|
Exhibit 10.i
FIRST AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT
dated as of June 30, 2008,
Among
ENERGIZER RECEIVABLES FUNDING CORPORATION,
as Seller,
ENERGIZER BATTERY, INC.,
as Servicer,
PLAYTEX PRODUCTS, INC.,
as Sub-Servicer
MIZUHO CORPORATE BANK, LTD.,
as Agent and as a Funding Agent
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK
BRANCH,
as a Funding Agent
and
THE SEVERAL CONDUITS AND COMMITTED PURCHASERS PARTY
HERETO
FROM TIME TO TIME
TABLE OF CONTENTS
PURCHASE ARRANGEMENTS
|
Section
1.1
|
Purchase
Facility
|
|
|
Section
1.4
|
Payment
Requirements
|
|
|
Section
1.5
|
Restated
Agreement
|
|
PAYMENTS AND COLLECTIONS
|
Section
2.2
|
Collections
Prior to Amortization
|
|
|
Section
2.3
|
Collections
Following Amortization
|
|
|
Section
2.4
|
Application
of Collections
|
|
|
Section
2.5
|
Payment
Recission
|
|
|
Section
2.6
|
Maximum
Purchaser Interests
|
|
|
Section
2.7
|
Clean Up
Call
|
|
CONDUIT FUNDING
|
Section
3.2
|
CP Costs
Payments
|
|
|
Section
3.3
|
Calculation
of CP Costs
|
|
COMMITTED PURCHASER FUNDING
|
Section
4.1
|
Committed
Purchaser Funding
|
|
|
Section
4.2
|
Yield
Payments
|
|
|
Section
4.3
|
Selection
and Continuation of Tranche Periods
|
|
|
Section
4.4
|
Committed
Purchaser Discount Rates
|
|
|
Section
4.5
|
Suspension
of the LIBO Rate
|
|
|
Section
4.6
|
Extension
of Liquidity Termination Date.
|
|
REPRESENTATIONS AND WARRANTIES
|
Section
5.1
|
Representations
and Warranties of the Seller Parties
|
|
|
Section
5.2
|
Committed
Purchaser Representations and Warranties
|
|
CONDITIONS OF PURCHASES
|
Section
6.1
|
Conditions
Precedent to Initial Incremental Purchase
|
|
|
Section
6.2
|
Conditions
Precedent to All Purchases and Reinvestments
|
|
COVENANTS
|
Section
7.1
|
Affirmative
Covenants of the Seller Parties
|
|
|
Section
7.2
|
Negative
Covenants of the Seller Parties
|
|
ADMINISTRATION AND COLLECTION
|
Section
8.1
|
Designation
of Servicer
|
|
|
Section
8.2
|
Duties of
Servicer
|
|
|
Section
8.3
|
Collection
Notices
|
|
|
Section
8.4
|
Responsibilities
of Seller
|
|
|
Section
8.6
|
Servicing
Fees
|
|
AMORTIZATION EVENTS
|
Section
9.1
|
Amortization
Events
|
|
INDEMNIFICATION
|
Section
10.1
|
Indemnities
by the Seller Parties
|
|
Section
10.2
|
Increased
Cost and Reduced Return
|
|
Section
10.3
|
Other
Costs and Expenses
|
THE AGENT
|
Section
11.1
|
Authorization
and Action
|
|
Section
11.2
|
Delegation
of Duties
|
|
Section
11.3
|
Exculpatory
Provisions
|
|
Section
11.4
|
Reliance
by Agent
|
|
Section
11.5
|
Non-Reliance
on Agent and Other Purchasers
|
|
Section
11.6
|
Reimbursement
and Indemnification
|
|
Section
11.7
|
Agent in
its Individual Capacity
|
|
Section
11.8
|
Successor
Agent
|
ASSIGNMENTS; PARTICIPATIONS
|
Section
12.2
|
Participations
|
{RESERVED}
MISCELLANEOUS
|
Section
14.1
|
Waivers
and Amendments
|
|
Section
14.3
|
Ratable
Payments
|
|
Section
14.4
|
Protection
of Ownership Interests of the Purchasers
|
|
Section
14.5
|
Confidentiality
|
|
Section
14.6
|
Bankruptcy
Petition
|
|
Section
14.7
|
Limitation
of Liability
|
|
Section
14.8
|
CHOICE OF
LAW
|
|
Section
14.9
|
CONSENT
TO JURISDICTION
|
|
Section
14.10
|
WAIVER OF
JURY TRIAL
|
|
Section
14.11
|
Integration;
Binding Effect; Survival of Terms
|
|
Section
14.12
|
Counterparts;
Severability; Section References
|
|
Section
14.13
|
Mizuho
Corporate Bank Roles
|
|
Section
14.14
|
Characterization
|
|
Section
14.15
|
Withholding
|
|
Section
14.16
|
Patriot
Act
|
Exhibits and Schedules
|
|
Definitions
|
|
Exhibit II
|
Form of Purchase Notice
|
|
Exhibit III
|
Places of Business of the Seller Parties; Locations of Records;
Federal Employer Identification Number(s)
|
|
Exhibit IV
|
Names of Collection Banks; Collection Accounts
|
|
Exhibit V
|
Form of Compliance Certificate
|
|
Exhibit VI
|
Form of Collection Account Agreement
|
|
Exhibit
VII
|
Form of
Assignment Agreement
|
|
Exhibit
VIII
|
Credit
and Collection Policy
|
|
Exhibit
IX
|
Form of
Contract(s)
|
|
Exhibit
X
|
Form of
Monthly Report
|
|
Exhibit
XI
|
Form of
Performance Undertaking
|
|
Exhibit
XII
|
Form of
Interim Report
|
|
Schedule
A
|
Commitments
|
|
Schedule
B
|
Closing
Documents
|
POOL
PURCHASE
FIRST
AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT
This
First Amended and Restated Receivables Purchase Agreement
dated as of June 30, 2008 is among ENERGIZER RECEIVABLES
FUNDING CORPORATION, a Delaware corporation (“
Seller
”), ENERGIZER BATTERY, INC., a Delaware corporation
(“ Energizer
”), as Servicer, PLAYTEX PRODUCTS, INC., a Delaware
corporation (“ Playtex
”), as Sub-Servicer (Sub-Servicer, together with Seller
and Servicer, the “ Seller
Parties ” and each a “ Seller
Party ”), the entities listed on Schedule
A to this Agreement (together with any of their
respective successors and assigns hereunder, the “
Committed
Purchasers ”), THE BANK OF TOKYO-MITSUBISHI
UFJ, LTD., NEW YORK BRANCH (“ BTMU
”), as a Funding Agent, MIZUHO CORPORATE BANK, LTD., as
a Funding Agent and as agent for the Purchasers hereunder or
any successor agent hereunder (together with its successors
and assigns hereunder, the “ Agent
”). Unless defined elsewhere herein,
capitalized terms used in this Agreement shall have the
meanings assigned to such terms in Exhibit I
.
PRELIMINARY
STATEMENTS
Seller
desires to transfer and assign Purchaser Interests to the
Purchasers from time to time.
Each
Conduit may, in its absolute and sole discretion, purchase
Purchaser Interests from Seller from time to
time.
In the
event that a Conduit declines to make any purchase, the
Committed Purchaser(s) in the relevant Conduit Group shall, at
the request of Seller, purchase Purchaser Interests from time
to time.
Mizuho
Corporate Bank, Ltd. has been requested and is willing to act
as Agent on behalf of the Conduits and the Committed
Purchasers in accordance with the terms hereof.
Seller,
Servicer, the Committed Purchasers, the Conduits, the Funding
Agents and the Agent are parties to that certain Receivables
Purchase Agreement dated as of April 4, 2000, as amended or
otherwise modified to date (the “ Original
Agreement ”), and desire to amend and restate the
Original Agreement to appoint Playtex as Sub-Servicer of
Receivables under this Agreement and to make certain other
changes as are set forth in this Agreement.
PURCHASE
ARRANGEMENTS
Section
1.1 Purchase
Facility . Upon
the terms and subject to the conditions hereof, Seller may, at its
option, sell and assign Purchaser Interests to the Agent for the
benefit of one or more of the Purchasers. In accordance
with the terms and conditions set forth herein, the Relevant
Conduits in their respective Conduit Groups may collectively, at
their option, instruct the Agent to purchase on their behalf, or if
either of the Relevant Conduits shall decline to purchase, the
Agent shall purchase, on behalf of the Committed Purchasers in the
related Conduit Group, Purchaser Interests from time to time in an
aggregate amount not to exceed at such time the lesser of (i) the
Purchase Limit and (ii) the aggregate amount of the Commitments
during the period from the date hereof to but not including the
Facility Termination Date. Furthermore, with respect to
each Conduit Group, the product of (x) the Purchase Pro Rata Share
of such Conduit Group and (y) the amount of the Purchaser Interests
so purchased by the Purchasers in such Conduit Group from time to
time in an aggregate amount shall not exceed at such time the
lesser of (a) the related Group Purchase Limit and (b) the
aggregate amount of the related Commitments for such Conduit Group
during the period from the date hereof to but not including the
Facility Termination Date.
Section
1.2 Increases
. Seller
shall provide the Funding Agents with at least one Business
Days’ prior notice in a form set forth as Exhibit II
hereto of each Incremental Purchase (a “ Purchase
Notice ”), with a written copy thereof delivered
simultaneously to the Agent. Each Purchase Notice shall
be subject to Section 6.2
hereof and, except as set forth below, shall be irrevocable and
shall specify the requested Purchase Price (which shall be at least
$1,000,000 and integral multiples of $100,000 in excess thereof)
and date of purchase and, in the case of an Incremental Purchase to
be funded by the Committed Purchasers, the requested Discount Rate
and Tranche Period. Following receipt of a Purchase
Notice, the Funding Agents will determine whether the Relevant
Conduits in their respective Conduit Groups agree to make the
purchase. Without the prior approval of the Relevant
Conduit in each Conduit Group, Seller shall not request more than
three proposed purchases in any calendar month and, unless approved
by each Relevant Conduit in its sole discretion, any such requests
in excess of three in any calendar month shall be
void. If the Relevant Conduit in a Conduit Group
declines to make a proposed purchase, Seller may cancel the
Purchase Notice (with a written copy of the notice of such
cancellation delivered simultaneous to the Agent) or, in the
absence of such a cancellation, the Incremental Purchase of the
Purchaser Interest will be made by the Committed Purchasers in the
related Conduit Group. On the date of each Incremental
Purchase, upon satisfaction of the applicable conditions precedent
set forth in Article VI ,
each Funding Agent on behalf of the Relevant Conduit or the
Committed Purchasers in each Conduit Group, as applicable, shall
deposit to the Facility Account, in immediately available funds, no
later than 3:00 p.m. (New York time), an amount equal to (i) in the
case of the Relevant Conduit, the relevant Purchase Pro Rata Share
of the aggregate Purchase Price of the Purchaser Interests such
Relevant Conduit is then purchasing or (ii) in the case of a
Committed Purchaser, such Committed Purchaser’s Pro Rata
Share of the relevant Purchase Pro Rata Share of the aggregate
Purchase Price of the Purchaser Interests the Committed Purchasers
in the related Conduit Group are purchasing. A default
by a Purchaser in the performance of its obligations under this
Agreement shall not relieve the other Purchasers of their
obligations hereunder.
Section
1.3 Decreases
. Seller
shall provide the Funding Agents with prior written notice in
conformity with the Required Notice Period (a “ Reduction
Notice ”) of any proposed reduction of Aggregate
Capital from Collections, with a copy of such Reduction Notice
delivered simultaneously to the Agent. Such Reduction
Notice shall designate (i) the date (the “ Proposed Reduction
Date ”) upon which any such reduction of Aggregate
Capital shall occur (which date shall give effect to the applicable
Required Notice Period), and (ii) the amount of Aggregate Capital
to be reduced (the “ Aggregate
Reduction ”), which shall be applied ratably to the
Purchaser Interests of each Conduit Group in accordance with the
amount of Capital (if any) owing to such Conduit Group (ratably,
based on their respective Reduction Pro Rata
Shares). The Reduction Pro Rata Share of such Aggregate
Reduction with respect to a Conduit Group shall in turn be applied
ratably to the Purchaser Interests of the Conduit(s) and the
Committed Purchasers in such Conduit Group in accordance with the
amount of Capital (if any) owing to such Conduit(s), on the one
hand, and the amount of Capital (if any) owing to such Committed
Purchasers (ratably, based on their respective Pro Rata Shares), on
the other hand. Only one (1) Reduction Notice shall be
outstanding at any time. No Aggregate Reduction will be
made following the occurrence of the Amortization Date without the
consent of the Agent and each Funding Agent.
Section
1.4 Payment
Requirements . All
amounts to be paid or deposited by any Seller Party pursuant to any
provision of this Agreement shall be paid or deposited in
accordance with the terms hereof no later than 12:00 p.m. (New York
time) on the day when due in immediately available funds, and if
not received before 12:00 p.m. (New York time) shall be deemed to
be received on the next succeeding Business Day. If such
amounts are payable to a Purchaser they shall be paid to the
relevant Funding Agent, for the account of such Purchaser,
at 1251 Avenue of the Americas, New York, New York 10020 (in
the case of a Purchaser in the Conduit Group with Mizuho Corporate
Bank Ltd. as a Funding Agent) or 1251 Avenue of the Americas, New
York, New York 10020 or an account or address designated from time
to time by BTMU (in the case of a Purchaser in the Conduit Group
with BTMU as a Funding Agent), as applicable, until the applicable
Seller Party is otherwise notified in writing by the relevant
Funding Agent. Upon notice to Seller, the relevant
Funding Agent may debit the Facility Account for all relevant
amounts due and payable hereunder. All computations of
Yield, per annum fees calculated as part of any CP Costs, per annum
fees hereunder and per annum fees under the Fee Letter shall be
made on the basis of a year of 360 days for the actual number of
days elapsed. 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.
Section
1.5 Restated
Agreement . Upon
the effectiveness of this Agreement, each reference to the Original
Agreement in any other Transaction Document, and any document,
instrument or agreement executed and/or delivered in connection
with the Original Agreement or any other Transaction Document,
shall mean and be a reference to this Agreement. The
other Transaction Documents and all agreements, instruments and
documents executed or delivered in connection with the Original
Agreement or any other Transaction Document shall each be deemed to
be amended to the extent necessary, if any, to give effect to the
provisions of this Agreement, as the same may be amended, modified,
supplemented or restated from time to time. The effect
of this Agreement is to amend and restate the Original Agreement in
its entirety, and to the extent that any rights, benefits or
provisions in favor of the Agent or any Purchaser existed in the
Original Agreement and continue to exist in this Agreement without
any written waiver of any such rights, benefits or provisions prior
to the date hereof, then such rights, benefits or provisions are
acknowledged to be and to continue to be effective from and after
April 4, 2000. This Agreement is not a
novation. The parties hereto agree and acknowledge that
any and all rights, remedies and payment provisions under the
Original Agreement, including, without limitation, any and all
rights, remedies and payment provisions with respect to (i) any
representation and warranty made or deemed to be made pursuant to
the Original Agreement, or (ii) any indemnification provision,
shall continue and survive the execution and delivery of this
Agreement. The parties hereto agree and acknowledge that
any and all amounts owing as or for Capital, Yield, CP Costs, fees,
expenses or otherwise under or pursuant to the Original Agreement,
immediately prior to the effectiveness of this Agreement, shall be
owing as or for Capital, Yield, CP Costs, fees, expenses or
otherwise, respectively, under or pursuant to this
Agreement.
PAYMENTS
AND COLLECTIONS
Section
2.1 Payments
. Notwithstanding
any limitation on recourse contained in this Agreement, Seller
shall immediately pay to each Funding Agent (or to an account
designated by such Funding Agent) when due, for the account of the
Purchaser or Purchasers in the relevant Conduit Group on a full
recourse basis, (i) such relevant fees as set forth in the Fee
Letter (which fees shall be sufficient to pay all fees owing to the
relevant Committed Purchasers), (ii) all relevant CP Costs, (iii)
all relevant amounts payable as Yield, (iv) all relevant amounts
payable as Deemed Collections (which shall be immediately due and
payable by Seller and applied to reduce outstanding Aggregate
Capital hereunder in accordance with Sections 2.2
and 2.3 hereof),
(v) all relevant amounts payable to reduce the Purchaser Interest,
if required, pursuant to Section 2.6 ,
(vi) all relevant amounts payable pursuant to Article X , if
any, (vii) all relevant Servicer costs and expenses, including the
Servicing Fee, in connection with servicing, administering and
collecting the Receivables, (viii) all relevant Broken Funding
Costs and (ix) all relevant Default Fees (collectively, the “
Obligations
”). If any Person fails to pay any of the
Obligations when due, such Person agrees to pay, on demand, the
Default Fee in respect thereof until
paid. Notwithstanding the foregoing, no provision of
this Agreement or the Fee Letter shall require the payment or
permit the collection of any amounts hereunder in excess of the
maximum permitted by applicable law. If at any time
Seller receives any Collections or is deemed to receive any
Collections, Seller shall immediately pay such Collections or
Deemed Collections to Servicer for application in accordance with
the terms and conditions hereof and, at all times prior to such
payment, such Collections or Deemed Collections shall be held in
trust by Seller for the exclusive benefit of the Purchasers and the
Funding Agents.
Section
2.2 Collections Prior to
Amortization . Prior
to the Amortization Date, any Collections and/or Deemed Collections
received by Servicer shall be set aside and held in trust by
Servicer for the payment of any accrued and unpaid Aggregate
Unpaids or for a Reinvestment as provided in this Section 2.2
. If at any time any Collections and/or Deemed
Collections are received by Servicer prior to the Amortization
Date, (i) Servicer shall set aside the Termination Percentage
(hereinafter defined) of Collections evidenced by the Purchaser
Interests of each Terminating Committed Purchaser and (ii) Seller
hereby requests and the Purchasers (other than any Terminating
Committed Purchasers) hereby agree to make, simultaneously with
such receipt, a reinvestment (each a “ Reinvestment
”) with that portion of the balance of each and every
Collection and Deemed Collection received by Servicer that is part
of any Purchaser Interest (other than any Purchaser Interests of
Terminating Committed Purchasers), such that after giving effect to
such Reinvestment, the amount of Capital of such Purchaser Interest
immediately after such receipt and corresponding Reinvestment shall
be equal to the amount of Capital immediately prior to such
receipt. On each Settlement Date prior to the occurrence
of the Amortization Date, Servicer shall remit to the account of,
or designated by, each Funding Agent the relevant portion of the
amounts set aside during the preceding Settlement Period that have
not been subject to a Reinvestment and apply such amounts (if not
previously paid in accordance with Section 2.1 )
first , to
reduce the relevant unpaid Obligations and second , to
reduce the Capital of all Purchaser Interests of Terminating
Committed Purchasers in the relevant Conduit Group, applied ratably
to each Terminating Committed Purchaser according to its respective
Termination Percentage. If such Capital and Obligations
shall be reduced to zero with respect to the Purchasers in a
Conduit Group, any additional Collections received by Servicer (i)
if applicable, shall be remitted to an account designated by the
relevant Funding Agent no later than 12:00 p.m. (New York time) to
the extent required to fund such Conduit Group’s Reduction
Pro Rata Share of any Aggregate Reduction on such Settlement Date
and (ii) any balance remaining thereafter shall be remitted from
Servicer to Seller on such Settlement Date. Each
Terminating Committed Purchaser shall be allocated a ratable
portion of Collections from the Liquidity Termination Date that
such Terminating Committed Purchaser did not consent to extend (as
to such Terminating Committed Purchaser, the “ Termination
Date ”) until such Terminating Financing
Institution’s Capital shall be paid in full. This
ratable portion shall be calculated on the Termination Date of each
Terminating Committed Purchaser as a percentage equal to (i)
Capital of such Terminating Committed Purchaser outstanding on its
Termination Date, divided
by
(ii) the Aggregate Capital outstanding on such Termination Date
(the “ Termination
Percentage ”). Each Terminating Committed
Purchaser’s Termination Percentage shall remain constant
prior to the Amortization Date. On and after the
Amortization Date, each Termination Percentage shall be
disregarded, and each Terminating Committed Purchaser’s
Capital shall be reduced ratably with all Committed Purchasers in
accordance with Section 2.3
.
Section
2.3 Collections Following
Amortization . On
the Amortization Date and on each day thereafter, Servicer shall
set aside and hold in trust, for the holder of each Purchaser
Interest, all Collections received on such day and an additional
amount, from Seller’s assets, for the payment of any accrued
and unpaid Obligations owed by Seller and not previously paid by
Seller in accordance with Section 2.1
. On and after the Amortization Date, Servicer shall, at
any time upon the request from time to time by (or pursuant to
standing instructions from) any Funding Agent (i) remit to an
account designated by such Funding Agent the relevant portion of
the amounts set aside pursuant to the preceding sentence, and (ii)
apply such relevant amounts to reduce the Capital associated with
each such Purchaser Interest held by a Purchaser in the relevant
Conduit Group and any other relevant Aggregate
Unpaids.
Section
2.4 Application of
Collections . If
there shall be insufficient funds on deposit for Servicer to
distribute funds in payment in full of the aforementioned amounts
pursuant to Section 2.2 or
2.3 (as
applicable), Servicer shall distribute such funds:
first ,
to the payment of Servicer’s reasonable out-of-pocket
costs and expenses in connection with servicing, administering
and collecting the Receivables , including the Servicing Fee,
if Seller or one of its Affiliates is not then acting as
Servicer,
second ,
to the reimbursement of the Agent’s costs of collection
and enforcement of this Agreement,
third ,
for the ratable payment of all other unpaid Obligations ,
provided
that to the extent such Obligations relate to the payment of
Servicer costs and expenses, including the Servicing Fee, when
Seller or one of its Affiliates is acting as Servicer, such
costs and expenses will not be paid until after the payment in
full of all other Obligations,
fourth ,
(to the extent applicable) to the ratable reduction of the
Aggregate Capital (without regard to any Termination
Percentage) and
fifth ,
after the Aggregate Unpaids have been indefeasibly reduced to
zero, to Seller.
Collections
applied to the payment of Aggregate Unpaids shall be
distributed in accordance with the aforementioned provisions,
and, giving effect to each of the priorities set forth in
Section
2.4 above, shall be shared ratably (within each
priority) among the Agent and the Purchasers in accordance
with the amount of such Aggregate Unpaids owing to each of
them in respect of each such priority.
Section
2.5 Payment
Recission . No
payment of any of the 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. Seller shall remain obligated
for the amount of any payment or application so rescinded, returned
or refunded, and shall promptly pay to the relevant Funding Agent
(for application to the Person or Persons who suffered such
recission, return or refund) the full amount thereof, plus the
related Default Fee from the date of any such recission, return or
refunding.
Section
2.6 Maximum Purchaser
Interests . Seller
shall ensure that the Purchaser Interests of the Purchasers shall
at no time exceed in the aggregate 100%. If the
aggregate of the Purchaser Interests of the Purchasers exceeds
100%, Seller shall pay to each Funding Agent within three (3)
Business Days an amount to be applied to reduce its Conduit
Group’s Reduction Pro Rata Shares of the Aggregate Capital,
such that after giving effect to such payment the aggregate of the
Purchaser Interests equals or is less than 100%.
Section
2.7 Clean Up
Call . In
addition to Seller’s rights pursuant to Section 1.3 ,
Seller shall have the right (after providing written notice to the
Funding Agents (with a copy thereof to the Agent) in accordance
with the Required Notice Period), at any time following the
reduction of the Aggregate Capital to a level that is less than
100.0% of the original Purchase Limit, to repurchase from the
Purchasers all, but not less than all, of the then outstanding
Purchaser Interests. The purchase price in respect
thereof shall be an amount equal to the Aggregate Unpaids through
the date of such repurchase, payable in immediately available funds
to the Funding Agents. Such repurchase shall be without
representation, warranty or recourse of any kind by, on the part
of, or against any Purchaser, any Funding Agent or the
Agent.
CONDUIT
FUNDING
Section
3.1 CP
Costs . Seller
shall pay the relevant CP Costs with respect to the Capital
associated with each Purchaser Interest of each Conduit for each
day that any Capital in respect of such Purchaser Interest is
outstanding. Each Purchaser Interest funded
substantially with Pooled Commercial Paper will accrue CP Costs
each day on a pro rata basis, based upon the percentage share the
Capital in respect of such Purchaser Interest represents in
relation to all assets held by the relevant Conduit and funded
substantially with its Pooled Commercial Paper.
Section
3.2 CP Costs
Payments . On
each Settlement Date, Seller shall pay to each Funding Agent (for
the benefit of the Conduit(s) in the relevant Conduit Group) an
aggregate amount in each case equal to all accrued and unpaid CP
Costs in respect of the Capital associated with all Purchaser
Interests of the relevant Conduit(s) in such Conduit Group for the
immediately preceding Accrual Period in accordance with
Article
II .
Section
3.3 Calculation of CP
Costs . On
the tenth calendar day of each month or, if such day is not a
Business Day, on the next succeeding Business Day, each Funding
Agent shall calculate the aggregate amount of the relevant CP Costs
for the applicable Accrual Period and shall notify Seller of such
aggregate amount.
COMMITTED
PURCHASER FUNDING
Section
4.1 Committed
Purchaser Funding
. Each
Committed Purchaser Interest shall accrue Yield for each day during
its Tranche Period at either the LIBO Rate or the Prime Rate in
accordance with the terms and conditions hereof. Until
Seller gives notice to the Agent of another Discount Rate in
accordance with Section 4.4 ,
the initial Discount Rate for any Committed Purchaser Interest
shall be the Prime Rate. If any Funding Source acquires
by assignment from a Conduit any Purchaser Interest pursuant to any
Funding Agreement, each Purchaser Interest so assigned shall each
be deemed to have a new Tranche Period commencing on the date of
any such assignment and shall accrue Yield for each day during its
Tranche Period at either the LIBO Rate or the Prime Rate in
accordance with the terms and conditions hereof as if each such
Purchaser Interest was held by a Committed Purchaser, and with
respect to each such Purchaser Interest, the assignee thereof shall
be deemed to be a Committed Purchaser solely for the purposes of
Sections
4.1 , 4.2 ,
4.3 ,
4.4 and
4.5
.
Section
4.2 Yield
Payments . On
the Settlement Date for each Committed Purchaser Interest , Seller
shall pay to each Funding Agent (for the benefit of the Committed
Purchasers in the relevant Conduit Group) an aggregate amount equal
to the accrued and unpaid Yield for the entire Tranche Period of
each such Purchaser Interest held by a Purchaser in such Conduit
Group in accordance with Article II
.
Section
4.3 Selection and
Continuation of Tranche Pe riods
.
(a)
With
consultation from (and approval by) the relevant Funding Agent,
Seller shall from time to time request Tranche Periods for the
Committed Purchaser Interests in a Conduit Group, provided that, if
at any time the Committed Purchasers shall have a Purchaser
Interest, Seller 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)
Seller or
the relevant Funding 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 Purchaser Interest, may, effective
on the last day of the Terminating Tranche: (i) divide
any such Purchaser Interest into multiple Purchaser Interests, (ii)
combine any such Purchaser Interest with one or more other
Purchaser Interests that have a Terminating Tranche ending on the
same day as such Terminating Tranche or (iii) combine any such
Purchaser Interest with a new Purchaser Interests to be
purchased on the day such Terminating Tranche ends, provided ,
that in no event may a Purchaser Interest of a Conduit be combined
with a Committed Purchaser Interest or of another Conduit, and in
no event may a Committed Purchaser Interest be combined with a
Purchaser Interest of a Purchaser in a different Conduit
Group.
Section
4.4 Committed
Purchaser Discount
Rates . Seller
may select the LIBO Rate or the Prime Rate for each Committed
Purchaser Interest. Seller 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 Prime Rate is being requested as a new
Discount Rate, give the relevant Funding Agent irrevocable notice
of the new Discount Rate for the Purchaser Interest associated with
such Terminating Tranche. Until Seller gives notice to
the relevant Funding Agent of another Discount Rate, the initial
Discount Rate for any Purchaser Interest transferred to the
Committed Purchasers pursuant to the terms and conditions hereof
(or assigned or transferred to any Funding Source or to any other
Person) shall be the Prime Rate.
Section
4.5 Suspension of the
LIBO Rate .
(a) If
any Committed Purchaser notifies the relevant Funding Agent and the
Agent that it has determined that funding its Pro Rata Share of the
Committed Purchaser Interest at a LIBO Rate would violate any
applicable law, rule, regulation or directive of any governmental
or regulatory authority, whether or not having the force of law, or
that (i) deposits of a type and maturity appropriate to match fund
its Purchaser Interests at such LIBO Rate are not available or (ii)
such LIBO Rate does not accurately reflect the cost of acquiring or
maintaining a Purchaser Interest at such LIBO Rate, then the
relevant Funding Agent shall suspend the availability of such LIBO
Rate and require Seller to select the Prime Rate for any Purchaser
Interest accruing Yield at such LIBO Rate.
(b)
If less than
all of the Committed Purchasers give a notice to the relevant
Funding Agent pursuant to Section 4.5(a)
, each Committed Purchaser which gave such a notice shall be
obliged, at the request of Seller, a Conduit in the same Conduit
Group or the Agent, to assign all of its rights and obligations
hereunder to (i) another Committed Purchaser in the same
Conduit Group or (ii) another funding entity nominated by Seller or
the Agent that is acceptable to such Conduit and willing to
participate in this Agreement through the Liquidity Termination
Date in the place of such notifying Committed Purchaser;
provided that
(i) the notifying Committed Purchaser receives payment in full,
pursuant to an Assignment Agreement, of an amount equal to such
notifying Committed Purchaser’s Pro Rata Share of the Capital
and Yield owing to all of the Committed Purchasers in the same
Conduit Group and all accrued but unpaid fees and other costs and
expenses payable in respect of its Pro Rata Share of the Purchaser
Interests of the Committed Purchasers in the same Conduit Group,
and (ii) the replacement Committed Purchaser otherwise satisfies
the requirements of Section
12.1(b) .
Section
4.6 Extension of
Li quidity Termination
Date.
(a)
Seller may request one or
more 364-day extensions of the Liquidity Termination Date then in
effect by giving written notice of such request to the Agent (each
such notice an “ Extension
Notice ”) at least 60 days prior to the Liquidity
Termination Date then in effect. After the Agent’s
receipt of any Extension Notice, the Agent shall promptly advise
each Committed Purchaser of such Extension Notice. Each
Committed Purchaser may, in its sole discretion, by a revocable
notice (a “ C onsent Notice
”) given to the Agent on or prior to the 30th day prior to
the Liquidity Termination Date then in effect (such period from the
date of the Extension Notice to such 30th day being referred to
herein as the “ Consent Period
”), consent to such extension of such Liquidity Termination
Date; provided ,
however ,
that, except as provided in Section 4.6(b)
, such extension shall not be effective with respect to any of the
Committed Purchasers if any one or more Committed
Purchasers: (i) notifies the Agent during the Consent
Period that such Committed Purchaser either does not wish to
consent to such extension or wishes to revoke its prior Consent
Notice or (ii) fails to respond to the Agent within the Consent
Period (each Committed Purchaser that does not wish to consent to
such extension or wishes to revoke its prior Consent Notice or
fails to respond to the Agent within the Consent Period is herein
referred to as a “ Non-Renewing
Committed
Purchaser ”). If none of the events
described in the foregoing clauses (i) or (ii) occurs during the
Consent Period and all Consent Notices have been received, then,
the Liquidity Termination Date shall be irrevocably extended until
the date that is 364 days after the Liquidity Termination Date then
in effect. The Agent shall promptly notify Seller
of any Consent Notice or other notice received by the Agent
pursuant to this Section 4.6(a)
.
(b)
Upon receipt of notice
from the Agent pursuant to Section 4.6(a)
of any Non-Renewing Committed Purchaser or that the Liquidity
Termination Date has not been extended, one or more of the
Committed Purchasers (including any Non-Renewing Committed
Purchaser) may proffer to the Agent and each Funding Agent the
names of one or more institutions meeting the criteria set forth in
Section
12.1( b)(i) that are
willing to accept assignments of and assume the rights and
obligations under this Agreement and the other applicable
Transaction Documents of the Non-Renewing Committed
Purchaser. Provided the proffered name(s) are acceptable
to the Agent and each Funding Agent, the Agent shall notify the
remaining Committed Purchasers of such fact, and the then existing
Liquidity Termination Date shall be extended for an additional 364
days upon satisfaction of the conditions for an assignment in
accordance with Section 12.1
and the Commitment of each Non-Renewing Committed Purchaser shall
be reduced to zero. If the rights and obligations under
this Agreement and the other applicable Transaction Documents of
each Non-Renewing Committed Purchaser are not assigned as
contemplated by this Section 4.6(b)
(each such Non-Renewing Committed Purchaser whose rights and
obligations under this Agreement and the other applicable
Transaction Documents are not so assigned is herein referred to as
a “ Terminating
Committed
Purchaser
”) and at least one Committed Purchaser is not a Non-Renewing
Committed Purchaser, the then existing Liquidity Termination Date
shall be extended for an additional 364 days; provided ,
however , that
(i) each of the Purchase Limit and the relevant Group Purchase
Limit shall be reduced on the Liquidity Termination Date that such
Terminating Committed Purchaser did not consent to extend by an
aggregate amount equal to the Terminating Commitment Availability
as of such date of each Terminating Committed Purchaser and shall
thereafter continue to be reduced by amounts equal to any reduction
in the Capital of any Terminating Committed Purchaser (after
application of Collections pursuant to Sections 2.2
and 2.3 ) and (ii)
the Commitment of each Terminating Committed Purchaser shall be
reduced to zero on the Termination Date applicable to such
Terminating Committed Purchaser. Upon reduction to zero
of the Capital of all of the Purchaser Interests of a Terminating
Committed Purchaser (after application of Collections thereto
pursuant to Sections 2.2
and 2.3 ) all
rights and obligations of such Terminating Committed Purchaser
hereunder shall be terminated and such Terminating Committed
Purchaser shall no longer be a “Committed Purchaser”;
provided ,
however , that
the provisions of Article X
shall continue in effect for its benefit with respect to Purchaser
Interests held by such Terminating Committed Purchaser prior to its
termination as a Committed Purchaser.
(c)
Any requested extension
of the Liquidity Termination Date may be approved or disapproved by
a Committed Purchaser in its sole discretion. In the
event that the Commitments are not extended in accordance with the
provisions of this Section 4.6 ,
the Commitment of each Committed Purchaser shall be reduced to zero
on the Liquidity Termination Date. Upon reduction to
zero of the Commitment of a Committed Purchaser and upon reduction
to zero of the Capital of all of the Committed Purchaser Interests
all rights and obligations of such Committed Purchaser hereunder
shall be terminated and such Committed Purchaser shall no longer be
a “Committed Purchaser”; provided ,
however , that
the provisions of Article X
shall continue in effect for its benefit with respect to Purchaser
Interests held by such Committed Purchaser prior to its
termination as a Committed Purchaser.
REPRESENTATIONS
AND WARRANTIES
Section
5.1 Representations and
Warranties of t he Seller
Parties . Each
Seller Party hereby represents and warrants to the Agent, the
Funding Agents and the Purchasers, as to itself, as of the date
hereof and as of the date of each Incremental Purchase and the date
of each Reinvestment that:
(a)
Corporate Existence
and Power . Such Seller Party is a corporation
duly organized, validly existing and in good standing under the
laws of its state of incorporation. Such Seller Party is
duly qualified to do business and is in good standing as a foreign
corporation, 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 could not reasonably be expected to have a
Material Adverse Effect.
(b)
Power and Authority;
Due Authorization, Execution and Delivery . The
execution and delivery by such Seller 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 Seller, Seller’s use of the proceeds of purchases
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 Seller Party is a party has been duly executed and
delivered by such Seller Party.
(c)
No Conflict
. The execution and delivery by such Seller 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, and do not result in the creation or imposition
of any Adverse Claim on assets of such Seller Party or its
Subsidiaries (except as created hereunder), except, in any case,
where such contravention or violation could not reasonably be
expected to have a Material Adverse Effect; 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 Seller 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 Seller Party’s knowledge, threatened,
against or affecting such Seller Party, or any of its properties,
in or before any court, arbitrator or other body, that could
reasonably be expected to have a Material Adverse
Effect. Such Seller Party is not in default with respect
to any order of any court, arbitrator or governmental body, which
default, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(f)
Binding Effect
. This Agreement and each other Transaction Document to
which such Seller Party is a party constitute the legal, valid and
binding obligations of such Seller Party enforceable against such
Seller 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 Seller Party or any of its Affiliates to the
Agent or the Purchasers 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 Seller Party or any of its
Affiliates to the Agent or the Purchasers will be, true and
accurate in every material respect on the date such information is
stated or certified 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.
(h)
Use of
Proceeds . No proceeds of any purchase hereunder
will be used (i) for a purpose that violates, or would be
inconsistent with, Regulation T, U or X promulgated by the Board of
Governors of the Federal Reserve System from time to time or (ii)
to acquire any security in any transaction which is subject to
Section 12, 13 or 14 of the Securities Exchange Act of 1934, as
amended.
(i)
Good Title
. Immediately prior to each purchase hereunder, Seller
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 all financing
statements or other similar instruments or documents necessary
under the UCC (or any comparable law) of all appropriate
jurisdictions to perfect Seller’s ownership interest in each
Receivable, its Collections and the Related Security.
(j)
Perfection
. This Agreement, together with the filing of the
financing statements contemplated hereby, is effective to, and
shall, upon each purchase hereunder, transfer to the Agent for the
benefit of the relevant Purchaser or Purchasers (and the Agent for
the benefit of such Purchaser or Purchasers shall acquire from
Seller) 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 by the Transactions Documents. There have been
duly filed all financing statements or other similar instruments or
documents necessary under the UCC (or any comparable law) of all
appropriate jurisdictions to perfect the Agent’s (on behalf
of the Purchasers) ownership or security interest in the
Receivables, the Related Security and the Collections.
(k)
Places of Business
and Locations of Records . The principal places
of business and chief executive office of such Seller Party and the
offices where it keeps all of its Records are located at the
address(es) listed on Exhibit III or
such other locations of which the Agent has been notified in
accordance with Section 7.2(a)
in jurisdictions where all action required by Section
14.4(a) has been taken and completed. Such Seller
Party’s Federal Employer Identification Number is 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 Seller at each
Collection Bank and the post office box number of each Lock-Box,
are listed on Exhibit IV
. Seller has not granted any Person, other than the
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 . (i) The initial Servicer represents and
warrants that since December 31, 1999, and the initial Sub-Servicer
represents and warrants that since December 31, 2007, no event has
occurred that would have a material adverse effect on the financial
condition or operations of the initial Servicer and its
Subsidiaries or the initial Sub-Servicer and its Subsidiaries, as
applicable, or the ability of the initial Servicer or the initial
Sub-Servicer to perform its obligations under this Agreement, and
(ii) Seller represents and warrants that since the date of this
Agreement, no event has occurred that would have a material adverse
effect on (A) the financial condition or operations of Seller, (B)
the ability of Seller to perform its obligations under the
Transaction Documents, or (C) the collectibility of the Receivables
generally or any material portion of the Receivables.
(n)
Names
. In the past five (5) years, Seller 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
Seller . Originator owns, directly or indirectly,
100% of the issued and outstanding capital stock of Seller, free
and clear of any Adverse Claim. Such capital stock is
validly issued, fully paid and nonassessable, and there are no
options, warrants or other rights to acquire securities of
Seller.
(p)
Not
an
Investment Company . Such Seller 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 Seller 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 could 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 could not reasonably
be expected to have a Material Adverse Effect.
(r)
Compliance with
Credit and Collection Policy . Such Seller 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 change to such Credit and Collection
Policy, except such material change as to which the Agent has
been notified in accordance with Section
7.1(a)(vii) .
(s)
Payments to
Originator and Original
Sellers . With respect to each Receivable
transferred to Seller under the Receivables Sale Agreement, Seller
has given reasonably equivalent value to Originator in
consideration therefor and such transfer was not made for or on
account of an antecedent debt. No transfer by Originator
of any Receivable under the Receivables Sale Agreement is or may be
voidable under any section of the Bankruptcy Reform Act of 1978 (11
U.S.C. §§ 101
et
seq. ), as
amended. With respect to each Receivable transferred to
Originator under the Transfer Agreement, Originator has given
reasonably equivalent value to the applicable Original Seller in
consideration therefor and such transfer was not made for or on
account of an antecedent debt. No transfer by any
Original Seller of any Receivable under the Transfer Agreement is
or may be voidable under any section of the Bankruptcy Reform Act
of 1978 (11 U.S.C. §§ 101 et seq.), as
amended.
(t)
Enforceabil
ity 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
Receivables Balance as an Eligible Receivable on the date of its
purchase under the Receivables Sale Agreement was an Eligible
Receivable on such purchase date.
(v)
Net Receivables
Balance . Seller has determined that, immediately
after giving effect to each purchase hereunder, the Net Receivables
Balance is at least equal to the sum of (i) the Aggregate
Capital, plus (ii) the
Aggregate Reserves.
(w)
Accounting
. The manner in which such Seller Party accounts for the
transactions contemplated by this Agreement and the Receivables
Sale Agreement does not jeopardize the true sale
analysis.
Section
5.2 Committed
Purch aser
Representations and
Warranties . Each
Committed Purchaser hereby represents and warrants to the Agent and
the Conduit(s) in the related Conduit Group that:
(a)
Existence and
Power . Such Committed Purchaser is a corporation
or a banking association duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation
or organization, and has all corporate power to perform its
obligations hereunder.
(b)
No Conflict
. The execution and delivery by such Committed Purchaser
of this Agreement and the performance of its obligations hereunder
are within its corporate powers, have been duly authorized by all
necessary corporate action, do not contravene or violate (i) its
certificate or articles of incorporation or association 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 any of its property is bound, or (iv) any order,
writ, judgment, award, injunction or decree binding on or affecting
it or its property, and do not result in the creation or imposition
of any Adverse Claim on its assets. This Agreement has
been duly authorized, executed and delivered by such Committed
Purchaser.
(c)
Governmental
Authorization . 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 Committed Purchaser of this Agreement and the
performance of its obligations hereunder.
(d)
Bi
nding
Effect . This Agreement constitutes the legal,
valid and binding obligation of such Committed Purchaser
enforceable against such Committed Purchaser 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 such
enforcement is sought in a proceeding in equity or at
law).
CONDITIONS
OF PURCHASES
Section
6.1 Conditio
ns
Precedent to Initial Incremental Purchase
. The
initial Incremental Purchase of a Purchaser Interest under this
Agreement is subject to the conditions precedent that the Agent
shall have received on or before the date of such purchase those
documents listed on Schedule B
that are required to be delivered on or before such date and the
Agent and each Funding Agent shall have received all fees and
expenses required to be paid on such date pursuant to the terms of
this Agreement and the Fee Letter.
Section
6.2 Conditi
ons
Precedent to All Purchases and Reinvestments
. Each
purchase of a Purchaser Interest and each Reinvestment shall be
subject to the further conditions precedent that (a) in the case of
each such purchase or Reinvestment: (i) Servicer shall have
delivered to the Agent on or prior to the date of such purchase, in
form and substance satisfactory to the Agent, all Monthly Reports
and Interim Reports as and when due under Section 8.5
and (ii) upon the Agent’s request, Servicer shall have
delivered to the Agent at least three (3) days prior to such
purchase or Reinvestment an interim Monthly Report showing the
amount of Eligible Receivables; (b) the Facility Termination Date
shall not have occurred; (c) the Agent shall have received such
other approvals, opinions or documents as it may reasonably request
and (d) on the date of each such Incremental Purchase or
Reinvestment, the following statements shall be true (and
acceptance of the proceeds of such Incremental Purchase or
Reinvestment shall be deemed a representation and warranty by
Seller 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 Purchase or
Reinvestment as though made on and as of such
date;
(ii) no
event has occurred and is continuing, or would result from
such Incremental Purchase or Reinvestment, that would
constitute an Amortization Event or a Potential Amortization
Event; and
(iii) the
Aggregate Capital does not exceed the Purchase Limit and the
aggregate Purchaser Interests do not exceed 100%.
It is
expressly understood that each Reinvestment shall, unless
otherwise directed by the Agent or any Purchaser, occur
automatically on each day that 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 Seller to satisfy any of the foregoing conditions
precedent in respect of such Reinvestment. The
failure of Seller to satisfy any of the foregoing conditions
precedent in respect of any Reinvestment shall give rise to a
right of the Agent, which right may be exercised at any time
on demand of the Agent, to rescind the related purchase and
direct Seller to pay to the Funding Agents for the benefit of
the Purchasers in their respective Conduit Groups an aggregate
amount equal to the Collections prior to the Amortization Date
that shall have been applied to the affected
Reinvestment.
COVENANTS
Section
7.1 Affirmative Covenants
of t h e Seller
Parties . Until
the date on which the Aggregate Unpaids have been indefeasibly paid
in full and this Agreement terminates in accordance with its terms,
each Seller Party hereby covenants, as to itself, as set forth
below:
(a)
Financial
Reporting . Such Seller 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 Agent:
(i)
Annual
Reportin g. Within 90 days after the close of
each of its respective fiscal years, audited financial statements
(which shall include balance sheets, statements of income and
retained earnings and a statement of cash flows) for Provider for
such fiscal year, together with an unqualified audit report (in
form satisfactory to the Agent) on such financial statements of,
and certified in a manner acceptable to the Agent by,
PricewaterhouseCoopers LLP or other independent public
accountants reasonably acceptable to the Agent.
(ii)
Quarterly
Reporting . Within 45 days after the close of the
first three (3) quarterly periods of each of its fiscal years,
balance sheets of Provider as at the close of each such period and
statements of income and retained earnings and a statement of cash
flows for the Provider for the period from the beginning of such
fiscal year to the end of such quarter, all certified by its chief
financial officer on behalf of the Provider.
(iii)
Compliance
Certificate . Together with the financial
statements required hereunder, a compliance certificate in
substantially the form of Exhibit V
signed by such Seller Party’s or Provider’s, as
applicable, Authorized Officer on behalf of such Person and dated
the date of such annual financial statement or such quarterly
financial statement, as the case may be.
(iv)
Sha
reholders
Statements and Reports . Promptly upon the
furnishing thereof to the shareholders of such Seller Party or
Provider copies of all financial statements, reports and proxy
statements so furnished.
(v) S.E.C. Filings
. Promptly upon the filing thereof, copies of all
registration statements (other than registration statements on Form
S-8) and annual, quarterly or other reports which Originator, any
Original Seller, Provider or any of their respective Subsidiaries
files with the Securities and Exchange Commission; provided , that Seller
Parties shall not be required to provide any registration
statements or reports which are available on the EDGAR system of
the Securities and Exchange Commission.
(vi)
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 Agent or
Conduit, copies of the same.
(vii)
Change in Credit and
Collection Policy . At least thirty (30) 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 be reasonably likely to adversely affect the
collectibility of the Receivables or decrease the credit quality of
any newly created Receivables, requesting the Agent’s consent
thereto; provided that
if such change or amendment was required pursuant to any change in
any applicable law, rule or regulation, such Seller Party shall
only be required to give prompt notice of such change or amendment
and shall not be required to request the consent of the
Agent.
(viii)
Other Informat
ion
. (A) Within 45 days after a request from the Agent,
internally prepared financial statements (which shall
include balance sheets, statements of income and retained earnings
and a statement of cash flow) for such Seller Party for any
quarterly period in any fiscal year of such Seller Party, all
certified by its chief financial officer, and (B) 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 Seller Party, any Original
Seller or Provider as the Agent may from time to time
reasonably request in order to protect the interests of the Agent
and the Purchasers under or as contemplated by this
Agreement.
(b)
Notices
. Such Seller Party will notify the Agent in writing of
any of the following promptly upon becoming aware of the occurrence
thereof, describing the same and, if applicable, the steps being
taken with respect thereto:
(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 on behalf of such Seller
Party.
(ii)
Judgment and
Proceedings . (A) The entry of any judgment or
decree against Provider or any of its Subsidiaries if the aggregate
amount of all judgments and decrees then outstanding against
Provider and its Subsidiaries exceeds $10,000,000 and (B) the
institution of any material litigation, arbitration
proceeding or governmental proceeding against Provider or any of
its Subsidiaries; and (C) the entry of any judgment or decree or
the institution of any litigation, arbitration proceeding or
governmental proceeding against Seller.
(iii)
Material Adverse
Effect . The occurrence of any event or condition
that has had, or could reasonably be expected to have, a Material
Adverse Effect.
(iv)
Termination
Date . The occurrence of (A) the “
Termination
Date ” under and as defined in the Receivables Sale
Agreement and (B) the “Termination Date” under and as
defined in the Transfer Agreement.
(v)
Defaults Under Other
Agreements . (A) The occurrence of a default or
an event of default under any other financing arrangement pursuant
to which Seller is a debtor or an obligor and (B) the occurrence of
any default or event of default under any other financing
arrangement or arrangements governing Indebtedness, individually or
in the aggregate, greater than or equal to $30,000,000 pursuant to
which Provider or any of its Subsidiaries is a debtor or an
obligor.
(vi)
Downgrade of
Originator or Provider . Any downgrade in the
rating of any Indebtedness of Originator, any Original
Seller or Provider by Standard & Poor’s Ratings
Group or by Moody’s Investors Service, Inc., setting forth
the Indebtedness affected and the nature of such
change.
(c) Compliance with
Laws and Preservation of
Corporate Existence . Such Seller Party will
comply 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 could not reasonably be expected to have a Material Adverse
Effect. Such Seller 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 its business is conducted, except where the failure to so
preserve and maintain or qualify could not reasonably be expected
to have a Material Adverse Effect.
(d)
Audits
. Such Seller Party will furnish to the Agent from time
to time such information with respect to it, any Original Seller
and the Receivables as the Agent may reasonably
request. Such Seller Party will (and will cause
Originator and each Original Seller to), from time to time during
regular business hours as requested by the Agent upon reasonable
notice and at the sole cost of such Seller Party, permit the Agent,
or its agents or representatives, (i) to examine and make copies of
and abstracts from all Records in the possession or under the
control of such Person relating to the Receivables and the Related
Security, including, without limitation, the related Contracts, 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 Receivables and the Related Security or
any Person’s performance under any of the Transaction
Documents or any Person’s performance under the Contracts
and, in each case, with any of the Authorized Officers or financial
officers of Seller, any Original Seller or Servicer having
knowledge of such matters. So long as no Potential
Amortization Event or Amortization Event exists, the visits under
this Section 7.1(d)
that are at the sole cost of the applicable Seller Party shall be
limited to once a calendar year; and upon the occurrence and during
the continuance of a Potential Amortization Event or an
Amortization Event, any and all visits shall be at the sole cost of
the applicable Seller Party.
(e)
Keeping and Marking
of Records and Books .
(i)
Servicer
will (and will cause Originator and each Original Seller 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 immediate identification of each new
Receivable and all Collections of and adjustments to each existing
Receivable). Servicer will (and will cause Originator
and each Original Seller to) give the Agent notice of any material
change in the administrative and operating procedures referred to
in the previous sentence.
(ii)
Such Seller
Party will (and will cause Originator and each Original Seller
to) (A) not later than the date hereof, mark its master data
processing records and other books and records relating to the
Purchaser Interests with a legend, acceptable to the Agent,
describing the Purchaser Interests and (B) upon the request of the
Agent (x) mark each Contract with a legend describing the Purchaser
Interests and (y) at any time after the occurrence of a Potential
Amortization Event, deliver to the Agent all Contracts (including,
without limitation, all multiple originals of any such Contract)
relating to the Receivables.
(f)
Compliance with
Contracts and Credit and Collection
Policy . Such Seller Party will (and will cause
Originator and each Original Seller to) timely and fully (i)
perform and comply 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 respects with the Credit
and Collection Policy in regard to each Receivable and the related
Contract.
(g)
Performance and
Enforcement of Receivables Sale Agreement
. Seller will, and will require Originator to, perform
each of their respective obligations and undertakings under and
pursuant to the Receivables Sale Agreement, will purchase
Receivables thereunder in strict compliance with the terms thereof
and will vigorously enforce the rights and remedies accorded to
Seller under the Receivables Sale Agreement. Seller will
take all actions to perfect and enforce its rights and interests
(and the rights and interests of the Agent and the Purchasers as
assignees of Seller) under the Receivables Sale Agreement as the
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
Sale Agreement.
(h)
Performance and
Enforcement of Transfer Ag
reement
. Seller will require Originator and each Original
Seller to perform each of their respective obligations and
undertakings under and pursuant to the Transfer Agreement, will
require that Originator purchase Receivables thereunder in strict
compliance with the terms thereof and will require that Originator
vigorously enforce the rights and remedies accorded to Originator
under the Transfer Agreement. Seller will require
Originator to take all actions to perfect and enforce
Originator’s rights and interests (and the rights and
interests of Seller as assignee of Originator, and the rights and
interests of the Agent and the Purchasers as assignees of Seller)
under the Transfer Agreement as Seller or the Agent may from time
to time reasonably request, in
cluding
, without
limitation ,
making claims to which it may be entitled under any indemnity,
reimbursement or similar provision contained in the Transfer
Agreement.
(i)
Ownership
by
Seller . Seller will (or will cause Originator
to) take all necessary action to (i) vest legal and equitable title
to the Receivables, the Related Security and the Collections
purchased under the Receivables Sale Agreement irrevocably in
Seller, free and clear of any Adverse Claims other than Adverse
Claims in favor of the Agent and the Purchasers ( 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 Seller’s interest in
such Receivables, Related Security and Collections and such other
action to perfect, protect or more fully evidence the interest of
Seller therein as the Agent may reasonably request), and (ii)
establish and maintain, in favor of the Agent, for the benefit of
the Purchasers, a valid and perfected first priority undivided
percentage ownership interest (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 Agent for the benefit of the Purchasers ( 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 Agent’s (for the
benefit of the Purchasers) interest in such Receivables, Related
Security and Collections and such other action to perfect, protect
or more fully evidence the interest of the Agent for the benefit of
the Purchasers as the Agent may reasonably request).
(j)
Ownership by
Originator . Seller will cause Originator to take
all necessary action to (i) vest legal and equitable title to the
Receivables, the Related Security and the Collections purchased
under the Transfer Agreement irrevocably in Originator, free and
clear of any Adverse Claims other than Adverse Claims in favor of
Seller, the Agent and the Purchasers ( 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 Originator’s interest in
such Receivables, Related Security and Collections and such other
action to perfect, protect or more fully evidence the interest of
Originator therein as Seller or the Agent may reasonably request),
and (ii) establish and maintain, in favor of Seller and the Agent,
for the benefit of the Purchasers, a valid and perfected first
priority undivided percentage ownership interest (or a valid and
perfected first priority security interest) in all Receivables,
Related Security and Collections purchased under the Transfer
Agreement, to the full extent contemplated herein, free and clear
of any Adverse Claims other than Adverse Claims in favor of Seller
and the Agent (for the benefit of the Purchasers) ( 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 Seller’s and the
Agent’s (for the benefit of the Purchasers) interest in such
Receivables, Related Security and Collections and such other action
to perfect, protect or more fully evidence the interest of Seller
and the Agent, for the benefit of the Purchasers, as Seller or the
Agent may reasonably request).
(k)
Purchasers
’
Reliance
. Seller acknowledges that the Purchasers are entering
into the transactions contemplated by this Agreement in reliance
upon Seller’s identity as a legal entity that is separate
from Originator and any Original Seller. Therefore, from
and after April 4, 2000, Seller shall take all reasonable steps,
including, without limitation, all steps that the Agent or any
Purchaser may from time to time reasonably request, to maintain
Seller’s identity as a separate legal entity and to make it
manifest to third parties that Seller is an entity with assets and
liabilities distinct from those of Originator, any Original Seller
and any Affiliates thereof and not just a division of Originator,
any Original Seller or any such Affiliate. Without
limiting the generality of the foregoing and in addition to the
other covenants set forth herein, Seller will:
(A)
conduct its
own business in its own name and require that all full-time
employees of Seller, if any, identify themselves as such and not as
employees of Originator or any Original Seller (including,
without limitation, by means of providing appropriate employees
with business or identification cards identifying such employees as
Seller’s employees);
(B)
compensate
all employees, consultants and agents directly, from Seller’s
own funds, for services provided to Seller by such employees,
consultants and agents and, to the extent any employee, consultant
or agent of Seller is also an employee, consultant or agent of
Originator, any Original Seller or any Affiliate thereof, allocate
the compensation of such employee, consultant or agent between
Seller and Originator, any Original Seller or such Affiliate, as
applicable, on a basis that reflects the services rendered to
Seller and Originator, such Original Seller or such Affiliate, as
applicable;
(C)
clearly
identify its offices (by signage or otherwise) as its offices and,
if such office is located in the offices of Originator or any
Original Seller, Seller 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 Originator, any Original Seller and Servicer
(including, without limitation, any delegation of its obligations
hereunder as Servicer) strictly on an arm’s-length basis,
allocate all overhead expenses (including, without limitation,
telephone and other utility charges) for items shared between
Seller and Originator or any Original Seller 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 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 Seller or (C) the initiation of, participation in,
acquiescence in or consent to any bankruptcy, insolvency,
reorganization or similar proceeding involving Seller, are duly
authorized by unanimous vote of its Board of Directors (including
the Independent Director);
(H)
maintain
Seller’s books and records separate from those of Originator,
any Original Seller and any Affiliate thereof and otherwise readily
identifiable as its own assets rather than assets of Originator,
any Original Seller and any Affiliate thereof;
(I)
prepare its
financial statements separately from those of
Originator and any Original Seller and insure that any
consolidated financial statements of Originator, any Original
Seller or any Affiliate thereof that include Seller and that are
filed with the Securities and Exchange Commission or any other
governmental agency have notes clearly stating that Seller is a
separate corporate entity and that its assets will be available
first and foremost to satisfy the claims of the creditors of
Seller;
(J)
except as
herein specifically otherwise provided, maintain the funds or other
assets of Seller separate from, and not commingled with, those of
Originator, any Original Seller or any Affiliate thereof and only
maintain bank accounts or other depository accounts to which Seller
alone is the account party;
(K)
pay all of
Seller’s operating expenses from Seller’s own assets
(except for certain payments by Originator, any Original Seller 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 Sale 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, (3) the incurrence of
obligations, as expressly contemplated in the Receivables Sale
Agreement, to make payment to Originator thereunder for the
purchase of Receivables from Originator under the Receivables Sale
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
corporate charter in conformity with this Agreement, such that it
does not amend, restate, supplement or otherwise modify its
Certificate of Incorporation or By-Laws in any respect that would
impair its ability to comply with the terms or provisions of any of
the Transaction Documents, including, without limitation,
Section
7.1(i) of this Agreement;
(N)
maintain the
effectiveness of, and continue to perform under the Receivables
Sale Agreement, the Transfer Agreement and the Performance
Undertaking, such that it does not amend, restate, supplement,
cancel, terminate or otherwise modify the Receivables Sale
Agreement, the Transfer 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
Sale Agreement, the Transfer Agreement or the Performance
Undertaking or otherwise grant any indulgence thereunder, without
(in each case) the prior written consent of the Agent;
(O)
maintain its
corporate separateness 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.
(P)
maintain at
all times the Required Capital Amount (as defined in the
Receivables Sale Agreement) and refrain from making any dividend,
distribution, redemption of capital stock or payment of any
subordinated indebtedness which would cause the Required Capital
Amount 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 opinions issued by Bryan Cave LLP,
as counsel for Seller, in connection with the Original Agreement,
this Agreement or initial Incremental Purchase under this Agreement
and relating to substantive consolidation issues, and in the
certificates accompanying such opinions, remain true and correct in
all material respects at all times.
(l)
Collections
. Such Seller 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 any Seller Party
or any Affiliate of any Seller Party, such Seller Party 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, such Seller Party or Affiliate will
itself hold or, if applicable, will cause such payments to be held
in trust for the exclusive benefit of the Agent and the
Purchasers. Seller will maintain exclusive ownership,
dominion and control (subject to the terms of this Agreement and
the applicable Collection Account 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 Agent as contemplated by this Agreement. The Agent
may cause the name of the lockbox account number 24234 to be
changed to “Playtex Products, Inc., as Sub-Servicer for
Energizer Battery, Inc., in its capacity as
Servicer.”
(m)
Taxes
. Such Seller Party will file all tax returns and
reports required by law to be filed by it and will promptly pay all
taxes and governmental charges at any time owing by
it. Seller will pay when due any taxes payable in
connection with the Receivables, exclusive of taxes on or measured
by income or gross receipts of any Conduit, the Agent or any
Committed Purchaser.
(n)
Insurance
. Seller will maintain in effect, or cause to be
maintained in effect, at Seller’s own expense, such casualty
and liability insurance as Seller shall deem appropriate in its
good faith business judgment. The Agent, for the benefit
of the Purchasers, shall be named as an additional insured with
respect to all such liability insurance maintained by
Seller. Seller will pay or cause to be paid, the
premiums therefor and deliver to the Agent evidence satisfactory to
the Agent of such insurance coverage. Evidence of each
policy shall be furnished to the Agent and any Purchaser in
certificated form upon the Agent’s or such Purchaser’s
request. The foregoing requirements shall not be
construed to negate, reduce or modify, and are in addition to,
Seller’s obligations hereunder.
(o)
Payment to
Originator and to any Original
Seller . With respect to any Receivable purchased
by Seller from Originator, such sale shall be effected under, and
in strict compliance with the terms of, the Receivables Sale
Agreement, including, without limitation, the terms relating to the
amount and timing of payments to be made to the Originator in
respect of the purchase price for such Receivable. With
respect to any Receivable purchased by Originator from any
Original Seller, such sale shall be effected under, and in strict
compliance with the terms of, the Transfer Agreement, including,
without limitation, the terms relating to the amount and timing of
payments to be made to the applicable Original Seller in respect of
the purchase price for such Receivable.
(p)
Certificates and Lien
Searches . Within thirty (30) days after the date
of this Agreement or such later date to which the Agent shall
agree, the Seller Parties will deliver (i) a good standing
certificate for each Seller Party and Provider issued by the
Secretary of State of each jurisdiction in which it has material
operations and (ii) state tax lien and judgment lien searches
against Playtex in each jurisdiction in which it has material
operations.
Section
7.2 Negative Covenants
of t he Seller
Parties . Until
the date on which the Aggregate Unpaids have been indefeasibly paid
in full and this Agreement terminates in accordance with its terms,
each Seller Party hereby covenants, as to itself,
that:
(a)
Name Change, Offices
and Records . Such
Seller Party will not change its name, identity or corporate
structure (within the meaning of Section 9-402(7) of any applicable
enactment of the UCC) or relocate its chief executive office or any
office where Records are kept unless it shall have: (i)
given the Agent at least thirty (30) days’ prior written
notice thereof and (ii) delivered to the Agent all financing
statements, instruments and other documents requested by the Agent
in connection with such change or relocation.
(b)
Change in Payment
Instructions to Obligors
(c)
Except as
may be required by the Agent pursuant to Section 8.2(b)
, such Seller 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 Agent 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
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.
(d)
Modifications to
Contracts and Credit and Collection Policy
. Such
Seller Party will not, and will not permit Originator or any
Original Seller to, make any change to the Credit and
Collection Policy that could adversely affect the
collectibility of the Receivables or decrease the credit
quality of any newly created Receivables. Except as
provided in Section
8.2(d) , Servicer will not, and will not permit
Originator or any Original Seller 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.
(e)
Sales,
Liens
. Seller
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 Clai
|
