Group's Amortization Date, such
Group's Group Collections shall be
set aside in a separate segregated
Collection Account and held in trust therein
by the Servicer for the payment on the next
Settlement Date of any accrued and
unpaid Aggregate Unpaids owing to the
members of such Group as provided in
Section 2.3(b), or, in the event such
Amortization Event is waived, for
Reinvestment pursuant to Section 2.2(b) on
the effective date of such waiver. On
each day on or after the occurrence of a
particular Group's Amortization Date,
such Group's Group Collections shall be set
aside in a separate segregated
Collection Account and held in trust
therein by the Servicer for the payment on
the next Settlement Date of any accrued and
unpaid Aggregate Unpaids owing to
the members of such Group as provided in
Section 2.3(b).
(b) On each Settlement Date occurring on or after a particular
Group's Amortization Date, the Servicer
shall remit to the applicable Group
Account such Group's Group Collections and
apply such amounts in the following
order of priority:
FIRST, to payment of such Group's Outstanding Percentage as of
the
end of the
prior Business Day of all Servicer costs and expenses,
including
the Servicing Fee, in connection with servicing, administering
and
collecting the Receivables,
SECOND, to such Group's Outstanding Percentage as of the end of
the
prior
Business Day of the Administrative Agent's costs of collection
and
enforcement of this Agreement,
THIRD, ratably to the payment of all accrued and unpaid fees
under
such
Group's Fee Letter, and to all CP Costs and Yield owing to members
of
that
Group,
7
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FOURTH, ratably to reduction of the Group Invested Amount,
FIFTH, for the ratable payment of all other unpaid Obligations
(including, without limitation, any Default Fees owing to such
Group), and
SIXTH, after the Aggregate Unpaids owing to such Group have
been
reduced to
zero, to Transferor.
Section
2.4 Payment Rescission. No payment of any Aggregate Unpaids
shall
be considered paid or applied hereunder to
the extent that, at any time, all or
any portion of such payment or application
is rescinded by application of law or
judicial authority, or must otherwise be
returned or refunded for any reason.
Transferor shall remain obligated, only to
the extent it was obligated prior to
such rescission, for the amount of any
payment or application so rescinded,
returned or refunded, and shall promptly
pay to the applicable Co-Agent (for
application to the Person or Persons who
suffered such rescission, return or
refund) the full amount thereof, plus the
Default Fee from the date of any such
rescission, return or refunding.
Section
2.5 Maximum Receivable Interests. Transferor shall ensure that
the
Receivable Interests of all Transferees at
no time exceed in the aggregate 100%.
If the aggregate of the Receivable
Interests of the Transferees exceeds 100%,
Transferor shall pay to one or more of the
Co-Agents within one (1) Business Day
an aggregate amount to be applied to reduce
such Co-Agents' Group Invested
Amount (as allocated by such Co-Agent),
such that after giving effect to such
payment, the aggregate of the Receivable
Interests does not exceed 100%.
Section
2.6 Clean Up Call. In addition to Transferor's rights pursuant
to
Sections 1.1(c) and 1.3, Transferor shall
have the right (after providing
written notice to the Agents in accordance
with the Required Notice Period), on
any Settlement Date following the reduction
of the Aggregate Invested Amount to
a level that is less than 10.0% of the
highest Transfer Limit applicable at any
time under this Agreement, to reacquire
from the Transferees all, but not less
than all, of the then outstanding
Receivable Interests. The reacquisition price
in respect thereof shall be an amount equal
to the Aggregate Unpaids through the
date of such reacquisition, payable in
immediately available funds. Such
reacquisition shall be without
representation, warranty or recourse of any kind
by, on the part of, or against any
Transferee or any Agent other than a warranty
that Transferee or any Agent has not
created any Adverse Claims with respect to
the Receivable Interest.
ARTICLE III.
CONDUIT FUNDING
Section
3.1 CP Costs. Transferor shall pay CP Costs with respect to the
Invested Amount associated with each
Receivable Interest of a Conduit funded
through the issuance of Commercial Paper
for each day that any Invested Amount
in respect of such Receivable Interest is
outstanding. Each Receivable Interest
of any Conduit that is funded substantially
with Pooled Commercial Paper will
accrue CP Costs each day on a pro rata
basis, based upon the percentage share
the Invested Amount in respect of such
Receivable Interest represents in
relation to all assets held by such Conduit
and funded substantially with
related Pooled Commercial Paper
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Section
3.2 CP Costs Payments. On each Settlement Date, Transferor
shall
pay to each of the Co-Agents (for the
benefit of its Conduit) an aggregate
amount equal to all accrued and unpaid CP
Costs in respect of the Invested
Amount associated with all Receivable
Interests funded with Commercial Paper of
such Conduit for the immediately preceding
Settlement Period in accordance with
Article II.
Section
3.3 Calculation of CP Costs. Not later than the 5th Business
Day
after the end of each Accrual Period, each
Co-Agent shall calculate the
aggregate amount of CP Costs allocated to
the Invested Amount of its Conduit's
Receivable Interests for the applicable
Accrual Period and shall notify
Transferor of such aggregate amount. Such
calculation shall represent actual CP
Costs for the Accrual Period then most
recently ended in the case of Atlantic or
Liberty Street.
ARTICLE IV.
LIQUIDITY BANK FUNDING
Section
4.1 Liquidity Bank Funding. Each Receivable Interest of any
Conduit's Liquidity Banks shall accrue
Yield for each day during its Tranche
Period at either the LIBO Rate or the
Alternate Base Rate in accordance with the
terms and conditions hereof. Until
Transferor gives notice to the applicable
Co-Agent of another Discount Rate in
accordance with Section 4.4, the initial
Discount Rate for any Receivable Interest
transferred by a Conduit to its
Liquidity Banks pursuant to the terms and
conditions of its Liquidity Agreement,
or funded by the Liquidity Banks pursuant
to this Agreement, shall be the
Alternate Base Rate. If any Conduit's
Liquidity Banks acquire by assignment from
such Conduit any Receivable Interest
pursuant to the applicable Liquidity
Agreement, each Receivable Interest so
assigned shall each be deemed to have a
new Tranche Period commencing on the date
of any such assignment.
Section
4.2 Yield Payments. On the Settlement Date for each Receivable
Interest of a Conduit's Liquidity Banks,
Transferor shall pay to the applicable
Co-Agent (for the ratable benefit of the
Liquidity Banks in its Group) an
aggregate amount equal to the accrued and
unpaid Yield for the entire Tranche
Period of each such Receivable Interest in
accordance with Article II.
Section
4.3 Selection and Continuation of Tranche Periods.
(a) With consultation from (and approval by) the applicable
Co-Agent, Transferor shall from time to
time request Tranche Periods for the
Receivable Interests of the Liquidity Banks
in such Co-Agent's Group, PROVIDED
that if at any time such Liquidity Banks
shall have a Receivable Interest
outstanding, Transferor shall always
request Tranche Periods such that at least
one Tranche Period shall end on the date
specified in clause (a) of the
definition of Settlement Date.
(b) Transferor or the applicable Co-Agent, upon notice to and
consent by the other received at least
three (3) Business Days prior to the end
of a Tranche Period (the "TERMINATING
TRANCHE") for any Receivable Interest,
may, effective on the last day of the
Terminating Tranche: (i) divide any such
Receivable Interest into multiple
Receivable Interests,
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(ii) combine any such Receivable Interest
with one or more other Receivable
Interests that have a Terminating Tranche
ending on the same day as such
Terminating Tranche or (iii) combine any
such Receivable Interest with a new
Receivable Interest to be acquired by such
Co-Agent's Group on the day such
Terminating Tranche ends, PROVIDED that in
no event may a Receivable Interest of
a Conduit be combined with a Receivable
Interest of its Liquidity Banks.
Section
4.4 Liquidity Bank Discount Rates. Transferor may select the
LIBO
Rate or the Alternate Base Rate for each
Receivable Interest of any Conduit's
Liquidity Banks. Transferor shall by 12:00
p.m. (New York time): (i) at least
three (3) Business Days prior to the
expiration of any Terminating Tranche with
respect to which the LIBO Rate is being
requested as a new Discount Rate and
(ii) at least one (1) Business Day prior to
the expiration of any Terminating
Tranche with respect to which the Alternate
Base Rate is being requested as a
new Discount Rate, give the applicable
Co-Agent irrevocable notice of the new
Discount Rate and Tranche Period for the
Receivable Interest associated with
such Terminating Tranche. Until Transferor
gives notice to the applicable
Co-Agent of another Discount Rate, the
initial Discount Rate for any Receivable
Interest transferred to the Liquidity Banks
in its Group pursuant to the terms
and conditions of the applicable Liquidity
Agreement shall be the Alternate Base
Rate.
Section
4.5 Suspension of the LIBO Rate
(a) If any Liquidity Bank notifies the applicable Co-Agent that
it
has determined that funding its Ratable
Share of the Receivable Interests of the
Liquidity Banks in its Group at a LIBO Rate
would violate any applicable law,
rule, regulation, or directive of any
governmental or regulatory authority, due
to a Regulatory Change, or that (i)
deposits of a type and maturity appropriate
to match fund its Receivable Interests at
such LIBO Rate are not available or
(ii) such LIBO Rate does not accurately
reflect the cost of acquiring or
maintaining a Receivable Interest at such
LIBO Rate, then such Co-Agent shall
suspend the availability of such LIBO Rate
for its Group and require Transferor
to select the Alternate Base Rate for any
Receivable Interest of its Group
funded by its Liquidity Banks.
(b) If less than all of the Liquidity Banks in a Group give a
notice
to their applicable Co-Agent pursuant to
Section 4.5(a), each Liquidity Bank
which gave such a notice shall be obliged,
at the request of Transferor, the
applicable Conduit or the applicable
Co-Agent, to assign all of its rights and
obligations hereunder to (i) another
Liquidity Bank or (ii) another funding
entity nominated by Transferor or such
Co-Agent that is acceptable to the
applicable Conduit and willing to
participate in this Agreement through the
Liquidity Termination Date in the place of
such notifying Liquidity Bank;
PROVIDED that (A) the notifying Liquidity
Bank receives payment in full,
pursuant to an Assignment Agreement, of an
amount equal to such notifying
Liquidity Bank's Ratable Share of the
Invested Amount owing to all of the
Liquidity Banks in its Group and all
accrued but unpaid fees and other costs and
expenses payable in respect of its Ratable
Share of the Receivable Interests of
such Liquidity Banks, and (B) the
replacement Liquidity Bank otherwise satisfies
the requirements of Section 12.1(b).
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section
5.1 Representations and Warranties of the Transferor Parties.
Each
Transferor Party hereby represents and
warrants to the Agents and the
Transferees, as to itself, as of the date
hereof and as of the date of each
Incremental Transfer and the date of each
Reinvestment that:
(a) Existence and Power. Such Transferor Party is duly
organized,
validly existing and in good standing under
the laws of its state of
organization. Except for Transferor, which
has taken, on the date hereof, all
necessary steps to be qualified in New
Hampshire, such Transferor Party is duly
qualified to do business and is in good
standing as a foreign corporation or
limited liability company, as the case may
be, and has and holds all corporate
power and all governmental licenses,
authorizations, consents and approvals
required to carry on its business in each
jurisdiction in which its business is
conducted except where the failure to so
qualify or so hold would not reasonably
be expected to have a Material Adverse
Effect on such Transferor Party or the
Receivables.
(b) Power and Authority; Due Authorization, Execution and
Delivery.
The execution and delivery by such
Transferor Party of this Agreement and each
other Transaction Document to which it is a
party, and the performance of its
obligations hereunder and thereunder and,
in the case of Transferor,
Transferor's use of the proceeds of
transfers made hereunder, are within its
corporate powers and authority and have
been duly authorized by all necessary
corporate action on its part. This
Agreement and each other Transaction Document
to which such Transferor Party is a party
has been duly executed and delivered
by such Transferor Party.
(c) No Conflict. The execution and delivery by such Transferor
Party
of this Agreement and each other
Transaction Document to which it is a party,
and the performance of its obligations
hereunder and thereunder do not
contravene or violate (i) its certificate
or articles of incorporation or
by-laws, (ii) any law, rule or regulation
applicable to it, (iii) any
restrictions under any agreement, contract
or instrument to which it is a party
or by which it or any of its property is
bound, or (iv) any order, writ,
judgment, award, injunction or decree
binding on or affecting it or its property
except, in any case described in the
foregoing clauses (ii), (iii) and (iv),
where such contravention or violation would
not reasonably be expected to have a
Material Adverse Effect, and do not result
in the creation or imposition of any
Adverse Claim on assets of such Transferor
Party or its Subsidiaries (except as
created under the Transaction Documents);
and no transaction contemplated hereby
requires compliance with any bulk sales act
or similar law.
(d) Governmental Authorization. Other than the filing of the
financing statements required hereunder, no
authorization or approval or other
action by, and no notice to or filing with,
any governmental authority or
regulatory body is required for the due
execution and delivery by such
Transferor Party of this Agreement and each
other Transaction Document to which
it is a party and the performance of its
obligations hereunder and thereunder.
(e) Actions, Suits. There are no actions, suits or proceedings
pending, or to the best of such Transferor
Party's knowledge, threatened,
against or affecting such Transferor
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Party, or any of its properties, in or
before any court, arbitrator or other
body, that would reasonably be expected to
have a Material Adverse Effect on
such Transferor Party or the Receivables.
Such Transferor Party is not in
default with respect to any order of any
court, arbitrator or governmental body
if such default would result in a Material
Adverse Effect.
(f) Binding Effect. This Agreement and each other Transaction
Document to which such Transferor Party is
a party constitute the legal, valid
and binding obligations of such Transferor
Party enforceable against such
Transferor Party in accordance with their
respective terms, except as such
enforcement may be limited by applicable
bankruptcy, insolvency, reorganization
or other similar laws relating to or
limiting creditors' rights generally and by
general principles of equity (regardless of
whether enforcement is sought in a
proceeding in equity or at law).
(g) Accuracy of Information. All information heretofore furnished
by
such Transferor Party or any of its
Affiliates to any of the Agents or the
Transferees for purposes of or in
connection with this Agreement, any of the
other Transaction Documents or any
transaction contemplated hereby or thereby
is, and all such information hereafter
furnished by such Transferor Party or any
of its Affiliates to any of the Agents or
the Transferees will be, true and
accurate in every material respect on the
date such information is stated or
certified (or, if such information
specifies another date, such other date) and
does not and will not contain any material
misstatement of fact or omit to state
a material fact or any fact necessary to
make the statements contained therein
not misleading; PROVIDED, HOWEVER, with
respect to projected financial
information and forward looking statements
that involve factors such as general
economic and business conditions; industry
trends; overseas expansion; the loss
of major customers and suppliers; the
timing of orders received from customers;
cost and availability of energy and raw
materials; changes in business strategy
or development plans; availability and
quality of management; and availability,
terms and deployment of capital, if any,
such Transferor Party represents only
that such information was prepared in good
faith based on assumptions believed
to be reasonable at the time.
(h) Use of Proceeds. No use of the proceeds of any transfer
hereunder will violate the Securities Act
of 1933, as amended, or the
regulations issued pursuant thereto, or the
Securities Exchange Act of 1934, as
amended, or the regulations issued pursuant
thereto, or Regulation T, U or X
promulgated by the Board of Governors of
the Federal Reserve System.
(i) Good Title. Except with respect to the Purchased Receivables
(as
defined in the recitals of the Receivables
Purchase Agreement) and associated
Related Security on each of which all
Adverse Claims will be extinguished
concurrently with the initial transfer
under the Receivables Purchase Agreement,
Transferor shall be the legal and
beneficial owner of the Receivables and
Related Security with respect thereto, free
and clear of any Adverse Claim,
except as created by the Transaction
Documents. There have been duly filed or
delivered for filing all financing
statements or other similar instruments or
documents necessary under the UCC (or any
comparable law) of all appropriate
jurisdictions to perfect Transferor's
ownership interest in each Receivable, the
Collections and the Related Security.
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<PAGE>
(j) Perfection. This Agreement, together with the filing of the
financing statements contemplated hereby,
is effective to, and shall, upon each
transfer hereunder, transfer to the
Administrative Agent for the benefit of the
relevant Transferee or Transferees (and the
Administrative Agent for the benefit
of such Transferee or Transferees shall
acquire from Transferor) a valid and
perfected first priority undivided
percentage ownership or security interest in
each Receivable existing or hereafter
arising and in the Related Security and
Collections with respect thereto, free and
clear of any Adverse Claim, except as
created or permitted by the Transactions
Documents. There have been duly filed
or delivered for filing all financing
statements or other similar instruments or
documents necessary under the UCC (or any
comparable law) of all appropriate
jurisdictions to perfect the Administrative
Agent's (on behalf of the
Transferees) ownership or security interest
in the Receivables, the Related
Security and the Collections.
(k) Places of Business and Locations of Records. Transferor's
state
of organization and chief executive office
and the offices where it or the
Servicer keeps all of the Records are
located at the address(es) listed on
Exhibit III or such other locations of
which the Agents have been notified in
accordance with Section 7.2(a) in
jurisdictions where all action required by
Section 13.4(a) has been taken and
completed. Transferor's Federal Employer
Identification Number and Organizational
Identification Number (if any) are
correctly set forth on Exhibit III.
(l) Collections. The conditions and requirements set forth in
Section 7.1(j) and Section 8.2 have at all
times been satisfied and duly
performed. The names and addresses of all
Collection Banks, together with the
account numbers of the Collection Accounts
of Transferor at each Collection Bank
and the post office box number of each
Lock-Box, are listed on Exhibit IV (as
updated from time to time). Transferor has
not granted any Person, other than
the Administrative Agent as contemplated by
this Agreement, dominion and control
of any Lock-Box or Collection Account, or
the right to take dominion and control
of any such Lock-Box or Collection Account
at a future time or upon the
occurrence of a future event.
(m) Material Adverse Effect. Except as otherwise disclosed in
any
public filing or otherwise disclosed to the
Agents, in each case prior to the
date hereof, each Transferor Party
represents and warrants that since September
30, 2002, no event has occurred that
constitutes a Material Adverse Effect.
(n) Names. In the past five (5) years, Transferor has not used
any
corporate names, trade names or assumed
names other than the name in which it
has executed this Agreement.
(o) Ownership of Transferor. Parent owns, directly or
indirectly,
100% of the issued and outstanding Equity
Interests of Transferor. Such capital
stock is validly issued, fully paid and
nonassessable, and there are no options,
warrants or other rights to acquire
securities of Transferor.
(p) Not a Holding Company or an Investment Company. Such
Transferor
Party is not a "holding company" or a
"subsidiary holding company" of a "holding
company" within the
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meaning of the Public Utility Holding
Company Act of 1935, as amended, or any
successor statute. Such Transferor Party is
not an "investment company" within
the meaning of the Investment Company Act
of 1940, as amended, or any successor
statute.
(q) Compliance with Law. Such Transferor Party has complied in
all
respects with all applicable laws, rules,
regulations, orders, writs, judgments,
injunctions, decrees or awards to which it
may be subject, except where the
failure to so comply would not reasonably
be expected to have a Material Adverse
Effect. Each Receivable, together with the
Contract related thereto, does not
contravene any laws, rules or regulations
applicable thereto (including, without
limitation, laws, rules and regulations
relating to truth in lending, fair
credit billing, fair credit reporting,
equal credit opportunity, fair debt
collection practices and privacy), and no
part of such Contract is in violation
of any such law, rule or regulation, except
where such contravention or
violation would not reasonably be expected
to have a Material Adverse Effect.
(r) Compliance with Credit and Collection Policy. Such
Transferor
Party has complied in all material respects
with the Credit and Collection
Policy with regard to each Receivable and
the related Contract, and has not made
any material change to such Credit and
Collection Policy, except such material
change as to which the Agents have been
notified in accordance with Section
7.1(a)(vii).
(s) Payments to Applicable Originator. With respect to each
Receivable transferred to Transferor under
the Receivables Purchase Agreement,
Transferor has given reasonably equivalent
value to the applicable Originator in
consideration therefor and such transfer
was not made for or on account of an
antecedent debt. No transfer by any
Originator of any Receivable under the
Receivables Purchase Agreement is or may be
voidable under any section of the
Bankruptcy Reform Act of 1978 (11 U.S.C.
Sections 101 et seq.), as amended.
(t) Enforceability of Contracts. Each Contract with respect to
each
Receivable is effective to create, and has
created, a legal, valid and binding
obligation of the related Obligor to pay
the Outstanding Balance of the
Receivable created thereunder and any
accrued interest thereon, enforceable
against the Obligor in accordance with its
terms except as such enforcement may
be limited by applicable bankruptcy,
insolvency, reorganization or other similar
laws relating to or limiting creditors'
rights generally and by general
principles of equity (regardless of whether
enforcement is sought in a
proceeding in equity or at law).
(u) Eligible Receivables. Each Receivable included in the Net
Pool
Balance as an Eligible Receivable on a
Settlement Report Date was an Eligible
Receivable on such date.
(v) Net Pool Balance. (i) On the date of each Incremental
Transfer
or Reinvestment hereunder, immediately
after giving effect thereto, the Net Pool
Balance as of the last day covered by the
most recent Settlement Report or
Interim Settlement Report is at least equal
to the sum of (A) the Aggregate
Invested Amount (as of the date of such
transfer), plus (B) the Required
Reserves as of the last day covered by the
most recent Settlement Report or
Interim Settlement Report, and (ii)
immediately after giving effect to each
Reinvestment hereunder, since the last day
covered by the most recent Settlement
Report or Interim Settlement Report,
nothing has come to either Transferor
Party's attention to lead it to believe
that it would reasonably be
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expected that the Net Pool Balance does not
equal or exceed the sum of (A) the
Aggregate Invested Amount as of such date,
plus (B) the Required Reserves as of
the last day covered by the most recent
Settlement Report or Interim Settlement
Report.
(w) Accounting. Such Transferor Party will not, and will not
permit
any controlled Affiliate to, financially
account (whether in financial
statements or otherwise) for the
transactions contemplated by the Receivables
Purchase Agreement in any manner other than
the sale or other outright
conveyance or in any other respect account
for or treat the transactions
contemplated by the Receivables Purchase
Agreement in any manner other than as a
sale except to the extent that such
transactions are not recognized on account
of consolidated financial reporting in
accordance with generally accepted
accounting principles.
ARTICLE VI.
CONDITIONS OF PURCHASES
Section
6.1 Conditions Precedent to Effectiveness of this Agreement.
This
Agreement shall become effective on the
Restatement Date upon (a) receipt by the
Administrative Agent of the documents
listed on Schedule B, and (b) receipt by
each of the Agents of all fees and expenses
required to be paid on or before the
Restatement Date pursuant to the terms of
the Existing Agreement, this Agreement
and the applicable Fee Letter(s).
Section
6.2 Conditions Precedent to All Transfers and Reinvestments.
Each
Incremental Transfer of a Receivable
Interest and each Reinvestment shall be
subject to the further conditions precedent
that (a) in the case of each such
Incremental Transfer or Reinvestment: (i)
the Servicer shall have delivered to
the Co-Agents on or prior to the date of
such transfer, in form and substance
reasonably satisfactory to each of the
Co-Agents, all Settlement Reports or
Interim Settlement Reports as and when due
under Section 8.5 and (ii) in the
event that Transferor is requesting an
Incremental Transfer in excess of the
amount that would be allowed by the most
recently delivered Settlement Report or
Interim Settlement Report, as applicable,
the Servicer shall have delivered to
the Co-Agents at least three (3) days prior
to such Incremental Transfer an
Interim Settlement Report showing a
sufficient Net Pool Balance to support the
requested Incremental Transfer; (b) the
Amortization Date for the Group for
which such Incremental Transfer has been
effected shall not have occurred; (c)
the Agents shall have received such other
approvals, opinions or documents as
any of them may reasonably request and (d)
on the date of each such Incremental
Transfer or Reinvestment and after giving
effect thereto, the following
statements shall be true (and acceptance of
the proceeds of such Incremental
Transfer or Reinvestment shall be deemed a
representation and warranty by
Transferor that such statements are then
true):
(i) the representations and warranties set forth in Section
5.1 are true and correct in all material
respects on and as of the date of such
Incremental Transfer or Reinvestment as
though made on and as of such date;
(ii) no event has occurred and is continuing, or would result
from such Incremental Transfer or
Reinvestment, that will constitute an
Amortization Event, and no event
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has occurred and is continuing, or would
result from such Incremental Transfer
or Reinvestment, that would constitute a
Potential Amortization Event; and
(iii) the Aggregate Invested Amount does not exceed the
Transfer Limit.
It is expressly understood that each
Reinvestment shall, unless otherwise
directed by any Agent or Transferee, occur
automatically on each day that the
Servicer shall receive any Collections
without the requirement that any further
action be taken on the part of any Person
and notwithstanding the failure of
Transferor to satisfy any of the foregoing
conditions precedent in respect of
such Reinvestment. The failure of
Transferor to satisfy any of the foregoing
conditions precedent in respect of any
Reinvestment shall give rise to a right
of each Co-Agent, which right may be
exercised at any time on demand of such
Co-Agent, to rescind the related transfer
and direct Transferor to pay to the
Co-Agents for the benefit of the
Transferees in their respective Group's their
respective Percentages of the Collections
prior to the Amortization Date that
shall have been applied to the affected
Reinvestment.
ARTICLE VII.
COVENANTS
Section
7.1 Affirmative Covenants of the Transferor Parties. From and
after the Closing Date until the date on
which the Aggregate Unpaids have been
paid in full and this Agreement terminates
in accordance with its terms, each
Transferor Party hereby covenants, as to
itself, as set forth below:
(a) Financial Reporting. Such Transferor Party will maintain,
for
itself and each of its Subsidiaries, a
system of accounting established and
administered in accordance with GAAP, and
furnish or cause to be furnished to
the Agents:
(i) Annual Reporting. Within the earlier of (A) 100 days after
the close of each fiscal year of the Parent
or (B) one Business Day following
the filing of such annual financial
statements with the Securities and Exchange
Commission, a consolidated balance sheet of
the Parent and its Subsidiaries as
at the end of such fiscal year, together
with related consolidated statements of
income and retained earnings and of cash
flows for such fiscal year, setting
forth in comparative form consolidated
figures for the preceding fiscal year,
all in reasonable detail and certified by
independent certified public
accountants of recognized national standing
and whose opinion shall be to the
effect that such consolidated financial
statements have been prepared in
accordance with GAAP applied on a
consistent basis (except for changes with
which such accountants concur), TOGETHER
WITH an unaudited annual balance sheet
and income statement for the
Transferor.
(ii) Quarterly Reporting. Within the earlier of (A) 50 days
after the close of each fiscal quarter of
the Parent or (B) one Business Day
following the filing of such quarterly
financial statements with the Securities
and Exchange Commission, a consolidated
balance sheet of the Parent and its
Subsidiaries as at the end of such fiscal
quarter, together with related
consolidated statements of income and
retained earnings and of cash flows for
such fiscal quarter and for the elapsed
portion of the fiscal year ended with
the last day of such fiscal
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quarter, setting forth in comparative form
consolidated figures for the
corresponding period of the preceding
fiscal year (except the consolidated
balance sheets shall be compared to the
prior year end), and all in reasonable
form and detail acceptable to the Agents,
TOGETHER WITH an unaudited balance
sheet and income statement for the
Transferor for the calendar year to date.
(iii) Compliance Certificate. Together with the financial
statements required hereunder, a compliance
certificate in substantially the
form of Exhibit V signed by such Transferor
Party's Authorized Officer and dated
the date of such annual financial statement
or such quarterly financial
statement, as the case may be.
(iv) Other Information. Promptly upon the furnishing thereof,
copies of any filings and registrations
with, and reports to, the Securities and
Exchange Commission by the Parent or any of
its Subsidiaries and copies of all
financial statements, proxy statements,
notices and reports as the Parent or any
of its Subsidiaries shall send generally to
analysts, the holders of their
capital stock or of senior indebtedness (in
each case to the extent not
theretofore delivered to the Agents
pursuant to this Agreement) and, with
reasonable promptness, such other
information and documents (financial or
otherwise) as the Agents may reasonably
request from time to time; PROVIDED,
HOWEVER, that in no event will Parent or
any of its Subsidiaries be required to
disclose any information pursuant to this
clause (iv) other than "material
nonpublic information" required to be
publicly disclosed pursuant to Regulation
FD of the Securities and Exchange
Commission.
(v) Copies of Notices. Promptly upon its receipt of any
notice, request for consent, financial
statements, certification, report or
other communication under or in connection
with any Transaction Document from
any Person other than the Agents or
Conduits, copies of the same.
(vi) Change in Credit and Collection Policy. At least ten (10)
Business Days prior to the effectiveness of
any material change in or material
amendment to the Credit and Collection
Policy, a copy of the Credit and
Collection Policy then in effect and a
notice (A) indicating such change or
amendment, and (B) if such proposed change
or amendment would reasonably be
expected to materially and adversely affect
the collectibility of the
Receivables or materially decrease the
credit quality of any newly created
Receivables, requesting the Agents' consent
thereto.
(vii) Other Information. Promptly, from time to time, such
other information, documents, records or
reports relating to the Receivables or
the condition or operations, financial or
otherwise, of such Transferor Party as
any of the Agents may from time to time
reasonably request in order to protect
the interests of the Agents and the
Transferees under or as contemplated by this
Agreement.
(b) Notices. Servicer will notify the Agents in writing of any
of
the following promptly (but in any event
within four (4) Business Days) upon
learning of the occurrence thereof,
describing the same and, if applicable, the
steps being taken with respect thereto:
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(i) Amortization Events or Potential Amortization Events. The
occurrence of each Amortization Event and
each Potential Amortization Event, by
a statement of an Authorized Officer of
such Transferor Party.
(ii) Judgment and Proceedings. (A) The institution of any
litigation, arbitration proceeding or
governmental proceeding against Servicer,
which would reasonably be expected to have
a Material Adverse Effect on Servicer
or the Receivables serviced by it, or which
seeks to enjoin performance of or
otherwise relates to the Transaction
Documents, and (B) the entry of any
judgment or decree or the institution of
any litigation, arbitration proceeding
or governmental proceeding against
Transferor.
(iii) Material Adverse Effect. The occurrence of any event or
condition that has had, or would reasonably
be expected to have, a Material
Adverse Effect.
(iv) Termination Date. The occurrence of the "TERMINATION
DATE" under and as defined in the
Receivables Purchase Agreement with respect to
any Originator unless the Agents have
consented thereto.
(v) Downgrade of Performance Guarantor. Any downgrade in the
rating of any Indebtedness of Performance
Guarantor by S&P or by Moody's,
setting forth the Indebtedness affected and
the nature of such change.
(c) Compliance with Laws and Preservation of Corporate
Existence.
Such Transferor Party will comply in all
material respects with all applicable
laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or
awards to which it may be subject, except
where the failure to so comply would
not reasonably be expected to have a
Material Adverse Effect. Such Transferor
Party will preserve and maintain its
corporate existence, rights, franchises and
privileges in the jurisdiction of its
incorporation, and qualify and remain
qualified in good standing as a foreign
corporation in each jurisdiction where
such qualification is required, except
where the failure to so preserve and
maintain or qualify would not have a
Material Adverse Effect.
(d) Audits. Such Transferor Party will provide access to the
Agents
from time to time to such information with
respect to it and the Receivables as
any of the Agents may reasonably request
upon reasonable notice at the
Servicer's place of business during normal
business hours. Such Transferor Party
will, from time to time during regular
business hours as requested by any of the
Agents upon reasonable notice (unless an
Amortization Event has occurred and is
continuing in which case no notice shall be
required) and at the sole cost of
such Transferor Party, permit each of the
Agents, or its agents or
representatives (and shall cause each
Originator to permit each of the Agents or
its agents or representatives): (i) to
examine and make abstracts from all
Records in the possession or under the
control of such Person relating to the
Receivables and the Related Security,
including, without limitation, the related
Contracts; PROVIDED, HOWEVER, that the
Agents may not make and retain copies of
any Contract, and (ii) to visit the offices
and properties of such Person for
the purpose of examining such materials
described in clause (i) above, and to
discuss matters relating to such Person's
financial condition or the origination
and servicing of the Receivables and the
Related Security or any Person's
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performance under any of the Transaction
Documents or any Person's performance
under the Contracts (subject to
confidentiality restrictions in the relevant
Contracts) and, in each case, with any of
the officers or employees of
Transferor or the Servicer having knowledge
of such matters (each of the
foregoing examinations and visits, a
"REVIEW"); PROVIDED, HOWEVER, that, so long
as no Amortization Event has occurred and
is continuing and Parent maintains its
current unsecured debt rating of "BB-" from
S&P and its current bank debt rating
of "Ba3" from Moody's, (A) the Transferor
Parties shall only be responsible for
the costs and expenses of two (2) Reviews
in any one calendar year, and (B) the
Agents will not request more than four (4)
Reviews in any one calendar year.
(e) Keeping and Marking of Records and Books.
(i) The Servicer will (and will cause each Originator to)
maintain and implement administrative and
operating procedures (including,
without limitation, an ability to recreate
records evidencing Receivables in the
event of the destruction of the originals
thereof), and keep and maintain all
documents, books, records and other
information reasonably necessary or
advisable for the collection of all
Receivables (including, without limitation,
records adequate to permit the prompt
identification of each new Receivable and
all Collections of and adjustments to each
existing Receivable); PROVIDED,
HOWEVER, that nothing in this sentence
shall require any Transferor Party to
retain records for a period longer than
three (3) years after creation. The
Servicer will (and will cause each
Originator to) give the Agents notice of any
material change in the administrative and
operating procedures referred to in
the previous sentence to the extent that
such change would reasonably be
expected to result in a Material Adverse
Effect.
(ii) Such Transferor Party will (and will cause each
Originator to) (A) on or prior to the date
hereof, mark its master data
processing records and other books and
records relating to the Receivable
Interests with a legend, acceptable to the
Agents, describing the Receivable
Interests and (B) upon the request of any
of the Agents following the occurrence
and during the continuation of an
Amortization Event which is not waived in
writing by the Agents: (x) mark each
Contract, if any, constituting an
instrument, promissory note, chattel paper,
document or certificated security
(each, as defined in the UCC) with a legend
describing the Receivable Interests
and (y) deliver to the Administrative Agent
all Contracts that constitute
Chattel Paper or Instruments relating to
the Receivables.
(f) Compliance with Contracts and Credit and Collection Policy.
Such
Transferor Party will (and the Parent will
require each Originator to) timely
and fully (i) perform and comply in all
material respects with all provisions,
covenants and other promises required to be
observed by it under the Contracts
related to the Receivables, and (ii) comply
in all material respects with the
Credit and Collection Policy in regard to
each Receivable and the related
Contract.
(g) Performance and Enforcement of Receivables Purchase
Agreement.
Transferor will, and will require each
Originator to, perform each of their
respective obligations and undertakings
under and pursuant to the Receivables
Purchase Agreement, will transfer
Receivables thereunder in strict compliance
with the terms thereof and shall take all
action
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necessary or reasonably appropriate to
enforce the rights and remedies accorded
to Transferor under the Receivables
Purchase Agreement. Transferor will take all
actions reasonably necessary to perfect and
enforce its rights and interests
(and the rights and interests of the Agents
and the Transferees as assignees of
Transferor) under the Receivables Purchase
Agreement as any Agent may from time
to time reasonably request, including,
without limitation, making claims to
which it may be entitled under any
indemnity, reimbursement or similar provision
contained in the Receivables Purchase
Agreement.
(h) Ownership. Transferor will (or the Servicer will cause each
Originator to) take all necessary action to
(i) vest legal and equitable title
to the Receivables, the Related Security
and the Collections acquired under the
Receivables Purchase Agreement irrevocably
in Transferor, free and clear of any
Adverse Claims other than Adverse Claims in
favor of the Administrative Agent
and the Transferees (including, without
limitation, the filing of all financing
statements or other similar instruments or
documents necessary under the UCC (or
any comparable law) of all appropriate
jurisdictions to perfect Transferor's
interest in such Receivables, Related
Security and Collections and such other
action to perfect, protect or more fully
evidence the interest of Transferor
therein as any Agent may reasonably
request), and (ii) establish and maintain,
in favor of the Administrative Agent, for
the benefit of the Transferees, a
valid and perfected first priority
undivided percentage ownership interest
(and/or a valid and perfected first
priority security interest) in all
Receivables, Related Security and
Collections to the full extent contemplated
herein, free and clear of any Adverse
Claims other than Adverse Claims in favor
of the Administrative Agent for the benefit
of the Transferees (including,
without limitation, the filing of all
financing statements or other similar
instruments or documents necessary under
the UCC (or any comparable law) of all
appropriate jurisdictions to perfect the
Administrative Agent's (for the benefit
of the Transferees) interest in such
Receivables, Related Security and
Collections and such other action to
perfect, protect or more fully evidence the
interest of the Administrative Agent for
the benefit of the Transferees as any
Agent may reasonably request).
(i) Transferees' Reliance. Transferor acknowledges that the
Agents
and the Transferees are entering into the
transactions contemplated by this
Agreement in reliance upon Transferor's
identity as a legal entity that is
separate (other than for certain tax
purposes) from each of the Originators, the
Performance Guarantor and their respective
Affiliates other than Transferor
(collectively, the "FISHER GROUP").
Therefore, from and after the date of
execution and delivery of this Agreement,
Transferor shall take all reasonable
steps, including, without limitation, all
steps that any Agent may from time to
time reasonably request, to maintain
Transferor's identity as a separate legal
entity and to make it manifest to third
parties that Transferor is an entity
with assets and liabilities distinct from
those of the members of the Fisher
Group thereof and not merely a division
thereof (other than for certain tax
purposes). Without limiting the generality
of the foregoing and in addition to
the other covenants set forth herein,
Transferor will:
(A) conduct its own business in its own name and require
that all full-time employees of Transferor,
if any, identify themselves as such
and not as employees of any member of the
Fisher Group (including, without
limitation, by means of providing
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appropriate employees with business or
identification cards identifying such
employees as Transferor's employees);
(B) compensate all employees, consultants and agents
directly, from Transferor's own funds, for
services provided to Transferor by
such employees, consultants and agents and,
to the extent any employee,
consultant or agent of Transferor is also
an employee, consultant or agent of a
member of the Fisher Group, allocate the
compensation of such employee,
consultant or agent between Transferor and
the members of the Fisher Group on a
basis that reflects the services rendered
to Transferor and the Fisher Group;
(C) clearly identify its offices (by signage or
otherwise) as its offices and, if such
office is located in the offices of a
member of the Fisher Group, Transferor
shall lease such office at a fair market
rent;
(D) have a separate telephone number, which will be
answered only in its name and separate
stationery, invoices and checks in its
own name;
(E) conduct all transactions with the members of the
Fisher Group strictly on an arm's-length
basis, allocate all overhead expenses
(including, without limitation, telephone
and other utility charges) for items
shared between Transferor and the Fisher
Group on the basis of actual use to the
extent practicable and, to the extent such
allocation is not practicable, on a
basis reasonably related to actual use;
(F) at all times have a Board of Directors consisting of
not less than three members, at least one
member of which is an Independent
Director;
(G) observe all corporate formalities as a distinct
entity, and ensure that all corporate
actions relating to (A) the selection,
maintenance or replacement of the
Independent Director, (B) the dissolution or
liquidation of Transferor or (C) the
initiation of, participation in,
acquiescence in or consent to any
bankruptcy, insolvency, reorganization or
similar proceeding involving Transferor,
are duly authorized by unanimous vote
of its Board of Directors (including the
Independent Director);
(H) maintain Transferor's books and records separate
from those of the members of the Fisher
Group and otherwise identify such books
and records as its own assets rather than
assets of a member of the Fisher Group
(other than for certain tax purposes);
(I) prepare its financial statements separately from
those of the Fisher Group and insure that
any consolidated financial statements
of the Fisher Group (or any member thereof)
that include Transferor and that are
filed with the Securities and Exchange
Commission or any other governmental
agency have notes clearly stating that
Transferor is a separate legal entity and
that its assets will be available first and
foremost to satisfy the claims of
the creditors of Transferor;
(J) except as herein specifically otherwise provided,
maintain the funds or other assets of
Transferor separate from, and not
commingled with, those of the
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members of the Fisher Group and only
maintain bank accounts or other depository
accounts to which Transferor alone is the
account party, into which Transferor
alone makes deposits and from which
Transferor alone (and/or the Administrative
Agent hereunder) has the power to make
withdrawals;
(K) pay all of Transferor's operating expenses, if any,
from Transferor's own assets (except for
certain payments by a member of the
Fisher Group or other Persons pursuant to
allocation arrangements that comply
with the requirements of this Section
7.1(i));
(L) operate its business and activities such that: it
does not engage in any business or activity
of any kind, or enter into any
transaction or indenture, mortgage,
instrument, agreement, contract, lease or
other undertaking, other than the
transactions contemplated and authorized by
this Agreement and the Receivables Purchase
Agreement; and does not create,
incur, guarantee, assume or suffer to exist
any indebtedness or other
liabilities, whether direct or contingent,
other than (1) as a result of the
endorsement of negotiable instruments for
deposit or collection or similar
transactions in the ordinary course of
business, (2) the incurrence of
obligations under this Agreement or the
other Transaction Documents, (3) the
incurrence of obligations, as expressly
contemplated in the Receivables Purchase
Agreement, to make payment to Originators
thereunder for the transfer of
Receivables from Originators under the
Receivables Purchase Agreement, and (4)
the incurrence of operating expenses in the
ordinary course of business of the
type otherwise contemplated by this
Agreement;
(M) maintain its Organic Documents in conformity with
this Agreement, such that it does not
amend, restate, supplement or otherwise
modify its Organic Documents in any respect
that would reasonably be expected to
impair its ability to comply with the terms
or provisions of any of the
Transaction Documents, including, without
limitation, this Section 7.1(i);
(N) maintain the effectiveness of, and continue to
perform under the Receivables Purchase
Agreement and the Performance
Undertaking, such that it does not amend,
restate, supplement, cancel, terminate
or otherwise modify the Receivables
Purchase Agreement or the Performance
Undertaking, or give any consent, waiver,
directive or approval thereunder or
waive any default, action, omission or
breach under the Receivables Purchase
Agreement or the Performance Undertaking or
otherwise grant any indulgence
thereunder, without (in each case) the
prior written consent of each of the
Agents;
(O) maintain its legal separate existence such that it
does not merge or consolidate with or into,
or convey, transfer, lease or
otherwise dispose of (whether in one
transaction or in a series of transactions,
and except as otherwise contemplated
herein) all or substantially all of its
assets (whether now owned or hereafter
acquired) to, or acquire all or
substantially all of the assets of, any
Person, nor at any time create, have,
acquire, maintain or hold any interest in
any Subsidiary;
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(P) maintain at all times a Net Worth of at least
$50,000,000 and refrain from making any
dividend, distribution, redemption of
capital stock or payment of any
subordinated indebtedness which would cause such
Net Worth to cease to be so maintained;
and
(Q) take such other actions as are necessary on its part
to ensure that the facts and assumptions
set forth in the opinion issued by
Debevoise & Plimpton, as counsel for
Transferor, in connection with the closing
or initial Incremental Transfer under this
Agreement and relating to substantive
consolidation and true sale issues, and in
the certificates accompanying such
opinion, remain true and correct in all
material respects at all times.
(j) Collections. Such Transferor Party will cause (1) all
proceeds
from all Lock-Boxes to be directly
deposited by a Collection Bank into a
Collection Account and (2) each Lock-Box
and Collection Account to be subject at
all times to a Collection Account Agreement
that is in full force and effect. In
the event any payments relating to
Receivables are remitted directly to
Transferor or any Affiliate of Transferor,
Transferor will remit (or will cause
all such payments to be remitted) directly
to a Collection Bank and deposited
into a Collection Account within two (2)
Business Days following receipt
thereof, and, at all times prior to such
remittance, Transferor will itself hold
or, if applicable, will cause such payments
to be held in trust for the benefit
of the Agents and the Transferees to the
extent of the Receivable Interests or
the Administrative Agent's security
interest, as the case may be. Transferor
will maintain exclusive ownership, dominion
and control (subject to the terms of
this Agreement) of each Lock-Box and
Collection Account and shall not grant the
right to take dominion and control of any
Lock-Box or Collection Account at a
future time or upon the occurrence of a
future event to any Person, except to
the Administrative Agent as contemplated by
this Agreement.
(k) Taxes. Such Transferor Party will file all material tax
returns
and reports required by law to be filed by
it and will timely pay all material
taxes and governmental charges at any time
owing; PROVIDED, HOWEVER, that no
Transferor Party shall be required to pay
any such taxes and governmental
charges which are not yet delinquent or 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 unless the failure to make any
such payment (1) shall give rise to an
immediate right to foreclose on an
Adverse Claim securing such amounts, (2)
shall result in the attachment of an
Adverse Claim on the Receivables, the
Collections or the Related Security, or
(3) would have a Material Adverse
Effect.
(l) Payment to Originators. With respect to any Receivable
acquired
by Transferor from an Originator, such sale
shall be effected under, and in
strict compliance with the terms of, the
Receivables Purchase Agreement,
including, without limitation, the terms
relating to the amount and timing of
payments to be made to such Originator in
respect of the transfer price for such
Receivable.
Section
7.2 Negative Covenants of the Transferor Parties. From and
after
the Closing Date until the date on which
the Aggregate Unpaids have been paid in
full and this Agreement terminates in
accordance with its terms, each Transferor
Party hereby covenants, as to itself, as
set forth below:
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(a) Name Change, Offices and Records. Transferor will not change
its
name, identity or legal structure (within
the meaning of Section 9-507(c) of any
applicable enactment of the UCC) or change
its jurisdiction of organization or
organize in an additional jurisdiction or
relocate its chief executive office or
any office where Records are kept unless it
shall have: (i) given the Agents at
least two (2) days' prior written notice
thereof and (ii) delivered to the
Administrative Agent all financing
statements, instruments and other documents
reasonably requested by any of the Agents
in connection with such change or
relocation.
(b) Change in Payment Instructions to Obligors. Except as may
be
required by the Administrative Agent
pursuant to Section 8.2(b), such Transferor
Party will not add or terminate any bank as
a Collection Bank, or make any
change in the instructions to Obligors
regarding payments to be made to any
Lock-Box or Collection Account, unless the
Agents shall have received, at least
ten (10) days before the proposed effective
date therefor, (i) written notice of
such addition, termination or change and
(ii) with respect to the addition of a
Collection Bank or a Collection Account or
Lock-Box, an executed Collection
Account Agreement with respect to the new
Collection Account or Lock-Box;
PROVIDED, HOWEVER, that the Servicer may
make changes in instructions to
Obligors regarding payments if such new
instructions require such Obligor to
make payments to another existing
Collection Account.
(c) Modifications to Contracts and Credit and Collection
Policy.
Without the consent of each of the Agents,
such Transferor Party will not, and
will not permit any Originator to, make any
change to the Credit and Collection
Policy that could reasonably be expected to
materially and adversely affect the
collectibility of the Receivables or
materially decrease the credit quality of
any newly created Receivables. Except as
provided in Section 8.2(d), the
Servicer will not, and will not permit any
Originator to, extend, amend or
otherwise modify the terms of any
Receivable or any Contract related thereto
other than in accordance with the Credit
and Collection Policy.
(d) Sales, Liens. Transferor will not sell, assign (by operation
of
law or otherwise) or otherwise dispose of,
or grant any option with respect to,
or create or suffer to exist any Adverse
Claim upon (including, without
limitation, the filing of any financing
statement) or with respect to, any
Receivable, Related Security or
Collections, or upon or with respect to any
Contract under which any Receivable arises,
or any Lock-Box or Collection
Account, or assign any right to receive
income with respect thereto (other than,
in each case, the creation of the interests
therein in favor of the
Administrative Agent and the Transferees
provided for herein), and Transferor
will defend the right, title and interest
of the Agents and the Transferees in,
to and under any of the foregoing property,
against all claims of third parties
claiming through or under Transferor or any
Originator.
(e) Net Pool Balance. At no time prior to the latest
Amortization
Date for any Group shall Transferor permit
the Net Pool Balance to be less than
an amount equal to the sum of (i) the
Aggregate Invested Amount plus (ii) the
Required Reserves.
(f) Termination Date Determination. Transferor will not
designate
the Termination Date (as defined in the
Receivables Purchase Agreement), or send
any written notice to any Originator in
respect thereof, without the prior
written consent of the Agents,
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except with respect to the occurrence of
such Termination Date arising pursuant
to Section 5.1(d) of the Receivables
Purchase Agreement.
(g) Restricted Junior Payments. From and after the occurrence of
any
Amortization Event, Transferor will not
make any Restricted Junior Payment while
any Aggregate Unpaids remain outstanding if
the effect of such Restricted Junior
Payment would be to reduce Transferor's Net
Worth below $50,000,000.
(h) Transferor Indebtedness. Transferor will not incur or permit
to
exist any Indebtedness except: (i) the
Obligations, and (ii) other current
accounts payable arising in the ordinary
course of business and not overdue.
(i) Prohibition on Additional Negative Pledges. No Transferor
Party
will enter into or assume any agreement
(other than this Agreement and the other
Transaction Documents) prohibiting the
creation or assumption of any Adverse
Claim upon the Receivable, Collections, and
Related Security except as
contemplated by the Transaction Documents,
or otherwise prohibiting or
restricting any transaction contemplated
hereby or by the other Transaction
Documents.
(j) Amendments to Credit Agreement and Security Documents. No
Transferor Party shall execute or consent
to any amendment, restatement or other
modification of or supplement to the Credit
Agreement or any Security Document
(as defined therein) that (i) requires
Transferor to assume, guarantee or
otherwise become absolutely or contingently
liable for, all or any portion of
the Obligations (as defined therein), or to
pledge collateral therefor, (ii)
provides that the facility contemplated by
this Agreement is not permitted under
the terms of the Credit Agreement and
Security Documents, or (iii) encumbers any
of the Receivables or Related Security, and
Transferor shall not assume,
guarantee or otherwise become absolutely or
contingently liable for, all or any
portion of the Obligations (as defined in
the Credit Agreement).
ARTICLE VIII.
ADMINISTRATION AND COLLECTION
Section
8.1 Designation of Servicer.
(a) The servicing, administration and collection of the
Receivables
shall be conducted by such Person (the
"SERVICER") so designated from time to
time in accordance with this Section 8.1.
Parent is hereby designated as, and
hereby agrees to perform the duties and
obligations of, the Servicer pursuant to
the terms of this Agreement. The Agents may
at any time designate as Servicer
any Person to succeed Parent or any
successor Servicer.
(b) Parent may delegate, and Parent hereby advises the
Transferees
and the Agents that it has delegated, to
the Originators, as sub-servicers of
the Servicer, certain of its duties and
responsibilities as Servicer hereunder
in respect of the Receivables originated by
such Originators. Without the prior
written consent of the Agents, neither
Parent nor any of the aforementioned
permitted sub-servicers shall be permitted
to delegate any of its duties or
responsibilities as Servicer to any Person
other than (i) the Transferor, (ii)
the Originators and (iii) with respect to
certain Defaulted Receivables, outside
collection agencies in accordance with
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its customary practices. If the Agents
shall designate as Servicer any Person
other than Parent, all duties and
responsibilities theretofore delegated by
Parent to any other Originator may, at the
discretion of any of the Agents, be
terminated forthwith on notice given by any
Agent to the other Agents,
Transferor and Parent (who will be
responsible for notifying the other
Originators).
(c) The Servicer shall administer the Collections in accordance
with
the procedures described herein and in
Article II; PROVIDED THAT nothing in this
sentence shall require the Servicer to
segregate Collections on a daily basis
from its other funds prior to the
occurrence of a Group's Amortization Date. The
Servicer shall set aside and hold in trust
for the account of Transferor and the
Transferees their respective shares of the
Collections in accordance with
Article II. The Servicer (or from and after
delivery of any Collection Notice,
the Administrative Agent) shall, upon the
request of any Agent while any
Aggregate Unpaids remain outstanding,
segregate, in a manner reasonably
acceptable to such Agent, all cash, checks
and other instruments received by it
from time to time constituting such Agent's
Group's Group Collections from the
general funds of the Servicer or Transferor
prior to the remittance thereof in
accordance with Article II, in an amount
not to exceed the accrued and unpaid
Aggregate Unpaids that will be due and
owing to the Agents for the benefit of
their respective Groups on the next
Settlement Date pursuant to Section 2.2 or
2.3, as applicable. If the Servicer shall
be required to segregate Collections
pursuant to the preceding sentence, the
Servicer shall segregate and deposit
with a bank designated by the applicable
Agent such allocable share of
Collections of Receivables set aside for
the applicable Transferees on the first
Business Day following receipt by the
Servicer of such Collections, duly
endorsed or with duly executed instruments
of transfer.
Section
8.2 Duties of Servicer.
(a) The Servicer shall take or cause to be taken all such actions
as
may be necessary or advisable to collect
each Receivable from time to time, all
in accordance with applicable laws, rules
and regulations, with reasonable care
and diligence, and in accordance with the
Credit and Collection Policy.
(b) The Servicer will instruct all Obligors to pay all
Collections
directly to a Lock-Box or Collection
Account. The Servicer shall effect a
Collection Account Agreement in a form
reasonably acceptable to the Agents and
Transferor with each bank party to a
Collection Account at any time. In the case
of any remittances received in any Lock-Box
or Collection Account that shall
have been identified, to the satisfaction
of the Servicer, to not constitute
Collections or other proceeds of the
Receivables or the Related Security, the
Servicer shall promptly remit such items to
the Person identified to it as being
the owner of such remittances. From and
after the date the Administrative Agent
delivers to any Collection Bank a
Collection Notice pursuant to Section 8.3, the
Administrative Agent may request that the
Servicer, and the Servicer thereupon
promptly shall instruct all Obligors with
respect to the Receivables, to remit
all payments thereon to a new depositary
account specified by the Administrative
Agent and, at all times thereafter,
Transferor and the Servicer shall use
reasonable efforts not to deposit or
otherwise credit, and shall not authorize
any other Person to deposit or otherwise
credit to such new depositary account
any cash or payment item other than
Collections. No Collection Account Agreement
may be amended, terminated or otherwise
modified without the prior
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written consent of the Agents; PROVIDED,
HOWEVER, that so long as no
Amortization Event has occurred and not
been waived by the Agents, the
Administrative Agent will not unreasonably
withhold or delay its consent to the
closing of a Collection Account if the
Obligors who otherwise would have made
payments to such Collection Account have
been directed to make payments to
another Collection Account with respect to
which a Collection Account Agreement
has been executed by all requisite
parties.
(c) The Servicer shall administer the Collections in accordance
with
the procedures described herein and in
Article II; PROVIDED THAT nothing in this
sentence shall require the Servicer to
segregate Collections on a daily basis
from its other funds prior to the
occurrence of a Group's Amortization Date. The
Servicer shall set aside and hold in trust
for the account of Transferor and the
Transferees their respective shares of the
Collections in accordance with
Article II. The Servicer shall, upon the
request of any Agent following an
Amortization Event or a Potential
Amortization Event while any Aggregate Unpaids
remain outstanding, segregate, in a manner
reasonably acceptable to such Agent,
all cash, checks and other instruments
received by it from time to time
constituting such Agent's Group's
Outstanding Percentage of Collections from the
general funds of the Servicer or Transferor
prior to the remittance thereof in
accordance with Article II. If the Servicer
shall be required to segregate
Collections pursuant to the preceding
sentence, the Servicer shall segregate and
deposit with a bank designated by the
applicable Agent such allocable share of
Collections of Receivables set aside for
the applicable Transferees on the first
Business Day following receipt by the
Servicer of such Collections, duly
endorsed or with duly executed instruments
of transfer.
(d) The Servicer may, in accordance with the Credit and
Collection
Policy, extend the maturity of any
Receivable or adjust the Outstanding Balance
of any Receivable as the Servicer
determines to be appropriate to maximize
Collections thereof; PROVIDED, HOWEVER,
that such extension or adjustment shall
not alter the status of such Receivable as
a Delinquent Receivable or Defaulted
Receivable or limit the rights of the
Agents or the Transferees under this
Agreement. Notwithstanding anything to the
contrary contained herein, following
the occurrence of an Amortization Event
which is not waived in writing by each
of the Agents, the Administrative Agent may
give reasonable direction to the
Servicer to commence or settle any legal
action with respect to any Receivable
or to foreclose upon or repossess any
Related Security.
(e) The Servicer shall hold in trust for Transferor and the
Transferees all Records that (i) evidence
or relate to the Receivables, the
related Contracts and Related Security or
(ii) are otherwise necessary or
desirable to collect the Receivables and
shall, as soon as practicable upon
demand of any Agent following the
occurrence of an Amortization Event which is
not waived in writing by each of the
Agents, deliver or make available to the
Administrative Agent all such Records, at a
place selected by the Administrative
Agent. The Servicer shall, as soon as
practicable following receipt thereof turn
over to Transferor any cash collections or
other cash proceeds received with
respect to Indebtedness not constituting
Receivables, Related Security,
Collections or proceeds of any of the
foregoing. The Servicer shall, from time
to time at the request of any Transferee,
furnish to the Transferees (promptly
after any such request) a calculation of
the amounts set aside for the
Transferees pursuant to Article II.
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(f) Any payment by an Obligor in respect of any indebtedness owed
by
it to an Originator or Transferor shall,
except as otherwise specified by such
Obligor or otherwise required by contract
or law and unless otherwise instructed
by the Administrative Agent, be applied as
a Collection of any Receivable of
such Obligor (starting with the oldest such
Receivable) to the extent of any
amounts then due and payable thereunder
before being applied to any other
receivable or other obligation of such
Obligor.
Section
8.3 Collection Notices. While any Aggregate Unpaids remain
outstanding, at any time after the
occurrence of an Amortization Event or a
Potential Amortization Event, in either
case which is not waived in writing by
each of the Agents, the Administrative
Agent may, and shall at the direction of
any of the Co-Agents, date and deliver to
the Collection Banks the Collection
Notices. Transferor hereby transfers to the
Administrative Agent for the benefit
of the Transferees, effective when the
Administrative Agent delivers such
notice, the exclusive ownership and control
of each Lock-Box and the Collection
Accounts, PROVIDED THAT, unless and until
an Amortization Event shall have
occurred and remain outstanding, delivery
of any such Collection Notice shall
not entitle the Administrative Agent to
retain any Collections received after
delivery of such notice in excess of the
Accrual Amounts that will be required
to be paid over to the respective Group
Agents on the next succeeding Settlement
Date pursuant to Section 2.2 hereof, and
any such excess received in any Lockbox
or Collection Account will be paid over to
the Transferor on a same-day basis by
the Administrative Agent as the proceeds of
a Reinvestment. In case any
authorized signatory of Transferor whose
signature appears on a Collection
Account Agreement shall cease to have such
authority before the delivery of such
notice, such Collection Notice shall
nevertheless be valid as if such authority
had remained in force. Transferor hereby
authorizes the Administrative Agent,
and agrees that the Administrative Agent
shall be entitled after the occurrence
of an Amortization Event to (i) endorse
Transferor's name on checks and other
instruments representing Collections, (ii)
enforce the Receivables, the related
Contracts and the Related Security and
(iii) take such action as shall be
necessary or desirable to cause all cash,
checks and other instruments
constituting Collections of Receivables to
come into the possession of the
Administrative Agent, for the benefit of
the Agents and the Transferees, rather
than Transferor.
Section
8.4 Responsibilities of Transferor. Anything herein to the
contrary notwithstanding, the exercise by
the Agents and the Transferees of
their rights hereunder shall not release
the Servicer, any Originator or
Transferor from any of their duties or
obligations with respect to any
Receivables or under the related Contracts.
The Transferees shall have no
obligation or liability with respect to any
Receivables or related Contracts,
nor shall any of them be obligated to
perform the obligations of Transferor.
Section
8.5 Reports. The Servicer shall prepare and forward to the
Administrative Agent, who will promptly
forward to the Co-Agents:
(a) on the 15th day of each month, or if such date is not a
Business
Day, the
next Business Day (the "MONTHLY REPORTING DATE"), a Settlement
Report, and
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<PAGE>
(b) at such other times as any Agent shall reasonably request
and
with
reasonable advance notice, (A) an Interim Settlement Report
and/or
(B) a
listing by Obligor of all Receivables together with an aging of
such
Receivables.
Section
8.6 Servicing Fees. In consideration of Parent's agreement to
act
as Servicer hereunder, the Transferees
hereby agree that, (a) so long as Parent
shall continue to perform as Servicer
hereunder, Transferor shall pay over to
Parent a fully earned and non-refundable
servicing fee (the "SERVICING FEE") on
each Settlement Date, in arrears for the
immediately preceding month, equal to
1% per annum of the average aggregate
Outstanding Balance of all Receivables
during such period, as compensation for its
servicing activities or (b) in the
case of the Servicer not being a member of
the Fisher Group, the Servicing Fee
will be such reasonable rate as may be
charged by the successor Servicer.
ARTICLE IX.
AMORTIZATION EVENTS
Section
9.1 Amortization Events. The occurrence of any one or more of
the
following events shall constitute an
Amortization Event:
(a) Any Transferor Party shall fail to make any payment or
deposit
required hereunder when due.
(b) Any representation, warranty, certification or statement made
by
any Transferor Party in this Agreement, any
other Transaction Document to which
it is a party or in any other document
delivered pursuant hereto or thereto
shall prove to have been incorrect in any
material respect when made or deemed
made.
(c) (i) Failure of Transferor to pay any Indebtedness (other
than
Aggregate Unpaids) when due taking into
account any applicable grace period, and
failure of Performance Guarantor and/or any
of its Subsidiaries other than
Transferor to pay Indebtedness in excess of
the lesser of (x) the amount set
forth in the comparable event of default
provision in the Credit Agreement, and
(y) $20,000,000 in aggregate principal
amount when due taking in to account any
applicable grace period; (ii) any
Indebtedness described in clause (i) shall be
declared to be due and payable or required
to be prepaid (other than by a
regularly scheduled payment) prior to the
date of maturity thereof, or (iii) a
Credit Agreement Default shall have
occurred and be continuing.
(d) (i) Any Transferor Party or any of its Subsidiaries shall
generally not pay its debts as such debts
become due or shall admit in writing
its inability to pay its debts generally or
shall make a general assignment for
the benefit of creditors; (ii) any
proceeding shall be instituted by any
Transferor Party or any of its Subsidiaries
seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation, winding
up, reorganization, arrangement,
adjustment, protection, relief or
composition of it or its debts under any law
relating to bankruptcy, insolvency or
reorganization or relief of debtors, or
seeking the entry of an order for relief or
the appointment of a receiver,
trustee or other similar official for it or
any substantial part of its
property, (iii) any proceeding of the type
described in the preceding clause
(ii) shall be instituted
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<PAGE>
against any Transferor Party and shall
continue undismissed, or unstayed and in
effect, for a period of 60 consecutive
days; or (iv) an order for relief in
respect of such Person shall be entered in
an involuntary case under the federal
bankruptcy laws or other similar laws now
or hereafter in effect, or (v) any
Transferor Party or any of its Subsidiaries
shall take any corporate action to
authorize any of the actions set forth in
clauses (i) or (ii) above in this
subsection (d).
(e) (i) Transferor shall fail to comply with the terms of
Section
2.5 hereof, or (ii) any Transferor Party
shall fail to perform or observe any
term, covenant or agreement hereunder
(other than as referred to in Section
9.1(a) or clause (i) of this Section
9.1(e)) which failure under this clause
(ii) continues for five (5) consecutive
Business Days.
(f) As at the end of any calendar month:
(i) the average of the Dilution Ratios for the three months
then most recently ended shall exceed 3.10%;
(ii) the average of the Delinquency Ratios for the three
months then most recently ended shall exceed (A) 3.00% at any
time
through and including the Calculation Period ending June 30, 2003
or
(B) 2.65% at any time thereafter; or
(iii) the average of the Default Ratios for the three months
then most recently ended shall exceed 2.75%.
(g) A Change of Control shall occur with respect to any
Transferor
Party.
(h) (i) One or more final judgments or decrees for the payment
of
money in excess of $11,624 shall be entered
against Transferor or (ii) one or
more final judgments for the payment of
money in an amount in excess of the
lesser of (A) the amount set forth in the
comparable event of default provision
in the Credit Agreement, and (B)
$20,000,000 in the aggregate for all such
judgments or decrees, shall be entered
against Servicer or Performance Guarantor
on claims not covered by insurance or as to
which the insurance carrier has
denied its responsibility, and such
judgment shall not have been vacated,
discharged, stayed or satisfied and in
effect for thirty (30) consecutive days
without a stay of execution
(i) Either (i) the "TERMINATION DATE" under and as defined in
the
Receivables Purchase Agreement shall occur
under the Receivables Purchase
Agreement or (ii) any Originator shall for
any reason cease to transfer, or
cease to have the legal capacity to
transfer, or otherwise be incapable of
transferring Receivables to Transferor
under the Receivables Purchase Agreement.
(j) This Agreement shall terminate in whole or in part (except
in
accordance with its terms), or shall cease
to be effective or to be the legally
valid, binding and enforceable obligation
of Transferor or Servicer, or any
Transferor Party shall directly or
indirectly contest in any manner such
effectiveness, validity, binding nature or
enforceability, or the Administrative
Agent for the benefit of the Transferees
shall cease to have a valid and
perfected first priority
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<PAGE>
security interest in the Receivables, the
Related Security and the Collections
with respect thereto and the Collection
Accounts.
(k) Performance Guarantor shall fail to perform or observe any
term,
covenant or agreement required to be
performed by it under the Performance
Undertaking, or the Performance Undertaking
shall cease to be effective or to be
the legally valid, binding and enforceable
obligation of Performance Guarantor,
or Performance Guarantor shall directly or
indirectly contest in any manner such
effectiveness, validity, binding nature or
enforceability.
(l) The Internal Revenue Service shall file notice of a lien
pursuant to Section 6323 of the Tax Code
with regard to any of the Receivables,
Collections or Related Security, or the
PBGC shall file notice of a lien
pursuant to Section 4068 of ERISA with
regard to any of the Receivables,
Collections or Related Security, and, in
either of the foregoing cases, such
lien shall not have been released within
fourteen (14) days.
(m) Any event shall occur which (i) materially and adversely
impairs
the ability of the Originators to originate
Receivables of a credit quality that
is at least equal to the credit quality of
the Receivables sold or contributed
to Transferor on the date of this Agreement
and (ii) has, or would be reasonably
expected to have, a Material Adverse
Effect.
(n) On any Settlement Date, after giving effect to the
application
of Collections in accordance with this
Agreement, the Adjusted Pool Balance is
less than the Aggregate Invested
Amount.
(o) (i) The Credit Agreement or any Security Document (as
defined
therein) shall be amended, restated or
otherwise supplemented or modified in any
manner that (A) requires Transferor to
assume, guarantee or otherwise become
absolutely or contingently liable for, all
or any portion of the Obligations (as
defined therein), or to pledge collateral
therefor, (B) provides that the
facility contemplated by this Agreement is
not permitted under the terms of the
Credit Agreement and Security Documents, or
(C) encumbers any of the Receivables
or Related Security, or (ii) Transferor
shall assume, guarantee or otherwise
become absolutely or contingently liable
for, all or any portion of the
Obligations (as defined in the Credit
Agreement), or shall pledge collateral
therefor.
Section
9.2 Remedies. Upon the occurrence and during the continuation
of
an Amortization Event, the Administrative
Agent may, and upon the direction of
any of the Co-Agents, shall, take any of
the following actions: (i) replace the
Person then acting as Servicer, (ii)
declare the Amortization Date to have
occurred, whereupon the Amortization Date
shall forthwith occur, without demand,
protest or further notice of any kind, all
of which are hereby expressly waived
by each Transferor Party; PROVIDED,
HOWEVER, that upon the occurrence of an
Amortization Event described in Section
9.1(d)(ii), or of an actual or deemed
entry of an order for relief with respect
to any Transferor Party under the
Federal Bankruptcy Code, the Amortization
Date shall automatically occur,
without demand, protest or any notice of
any kind, all of which are hereby
expressly waived by each Transferor Party,
(iii) to the fullest extent permitted
by applicable law, declare that the Default
Fee shall accrue with respect to any
of the Aggregate Unpaids outstanding at
such time, (iv) deliver the Collection
Notices to the Collection
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<PAGE>
Banks, and (v) notify Obligors of the
Transferees' interest in the Receivables.
The aforementioned rights and remedies
shall be without limitation, and shall be
in addition to all other rights and
remedies of the Agents and the Transferees
otherwise available under any other
provision of this Agreement, by operation of
law, at equity or otherwise, all of which
are hereby expressly preserved,
including, without limitation, all rights
and remedies provided under the UCC
(including the right to foreclose upon and
sell the Receivables and the Related
Security, or any part thereof), all of
which rights shall be cumulative.
ARTICLE X.
INDEMNIFICATION
Section
10.1 Indemnities by the Transferor Parties. Without limiting
any
other rights that any Agent or any
Transferee may have hereunder or under
applicable law, (A) Transferor hereby
agrees to indemnify (and pay upon demand
to) each of the Agents, the Transferees and
their respective assigns, members,
direct or indirect owners, officers,
directors, agents and employees (each, an
"INDEMNIFIED PARTY"), from and against any
and all damages, losses, claims,
taxes, liabilities, costs, expenses and for
all other amounts payable, including
reasonable attorneys' fees and
disbursements (all of the foregoing being
collectively referred to as "INDEMNIFIED
AMOUNTS") awarded against or incurred
by any of them relating to the Transaction
Documents or the transactions
contemplated thereby, and (B) the Servicer
hereby agrees to indemnify (and pay
upon demand to) each Indemnified Party, for
Indemnified Amounts awarded against
or incurred by any of them arising out of
the Servicer's activities as Servicer
hereunder or its written agreement (in its
individual capacity) to any
amendment, waiver, supplement or
restatement of or to the Credit Agreement or
associated Security Documents of the types
described in Section 9.1(o)(i),
EXCLUDING, HOWEVER, in all of the foregoing
instances under the preceding
clauses (A) and (B):
(a) Indemnified Amounts to the extent a final judgment of a court
of
competent jurisdiction holds that such
Indemnified Amounts resulted from gross
negligence or willful misconduct on the
part of the Indemnified Party or any
other member of its Group;
(b) Indemnified Amounts to the extent the same includes losses
in
respect of Receivables that are
uncollectible on account of the insolvency,
bankruptcy or lack of creditworthiness of
the related Obligor; and
(c) any withholding taxes which shall by governed by Section 10.2
or
any Excluded Taxes;
PROVIDED, HOWEVER, that nothing contained
in this sentence shall limit the
liability of any Transferor Party or limit
the recourse of the Agents and the
Transferees to any Transferor Party for
amounts otherwise specifically provided
to be paid by such Transferor Party under
the terms of this Agreement. Without
limiting the generality of the foregoing
indemnification, Transferor (and to the
extent any of the following arise from
actions or inactions of the Servicer, the
Servicer) shall indemnify the Indemnified
Parties for Indemnified Amounts (other
than Excluded Taxes) (including, without
limitation, losses in respect of
uncollectible receivables, regardless
of
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<PAGE>
whether reimbursement therefor would
constitute recourse to Transferor or the
Servicer) relating to or resulting
from:
(i) any representation or warranty made by any Transferor Party
or
any Originator (or any officers of any such
Person) under or in connection with
this Agreement, any other Transaction
Document or any other information or
report delivered by any such Person
pursuant hereto or thereto, which shall have
been false or incorrect when made or deemed
made;
(ii) the failure by any Transferor Party or any Originator to
comply
with any applicable law, rule or regulation
with respect to any Receivable or
Contract related thereto, or the
nonconformity of any Receivable or Contract
included therein with any such applicable
law, rule or regulation or any failure
of any Originator to keep or perform any of
its obligations, express or implied,
with respect to any Contract;
(iii) any failure of any Transferor Party or any Originator to
perform its duties, covenants or other
obligations in accordance with the
provisions of this Agreement or any other
Transaction Document;
(iv) any products liability, personal injury or damage suit, or
other similar claim arising out of or in
connection with merchandise, insurance
or services that are the subject of any
Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge
in
bankruptcy of the Obligor) of the Obligor
to the payment of any Receivable
(including, without limitation, a defense
based on such Receivable or the
related Contract not being a legal, valid
and binding obligation of such Obligor
enforceable against it in accordance with
its terms), or any other claim
resulting from the sale of the merchandise
or service related to such Receivable
or the furnishing or failure to furnish
such merchandise or services; PROVIDED
THAT this clause (v) shall not be construed
to require indemnity for the
uncollectibility of any Receivable for
credit-related reasons relating to any
Obligor;
(vi) [reserved];
(vii) any
investigation, litigation or proceeding related to or
arising from this Agreement or any other
Transaction Document, the transactions
contemplated hereby, the use of the
proceeds of an Incremental Transfer or a
Reinvestment, the ownership of the
Receivable Interests or any other
investigation, litigation or proce
