PURCHASE AND RESALE AGREEMENT between ASPEN TECHNOLOGY RECEIVABLES I LLC as Seller and ASPEN TECHNOLOGY RECEIVABLES II LLCReceivables Purchase Transfer Agreement |
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EXHIBIT 10.4
EXECUTION COPY
PURCHASE AND RESALE AGREEMENT
as Purchaser
TABLE OF CONTENTS
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PURCHASE AND RESALE AGREEMENT
THIS PURCHASE AND RESALE AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “ Agreement ”), dated as of June 15, 2005, is between ASPEN TECHNOLOGY RECEIVABLES I LLC, a Delaware limited liability company, as seller (“ Seller ”), and ASPEN TECHNOLOGY RECEIVABLES II LLC, a Delaware limited liability company, as purchaser (the “ Purchaser ”).
PRELIMINARY STATEMENTS
Seller proposes to sell, assign and transfer all of its right, title and interest in and to certain Receivables and Related Security to the Purchaser, and the Purchaser has agreed to purchase, accept and acquire such Receivables and Related Security and it is understood that the Purchaser shall be obtaining funding to give effect to its purchase hereunder from certain Lenders in accordance with the terms of the Loan Agreement.
Seller and the Purchaser enter into this Agreement to set forth the terms and conditions on which the Receivables and Related Security shall be sold by Seller to the Purchaser, and purchased by the Purchaser from Seller, and the rights and benefits to be accorded the Purchaser and its successors and assigns (including, without limitation, the Lenders) in connection therewith.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows:
DEFINITIONS
The following terms used herein have the respective meanings indicated below:
“ Adverse Claim ” means a lien, security interest, charge or encumbrance, or other right or claim in, of or on any Person’s assets or properties in favor of any other Person.
“ Affiliate ” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person. For the purposes of this definition, “control”, when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the term “controlled” shall have meanings correlative to the foregoing.
“ Agent ” means Guggenheim Corporate Funding, LLC, or any other Person that shall then be acting as “Agent” for the benefit of the Lenders under, and in accordance with the terms of, the Loan Agreement.
“ Aspen ” means Aspen Technology, Inc., a Delaware corporation.
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“ Aspen Software ” means any software, computer programs, computer code and related materials which are (i) either
(a) owned exclusively by Aspen;
(b) owned by one of Aspen’s wholly-owned subsidiaries and licensed to Aspen on terms which permit the sublicensing of the same by Aspen; or
(c) owned by a Person not affiliated with Aspen and licensed to Aspen on terms which permit the sublicensing of the same by Aspen, and such materials are included by Aspen in a software package otherwise comprised primarily of Aspen Software of the type described in clauses (a) or (b) above which package has been assembled by Aspen for license to its customers,
and (ii) sold or licensed by Aspen in the ordinary course of its business to Obligors, together with any accompanying documentation, manuals, upgrades, releases, databases, enhancements, instructions and hardware security devices.
“ Business Day ” means any day that is not a Saturday, Sunday or other day on which banks are not authorized or required by law or executive order to close in New York City.
“ Charged-Off Receivable ” means a Receivable: (i) as to which the Obligor thereof has taken or suffered any Insolvency Event; (ii) which, consistent with the Credit and Collection Policy, would be written off Seller’s books as uncollectible, (iii) which has been identified by Seller as uncollectible or (iv) as to which any payment, or part thereof, remains unpaid for 364 days or more from the original due date for such payment.
“ Closing Date ” means the date hereof.
“ Collection Account ” means that certain depositary account number 3300388202 maintained by the Collection Account Bank together with the related postal lockbox at P.O. Box 83048, Woburn, MA 01813-3048.
“ Collection Account Bank ” means Silicon National Valley Bank as the depository institution at which the Collection Account is maintained.
“ Collections ” means, with respect to any Transferred Receivable, all funds which are received by the Purchaser, Aspen, Seller or the Servicer from or on behalf of the related Obligor(s) in payment of any amounts owed (including, without limitation, purchase or sale prices, principal, finance charges, interest and all other charges) in respect of such Transferred Receivable, or applied to such amounts owed by such Obligor(s).
“ Contract ” means, with respect to any Receivable, any and all instruments, agreements, invoices or other writings pursuant to which such Receivable arises or which evidences such Receivable.
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“ Credit and Collection Policy ” means, collectively, (i) the Credit Authorization Policy, (ii) the WW Collections Procedure and (iii) the Credit Line Schedule, a copy of which is attached hereto as Exhibit C .
“ Cutoff Date ” means May 31, 2005.
“ Debt ” shall mean, with respect to any Person, (i) all indebtedness of such Person for money borrowed (including all securitizations (whether on or off-balance sheet) involving such Person or its consolidated subsidiaries), (ii) all matured reimbursement obligations of such Person with respect to surety bonds, letters of credit and bankers’ acceptances, (iii) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments, (iv) all obligations of such Person to pay the deferred purchase price of property or services (including earnouts and other similar contingent obligations, calculated in accordance with GAAP), (v) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (vi) all capital lease obligations of such Person, (vii) all obligations under any interest rate contract or other interest rate protection or hedging arrangement, (viii) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any capital stock or other equity securities that, by their stated terms (or by the terms of any equity securities issuable upon conversion thereof or in exchange therefor), or upon the occurrence of any event, mature or are mandatorily redeemable, or are redeemable at the option of the holder thereof, in whole or in part, (ix) all indebtedness referred to in clauses (i) through (viii) above secured by any lien on any property or asset owned or held by such Person regardless of whether the indebtedness secured thereby shall have been assumed by such Person or is nonrecourse to the credit of such Person, (x) any contingent obligation of such Person, and (xi) all liabilities of such Person in respect of unfunded vested benefits under plans covered by Title IV of ERISA.
“ Deemed Collection ” means any amount as to which Seller is deemed to have received a Collection as described in Sections 3.2 or 3.3 hereof.
“ Delinquent Receivable ” means any Receivable as which any payment or portion thereof shall have remained unpaid for 90 days or more from the original due date for such payment.
“ Eligible Receivable ” means, at any time, a Receivable:
(i) the Obligor of which (a) is a corporation or other business organization; (b) is not an Affiliate of Aspen; and (c) is not a government or a governmental subdivision or agency,(ii) which is not a Charged-Off Receivable, and the Obligor of which is not the Obligor of any Charged-Off Receivable,(iii) which is not a Delinquent Receivable, unless expressly identified as being a Delinquent Receivable on the Receivables Schedule,
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(iv) which by its terms is due and payable in full no later than 66 months following the Closing Date, and such Receivable has not been extended, rewritten or otherwise modified from the original terms thereof except in accordance with the Credit and Collection Policy and as expressly described on the Receivables Schedule,(v) which is an “account” or “payment intangible” within the meaning of Section 9-102 of the UCC of all applicable jurisdictions,(vi) which is denominated and payable only in United States dollars in the United States; provided that a Receivable that otherwise satisfies the criteria for “Eligible Receivable” but for this clause (vi) may constitute an Eligible Receivable notwithstanding this clause (vi) if the Outstanding Balance thereof on the Closing Date, when added to the aggregate Outstanding Balance of all other Receivables that constitute Eligible Receivables as of such date by reason of this proviso would not exceed an amount equal to 25% of the Outstanding Balance of the Transferred Receivables on the Closing Date;(vii) the Obligor of which is either (a) organized under the laws of the United States or any political subdivision thereof and has its chief executive office in the United States or (b) (1) is organized under the laws of, or has its chief executive office in, any other jurisdiction and (2) the Outstanding Balance of such Receivable on the Closing Date, when added to the aggregate Outstanding Balance of all other Receivables that constitute Eligible Receivables on such date by reason of this clause (b) would not exceed an amount equal to 78% of the aggregate Outstanding Balance of all Transferred Receivables on the Closing Date;(viii) which arises under a Contract in substantially the form set forth on Exhibit A hereto, which, together with such Receivable, is in full force and effect and constitutes the legal, valid and binding obligation of the related Obligor to make the payments required thereunder and its otherwise enforceable against such Obligor in all material respects in accordance with its terms,(ix) which arises under a Contract which (a) does not require the Obligor under such Contract to consent to the transfer, sale or assignment of the rights and duties of Aspen or any of its assignees under such Contract, (b) does not contain a confidentiality provision that purports to restrict the ability of the Purchaser or any of its assigns to exercise its rights under this Agreement, including, without limitation, its right to review the Contract, and (c) is otherwise freely assignable,(x) which arises under a Contract that contains an obligation to pay a specified sum of money on such dates and in such amounts as are set forth on the Receivables Schedule,
(xi) which, together with the Contract related thereto, does not contravene any law, rule or regulation applicable thereto (including, without limitation, any law, rule and regulation relating to truth in lending, fair credit billing, fair credit reporting, equal credit
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opportunity, fair debt collection practices and privacy) and with respect to which no part of the Contract related thereto is in violation of any such law, rule or regulation,
(xii) which satisfies, in all material respects, all applicable requirements of the Credit and Collection Policy,(xiii) which was generated in the ordinary course of Aspen’s business,(xiv) which arises solely from the licensing or sale of Aspen Software to the related Obligor by Aspen, and not by any other Person (in whole or in part), and Aspen had full right and power to license or sell such Aspen Software without (i) any obligation to provide notice to or obtain the consent of any Person and (ii) any Adverse Claim arising in, to or against such Receivable in favor of any interestholder in the Aspen Software or in favor of any other Person,(xv) which is not subject to any right of rescission, set-off, counterclaim, any other defense (including defenses arising out of violations of usury laws) of the applicable Obligor against Aspen or any other Adverse Claim, and the Obligor thereon holds no right as against Aspen to cause Aspen to repurchase the Aspen Software, goods or merchandise the license or sale of which shall have given rise to such Receivable,(xvi) as to which Aspen has satisfied and fully performed all obligations on its part with respect to such Receivable required to be fulfilled by it, other than software maintenance obligations, and no other further action is required to be performed by any Person with respect thereto other than payment thereon by the applicable Obligor, and(xvii) Aspen, immediately prior to giving effect to the sale and assignment thereof hereunder, has good and marketable title thereto free and clear of any Adverse Claim, and upon giving effect to the sale and assignment thereof hereunder, the Purchaser shall acquire good and marketable title thereto free and clear of any Adverse Claim (other than any Adverse Claim which may have been created by the Purchaser in connection with the transactions contemplated in the Loan Agreement).“ Event of Default ” shall have the meaning assigned to such term in the Loan Agreement.
“ Finance Charges ” means, with respect to a Contract, any finance, interest, late payment charges or similar charges owing by an Obligor pursuant to such Contract.
“ Final Payout Date ” means the date on which all principal, interest and other obligations and liabilities of the Purchaser to the Lenders and the Agent under the Loan Agreement shall have been repaid in full and the Loan Agreement terminated.
“ FX Rights ” means those rights granted by Aspen to Seller under Section 1.6 of the Purchase and Sale Agreement.
“ Insolvency Event ” means the occurrence of any of the following: (i) a case or other proceeding under any applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law now or hereafter in effect shall be commenced by or against such
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Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up, or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or all or any substantial part of its assets, or any similar action with respect to such Person; or (ii) such Person shall make any general assignment for the benefit of creditors, or shall fail to, or admit in writing its inability to, pay its debts generally as they become due; or (iii) if a corporation, limited liability company or similar entity, its board of directors, managing committee or controlling partners shall vote to implement any of the foregoing.
“ Lender ” means any Person from time to time party to the Loan Agreement as a “Lender” thereunder.
“ Loan Agreement ” means that certain Loan Agreement, dated as of the date hereof, among the Purchaser, as borrower, Aspen, as the servicer, certain “Lenders” party thereto, and Guggenheim Corporate Funding, LLC, as “Agent” for the Lenders party thereto, as such agreement may be amended, restated, supplemented or otherwise modified from time to time.
“ Obligor ” means a Person obligated to make payments pursuant to a Contract.
“ Outstanding Balance ” means, in respect of any Receivable at any date of determination, the then outstanding principal amount thereof.
“ Person ” means an individual, partnership, corporation (including a business or statutory trust), joint stock company, trust, unincorporated association, joint venture, limited liability company, government or any agency or political subdivision thereof or any other entity.
“ Purchase and Sale Agreement ” means that certain Purchase and Sale Agreement, dated as of the date hereof, between Aspen, as seller thereunder, and the Seller, as purchaser thereunder, as such agreement may be amended, restated, supplemented or otherwise modified from time to time.
“ Purchase and Sale Indemnified Amounts ” shall have the meaning assigned to such term in Section 8.1 hereof.
“ Purchase and Sale Indemnified Party ” shall have the meaning assigned to such term in Section 8.1 hereof.
“ Purchase Price ” shall have the meaning assigned to such term in Section 2.1 hereof.
“ Purchaser ” shall have the meaning assigned to such term in the Preamble to this Agreement.
“ Receivable ” means all indebtedness and other obligations owed to Seller and identified on Schedule I hereto, whether, in any case constituting an account, chattel paper, instrument or general intangible, and including, without limitation, the obligation to pay any Finance Charges with respect thereto.
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“ Receivables Schedule ” means a list provided by Seller to the Purchaser on or prior to the date hereof, setting forth each Receivable proposed to be a Transferred Receivable on giving effect to this Agreement, together with such detail relating to such Receivables as the Purchaser or the Agent may reasonably request. The Receivables Schedule may be in the form of a printed spread sheet, a computer tape or in such other form as Seller and the Purchaser, with the consent of the Agent, may agree, as such agreement shall be evidenced by payment on the part of the Purchaser of the Purchase Price.
“ Related Security ” means, with respect to any Transferred Receivable:
(i) all of Seller’s right, title and interest in, to and under all Contracts that relate to such Transferred Receivable to the extent such right, title and interest relates to the payment obligation of the Obligor in respect of such Transferred Receivable;
(ii) all of Seller’s claims against the applicable Obligor for or in connection with the termination of the related Contracts;
(iii) all security deposits and other security interests or liens and property purporting to secure payment of such Transferred Receivable, whether pursuant to the Contract related to such Transferred Receivable or otherwise;
(iv) all UCC financing statements covering any collateral (if any) securing payment of such Transferred Receivable;
(v) all guarantees, letters of credit and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Transferred Receivable whether pursuant to the Contract related to such Transferred Receivable or otherwise;
(vi) all books, records and other information (including, without limitation, computer programs, tapes, disks, punch cards, data processing software and related property and rights) relating to such Receivable, any Related Security therefor and the related Obligor;
(vii) all of Seller’s right, title and interest in, to and under the Purchase and Sale Agreement, including, without limitation, the FX Rights thereunder; and
(viii) all proceeds of such Transferred Receivable and of any of the foregoing.
“ Replaced Receivable ” shall have the meaning assigned to such term in Section 3.4(b) hereof.
“ Reporting Date ” means the fifth day of each calendar month or, if such day is not a Business Day in any calendar month, the next following day that is a Business Day in such calendar month.
“ S&R Date ” shall have the meaning assigned to such term in Section 3.4(b) hereof.
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“ S&R Notice ” shall have the meaning assigned to such term in Section 3.4(b) hereof.
“ Servicer ” means, at any time, the Person then designated to perform the obligations of “Servicer” under and in connection with the Loan Agreement.
“ Servicer Material Adverse Effect ” means, with respect to any event or circumstance, a material adverse effect on:
(i) the business, assets, operations or condition (financial or otherwise) of Aspen;
(ii) the ability of Aspen to perform its obligations under any Transaction Document to which Aspen is a party;
(iii) the validity or enforceability of this Agreement or any other Transaction Document, or the validity, enforceability or collectibility of a material portion of the Transferred Receivables or the related Contracts; or
(iv) the existence, perfection, priority or enforceability of the Purchaser’s interest in a material portion of the Transferred Receivables or Related Security.
“ SPV Account ” means (i) that certain depository account in the name of Aspen Technology Receivables II LLC, number 3300489094 maintained by Silicon Valley Bank together with the related postal lockbox at P.O. Box 83167, Woburn, MA 01813-3167 or (ii) any other depositary account and related postal lockbox designated by the Agent or the Purchaser as the “SPV Account” or the “Collateral Account.”
“ Supersede and Replace ” shall have the meaning assigned to such term in Section 3.4(b) hereof.
“ Superseding Receivable ” shall have the meaning assigned to such term in Section 3.4(b) hereof.
“ Transaction Documents ” means, collectively, this Agreement, the Purchase and Sale Agreement, the Loan Agreement and each other instrument, document or agreement executed in connection with any of the foregoing.
“ Transferred Receivable ” shall have the meaning assigned to such term in Section 1.1(a) hereof and shall include, without limitation, each Superseding Receivable transferred to the Purchaser in accordance with Section 3.4(b) .
“ UCC ” means the Uniform Commercial Code, as in effect in any applicable jurisdiction.
“ Unmatured Event of Default ” shall have the meaning assigned to such term in the Loan Agreement.
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ARTICLE I
1.1 Agreement to Purchase and Sell . On the terms and subject to the conditions set forth in this Agreement, and in consideration of the Purchase Price, Seller agrees to sell, assign and transfer, and does hereby sell, assign and transfer, to the Purchaser, and the Purchaser agrees to purchase, accept and acquire, and does hereby purchase, accept and acquire from Seller, all of Seller’s right, title and interest in, to and under: (a) each Receivable listed on the Receivables Schedule (such Receivables, collectively, the “ Transferred Receivables ”); (b) all related Contracts and all Related Security with respect to the Transferred Receivables; and (c) all Collections with respect to and other proceeds thereof (as defined in the UCC) received on or after the date hereof. All purchases hereunder shall be made without recourse, but shall be made pursuant to and in reliance upon the representations, warranties and covenants of Seller set forth herein.
1.2 Timing of Purchase . The sale, assignment and transfer by Seller to the Purchaser, and the purchase, acceptance and acquisition by the Purchaser from Seller, of the Transferred Receivables and Related Security shall, subject to the satisfaction of the conditions precedent set forth in Article IV , occur on the date hereof.
1.3 Consideration for Purchases . On the terms and subject to the conditions set forth in this Agreement, the Purchaser agrees to make the Purchase Price payment to Seller in accordance with Article III .
1.4 Intentions of Parties . It is the intention of the parties hereto that the conveyance of Seller’s right, title and interest in, to and under the Transferred Receivables and Related Security by Seller to the Purchaser as provided in Section 1.1 shall constitute an absolute transfer conveying good title, free and clear of any Adverse Claim (other than any Adverse Claim created under the Transaction Documents) and that the Transferred Receivables and Related Security shall not be part of Seller’s bankruptcy estate in the event of an Insolvency Event with respect to Seller. It is also the intention of the parties that this Agreement constitutes a sale of accounts or payment intangibles within the meaning of Article 9 of the UCC but it is not intended that such conveyance be deemed a pledge of the Transferred Receivables and Related Security by Seller to the Purchaser to secure a debt or other obligation of Seller. If, however, notwithstanding the intention of the parties, the conveyance provided for in Section 1.1 is determined to be a transfer for security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and Seller hereby grants to the Purchaser a duly perfected, first priority security interest within the meaning of the UCC in all of Seller’s right, title and interest in, to and under the Transferred Receivables and Related Security, now existing and hereafter created, to secure the prompt and complete payment of all obligations of Seller hereunder, including the obligation of Seller to remit to the Purchaser all Collections and other proceeds of the Transferred Receivables and Related Security. The Purchaser shall have, in addition to all other rights and remedies that it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and any other applicable law which rights and remedies shall be cumulative.
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1.5 No Assumption of Obligations . Neither the Purchaser nor any of its assigns have any obligation or liability to any Obligor or other customer or client of Seller (including any obligation to perform any of the obligations of Seller in respect of maintenance or otherwise under any of the Contracts relating to the Transferred Receivables) with respect to any of the Transferred Receivables, Related Security or Aspen Software.
ARTICLE II
2.1 Receivables Schedule . On or prior to the Closing Date, Seller shall deliver to the Purchaser and the Agent the Receivables Schedule, which shall identify each Receivable proposed to be a Transferred Receivable, the Obligor thereon and the Outstanding Balance thereof as of the Cutoff Date. The aggregate Outstanding Balance as of the Cutoff Date of the Receivables proposed to be Transferred Receivables hereunder shall be an amount not less than $83,421,360.
2.2 Purchase Price. The purchase price (the “ Purchase Price ”) payable by the Purchaser on the date hereof in accordance with the terms of Article III shall be an amount equal to an amount agreed upon by the Seller and the Purchaser. Seller and the Purchaser agree that the Purchase Price represents the fair market value thereof of the Transferred Receivables as of the Closing Date.
ARTICLE III
3.1 Purchase Price Payment . On the terms and subject to the conditions set forth in this Agreement, the Purchaser agrees to pay to Seller on the Closing Date a portion of the Purchase Price for the purchase to be made from Seller with respect to the Transferred Receivables in the amount of $43,750,000, representing an amount to the Loans made to the Purchaser on the Closing Date under the Loan Agreement, net of any such amounts required thereunder to be funded as reserves or paid as expenses. To the extent such net proceeds received by the Purchaser under the Loan Agreement are not sufficient to pay the full Purchase Price for the Transferred Receivables and Related Security, Seller hereby makes a capital contribution to the Purchaser of all Transferred Receivables and Related Security for which the Purchase Price is not paid in cash on the Closing Date.
3.2 Settlement as to Transferred Receivables . If (a) on the day that any Receivable is transferred hereunder the representation and warranty set forth in Section 5.14 was not true with respect to such Receivable, or (b) on any day any of the representations or warranties set forth in either Section 5.12 or Section 5.13 is not or is no longer true with respect to a Transferred Receivable, then Seller shall be deemed to have received a Collection in an amount equal to the Outstanding Balance of the affected Receivable (plus any accrued interest or finance charges
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thereon), which amount shall constitute a Deemed Collection. Seller shall deposit the amount of such Deemed Collection into the SPV Account promptly following the date it first becomes aware of any of the circumstances described above, and in any event by no later than the immediately following Reporting Date.
3.3 Settlement as to Dilution . Except as otherwise provided in Section 3.4 , if on any day the Outstanding Balance of any Transferred Receivable is reduced, cancelled or terminated as a result of:
(A) any defective, rejected or returned software, goods or services, any cash discount, or any incorrect billing or other adjustment by Aspen, Seller or any Affiliate thereof; or
(B) any failure on the part of Aspen, Seller or any Affiliate thereof to deliver or provide any software, upgrades, supplements, refinements, goods or maintenance or other services contemplated to be delivered or provided under or in connection with any related Contract,
(C) any setoff in respect of any claim by the Obligor thereof against Aspen, Seller or any Affiliate thereof (whether such claim arises out of the same or a related or an unrelated transaction) or by reason of becoming subject to any dispute, offset, counterclaim or defense whatsoever (except the discharge in bankruptcy of the Obligor thereof or such Obligor’s financial inability to pay); or
(D) any obligation of Aspen, Seller or any Affiliate thereof to pay to the related Obligor any rebate or refund; or
(E) any action taken by Aspen, Seller or any of its Affiliates outside the scope of any authorized collection services it may then be providing as Servicer and other than a Supersede-and-Replace transaction authorized under Section 3.4(b) and in connection with which an eligible Superseding Receivable replaces the affected Receivable,
then, on such day, Seller shall be deemed to have received a Collection of such Transferred Receivable in the amount of such reduction, cancellation or termination, and such amount shall constitute a Deemed Collection. Seller shall deposit into the SPV Account in cash in immediately available funds each Deemed Collection promptly following the date it first becomes aware of any of the circumstances described above, and in any event by no later than the immediately following Reporting Date.
3.4 Supersede and Replace Receivables .
(a) In connection with the expansion of a licensing arrangement with an Obligor, such Obligor may request for purposes of administrative convenience that Aspen enter into an amended and restated Contract, the effect of which is to supersede and replace (a “ Supersede-and-Replace ”) the then outstanding receivables under the original Contract with such Obligor.
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(b) Subject to the following terms and conditions, the Purchaser agrees to accept from Seller, in lieu of the Deemed Collection that would otherwise be required under Section 3.3 upon any Supersede-and-Replace relating to a Transferred Receivable (a “ Replaced Receivable ”), the new Receivable (the “ Superseding Receivable ”) arising in connection with such Supersede-and-Replace:
(i) Not less than two Business Days prior to giving effect to a Supersede-and-Replace, Seller shall provide the Purchaser and the Agent written notice (an “ S&R Notice ”) setting forth (A) the identity of the affected Transferred Receivable, (B) the terms of the Superseding Receivable becoming effective upon causing such Transferred Receivable to become a Replaced Receivable, (C) a certification that the proposed Supersede-and-Replace is being undertaken at the request of the applicable Obligor and otherwise in accordance with the customary practice and procedures of Aspen, (D) a description, in such detail as may be reasonably requested by the Purchaser or the Agent, demonstrating compliance by Seller with the terms of this Section 3.4(b) , and (E) the date (the applicable “ S&R Date ”) on which such Supersede-and-Replace is scheduled to occur;
(ii) The Replaced Receivable shall not have been a Delinquent Receivable at any time following the Closing Date;
(iii) The Outstanding Balance of the Replaced Receivable immediately prior to the applicable S&R Date, when added to the aggregate Outstanding Balance of all other Transferred Receivables that shall have become Replaced Receivables under this Section 3.4(b) on any prior date during the PSA Year in which such S&R Date occurs, shall not exceed an amount equal to ten percent (10%) of the aggregate Outstanding Balance of all Transferred Receivables as of the first day of such PSA Year. For purposes of this clause (iii) , “ PSA Year ” shall mean, initially, the period commencing on the date hereof and ending twelve months after the date hereof, and thereafter each successive period of twelve months commencing on an anniversary of the date hereof and ending on the immediately following anniversary of the date hereof;
(iv) The Superseding Receivable shall satisfy each of the following criteria as of the S&R Date:
(A) such Superseding Receivable is due from the same Obligor as the related Replaced Receivable;
(B) the term of the Contract for the Superseding Receivable equals or exceeds the term of the Contract for the related Replaced Receivable;
(C) the periodic payments required under the Contract for the Superseding Receivable occur no less frequently than the periodic payments required under the Contract for the related Replaced Receivable;
(D) each periodic payment required under the Contract for the Superseding Receivable equals or exceeds the amount of the periodic payment
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that would have been due on the corresponding date under the Contract for the related Replaced Receivable; and
(E) the Superseding Receivable is an Eligible Receivable and otherwise satisfies as of the S&R Date each of the representati | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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