EXHIBIT 10.8(a)
LOAN AGREEMENT
DATED AS OF APRIL 30, 2002
AMONG
CENTRAL RECEIVABLES, INC.,
AS BORROWER
AND
CENTRAL FREIGHT LINES, INC,
AS SERVICER
AND
THREE PILLARS FUNDING CORPORATION,
AS LENDER
AND
SUNTRUST CAPITAL MARKETS, INC.,
AS ADMINISTRATOR
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS .................................................................................. 1
SECTION 1.1 DEFINED TERMS............................................................................... 1
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS............................................................... 17
SECTION 1.3 OTHER TERMS................................................................................. 18
SECTION 1.4 COMPUTATION OF TIME PERIODS................................................................. 18
ARTICLE II LENDER'S COMMITMENT, BORROWING PROCEDURES AND THE LENDER NOTE ............................... 18
SECTION 2.1 LENDER'S COMMITMENT......................................................................... 18
SECTION 2.2 BORROWING PROCEDURES........................................................................ 18
SECTION 2.3 FUNDING..................................................................................... 19
SECTION 2.4 REPRESENTATION AND WARRANTY ................................................................ 19
SECTION 2.5 EARLY TERMINATION OF LENDER'S COMMITMENT.................................................... 19
SECTION 2.6 VOLUNTARY TERMINATION OF LENDER'S COMMITMENT; REDUCTION OF FACILITY LIMIT .................. 19
SECTION 2.7 NOTE........................................................................................ 19
ARTICLE III INTEREST, FEES, ETC. ....................................................................... 20
SECTION 3.1 INTEREST RATES ............................................................................. 20
SECTION 3.2 INTEREST, PAYMENT DATES..................................................................... 20
SECTION 3.3 INTEREST ALLOCATIONS........................................................................ 21
SECTION 3.4 FEES........................................................................................ 21
SECTION 3.5 COMPUTATION OF INTEREST AND FEES............................................................ 21
ARTICLE IV REPAYMENTS AND PREPAYMENTS; DISTRIBUTION OF COLLECTIONS...................................... 21
SECTION 4.1 REPAYMENTS AND PREPAYMENTS.................................................................. 21
SECTION 4.2 APPLICATION OF COLLECTIONS.................................................................. 22
SECTION 4.3 APPLICATION OF CERTAIN PAYMENTS............................................................. 23
SECTION 4.4 DUE DATE EXTENSION ......................................................................... 23
SECTION 4.5 MAKING OF PAYMENTS.......................................................................... 23
ARTICLE V SECURITY INTEREST ............................................................................ 24
SECTION 5.1 GRANT OF SECURITY........................................................................... 24
SECTION 5.2 ADMINISTRATOR APPOINTED ATTORNEY-IN-FACT.................................................... 25
SECTION 5.3 ADMINISTRATOR MAY PERFORM................................................................... 25
SECTION 5.4 RELEASE OF COLLATERAL....................................................................... 25
ARTICLE VI INCREASED COSTS, ETC. ....................................................................... 26
ii
SECTION 6.1 INCREASED COSTS............................................................................. 26
SECTION 6.2 FUNDING LOSSES.............................................................................. 27
SECTION 6.3 WITHHOLDING TAXES........................................................................... 27
ARTICLE VII CONDITIONS TO BORROWING..................................................................... 28
SECTION 7.1 INITIAL LOAN................................................................................ 28
SECTION 7.2 ALL LOANS................................................................................... 29
ARTICLE VIII REPRESENTATIONS AND WARRANTIES............................................................. 30
SECTION 8.1 ORGANIZATION AND GOOD STANDING, ETC......................................................... 30
SECTION 8.2 POWER AND AUTHORITY; DUE AUTHORIZATION...................................................... 30
SECTION 8.3 NO VIOLATION................................................................................ 31
SECTION 8.4 VALIDITY AND BINDING NATURE................................................................. 31
SECTION 8.5 GOVERNMENT APPROVALS........................................................................ 31
SECTION 8.6 SOLVENCY.................................................................................... 31
SECTION 8.7 MARGIN REGULATIONS.......................................................................... 31
SECTION 8.8 QUALITY OF TITLE............................................................................ 32
SECTION 8.9 OFFICES..................................................................................... 32
SECTION 8.10 COMPLIANCE WITH APPLICABLE LAWS; LICENSES, ETC............................................. 32
SECTION 8.11 NO PROCEEDINGS............................................................................. 32
SECTION 8.12 INVESTMENT COMPANY ACT, ETC................................................................ 33
SECTION 8.13 ELIGIBLE RECEIVABLES....................................................................... 33
SECTION 8.14 ACCURACY OF INFORMATION.................................................................... 33
SECTION 8.15 NO MATERIAL ADVERSE CHANGE................................................................. 33
SECTION 8.16 TRADE NAMES AND SUBSIDIARIES............................................................... 33
SECTION 8.17 ACCOUNTS................................................................................... 33
SECTION 8.18 SALES BY ORIGINATOR........................................................................ 34
ARTICLE IX COVENANTS OF BORROWER AND SERVICER........................................................... 34
SECTION 9.1 AFFIRMATIVE COVENANTS....................................................................... 34
SECTION 9.2 NEGATIVE COVENANTS OF BORROWER AND SERVICER................................................. 41
ARTICLE X SIGNIFICANT EVENTS AND THEIR EFFECT........................................................... 42
SECTION 10.1 EVENTS OF DEFAULT.......................................................................... 42
SECTION 10.2 AMORTIZATION EVENTS........................................................................ 43
SECTION 10.3 EFFECT OF SIGNIFICANT EVENT................................................................ 44
ARTICLE XI THE SERVICER................................................................................. 44
SECTION 11.1 CENTRAL AS INITIAL SERVICER................................................................ 44
SECTION 11.2 CERTAIN DUTIES OF SERVICER................................................................. 45
SECTION 11.3 SERVICING COMPENSATION..................................................................... 48
SECTION 11.4 AGREEMENT NOT TO RESIGN.................................................................... 48
SECTION 11.5 DESIGNATION OF SERVICER.................................................................... 49
SECTION 11.6 TERMINATION................................................................................ 49
SECTION 11.7 SERVICER EVENTS OF DEFAULT................................................................. 49
iii
ARTICLE XII ADMINISTRATOR............................................................................... 50
SECTION 12.1 AUTHORIZATION AND ACTION................................................................... 50
SECTION 12.2 ADMINISTRATOR AND AFFILIATES............................................................... 50
ARTICLE XIII ASSIGNMENTS................................................................................ 51
SECTION 13.1 RESTRICTIONS ON ASSIGNMENTS................................................................ 51
SECTION 13.2 DOCUMENTATION.............................................................................. 51
SECTION 13.3 RIGHTS OF ASSIGNEE......................................................................... 51
SECTION 13.4 NOTICE OF ASSIGNMENT....................................................................... 51
ARTICLE XIV INDEMNIFICATION............................................................................. 52
SECTION 14.1 GENERAL INDEMNITY OF BORROWER.............................................................. 52
SECTION 14.2 INDEMNITY OF SERVICER...................................................................... 52
ARTICLE XV MISCELLANEOUS................................................................................ 52
SECTION 15.1 NO WAIVER; REMEDIES........................................................................ 52
SECTION 15.2 AMENDMENTS, ETC. .......................................................................... 53
SECTION 15.3 NOTICES, ETC............................................................................... 53
SECTION 15.4 COSTS, EXPENSES AND TAXES.................................................................. 53
SECTION 15.5 BINDING EFFECT; SURVIVAL................................................................... 54
SECTION 15.6 CAPTIONS AND CROSS REFERENCES.............................................................. 54
SECTION 15.7 SEVERABILITY............................................................................... 54
SECTION 15.8 GOVERNING LAW.............................................................................. 55
SECTION 15.9 COUNTERPARTS............................................................................... 55
SECTION 15.10 SUBMISSION TO JURISDICTION; WAIVER OF TRIAL BY JURY....................................... 55
SECTION 15.11 NO RECOURSE AGAINST LENDER................................................................ 55
SECTION 15.12 NO PROCEEDINGS............................................................................ 55
SECTION 15.13 LIMITATION ON PAYMENTS.................................................................... 56
SECTION 15.14 CONFIDENTIALITY OF AGREEMENT.............................................................. 56
SECTION 15.15 ENTIRE AGREEMENT.......................................................................... 56
EXHIBITS
Exhibit A Form of Borrowing Request (Section 2.2)
Exhibit B Form of Lender Note (Section 2.7)
Exhibit C Form of Period Report (Section 9.1(e)(ii))
Exhibit D Form of Borrowing Base Certificate (Section 7.1(m))
Exhibit E Form of Collection Account Agreement
Exhibit F [Reserved]
Exhibit G Form of Originator Note
Exhibit H Form of Withdrawal Certificate (Section 11.2(d)
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SCHEDULES
Schedule I Description of Collection Account, Depository Account and LockBox
Schedule II [Reserved]
Schedule III Form of Contract
Schedule IV Description of Proceedings
Schedule V Collateral Review Requirements
Schedule VI Notice Addresses
Schedule VII Fiscal Periods
v
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of April 30, 2002,
among CENTRAL RECEIVABLES, INC., a Nevada corporation ("Central Receivables" or
the "Borrower"), CENTRAL FREIGHT LINES, INC., a Nevada corporation ("Central
Nevada"), as initial servicer hereunder (in such capacity the "Servicer"), THREE
PILLARS FUNDING CORPORATION ("TPFC"), a Delaware corporation (together with its
successors and permitted assigns, "Lender"), and SUNTRUST CAPITAL MARKETS, INC.,
a Tennessee corporation, as agent and administrator for Lender (in such
capacity, together with its successor and assigns in such capacity, the
"Administrator.")
BACKGROUND
1. Borrower desires that Lender extend financing to Borrower on the terms
and subject to the conditions set forth herein.
2. Lender is willing to provide such financing on the terms and subject to
the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINED TERMS.
As used in this Agreement, the following terms have the following
meanings:
Accounts Receivable Turnover Ratio: For any Due Period, the ratio computed as of
the last day of such Due Period by dividing (i) the aggregate amount of Sales
during the most recent thirteen (13) Due Periods by (ii) the rolling thirteen
(13) Due Period average of the aggregate Unpaid Balance of Receivables.
Administrator: As defined in the Preamble
Administrator's Account: As defined in Section 4.5.
Advance Rate: The percentage equal to (i) 100% minus (ii) the Reserve
Percentage. Adverse Claim: A Lien, security interest, pledge, charge or
encumbrance, or similar right or claim of any Person.
Affected Party: Each of Lender, any Liquidity Bank, any Credit Bank, any
permitted assignee of Lender, any Credit Bank or any Liquidity Bank, any Support
Provider and any holder of a participation interest in the rights and
obligations of any Liquidity Bank or Credit Bank under the Liquidity Agreement
or the Credit Agreement, as the case may be, Administrator and any holding
company of Bank.
Affiliate: Of any Person means any other Person that (i) directly or indirectly
controls, is controlled by or is under common control with such Person or (ii)
is an officer or director of such Person. A Person shall be deemed to be
"controlled by" another Person if such other Person possesses, directly or
indirectly, power (A) to vote 15% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or managing
partners of such other Person, or (B) to direct or cause the direction of the
management and policies of such other Person whether by contract or otherwise.
Aggregate Unpaid Balance: At any time, the aggregate Unpaid Balance of all
Eligible Receivables at such time.
Agreement: This Loan Agreement, as it may be amended, supplemented or otherwise
modified from time to time in accordance with the terms hereof.
Allocations: As defined in Section 3.3.
Alternative Rate: For any Interest Period, an interest rate per annum equal to
either (i) the LIBOR Rate or (ii) if the LIBOR Rate is unavailable for any
reason, the Base Rate.
Alternative Rate Allocation: As defined in Section 3.3.
Amortization Event: Any of the events described in Section 10.2.
Applicable Margin: As defined in the Fee Letter.
Bank: SunTrust Bank, a Georgia banking corporation.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, (11 U.S.C.
Section 101, et seq.) as amended.
Base Rate: On any date, a fluctuating rate of interest per annum equal to the
higher of (i) the Prime Rate and (ii) the Federal Funds Rate most recently
determined by Bank plus 0.50%.
Borrower: As defined in the Preamble.
Borrowing Base: At any time an amount equal to (i) the Advance Rate times (ii)
an amount equal to (a) the Aggregate Unpaid Balance at such time, minus (b) the
sum of (I) the aggregate Excess Concentration Amount for all Obligors at such
time and (II) the amount by which the aggregate of the Unpaid Balance of all
Eligible Receivables with payment terms that exceed 65 days form the date of
creation of such Receivables exceeds 20% of the Aggregate Unpaid Balance.
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Borrowing Base Certificate: As defined in Section 7.1(m).
Borrowing Base Deficit: An amount equal to the excess of (i) the aggregate
principal amount of all outstanding Loans under the Lender Note over (ii) the
sum of the Borrowing Base plus all Collections on deposit in the Collection
Account.
Borrowing Request: As defined in Section 2.2.
Business Day: Any day on which (i) Bank is not authorized or required to be
closed for business in Atlanta, Georgia and (ii) commercial banks in New York
City are not authorized or required to be closed and, in the case of a Rate
Setting Day, banks are open for business in London, England.
Charge-Off: Any Receivable not previously deemed a Defaulted Receivable that is
written off by Servicer or should, in accordance with the Collection Policy, be
written off.
Closing Date: The date of the first Loan hereunder.
Code: The Internal Revenue Code of 1986, as amended, or any successor statute
thereto, including the regulations promulgated thereunder.
Collateral: As defined in Section 5.1(a)(iv).
Collateral Review: As defined in Section 9.1(e)(v).
Collection Account: That certain bank account numbered 7021693416 maintained
with SunTrust Bank, which is identified as "Central Receivables Collection
Account", in the Borrower's name and pledged, on a first-priority basis, to the
Administrator pursuant to Section 5.1(a).
Collection Account Agreement: Any agreement by and among Borrower, Servicer,
Originator, Administrator and a Collection Account Bank, in substantially the
form attached hereto as Exhibit E or such other form approved by Administrator,
specifying the rights of Lender and Administrator in the Collection Account or
Depository Account, as the case may be. Collection Account Bank: SunTrust Bank
or any bank holding the Depository Account. Collection Policy: Those collection
and credit policies of Originator with respect to Receivables, as amended from
time to time in accordance with this Agreement.
Collections: (i) All payments received in respect of the Receivables, in the
form of cash, checks, wire transfers, ACH transfers or any other form of payment
in accordance with the terms of a Receivable or otherwise, (ii) all proceeds
from the sale or other disposition of any collateral securing a Receivable,
(iii) any repurchase amounts, (iv) any insurance proceeds or sales tax refund
payments received in respect of a Receivable and (v) any indemnification,
recourse payments or other amounts payable to Borrower or Originator in respect
of a Receivable pursuant to this Agreement, the Receivables Purchase Agreement
or otherwise.
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Commercial Paper Notes: Short-term promissory notes issued by Lender to fund its
Loans or investments in receivables or other financial assets.
Commercial Paper Rate: For any day during any Interest Period, the per annum
rate equivalent to the sum of (i) the weighted average of the per annum rates
paid or payable by TPFC from time to time as interest on or otherwise in respect
of the Commercial Paper Notes issued by TPFC that are allocated, in whole or in
part, by Administrator (on behalf of TPFC) to fund or maintain the advances
outstanding under the Lender Note, and (ii) the commissions and charges charged
by placement agents and commercial paper dealers with respect to such Commercial
Paper Notes.
Commitment Termination Date: The earliest to occur of (i) the Scheduled
Commitment Termination Date, (ii) the date of any termination of Lender's
Commitment pursuant to Section 2.5, (iii) the date of any termination of
Lender's Commitment, in whole, by Borrower pursuant to Section 2.6, and (iv) the
effective date on which Lender's Commitment is terminated pursuant to Section
10.3.
Concentration Limit: (i) For any Obligor that is not a Special Obligor and (A)
whose short term unsecured debt rating is greater than or equal to both A-3 by
S&P and P-3 by ▇▇▇▇▇'▇, or (B) in the absence of short term unsecured debt
ratings by both Rating Agencies, whose long term unsecured debt rating is
greater than or equal to both BBB- by S&P and Baa3 by ▇▇▇▇▇'▇, 5% of the
Aggregate Unpaid Balance; and (ii) for any other Obligor that is not a Special
Obligor, 2% of the Aggregate Unpaid Balance. The Concentration Limit for the
Special Obligor shall be 10% of the Aggregate Unpaid Balance, or if the long
term unsecured debt rating of the Special Obligor shall be less than or equal to
BBB- by S&P and Baa3 by ▇▇▇▇▇'▇, 5% of the Aggregate Unpaid Balance.
Consolidated Net Income: For any period, the net after tax income (or loss) of
Central Nevada and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
Contract: Either a written agreement between Originator and a Person, or an
invoice delivered to a Person by Originator, pursuant to which such Person is
obligated to pay Originator for services or merchandise.
Central Nevada: As defined in the Preamble.
Central Receivables: As defined in the Preamble.
Central Texas: Central Freight Lines, Inc., a Texas corporation.
Covered Taxes: As defined in Section 6.3(a).
CP Allocation: As defined in Section 3.3.
Credit Advance: A drawing under a letter of credit issued pursuant to a Credit
Agreement for the account of Lender, a loan to Lender under a Credit Agreement
or any other advance or disbursement of funds to Lender or for Lender's account
pursuant to a Credit Agreement or any such letter of credit, in each case to the
extent such drawing, loan, advance or disbursement has not been repaid or
reimbursed to Credit Bank in accordance with the related Credit Agreement.
4
Credit Agreement: Includes any program-wide agreement entered into by any Credit
Bank providing for the issuance of one or more letters of credit for the account
of Lender, the issuance of one or more surety bonds for which Lender is
obligated to reimburse the applicable Credit Bank for any drawings hereunder,
the sale by Lender to any Credit Bank of receivables or other financial assets
owned or held by Lender (or portions thereof) and/or the making of loans and/or
other extensions of credit to Lender in connection with its commercial paper
program, together with any cash collateral agreement, letter of credit, surety
bond or other agreement or instrument executed and delivered in connection
therewith (but excluding the Liquidity Agreement, or similar agreement, or any
voluntary advance agreement).
Credit Bank: Includes Bank and any other or additional bank or other Person
(other than Borrower or other customer of Lender or any liquidity provider as
such) now or hereafter extending credit or a purchase commitment to or for the
account of Lender or issuing a letter of credit, surety bond or other
instrument, in each case to support any obligations arising under or in
connection with Lender's commercial paper program.
Credit Sales: For any Due Period, the aggregate amount of all trade receivables
with credit terms of any kind originated by the Originator during such Due
Period.
Days Sales Outstanding Ratio or DSO Ratio: For any Due Period, the ratio
computed as of the last day of such Due Period by dividing (i) 360 by (ii) the
Accounts Receivable Turnover Ratio for such Due Period.
Debt: Of any Person means, without duplication, (i) all indebtedness of such
Person for borrowed money, (ii) all indebtedness of such Person for the deferred
purchase price of property or services (other than property and services
purchased, and expense accruals and deferred compensation items arising, in the
ordinary course of business), (iii) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments (other than performance,
surety and appeal bonds arising in the ordinary course of business), (iv) all
indebtedness of such Person 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 limi ▇▇▇ to repossession or sale of such
property), (v) all obligations of such Person under leases which have been or
should be, in accordance with GAAP, recorded as capital leases, to the extent
required to be so recorded, (vi) all reimbursement, payment or similar
obligations of such Person, contingent or otherwise, under acceptance, letter of
credit or similar facilities (other than letters of credit in support of trade
obligations or in connection with workers' compensation, unemployment insurance,
old-age pensions and other social security benefits in the ordinary course of
business), (vii) all net obligations of such Person in respect of interest rate
swap, cap, collar, swaption, option or similar agreements, (viii) all
obligations arising in connection with a sale or other transfer of any of such
Person's financial assets which are, or are intended to be, classified as loans
for federal tax purposes, (A) all Debt referred to in clauses (i) through (vii)
above guaranteed directly or indirectly by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement to pay or purchase
such Debt or to advance or supply funds for the payment or purchase of such
Debt, (B) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Debt or to assure the holder of such Debt against loss in
respect of such Debt, (C) to supply funds to or
5
in any other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or such
services are rendered) or (D) otherwise to assure a creditor against loss in
respect of such Debt, and (ix) all Debt referred to in clauses (i) through
(viii) above secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any lien, security interest or
other charge or encumbrance upon or in property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Debt.
Default Rate: As defined in Section 3.1(ii).
Default Ratio: With respect to any Due Period, the ratio (expressed as a
percentage) computed as of the last day of such Due Period, by dividing (i) the
sum of (without double counting) (A) the Unpaid Balance of Receivables that
became Defaulted Receivables during such Due Period and (B) the Unpaid Balance
of Receivables that became Charge-Offs during such Due Period by (ii) Sales for
the Due Period four (4) Due Periods prior to such Due Period.
Defaulted Receivable: Any Receivable (i) which has been, or should have been,
written off as uncollectible by the Servicer in accordance with the Collection
Policy, (ii) as to which, at the end of any Due Period, any payment, or part
thereof, remains unpaid for 91 days or more past the due date for such payment,
determined by reference to the original contractual payment terms of such
Receivable or (iii) as to which the Obligor thereon has suffered an Event of
Bankruptcy.
Delinquency Ratio: With respect to any Due Period, the ratio (expressed as a
percentage) computed as of the last day of such Due Period, by dividing (i) the
Unpaid Balance of Receivables which are Delinquent Receivables as of the last
day of such Due Period by (ii) an amount equal to the Aggregate Unpaid Balance
as of the last day of such Due Period, minus the aggregate Excess Concentration
Amount as of the last day of such Due Period.
Delinquent Receivables: A Receivable (other than a Defaulted Receivable) as to
which all or any part of a scheduled payment remains unpaid for 61 days or more
from the original due date for such payment.
Deposit Date: As defined in Section 11.2(d)(ii).
Depository Account: The account described on Schedule I, which is identified as
"Central Receivables Depository Account", in the Borrower's name and pledged, on
a first-priority basis, to the Administrator pursuant to Section 5.1(a).
Dilution Horizon Ratio: With respect to any Due Period, the ratio computed as of
the last day of such Due Period by dividing (i) the sum of (A) Sales for such
Due Period and (B) 61% of Sales for the immediately preceding Due Period by (ii)
an amount equal to the Aggregate Unpaid Balance as of the last day of such Due
Period, minus the aggregate Excess Concentration Amount as of the last day of
such Due Period.
Dilution Ratio: With respect to any Due Period, the ratio (expressed as a
percentage) computed as of the last day of such Due Period, by dividing (i)
Dilutions for such Due Period by (ii) Credit Sales for the Due Period one Due
Period prior to such Due Period.
6
Dilution Reserve: With respect to any Due Period the product of (i) the sum of
(A) the product of (1) the Stress Factor times (2) the Expected Dilution Ratio
plus (B) the product of (1) the positive difference, if any, between (x) the
Dilution Spike Rate less (y) the Expected Dilution Ratio times (2) a ratio
computed by dividing (A) the Dilution Spike Rate by (B) the Expected Dilution
Ratio times (ii) the Dilution Horizon Ratio.
Dilutions: With respect to any Due Period, the aggregate amount of returns,
allowances, net credits, and any other non-cash reductions to the Sales that
occurred or were made, granted or incurred during such Due Period.
Dilution Spike Rate: With respect to any Due Period, the highest Dilution Ratio
over the most recent thirteen (13) Due Periods.
Distribution Date: The 20th day of each calendar month (beginning in the month
immediately following the month in which the initial Loan is made hereunder) or,
if such day is not a Business Day, the Business Day immediately thereafter.
Documents: All documentation relating to the Receivables including, without
limitation, the Contracts, billing statements and computer records and programs.
Dollar(s) and the sign $: Lawful money of the United States of America.
Due Period: Each Fiscal Period.
Eligible Receivables: Each Receivable:
(i) that was created in compliance with the Collection Policy in the
regular and ordinary course of the business of Originator;
(ii) that was created pursuant to a Contract that complies with
Originator's standard administration and documentation policies and procedures;
(iii) as to which Administrator (on behalf of the Secured Parties) has
a valid and enforceable first priority security interest;
(iv) which (A) on the date such Receivable is calculated in the
Borrowing Base, is not a Delinquent Receivable or (B) is not a Defaulted
Receivable;
(v) as to which, at the time of the sale of such Receivable to
Borrower, Originator was the sole owner thereof and had good and
marketable title thereto, free and clear of all Liens and Adverse
Claims, and which was sold or contributed to Borrower pursuant to the
Receivables Purchase Agreement;
(vi) that is not an obligation of the government of the United States
or any Governmental Authority;
(vii) the assignment of which by Originator to Borrower pursuant to the
Receivables Purchase Agreement does not contravene or conflict with any law,
rule or regulation or any
7
contractual or other restriction, limitation or encumbrance, and the sale or
assignment of which does not require the consent of the Obligor thereof;
(viii) which is denominated and payable in Dollars and is only payable
in the United States of America;
(ix) the Obligor of which is a United States resident;
(x) the Obligor of which is not an Affiliate of Originator or a
Governmental Authority;
(xi) that arises under a Contract which has been duly authorized and
which, together with such Receivable, is in full force and effect and such
Contract, together with such Receivable, constitutes the legal, valid and
binding payment obligation of the Obligor with respect thereto, enforceable
against such Obligor in accordance with its terms and is not subject to any
right of rescission, setoff, counterclaim or defense (including the defense of
usury) or to any repurchase obligation or return right;
(xii) that does not, in any material respect, contravene any applicable
requirement of law (including without limitation all laws, rules and regulations
relating to truth in lending, fair credit billing, fair credit reporting, fair
debt collection practices and privacy) and which complies, in all material
respects, with all applicable requirements of law and with respect to which all
consents, licenses, approvals or authorizations of, or registrations or
declarations with, any governmental authority required to be obtained, effected
or given by Originator in connection with the creation or the execution,
delivery and performance of such Receivable, have been duly obtained, effected
or given and are in full force and effect;
(xiii) that complies with all applicable requirements of the Collection
Policy;
(xiv) as to which each of Borrower's and Administrator's (for the
benefit of the Secured Parties) first priority security interest in such
Receivable has been perfected under the applicable UCC and other applicable
laws;
(xv) as to which the Servicer or Originator is in possession of the
related Receivable File;
(xvi) which provides for repayment in full of the Unpaid Balance
thereof within 30 days of the date of the creation thereof and for which the
payment thereof is not in dispute; provided, however, that up to 20% of
Aggregate Unpaid Balance may provide for payment terms within 65 days of the
date of the creation thereof;
(xvii) the terms of which have not been modified or waived except as
permitted under the Collection Policy and this Agreement; and
(xviii) which constitutes an "account" or "chattel paper" under and as
defined in Article 9 of the UCC of all applicable jurisdictions.
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ERISA: The Employee Retirement Income Security Act of 1974, as it may be amended
from time to time and the regulations promulgated thereunder.
Event of Bankruptcy: Shall be deemed to have occurred with respect to a Person
if either:
(i) a case or other proceeding shall be commenced, without the
application or consent of such 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 substantially all of its assets, or any similar action with respect to such
Person under any law relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of debts; or an order for relief in respect of
such Person shall be entered in an involuntary case under the federal bankruptcy
laws or other similar laws now or hereafter in effect; or
(ii) such Person shall commence a voluntary case or other proceeding
under any applicable bankruptcy, insolvency, reorganization, debt arrangement,
dissolution or other similar law now or hereafter in effect, or shall consent to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) for such Person or
for any substantial part of its property, or 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, if a corporation
or similar entity, its board of directors shall vote to implement any of the
foregoing.
Event of Default: Any of the events described in Section 10.1.
Excess Concentration Amount: At any time with respect to any Obligor, the
amount, if any, by which the aggregate Unpaid Balance of all Receivables of such
Obligor exceeds the Concentration Limit for such Obligor, in each case, at such
time.
Expected Dilution Ratio: With respect to any Due Period, the rolling thirteen
(13) Due Period average Dilution Ratio for the most recently ended thirteen (13)
Due Periods.
Face Amount: With respect to outstanding Commercial Paper Notes or Voluntary
Advance Loans, (i) the face amount of any such Commercial Paper Notes issued on
a discount basis, and (ii) the principal amount of, plus the amount of all
interest accrued and to accrue thereon to the stated maturity date of, any such
Commercial Paper Notes issued on an interest-bearing basis or any such Voluntary
Advance Loans.
Facility Limit: As defined in Section 2.1.
Federal Funds Rate: For any period, a fluctuating interest rate equal for each
day during such period to the weighted average of the federal funds rates as
quoted by Bank and confirmed in the Federal Reserve Board Statistical Release as
H.15(519), or any successor or substitute publication selected by Bank (or, if
such day is not a Business Day, for the next preceding Business Day), or if, for
any reason, such rate is not available on any day, the rate determined in the
sale opinion of Bank, to be the rate at which federal funds are being offered
for sale in the national federal funds market at 9:00 a.m. (New York time).
9
Federal Reserve Board: The Board of Governors of the Federal Reserve System and
any successor thereto.
Fee Letter: As defined in Section 3.4.
Fees: All fees and other amounts payable by Borrower to Administrator or Lender
pursuant to the Fee Letter.
Fiscal Period: Each fiscal period of Central Nevada and its Subsidiaries ending
on the date specified in Schedule VII hereto, as such schedule may be updated
from time to time in accordance with Section 9.1(e)(vi); provided, however that
there shall be thirteen (13) Fiscal Periods in each Fiscal Year.
Fiscal Year: Each calendar year.
GAAP: Generally accepted United States accounting principles as in effect from
time to time.
Governmental Authority: The United States of America, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
Indemnified Amounts: As defined in Section 14.1.
Indemnified Party: As defined in Section 14.1.
Initial Purchase Date: The first Purchase Date to occur under the Receivables
Purchase Agreement.
Interest Period: With respect to any Loan: (i) the period commencing on the date
of the initial funding of such Loan and ending on, but excluding, the day
immediately preceding the next following Distribution Date; and (ii) thereafter,
each period commencing on, and including, the day immediately preceding a
Distribution Date and ending on, but excluding, the day immediately preceding
the next following Distribution Date; provided, however, that if any Interest
Period for any Loan that commences before the Commitment Termination Date would
otherwise end on a date occurring after such Commitment Termination Date, such
Interest Period shall end on such Commitment Termination Date and the duration
of each such Interest Period that commences on or after the Commitment
Termination Date, if any, shall be of such duration as shall be selected by
Administrator.
IRS: The Internal Revenue Service.
Lender: As defined in the Preamble.
Lender Note: As defined in Section 2.7.
Lender's Commitment: As defined in Section 2.1.
10
Liabilities: With respect to any Person, all obligations of such Person which
would, in accordance with GAAP, be classified on a balance sheet as liabilities,
including, without limitation, (i) Debt secured by Liens against property of
such Person whether or not such Person is liable for the payment thereof and
(ii) deferred liabilities.
LIBOR Rate: For any Interest Period, the rate per annum, determined by Bank, on
the Rate Setting Day of such Interest Period on the basis of the offered rates
shown on Telerate Page 3750 or any successor page as the composite offered rate
for London interbank deposits for one month, as shown under the heading "USD" as
of 11:00 a.m. (London time); provided that in the event no such rate is shown,
the LIBOR Rate shall be the rate per annum (rounded upwards, if necessary, to
the nearest 1/16th of one percent), determined by Bank, based on the offered
rates at which Dollar deposits for one month are displayed on the Reuters Screen
as of 11:00 a.m. (London time) on the Rate Setting Day (it being understood that
if at least two such offered rates appear on such page, the rate will be the
arithmetic mean of such displayed rates); provided further, that in the event
fewer than two such rates are displayed, or if no such offered rate is relevant,
the LIBOR Rate shall be the rate per annum, determined by Bank, equal to the
average of the rates at which deposits in Dollars are offered by Administrator
at approximately 11:00 a.m. (London time) on the Rate Setting Day to prime banks
in the London interbank market for a one month.
Lien: Any mortgage, pledge, assignment, lien, security interest or other charge
or encumbrance of any kind, including the retained security title of a
conditional vendor or a lessor.
Liquidity Agreement: Includes (i) the Liquidity Asset Purchase Agreement
(regarding Central Receivables), dated as of April 30, 2002, among Lender, as
borrower, Bank, as liquidity agent for the Liquidity Banks, SunTrust Capital
Markets, Inc., as administrator for Lender, and the Liquidity Banks, and (ii)
any other agreement hereafter entered into by Lender providing for the sale by
Lender of Loans (or portions thereof), or the making of loans or other
extensions of credit to Lender secured by security interests in the Loans (or
portions thereof), to support all or part of Lender's payment obligations under
the Commercial Paper Notes or to provide an alternate means of funding Lender's
investments in accounts receivable or other financial assets, in each case as
amended, supplemented or otherwise modified from time to time.
Liquidity Bank: Includes Bank and the various financial institutions as are, or
may become, parties to the Liquidity Agreement, as purchasers thereunder.
Loan: Any amount disbursed as principal by Lender to Borrower under this
Agreement.
LockBox: As defined in Section 11.2(c).
Loss Horizon Ratio: With respect to any Due Period, the ratio computed as of the
last day of such Due Period by dividing (i) the sum of (A) Sales for such Due
Period plus (B) Sales for the immediately preceding Due Period, plus (C) Sales
for the second (2nd) immediately preceding Due Period, plus (D) 71% of Sales for
the third (3rd) immediately preceding Due Period, by (ii) an amount equal to the
Aggregate Unpaid Balance as of the last day of such Due Period, minus the
aggregate Excess Concentration Amount for all Obligors as of the last day of
such Due Period.
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Loss Ratio: With respect to any Due Period, the highest rolling three (3) Due
Period average Default Ratio over the most recent thirteen (12) Due Periods.
Loss Reserve: With respect to any Due Period, the product of (i) the Loss Ratio,
(ii) the Loss Horizon Ratio and (iii) the Stress Factor.
Mail Payments: As defined in Section 11.2(iii) hereof.
Material Adverse Effect: With respect to any event or circumstance, a material
adverse effect on: (i) the business, assets, financial condition or operations
of Borrower, Originator or Servicer; (ii) the ability of Servicer, Originator or
Borrower to perform their respective obligations under this Agreement or any
other Transaction Document; (iii) the validity, enforceability or collectibility
of this Agreement or any other Transaction Document; (iv) the existence,
perfection or priority of (A) Administrator's (for the benefit of the Secured
Parties) security interest in the Collateral, or (B) Borrower's ownership
interest in the Receivables; (v) the validity, enforceability or collectibility
of the Receivables; or (vi) the ability of the Originator to generate
Receivables of a credit quality at least equal to those existing on the Closing
Date.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc.
Net Worth: As of any date, (a) the total assets of Central Nevada that would be
reflected on Central Nevada's balance sheet as of such date prepared in
accordance with GAAP, minus (b) the sum of (i) the total liabilities of Central
Nevada that would be reflected on Central Nevada's balance sheet as of such date
prepared in accordance with GAAP and (ii) the amount of any write-up in the book
value of any assets resulting from a revaluation thereof or any write-up in
excess of the cost of such assets acquired reflected on the balance sheet of
Central Nevada as of such date prepared in accordance with GAAP.
Obligations: All obligations (monetary or otherwise) of Borrower to Lender,
Administrator, any Affected Party or any Indemnified Party and their respective
successors, permitted transferees and assigns arising under or in connection
with this Agreement, the Lender Note and each other Transaction Document, in
each case however created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due.
Obligor: With respect to any Receivable, the Person or Persons obligated to make
payments with respect to such Receivable, including any guarantor thereof.
Originator: Central Texas, in its capacity as originator under the Receivables
Purchase Agreement.
Originator Note: Collectively, (i) the subordinated promissory note dated as of
the initial Purchase Date issued by Borrower to Central Texas pursuant to the
Receivables Purchase Agreement and (ii) any other promissory notes subsequently
issued by Borrower to Central Texas pursuant to the Receivables Purchase
Agreement, which promissory notes in each case shall be in the form of Exhibit G
hereto.
Originator Payables: (i) the obligation of Originator to make a payment,
pursuant to Section 2.4 of the Receivables Purchase Agreement, for any
Receivable that was represented to be an
12
Eligible Receivables was not an Eligible Receivable on the date such Receivable
was sold by Originator to Borrower, and (ii) all other amounts owed by
Originator to Borrower from time to time pursuant to this Agreement or the
Receivables Purchase Agreement.
Period End Date: The last day of each Fiscal Period.
Period Report: As defined in Section 9.1(e)(ii).
Permitted Investments: At any time:
(i) marketable obligations issued by, or the full and timely payment of
which is directly and fully guaranteed or insured by, the United States
government or any other government with an equivalent rating, or any agency or
instrumentality thereof when such marketable obligations are backed by the full
faith and credit of the United States government or such other equivalently
rated government, as the case may be, but excluding any securities which are
derivatives of such obligations;
(ii) time deposits, bankers' acceptances and certificates of deposit of
any domestic commercial bank or any United States branch or agency of a foreign
commercial bank which (A) has capital, surplus and undivided profits in excess
of $100,000,000 and which has a commercial paper or certificate of deposit
rating meeting the requirements specified in clause (iii) below (or equivalent
rating from the Rating Agencies) or (B) is set forth in a list (which may be
updated from time to time) (1) approved by Administrator and (2) with respect to
which a written statement has been obtained from each of the Rating Agencies to
the effect that the rating of the Commercial Paper Notes will not be downgraded
or withdrawn solely as a result of the acquisition of such investments;
(iii) commercial paper which is (A) rated at least as high as the
Commercial Paper Notes by the Rating Agencies, or (B) set forth in a list (which
may be updated from time to time) (1) approved by Administrator and (2) with
respect to which a written statement has been obtained from each of the Rating
Agencies to the effect that the rating of the Commercial Paper Notes will not be
downgraded or withdrawn solely as a result of the acquisition of such
investments;
(iv) secured repurchase obligations for underlying securities of the
types described in clauses (i) and (ii) above entered into with any bank of the
type described in clause (ii) above; and
(v) freely redeemable shares in money market funds which invest solely
in obligations, bankers' acceptances, time deposits, certificates of deposit,
repurchase agreements and commercial paper of the types described in clause (i)
through (iv) above, without regard to the limitations as to the maturity of such
obligations, bankers' acceptances, time deposits, certificates of deposit,
repurchase agreements or commercial paper set forth below, which are rated at
least "AAm" or "AAmg" or their equivalent by both Rating Agencies, provided that
there is no r-highlighter affixed to such rating.
13
Person: An individual, partnership, limited liability company, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture, government or any agency or political subdivision
thereof or any other entity.
Prime Rate: As of any date of determination, the rate of interest most recently
announced by Bank at its principal office in Atlanta, Georgia as its prime rate
in the United States (it being understood that at any one time there shall exist
only one such prime rate so announced, which rate is not necessarily intended to
be the lowest rate of interest determined by Bank in connection with extensions
of credit).
Program Documents: The Liquidity Agreement, the Credit Agreement, the Voluntary
Advance Agreement, the documents under which Administrator performs its
obligations with respect to Lender's commercial paper program and the other
documents to be executed and delivered in connection therewith, as amended,
supplemented or otherwise modified from time to time.
Purchase Date: As defined in the Receivables Purchase Agreement.
Rate Setting Day: For any Interest Period, two (2) Business Days prior to the
commencement of such Interest Period. In the event such day is not a Business
Day, then the Rate Setting Day shall be the immediately preceding Business Day.
Rating Agencies: S&P and Moody's.
Receivable: With respect to any Obligor, the indebtedness of such Obligor under
a Contract arising from the rendering of services by Originator, and includes
the right to payment of any interest, finance, returned check or late charges
and other obligations of such Obligor with respect thereto.
Receivable File: With respect to a Receivable, (i) the Contract giving rise to
the Receivable and other evidences of the Receivable including, without
limitation, tapes, discs, punch cards and related property and rights and (ii)
each UCC financing statement related thereto, if any.
Receivables Purchase Agreement: The Receivables Purchase Agreement, dated as of
April 30, 2002, by and between Central Texas and Borrower, as such Receivables
Purchase Agreement may be amended, supplemented or otherwise modified from time
to time with the prior written consent of Administrator.
Regulatory Change: Relative to any Affected Party: (i) any change in (or the
adoption, implementation, change in the phase-in or commencement of
effectiveness of) any: (A) United States Federal or state law or foreign law
applicable to such Affected Party, (B) regulation, interpretation, directive,
requirement or request (whether or not having the force of law) applicable to
such Affected Party of (1) any court or government authority charged with the
interpretation or administration of any law referred to in clause (i)(A), or of
(2) any fiscal, monetary or other authority having jurisdiction over such
Affected Party, or (C) GAAP or regulatory accounting principles applicable to
such Affected Party and affecting the application to such Affected Party of any
law, regulation, interpretation, directive, requirement or request referred to
in clause (i)(A) or (i)(B) above; (ii) any change in the application to such
Affected Party of any existing law, regulation, interpretation, directive,
requirement, request or accounting
14
principles referred to in clause (i)(A), (i)(B) or (i)(C) above; or (iii) the
issuance, publication or release of any regulation, interpretation, directive,
requirement or request of a type described in clause (i)(B) above to the effect
that the obligations of any Liquidity Bank under the Liquidity Agreement are not
entitled to be included in the zero percent category of off-balance sheet assets
for purposes of any risk-weighted capital guidelines applicable to such
Liquidity Bank or any related Affected Party.
Related Security: With respect to any Receivable, (i) all right, title and
interest, but none of the obligations, of Originator, in, to and under other
Liens and property subject to Liens from time to time purporting to secure
payment of such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, (ii) all UCC Financing Statements or similar
instruments covering any collateral securing payment of such Receivable, (iii)
all guaranties, indemnities, insurance and other agreements (including the
related Receivable File) or arrangement and other collateral of whatever
character from time to time supporting or securing payment of such Receivable,
whether pursuant to the Contract relating to such Receivable or otherwise
relating to such Receivable and (iv) all other instruments and all rights under
the documents in the Receivable File relating to such Receivables and all rights
(but not obligations) relating to such Receivables.
Reporting Date: As defined in Section 9.1(e)(ii).
Requirements of Law: For any Person or any of its property shall mean the
certificate of incorporation or articles of association and by-laws or other
organizational or governing documents of such Person or any of its property, and
any statute, law, treaty, rule or regulation, or determination of an arbitrator
or Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or businesses or to which such Person or any of
its property or businesses is subject, whether federal, state or local.
Reserve Floor: For any Due Period, 19.85%.
Reserve Percentage: The percentage equal to the greater of (i) the sum of (A)
the Loss Reserve, (B) the Dilution Reserve, (C) the Yield Reserve, and (D) the
Servicing Reserve and (ii) the Reserve Floor.
Reuters Screen: The display page designated as "LIBO" on the Reuter Monitor
Money Rates Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to the LIBOR Rate).
Sales: For any Due Period, the aggregate amount of sales generated by Originator
during such Due Period.
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
Scheduled Commitment Termination Date: April 30, 2004.
Secured Obligations: As defined in Section 5.1(b).
15
Secured Parties: The holders from time to time of the Secured Obligations
including, without limitation, Lender and Administrator.
Servicer: Central Nevada, or its successor in interest, or any successor
Servicer appointed as provided in Section 11.5.
Servicer Event of Default: As defined in Section 11.7.
Servicing Fee: As to any Due Period, the monthly fee payable to Servicer, which,
so long as Central Nevada is Servicer, shall be equal to the Servicing Fee Rate
divided by 12 multiplied by the aggregate Unpaid Balance of the Receivables at
the beginning of such Due Period. The Servicing Fee for any successor Servicer
shall be equal to the fee reasonably agreed to by Administrator and such
successor.
Servicing Fee Rate: 1.80%.
Servicing Reserve: With respect to any Due Period, the product of (i) the
highest Days Sales Outstanding Ratio during the most recent thirteen (13) Due
Periods, (ii) the Stress Factor, (iii) 2.40% and (iv) 1/360.
Significant Event: Any Amortization Event.
Solvent: With respect to any Person that as of the date of determination both
(i) (A) the then fair saleable value of the property of such Person is (1)
greater than the total amount of liabilities (including contingent liabilities)
of such Person and (2) not less than the amount that will be required to pay the
probable liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and potential asset
sales reasonably available to such Person; (B) such Person's capital is not
unreasonably small in relation to its business or any contemplated or undertaken
transaction; and (C) such Person does not intend to incur, or believe (nor
should it reasonably believe) that it will incur, debts beyond its ability to
pay such debts as they become due; and (ii) such Person is "solvent" within the
meaning given that term and similar terms under applicable laws relating to
fraudulent transfers and conveyances. For purposes of this definition, the
amount of any contingent liability at any time shall be computed as the amount
that, in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
Special Obligor: Dell Computer Corporation.
Stated Maturity Date: April 30, 2004; provided, however, that such date may be
accelerated pursuant to Section 10.3.
Stress Factor: 2.0.
Subsidiary: With respect to any Person, a corporation of which such Person
and/or its other Subsidiaries own, directly or indirectly, such number of
outstanding shares as have more than 50% of the ordinary voting power for the
election of directors.
16
Support Provider: Includes any entity now or hereafter extending credit or
liquidity support or having a commitment to extend credit or liquidity support
to or for the account of, or to make loans to or purchases from, Lender or
issuing a letter of credit, surety bond or other instrument to support any
obligations arising under or in connection with the commercial paper program of
Lender.
Telerate Page 3750: The display designated as "Page 3750" on the Telerate
Service (or such other page as may replace "Page 3750" on that service or
another service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
Interest Settlement Rate for Dollars).
Transaction Documents: This Agreement, the Receivables Purchase Agreement, the
Lender Note, the Fee Letter, the Originator Note and the other instruments,
certificates, agreements, reports and documents to be executed and delivered
under or in connection with this Agreement or the Receivables Purchase Agreement
(except the Program Documents), as any of the foregoing may be amended,
supplemented, amended and restated, or otherwise modified from time to time in
accordance with this Agreement and the Receivables Purchase Agreement. Each such
document is a Transaction Document.
UCC: The Uniform Commercial Code as from time to time in effect in the
applicable jurisdiction or jurisdictions.
Unmatured Significant Event: Any event that, if it continues uncured, will, with
lapse of time or notice or lapse of time and notice, constitute a Significant
Event.
Unpaid Balance: With respect to any Receivable the aggregate amount required to
prepay in full the principal of, and all interest, finance, prepayment and
other fees or charges of any kind payable in respect of, such Receivable.
Voluntary Advance Agreement: The Voluntary Advance Agreement, dated as of March
11, 1999, among Lender, Administrator and Bank, as it may be amended,
supplemented or otherwise modified from time to time.
Voluntary Advance Loan: Each advance made pursuant to the Voluntary Advance
Agreement.
Yield Reserve: With respect to any Due Period, the product of (i) the highest
Days Sales Outstanding Ratio during the most recent thirteen (13) Due Periods,
(ii) the Stress Factor, (iii) the Prime Rate as in effect on the last day of
such Due Period and (iv) 1/360.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in this
Agreement have the meanings as so defined herein when used in the Lender Note or
any other Transaction Document, certificate, report or other document made or
delivered pursuant hereto.
(b) Each term defined in the singular form in Section 1.1 or elsewhere
in this Agreement shall mean the plural thereof when the plural form of such
term is used in this Agreement, the Lender Note or any other Transaction
Document, certificate, report or other
17
document made or delivered pursuant hereto, and each term defined in the plural
form in Section 1.1 shall mean the singular thereof when the singular form of
such term is used herein or therein.
(c) The words "hereof," "herein," "hereunder" and similar terms when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and article, section, subsection,
schedule and exhibit references herein are references to articles, sections,
subsections, schedules and exhibits to this Agreement unless otherwise
specified.
SECTION 1.3 OTHER TERMS.
All accounting terms not specifically defined herein shall be construed
in accordance with GAAP. All terms used in Article 9 of the UCC and not
specifically defined herein, are used herein as defined in such Article 9.
SECTION 1.4 COMPUTATION OF TIME PERIODS.
Unless otherwise stated in this Agreement, in the computation of a
period of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each means "to but
excluding."
ARTICLE II
LENDER'S COMMITMENT, BORROWING PROCEDURES AND THE LENDER NOTE
SECTION 2.1 LENDER'S COMMITMENT.
On the terms and subject to the conditions set forth in this Agreement,
Lender agrees to make loans to Borrower on a revolving basis from time to time
(the "Lender's Commitment") before the Commitment Termination Date in such
amounts as may be from time to time requested by Borrower pursuant to Section
2.2; provided, however, that the aggregate principal amount of all Loans from
time to time outstanding hereunder shall not exceed the lesser of (i)
$40,000,000 (the "Facility Limit") and (ii) the Borrowing Base. Within the
limits of Lender's Commitment, Borrower may borrow, prepay and reborrow under
this Section 2.1.
SECTION 2.2 BORROWING PROCEDURES.
Borrower (or the Servicer on its behalf) may request a Loan hereunder
by giving notice to Administrator of a proposed borrowing not later than 2:00
p.m. (New York City time), two (2) Business Days prior to the proposed date of
such borrowing (or such lesser period of time as Lender may consent); provided
that Borrower shall not request, and Lender shall not make, Loans more than six
(6) times during any Due Period. Each such notice (herein called a "Borrowing
Request") shall be in the form of Exhibit A and shall include the date and
amount of such proposed borrowing. Any Borrowing Request given by Borrower (or
the Servicer on its behalf) pursuant to this Section 2.2 shall be irrevocable
and binding on Borrower.
18
SECTION 2.3 FUNDING.
Subject to the satisfaction of the conditions precedent set forth in
Article VII with respect to such Loan and the limitations set forth in Section
2.1, Lender shall make the proceeds of such requested Loan available to
Administrator at its office in Atlanta, Georgia in same day funds on the
proposed date of borrowing. Upon receipt by Administrator of such funds,
Administrator will make such funds available to Borrower at such office on such
date. Each borrowing shall be on a Business Day and shall be in an amount of at
least $1,000,000 and in integral multiples of $500,000.
SECTION 2.4 REPRESENTATION AND WARRANTY.
Each request for a borrowing pursuant to Section 2.2 shall
automatically constitute a representation and warranty by Borrower to
Administrator and Lender that on the requested date of such borrowing (i) the
representations and warranties contained in Article VIII will be true and
correct as of such requested date as though made on such date, (ii) no
Significant Event or Unmatured Significant Event has occurred and is continuing
or will result from such borrowing, and (iii) after giving effect to such
requested borrowing, the aggregate principal balance of the outstanding Loans
hereunder will not exceed the lesser of the Borrowing Base and the Facility
Limit.
SECTION 2.5 EARLY TERMINATION OF LENDER'S COMMITMENT.
Lender's Commitment shall terminate and Lender shall have no obligation
to make any further Loans (or to fund any increase in any existing Loan), on the
earliest date of termination of (i) the Liquidity Banks' commitments under the
Liquidity Agreement or (ii) the Credit Banks' commitments under the Credit
Agreement. Administrator agrees to use its reasonable efforts to give Borrower
at least 30 days' prior written notice of the termination of Lender's Commitment
pursuant to clause (i) or (ii) above.
SECTION 2.6 VOLUNTARY TERMINATION OF LENDER'S COMMITMENT; REDUCTION OF
FACILITY LIMIT.
Borrower may, in its sole discretion for any reason upon at least 10
days' notice to Administrator (with a copy to Lender), terminate Lender's
Commitment in whole, or, reduce in part the unused portion of the Facility
Limit; provided, however that (i) each such partial reduction will be in a
minimum amount of $5,000,000 or a higher integral multiple of $1,000,000 and
shall not reduce the Facility Limit below $25,000,000, (ii) in connection
therewith Borrower shall comply with Section 3.2(b) and Section 4.1(b) and (iii)
Borrower shall pay to the Lender, by wire transfer in immediately available
funds on the date of such reduction, a reduction fee equal to the product of (x)
0.75% and (y) the amount of the reduction in the Facility Limit.
SECTION 2.7 NOTE.
Each Loan from Lender shall be evidenced by a single promissory grid
note (herein, as amended, modified, extended or replaced from time to time,
called the "Lender Note") substantially in the form set forth in Exhibit B, with
appropriate insertions, payable to the order
19
of Lender. Borrower hereby irrevocably authorizes Administrator in connection
with the Lender Note to make (or cause to be made) appropriate notations on the
grid attached to the Lender Note (or on any continuation of such grid, or at
Administrator's option, in its records), which notations, if made, shall
evidence, inter alia, the date of, the outstanding principal of, and the
interest rate and Interest Period applicable to the Loans evidenced thereby.
Such notations shall be rebuttably presumptive evidence of the subject matter
thereof, absent manifest error; provided, however, that the failure to make any
such notations shall not limit or otherwise affect any Obligations of Borrower.
ARTICLE III
INTEREST, FEES, ETC.
SECTION 3.1 INTEREST RATES.
Borrower hereby promises to pay interest on the unpaid principal amount
of each Loan (or each portion thereof) for the period commencing on the date of
such Loan until such Loan is paid in full, as follows:
(a) At all times while the making or maintenance of such Loan (or the
applicable portion thereof) by Lender is funded by the issuance of Commercial
Paper Notes of Lender, during each Interest Period, at a rate per annum equal to
the sum of (i) the Commercial Paper Rate applicable to such Interest Period,
plus (ii) the Applicable Margin;
(b) at all times while the making or maintenance of such Loan (or the
applicable portion thereof) by Lender is funded during each Interest Period
pursuant to the Liquidity Agreement or the Voluntary Advance Agreement, at a
rate per annum equal to the sum of (i) the Alternative Rate applicable to such
Interest Period, plus (ii) the Applicable Margin; and;
(c) notwithstanding the provisions of the preceding clauses (a) and
(b), in the event that a Significant Event or an Unmatured Significant Event has
occurred and is continuing, at a rate per annum (the "Default Rate") equal to
the Base Rate applicable from time to time (but not less than the interest rate
in effect for such Loan as at the date of such Significant Event), plus a margin
of 3.00%.
After the date any principal amount of any Loan is due and payable
(whether on the Stated Maturity Date, upon acceleration or otherwise) or after
any other monetary Obligation of Borrower arising under this Agreement shall
become due and payable, Borrower shall pay (to the extent permitted by law, if
in respect of any unpaid amounts representing interest) interest (after as well
as before judgment) on such amounts at a rate per annum equal to the Default
Rate. No provision of this Agreement or the Lender Note shall require the
payment or permit the collection of interest in excess of the maximum permitted
by applicable law.
SECTION 3.2 INTEREST, PAYMENT DATES.
Interest accrued on each Loan shall be payable, without duplication:
(a) on the Stated Maturity Date;
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(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan;
(c) on each Distribution Date prior to the Stated Maturity Date and
thereafter on the last day of each Interest Period; and
(d) on that portion of any Loan the Stated Maturity Date of which is
accelerated pursuant to Section 10.3, immediately upon such acceleration.
SECTION 3.3 INTEREST ALLOCATIONS.
Administrator shall from time to time and in its sole discretion
determine whether interest in respect of the Loans then outstanding, or any
portion thereof, shall be calculated by reference to the Commercial Paper Rate
(such portion being herein called a "CP Allocation") or the Alternative Rate
(such portion being herein called an "Alternative Rate Allocation", and together
with a CP Allocation individually called an "Allocation", and collectively,
"Allocations"); provided, however, that, Administrator shall use its reasonable
efforts to allocate all or substantially all of the Loans from Lender to a CP
Allocation; provided further, however, that Administrator may determine, at any
time and in its sole discretion, that the Commercial Paper Rate is unavailable
or otherwise not desirable, in which case the Loans from Lender will be
allocated to an Alternative Rate Allocation (unless the Default Rate is in
effect).
SECTION 3.4 FEES.
Borrower agrees to pay Administrator and Lender certain fees in the
amounts and on the dates set forth in the letter agreement executed in
connection herewith between Borrower, Administrator and Lender (as the same may
be amended, supplemented or otherwise modified, the "Fee Letter").
SECTION 3.5 COMPUTATION OF INTEREST AND FEES.
All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of 360 days.
ARTICLE IV
REPAYMENTS AND PREPAYMENTS; DISTRIBUTION OF COLLECTIONS
SECTION 4.1 REPAYMENTS AND PREPAYMENTS.
Borrower shall repay in full the unpaid principal amount of each Loan
on the Stated Maturity Date. Prior thereto, Borrower:
(a) may, from time to time on any Business Day, make a prepayment, in
whole or in part, of the outstanding principal amount of any Loans; provided,
however, that, unless otherwise consented to by Administrator, all such
voluntary prepayments shall require at least two (2) Business Days' (or, in the
case of a voluntary prepayment of $10,000,000 or more, at least seven
21
(7) Business Days') prior written notice to Administrator and all such voluntary
partial prepayments shall be in a minimum amount of $1,000,000 and an integral
multiple of $100,000;
(b) shall, on each date when any reduction in the Facility Limit shall
become effective pursuant to Section 2.6, make a prepayment of the Loans in an
amount equal to the excess, if any, of the aggregate outstanding principal
amount of the Loans over the Facility Limit as so reduced;
(c) shall, immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 10.3, repay all Loans, unless, pursuant to
Section 10.3(a), only a portion of all Loans is so accelerated, in which event
Borrower shall repay the accelerated portion of the Loans; and
(d) may, if at any time a Borrowing Base Deficit shall exist, make a
prepayment (out of funds set aside pursuant to Section 4.2(d))of the Loans in an
amount equal to such Borrowing Base Deficit, such payment to be made within one
(1) Business Day. Each such prepayment shall be subject to the payment of any
amounts required by Section 6.2.
Each payment or prepayment shall be subject to the payment of any amounts
required by Section 6.2 resulting from a prepayment or payment of a Loan on a
day other than the last day of the Interest Period for such Loan.
SECTION 4.2 APPLICATION OF COLLECTIONS.
(a) All Collections deposited in the Collection Account shall be
distributed by the Servicer at such times and in the order of priority set forth
in this Section 4.2.
(b) On each Distribution Date prior to the Commitment Termination Date,
the Servicer shall distribute from Collections on deposit in the Collection
Account on such Distribution Date, the following amounts, without duplication,
in the following order of priority:
first, to Administrator on behalf of Lender, interest accrued on the
Loans during the related Interest Period (plus, if applicable, the
amount of interest on the Loans accrued for any prior Interest Period
to the extent such amount has not been distributed to Lender, and to
the extent permitted by law, interest thereon);
second, to Administrator on behalf of the appropriate Persons, all Fees
accrued during such Interest Period (plus, if applicable, the amount of
Fees accrued for any prior Interest Period to the extent such amount
has not been distributed to Lender or Administrator);
third, to the Servicer, the accrued Servicing Fee payable for the
related Due Period (plus, if applicable, the amount of Servicing Fee
payable for any prior Due Period to the extent such amount has not been
distributed to Servicer);
fourth, to Administrator on behalf of Lender, as a repayment of
principal of the Loans, an amount equal to the Borrowing Base Deficit,
if any;
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fifth, to Administrator on behalf of the appropriate Persons, all
other Obligations then payable by Borrower under this Agreement; and
sixth, so long as no Significant Event or Unmatured Significant Event
shall be continuing, the balance, if any, to Borrower.
(c) On and after the Commitment Termination Date, Administrator shall,
on the last day of each Interest Period, distribute from the Collection Account
the following amounts, without duplication, in the following order of priority:
first, to Administrator on behalf of Lender, the accrued but unpaid
interest on the Loans;
second, to Administrator on behalf of the appropriate Persons, all
accrued but unpaid Fees;
third, to the Servicer, the accrued but unpaid Servicing Fee;
fourth, to Administrator on behalf of Lender, the outstanding principal
amount of the Loans;
fifth, to Administrator on behalf of the appropriate Persons, all other
Obligations payable by Borrower under this Agreement; and
sixth, once all amounts described in clauses first through sixth have
been paid in full, the balance, if any, to Borrower.
SECTION 4.3 APPLICATION OF CERTAIN PAYMENTS.
Each payment of principal of the Loans shall be applied to such Loans
as Borrower shall direct or, in the absence of such notice or during the
existence of a Significant Event or after the Commitment Termination Date, as
Administrator shall determine in its discretion.
SECTION 4.4 DUE DATE EXTENSION.
If any payment of principal or interest with respect to any Loan falls
due on a day which is not a Business Day, then such due date shall be extended
to the next following Business Day, and additional interest shall accrue at the
applicable interest rate and be payable for the period of such extension.
SECTION 4.5 MAKING OF PAYMENTS.
All payments of principal of, or interest on, the Loans and of all
Fees, and all amounts to be deposited by Borrower or Servicer hereunder, shall
be made by Borrower or Servicer, as applicable, no later than 10:00 a.m. (New
York City time), on the Business Day when due in lawful money of the United
States of America in same day funds to Bank, as Administrator, Reference: Three
Pillars Funding Corporation/Central Freight Lines, Inc., Transaction, Account
No. 8800171236, ABA No. ▇▇▇▇▇▇▇▇▇ at Bank's office at ▇▇ ▇▇▇▇ ▇▇▇▇▇ in Atlanta,
Georgia, Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Administrator's Account"). Funds received by
Administrator after
23
10:00 a.m. New York City time, on the date when due, will be deemed to have been
received by Administrator on its next following Business Day.
ARTICLE V
SECURITY INTEREST
SECTION 5.1 GRANT OF SECURITY.
(a) Borrower hereby assigns and pledges to Administrator (for the
benefit of the Secured Parties), and hereby grants to Administrator (for the
benefit of the Secured Parties) a security interest in all of Borrower's right,
title and interest in and to the following, whether now or hereafter existing
and wherever located:
(i) all Receivables, Collections, Related Security and
Receivable Files;
(ii) all of Borrower's rights, remedies, powers and privileges
in respect of the Receivables Purchase Agreement, including a direct
right to cause Originator to make payments with respect to Dilutions or
with respect to Receivables that are not Eligible Receivables pursuant
to the Receivables Purchase Agreement;
(iii) the LockBox, the Depository Account and the Collection
Account and all funds on deposit therein, together with all
certificates and instruments, if any, from time to time evidencing such
accounts, and funds on deposit and all investments made with such
funds, all claims thereunder or in connection therewith, and interest,
dividends, moneys, instruments, securities and other property from time
to time received, receivable or otherwise distributed in respect of any
or all of the foregoing; and
(iv) all products and proceeds (including, without limitation,
insurance proceeds) of, and additions, improvements and accessions to,
and books and records describing or used in connection with, all and
any of the property described above (items (i) through (iv) are
collectively referred to as the "Collateral").
(b) This grant of security secures the payment and performance of all
Obligations of Borrower now or hereafter existing or arising under, or in
connection with, the Loan Agreement, the Lender Note and each other Transaction
Document, whether for principal, interest, costs, fees, expenses or otherwise
(all such obligations of Borrower being called the "Secured Obligations").
(c) This grant of security shall create a continuing security interest
in the Collateral and shall:
(i) remain in full force and effect until Administrator's (for
the benefit of the Secured Parties) interest in the Collateral shall
have been released in accordance with Section 5.4;
(ii) be binding upon Borrower, its successors, transferees and
assigns; and
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(iii) inure, together with the rights and remedies of Administrator
(for the benefit of the Secured Parties) hereunder, to the benefit of
Administrator and each Secured Party and their respective successors,
transferees and assigns.
SECTION 5.2 ADMINISTRATOR APPOINTED ATTORNEY-IN-FACT.
Borrower hereby irrevocably appoints Administrator (for the benefit of
the Secured Parties) as Borrower's attorney-in-fact, with full authority in the
place and stead of Borrower and in the name of Borrower or otherwise, from time
to time in Administrator's discretion, after the occurrence and during the
continuation of a Significant Event to take any action and to execute any
instrument which Administrator may deem necessary or advisable to accomplish the
purposes of the Transaction Documents, including, without limitation:
(a) to ask, demand, collect, ▇▇▇ for, recover, compromise, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) above;
(c) to file any claims or take any action or institute any proceedings
which Administrator may deem necessary or desirable for the collection of any of
the Collateral or otherwise to enforce the rights of Administrator (for the
benefit of the Secured Parties) with respect to any of the Collateral;
(d) to sell, transfer, assign or otherwise deal in or with the
Collateral or any part thereof pursuant to the terms and conditions hereunder;
and
(e) to perform the affirmative obligations of Borrower under the
Transaction Documents.
Administrator agrees to give Borrower and Servicer written notice of the taking
of any such action, but the failure to give such notice shall not affect the
rights, power or authority of Administrator with respect thereto. Borrower
hereby acknowledges, consents and agrees that the power of attorney granted
pursuant to this Section 5.2 is irrevocable and coupled with an interest.
SECTION 5.3 ADMINISTRATOR MAY PERFORM.
If Borrower fails to perform any agreement contained herein,
Administrator (for the benefit of the Secured Parties) may itself perform, or
cause performance of such agreement, and the expenses of Administrator incurred
in connection therewith shall be payable by Borrower.
SECTION 5.4 RELEASE OF COLLATERAL.
Administrator's (for the benefit of the Secured Parties) right, title
and interest in the Collateral shall be released effective on the date occurring
after the Commitment Termination Date on which all Secured Obligations shall
have been finally and fully paid and performed.
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ARTICLE VI
INCREASED COSTS, ETC.
SECTION 6.1 INCREASED COSTS.
If any change in Regulation D of the Board of Governors of the Federal
Reserve System, or any Regulatory Change, in each case occurring after the date
hereof:
(a) shall subject any Affected Party to any tax, duty or other charge
with respect to any Loan made or funded by it, or shall change the basis of
taxation of payments to such Affected Party of the principal of or interest on
any Loan owed to or funded by it or any other amounts due under this Agreement
in respect of any Loan made or funded by it (except for changes in the rate of
tax on the overall net income of such Affected Party imposed by the jurisdiction
in which such Affected Party's principal executive office is located); or
(b) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the Federal
Reserve System, but excluding any reserve included in the determination of
interest rates pursuant to Section 3.1), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Affected Party;
(c) shall change the amount of capital maintained or required or
requested or directed to be maintained by any Affected Party; or
(d) shall change the amount of capital maintained or required or
requested or directed to be maintained by any Affected Party; or
and the result of any of the foregoing is or would be to (i) increase the cost
to or to impose a cost on (A) an Affected Party funding or making or maintaining
any Loan (including extensions of credit under the Liquidity Agreement, the
Voluntary Advance Agreement or any Credit Advance, or any commitment of such
Affected Party with respect to any of the foregoing), or (B) Administrator for
continuing its or Borrower's relationship with Lender, (ii) to reduce the amount
of any sum received or receivable by an Affected Party under this Agreement, the
Lender Note, the Liquidity Agreement, the Voluntary Advance Agreement or the
Credit Agreement with respect thereto, or (iii) in the good faith determination
of such Affected Party, to reduce the rate of return on the capital of an
Affected Party as a consequence of its obligations hereunder, or under the
Liquidity Agreement, the Voluntary Advance Agreement or Credit Agreement, or
arising in connection herewith or therewith to a level below that which such
Affected Party could otherwise have achieved, then after demand by such Affected
Party to Borrower (which demand shall be accompanied by a written statement
setting forth the basis of such demand), Borrower shall pay such Affected Party
such additional amount or amounts as will (in the reasonable determination of
such Affected Party) compensate such Affected Party for such increased cost or
such reduction. Such written statement (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be rebuttably
presumptive evidence of the subject matter thereof.
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SECTION 6.2 FUNDING LOSSES.
Borrower hereby agrees that upon demand by any Affected Party (which
demand shall be accompanied by a statement setting forth the basis for the
calculations of the amount being claimed) Borrower will indemnify such Affected
Party against any net loss or expense which such Affected Party may sustain or
incur (including, without limitation, any net loss or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Affected Party to fund or maintain any Loan made by Lender to Borrower), as
reasonably determined by such Affected Party, as a result of (i) any payment or
prepayment (including any mandatory prepayment) of any Loan on a date other than
the last day of the Interest Period for such Loan, or (ii) any failure of
Borrower to borrow any Loan on a date specified therefor in a related Borrowing
Request. Such written statement shall, in the absence of manifest error, be
rebuttably presumptive evidence of the subject matter thereof.
SECTION 6.3 WITHHOLDING TAXES.
(a) All payments made by Borrower or Servicer hereunder shall be made
free and clear of, and without reduction or withholding for or on account of,
any present or future taxes, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority or other taxing authority
excluding, in the case of Administrator and Lender, net income taxes imposed on
Administrator or Lender by the jurisdiction under the laws of which
Administrator or Lender is organized or any political subdivision or taxing
authority thereof or therein (such taxes, excluding such net income taxes, the
"Covered Taxes"). If any Covered Taxes are required to be withheld from any
amounts payable to Administrator or Lender, the amounts so payable to
Administrator or Lender shall be increased to the extent necessary to yield to
Administrator or Lender (after payment of all taxes) all such amounts payable
hereunder at the rates or in the amounts specified herein. Whenever any Covered
Taxes are payable by Borrower or Servicer, as promptly as possible thereafter,
Borrower or Servicer shall send to Administrator for its own account or for the
account of Lender, as the case may be, a certified copy of an original official
receipt received by Borrower or Servicer showing payment thereof. If Borrower or
Servicer fails to pay any Covered Taxes when due to the appropriate taxing
authority or fails to remit to Administrator the required documentary evidence,
Borrower or Servicer shall indemnify Administrator and Lender for such Covered
Taxes and any incremental taxes that may become payable by Administrator or
Lender as a result of any such failure.
(b) At least five (5) Business Days prior to the first date on which
any payments, including discount or Fees, are payable hereunder for the account
of Lender, if Lender is not incorporated under the laws of the United States,
Lender agrees to deliver to each of Borrower and Administrator two (2) duly
completed copies of (i) United States Internal Revenue Service Form 1001 or 4224
(or successor applicable form) certifying that such Lender is entitled to
receive payments hereunder without deduction or withholding of any United States
federal income taxes or (ii) United States Internal Revenue Service Form W-8 or
W-9 (or successor applicable form) to establish an exemption from United States
backup withholding tax. Lender shall replace or update such forms as is
necessary or appropriate to maintain any applicable exemption or as is requested
by Administrator or Borrower. If Lender does not deliver the forms described in
this Section 6.3(b), Borrower or Administrator shall withhold United States
federal income taxes from any payments made hereunder at the statutory rate
applicable to payments
27
made to Lender. Lender agrees to indemnify and hold Borrower and Administrator
harmless for any United States federal income taxes, penalties, interest and
other costs and losses incurred or payable by Borrower or Administrator as a
result of either (iii) Lender's failure to submit any form required to be
provided pursuant to this Section 6.3(b) or (ii) Borrower's or Administrator's
reliance on any form that Lender has provided pursuant to this Section 6.3(b).
ARTICLE VII
CONDITIONS TO BORROWING
The making of any Loan hereunder is subject to the following conditions
precedent:
SECTION 7.1 INITIAL LOAN.
The obligation of Lender to make the initial Loan hereunder is, in
addition to the conditions precedent specified in Section 7.2, subject to the
condition precedent that Administrator shall have received all of the following,
each duly executed and dated the date of such Loan (or such earlier date as
shall be satisfactory to Administrator), in form and substance satisfactory to
Administrator:
(a) Resolutions. Certified copies of resolutions of the Board of
Directors of Borrower, Servicer and Originator authorizing or ratifying the
execution, delivery and performance, respectively, of the Transaction Documents
to which it is a party, together with a certified copy of its articles or
certificate of incorporation and by-laws.
(b) Consents, etc. Certified copies of all documents evidencing any
necessary corporate action, consents and governmental approvals (if any) with
respect to the Transaction Documents.
(c) Incumbency and Signatures. A certificate of the Secretary or an
Assistant Secretary of each of Borrower, Servicer and Originator certifying the
names of its officer or officers authorized to sign the Transaction Documents to
which it is a party.
(d) Good Standing Certificates. Good standing certificates for
Borrower, Servicer and Originator issued as of a recent date acceptable to
Administrator by (i) the Secretary of State of the jurisdiction of such Person's
incorporation or organization, and (ii) the Secretary of State of the
jurisdiction where such Person's chief executive office and principal place of
business are located.
(e) Financing Statements. (i) Acknowledgment copies of proper financing
statements (Form UCC-1), filed on or prior to the date of the initial Loan,
naming Borrower as debtor and Administrator (for the benefit of the Secured
Parties) as the secured party as may be necessary or, in the opinion of
Administrator, desirable under the UCC to perfect Administrator's (for the
benefit of the Secured Parties) security interest in the Collateral, (ii)
acknowledgment copies of proper financing statements, filed on or prior to the
date of the initial Loan, naming each of Central Texas as seller/debtor,
Borrower as purchaser/secured party and Administrator as assignee as may be
necessary or, in the opinion of Administrator, desirable under the UCC to
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perfect Borrower's ownership interest in the Receivables and (iii) executed
copies of proper Uniform Commercial Code Form UCC-3 termination statements, if
any, necessary to release all liens and other Adverse Claims of any Person in
the Collateral granted by Borrower or Originator.
(f) Search Reports. A written search report ("Search Report") provided
to Administrator by a search service acceptable to Administrator listing all
effective financing statements that name Borrower or Originator as debtor or
assignor and that are filed in the jurisdictions in which filings were made
pursuant to Section 7.1(e) above and in such other jurisdictions that
Administrator shall reasonably request, together with copies of such financing
statements (none of which shall cover any Collateral or interests therein or
proceeds of any thereof), and tax and judgment lien search reports from a Person
satisfactory to Administrator showing no evidence of such lien filed against
Borrower or Originator.
(g) Fee Letter; Payment of Fees. The Fee Letter, together with all
outstanding Fees payable pursuant to the Fee Letter.
(h) Receivables Purchase Agreement. (i) Duly executed and delivered
counterparts of the Receivables Purchase Agreement and all documents, agreements
and instruments contemplated thereby, and (ii) evidence that each of the
conditions precedent to the execution and delivery of the Receivables Purchase
Agreement has been satisfied to Administrator's satisfaction, and that the
initial assignments and transfers under the Receivables Purchase Agreement have
been consummated.
(i) Opinions of Counsel. Opinions of counsel to Borrower, Servicer and
the Originator in form and substance satisfactory to Administrator.
(j) Lender Note. The Lender Note, duly executed by Borrower.
(k) Collection Account Agreements. The Collection Account Agreements,
duly executed by all of the parties thereto.
(l) Releases. Releases and termination statements duly executed by each
Person, other than Borrower, that has an interest in the Receivables.
(m) Borrowing Base Certificate. A certificate, substantially in the
form of Exhibit D (a "Borrowing Base Certificate"), duly executed by an officer
of Borrower (or the Servicer on its behalf) showing a calculation of the
Borrowing Base as of the date of such initial Loan. (n) Other. Such other
documents, certificates and opinions as Administrator may request.
SECTION 7.2 ALL LOANS.
The making of the initial Loan and each subsequent Loan are subject to
the following further conditions precedent that:
29
(a) No Default, etc. (i) No Significant Event or Unmatured Significant
Event has occurred and is continuing or will result from the making of such
Loan, (ii) the representations and warranties of Borrower and Servicer contained
in Article VIII are true and correct as of the date of such requested Loan, with
the same effect as though made on the date of such Loan, and (iii) after giving
effect to such Loan, the aggregate unpaid balance of the Loans will not exceed
the Borrowing Base or the Facility Limit. By making a Borrowing Request,
Borrower shall be deemed to have represented and warranted that items (i), (ii),
and (iii) in the preceding sentence are true and correct.
(b) Borrowing Request, etc. Administrator shall have received the most
recent Borrowing Base Certificate and Borrowing Request for such Loan in
accordance with Section 2.2, together with all items required to be delivered in
connection therewith.
(c) Commitment Termination Date. The Commitment Termination Date shall
not have occurred.
(d) Collateral Review. Administrator shall have received for all Loans
subsequent to the initial Loan on the Closing Date the most-recent Collateral
Review pursuant to Section 9.1(e)(v).
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
In order to induce Lender and Administrator to enter into this
Agreement and, in the case of Lender, to make Loans hereunder, Borrower hereby
represents and warrants to Administrator and Lender as to itself as follows, and
Servicer hereby represents and warrants to Lender and Administrator as to itself
as follows:
SECTION 8.1 ORGANIZATION AND GOOD STANDING, ETC.
Each of Borrower and Servicer has been duly organized and is validly
existing and in good standing under the laws of its jurisdiction of organization
listed on Schedule VI to this Agreement and is a "registered organization" under
the UCC in effect in such jurisdiction, with power and authority to own their
respective properties and to conduct their respective businesses as such
properties are presently owned and such businesses are presently conducted. Each
of Borrower and Servicer is duly licensed or qualified to do business as a
foreign entity in good standing in the jurisdiction where its principal place of
business and chief executive office are located and in each other jurisdiction
in which the failure to be so licensed or qualified has had, or would be
reasonably likely to have a Material Adverse Effect.
SECTION 8.2 POWER AND AUTHORITY; DUE AUTHORIZATION.
Each of Borrower and Servicer has (i) all necessary power, authority
and legal right to (ii) execute, deliver and perform its obligations under this
Agreement and each of the other Transaction Documents to which it is a party,
and (iii) in the case of Borrower, to borrow on the terms and subject to the
conditions herein provided, and (iv) duly authorized, by all necessary action,
the execution, delivery and performance of this Agreement and the other
Transaction
30
Documents to which it is a party and, in the case of Borrower, the borrowing,
and the granting of security therefor, on the terms and conditions provided
herein. Servicer had at all relevant times, and now has, all necessary power,
authority and legal right to perform its duties as Servicer.
SECTION 8.3 NO VIOLATION.
The consummation of the transactions contemplated by this Agreement and
the other Transaction Documents and the fulfillment of the terms hereof and
thereof will not (i) conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
default under, (A) the organizational documents of Borrower or Servicer, or (ii)
any indenture, loan agreement, pooling and servicing agreement, receivables
purchase agreement, mortgage, deed of trust, or other agreement or instrument to
which Borrower or Servicer is a party or by which any of them or any of their
respective properties is bound, (iii) result in or require the creation or
imposition of any Adverse Claim upon any of their respective properties pursuant
to the terms of any such indenture, loan agreement, pooling and servicing
agreement, receivables purchase agreement, mortgage, deed of trust, or other
agreement or instrument, other than pursuant to the terms of the Transaction
Documents, or (iv) violate any law or any order, rule, or regulation applicable
to Borrower or Servicer or of any court or of any federal, state or foreign
regulatory body, administrative agency, or other governmental instrumentality
having jurisdiction over Borrower, Originator or Servicer or any of their
respective properties.
SECTION 8.4 VALIDITY AND BINDING NATURE.
This Agreement is, and the other Transaction Documents to which it is a
party when duly executed and delivered by Borrower or Servicer (as applicable)
and the other parties thereto will be, the legal, valid and binding obligation
of Borrower or Servicer (as applicable) enforceable in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and by general principles of equity.
SECTION 8.5 GOVERNMENT APPROVALS.
No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body required for the due
execution, delivery or performance by Borrower or Servicer of any Transaction
Document to which it is a party remains unobtained or unfiled.
SECTION 8.6 SOLVENCY.
Borrower is Solvent.
SECTION 8.7 MARGIN REGULATIONS.
Neither Borrower or Servicer is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock, and no proceeds
of any Loans, directly or indirectly, will be used for a purpose that violates,
or would be inconsistent with, Regulations T, U and X promulgated by the Federal
Reserve Board from time to time.
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SECTION 8.8 QUALITY OF TITLE.
The Collateral, including, without limitation, the Receivables, in
which a security interest is to be granted to Administrator (for the benefit of
the Secured Parties) pursuant to this Agreement shall be owned by Borrower free
and clear of any Adverse Claim. Borrower has a first priority perfected
ownership interest in the Receivables. This Agreement creates a valid first
priority security interest in favor of Administrator (for the benefit of the
Secured Parties) in the Collateral, including without limitation the
Receivables, which security interest has been perfected (free and clear of any
Adverse Claim) as security for the Obligations. No effective financing statement
or other instrument similar in effect covering any of the Collateral or any
interest therein is on file in any recording office except for financing
statements that may be filed (i) in favor of Administrator (for the benefit of
the Secured Parties) in accordance with this Agreement, (ii) in favor of
Borrower in accordance with the Receivables Purchase Agreement, or (iii) UCC-3
termination statements necessary to release all Liens and Adverse Claims of any
Person in the Collateral granted by Borrower or Originator. Borrower's
jurisdiction of organization is a jurisdiction whose law generally requires
information to be made generally available in a filing, record or registration
system as a condition or result of such a security interest obtaining priority
over the rights of a lien creditor with respect to collateral.
SECTION 8.9 OFFICES.
The jurisdiction of organization, principal place of business and chief
executive office of Borrower and Servicer is located at the address referred to
on Schedule VI to this Agreement (or at such other locations, notified to
Administrator in jurisdictions where all action required thereby has been taken
and completed in accordance with Section 9.2(f)).
SECTION 8.10 COMPLIANCE WITH APPLICABLE LAWS; LICENSES, ETC.
(a) Each of Borrower and Servicer is in compliance with the
requirements of all applicable laws, rules, regulations, and orders of all
governmental authorities, a breach of any of which, individually or in the
aggregate, would be reasonably likely to have a Material Adverse Effect.
(b) Neither Borrower nor Servicer has failed to obtain any licenses,
permits, franchises or other governmental authorizations necessary to the
ownership of its properties or to the conduct of its business, which violation
or failure to obtain has had, or would be reasonably likely to have, a Material
Adverse Effect.
SECTION 8.11 NO PROCEEDINGS.
Except as described in Schedule IV,
(a) there is no order, judgment, decree, injunction, stipulation or
consent order of or with any court or other government authority to which
Borrower or Servicer is subject, and there is no action, suit, arbitration,
regulatory proceeding or investigation pending, or, to the knowledge of Borrower
or Servicer, threatened, before or by any court, regulatory body, administrative
agency or other tribunal or governmental instrumentality, against Borrower or
32
Servicer that, individually or in the aggregate, has had, or is reasonably
likely to have a Material Adverse Effect; and
(b) there is no action, suit, proceeding, arbitration, regulatory or
governmental investigation, pending or, to the knowledge of Borrower or
Servicer, threatened, before or by any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality (i) asserting the
invalidity of this Agreement, the Lender Note or any other Transaction Document,
(ii) seeking to prevent the issuance of the Lender Note or the consummation of
any of the other transactions contemplated by this Agreement or any other
Transaction Document or (iii) seeking to adversely affect the federal income tax
attributes of Borrower.
SECTION 8.12 INVESTMENT COMPANY ACT, ETC.
Neither Borrower nor Servicer is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company", of a "holding company", or an "affiliate"
of a "holding company", or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
SECTION 8.13 ELIGIBLE RECEIVABLES.
Each Receivable included in the Borrowing Base as an Eligible
Receivable on the date of any Borrowing Base Certificate, Period Report or any
Loan shall be an Eligible Receivable on such date.
SECTION 8.14 ACCURACY OF INFORMATION.
All information heretofore furnished by, or on behalf of, Borrower or
Servicer to Administrator or Lender in connection with any Transaction Document,
or any transaction contemplated thereby, is true and accurate in every material
respect (without omission of any information necessary to prevent such
information from being materially misleading).
SECTION 8.15 NO MATERIAL ADVERSE CHANGE.
Since December 31, 2001, there has been no material adverse change in
the collectibility of the Receivables or Servicer's or Borrower's (i) financial
condition, business or operations or (ii) ability to perform its obligations
under any Transaction Document.
SECTION 8.16 TRADE NAMES AND SUBSIDIARIES.
Borrower has not used any other names, trade names or assumed names for
the six year period preceding the date of this Agreement. Borrower has no
Subsidiaries and does not own or hold, directly or indirectly, any equity
interest in any Person.
SECTION 8.17 ACCOUNTS.
Set forth in Schedule I hereto is a complete and accurate description
of the Collection Account, the Depository Account and the LockBoxes maintained
by Originator, Borrower or
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Servicer for the purpose of receiving Collections with respect to Receivables.
The Collection Account and the Depository Account has been validly and
effectively assigned to Administrator pursuant to this Agreement and the
Collection Account Agreements. The Collection Account Agreements continue to be
the legal, valid and binding obligations of the parties thereto, enforceable
against such parties in accordance with their respective terms, and Borrower and
Servicer acknowledge that all cash and other proceeds of the Receivables will be
deposited in the Collection Account and the Depository Account in accordance
with this Agreement and are subject to the terms and conditions of this
Agreement. None of the Originator, Servicer or Borrower has granted any interest
in the Collection Account, the Depository Account or any LockBox to any Person
other than Administrator, and Administrator has exclusive control of the
Collection Account, the Depository Account and the LockBox.
SECTION 8.18 SALES BY ORIGINATOR.
Each sale of Receivables by Originator to Borrower shall have been
effected under, and in accordance with the terms of, the Receivables Purchase
Agreement, including the payment by Borrower to Originator of an amount equal to
the purchase price therefor as described in the Receivables Purchase Agreement,
and each such sale shall have been made for "reasonably equivalent value" (as
such term is used under Section 548 of the Bankruptcy Code) and not for or on
account of "antecedent debt" (as such term is used under Section 547 of the
Bankruptcy Code) owed by Borrower to Originator.
ARTICLE IX
COVENANTS OF BORROWER AND SERVICER
SECTION 9.1 AFFIRMATIVE COVENANTS.
From the date hereof until the first day, following the Commitment
Termination Date, on which all Obligations shall have been finally and fully
paid and performed, Borrower hereby covenants and agrees with Lender and
Administrator that as to itself, and Servicer hereby covenants and agrees with
Lender and Administrator as to itself, that it will:
(a) Compliance with Laws, Etc. Comply in all material respects with all
applicable laws, rules, regulations and orders of all governmental authorities
(including those which relate to the Receivables).
(b) Preservation of Corporate Existence. Preserve and maintain its
existence, status as a "registered organization", rights, franchises and
privileges solely in the jurisdiction of its incorporation or organization, and
qualify and remain qualified in good standing as a foreign entity in the
jurisdiction where its principal place of business and its chief executive
office are located and in each other jurisdiction where the failure to preserve
and maintain such existence, rights, franchises, privileges and qualifications
would have a Material Adverse Effect.
(c) Performance and Compliance with Receivables. Timely and fully
perform and comply with all provisions, covenants and other promises required to
be observed by it under the Receivables and all other agreements related to such
Receivables.
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(d) Collection Policy. Comply in all material respects with the
Collection Policy applicable to the Receivables.
(e) Reporting Requirements. Furnish to Administrator, Lender and, in
the case of clause (vii) below, the Rating Agencies:
(i) Financial Statements.
(A) as soon as available, and in any event within 120
days after the end of each Fiscal Year of Borrower, a copy of
the annual report for such Fiscal Year of Borrower including a
copy of the balance sheet of Borrower, in each case, as at the
end of such Fiscal Year, together with the related statements
of earnings and cash flows for such Fiscal Year, certified by
the chief executive officer, chief financial officer or
controller of Borrower (which certification shall state that
such balance sheet and statements fairly present the financial
condition and results of operations for such Fiscal Year in
accordance with GAAP), together with a certificate of such
officer stating that such officer has obtained no knowledge
that a Significant Event or Unmatured Significant Event has
occurred and is continuing, or if, in the opinion of such
officer, such a Significant Event or Unmatured Significant
Event has occurred and is continuing, a statement as to the
nature thereof;
(B) as soon as available and in any event within 120
days after the end of each Fiscal Year of Central Nevada, a
balance sheet of Central Nevada as of the end of such year and
statements of income and retained earnings and of source and
application of funds of Central Nevada, along with
consolidating statements, if any, for the period commencing at
the end of the previous Fiscal Year and ending with the end of
such year, in each case setting forth comparative figures for
the previous Fiscal Year, certified without material
qualification in a manner satisfactory to Administrator by
KPMG LLP or other nationally recognized independent public
accountants acceptable to Administrator, together with a
certificate of such accounting firm stating that in the course
of the regular audit of the business of Central Nevada, which
audit was conducted in accordance with GAAP, such accounting
firm has obtained no knowledge that a Significant Event or
Unmatured Significant Event has occurred and is continuing, or
if, in the opinion of such accounting firm, such a Significant
Event or Unmatured Significant Event has occurred and is
continuing, a statement as to the nature thereof; and
(C) as soon as available and in any event within 45
days after the end of each fiscal quarter, quarterly balance
sheets and quarterly statements of source and application of
funds and quarterly statements of income and retained earnings
of Central Nevada, certified by the chief executive or
financial officer or controller of Central Nevada (which
certification shall state that such balance sheets and
statements fairly present the financial condition and results
of operations for such fiscal quarter, subject to year-end
audit adjustments), delivery of which balance sheets and
statements shall be accompanied by a certificate of
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such chief financial officer or controller to the effect that
no Significant Event or Unmatured Significant Event has
occurred and is continuing.
(ii) Reports. On or before the 22nd day of each calendar
month and, for so long as Central Nevada shall have thirteen Fiscal
Periods in the related Fiscal Year, on or before June 1st (each, a
"Reporting Date"), Servicer shall prepare and deliver to Administrator
and Lender a report, substantially in the form of Exhibit C or in such
other form acceptable to Administrator (a "Period Report"), as of the
immediately preceding Period End Date signed by an authorized officer
of Servicer. On or before the first Business Day of each week, Servicer
shall prepare and deliver to Administrator and Lender a Borrowing Base
Certificate, as of the last Business Day of the immediately preceding
week signed by an authorized officer of Servicer.
(iii) Significant Events. As soon as possible but in any event
within three days after any officer of Borrower or Servicer becomes
aware of the occurrence of a Significant Event or an Unmatured
Significant Event, or a Purchase Termination Event or Incipient
Purchase Termination Event under (and as defined in) the Receivables
Purchase Agreement, an officer's certificate of Borrower or Servicer,
as the case may be, setting forth details of such event and the action
that Servicer, Borrower or Originator, as the case may be, proposes to
take with respect thereto.
(iv) Servicing Certificate. Servicer shall deliver, or cause
to be delivered, to Administrator, on or before the date that is 120
days after the end of each Fiscal Year, an officer's certificate signed
by the president, chief executive officer or any vice president of
Servicer, dated as of the last day of the preceding Fiscal Year,
stating that (A) a review of the activities of Servicer during the
preceding Fiscal Year and of its performance under this Agreement has
been made under such officer's supervision and (B) to the best of such
officer's knowledge, based on such review, Servicer has fulfilled its
obligations under the Agreement throughout such Fiscal Year and has
complied in all respects with the Collection Policy, or, if there has
been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status
thereof.
(v) Collateral Review. As soon as possible, and in any event
within thirty (30) days after the Closing Date, and each October and
April thereafter, a report of the independent certified public
accountants of Central Nevada (each such report, a "Collateral Review")
which satisfies the requirements set forth on Schedule V.
(vi) Fiscal Periods. No later than September 30 of each
calendar year, an updated Schedule VII, showing each of the Fiscal
Periods for the immediately succeeding Fiscal Year.
(vii) Special Obligor Downgrade. Promptly after obtaining
knowledge thereof, notice that the long term unsecured debt rating of
the Special Obligor has been reduced to below BBB- by S&P or Baa3 by
▇▇▇▇▇'▇.
36
(viii) Depository Account. No later than ten (10) Business
Days after the date of the initial Loan, a copy of a Collection Account
Agreement with respect to the Depository Account and an updated
Schedule I, showing the name and address of the Collection Bank with
respect to such Depository Account and the related account number.
(ix) Other. Promptly, from time to time, such other
information, documents, records or reports respecting the Collateral,
the Receivables or the condition or operations, financial or otherwise,
of Borrower, Originator or Servicer as Administrator may from time to
time reasonably request in order to protect the interests of
Administrator or Lender under or as contemplated by this Agreement or
the other Transaction Documents.
(f) Use of Proceeds. Borrower shall use the proceeds of the Loans made
hereunder solely in connection with the acquisition or funding of Receivables or
the repayment of amounts owned under the Originator Note in connection
therewith.
(g) Separate Legal Entity. Borrower hereby acknowledges that Lender and
Administrator are entering into the transactions contemplated by this Agreement
and the other Transaction Documents in reliance upon Borrower's identity as a
legal entity separate from any other Person. Therefore, from and after the date
hereof, Borrower shall take all reasonable steps to continue Borrower's identity
as a separate legal entity and to make it apparent to third Persons that
Borrower is an entity with assets and liabilities distinct from those of any
other Person, and is not a division of any other Person. Without limiting the
generality of the foregoing and in addition to and consistent with the covenant
set forth in Section 9.1(b), Borrower shall take such actions as shall be
required in order that:
(i) Borrower will be a special purpose corporation whose
primary activities are restricted in its certificate of incorporation
to owning financial assets and financing the acquisition thereof and
conducting such other activities as it deems necessary or appropriate
to carry out its primary activities;
(ii) Not less than one member of Borrower's Board of Directors
(the "Independent Director") shall be an individual who is not, and
during the past five (5) years has not been, a director, officer,
employee or 5% beneficial owner of the outstanding common stock of any
Person or entity beneficially owning any outstanding shares of common
stock of Central Nevada, Originator or any Affiliate thereof; provided,
however, that an individual shall not be deemed to be ineligible to be
an Independent Director solely because such individual serves or has
served in the capacity of an "independent director" or similar capacity
for special purpose entities formed by Central Nevada, Originator or
any of their respective Affiliates. The certificate of incorporation of
Borrower shall provide that (A) the Board of Directors shall not
approve, or take any other action to cause the filing of, a voluntary
bankruptcy petition with respect to Borrower unless the Independent
Director shall approve the taking of such action in writing prior to
the taking of such action, and (B) such provision cannot be amended
without the prior written consent of the Independent Director;
37
(iii) Any employee, consultant or agent of Borrower will be
compensated from funds of Borrower, as appropriate, for services
provided to Borrower and, to the extent any employee, consultant or
agent of Borrower is also an employee, consultant or agent of Central
Nevada, Originator or any Affiliate thereof, allocate the compensation
of such employee, consultant or agent between Borrower and Central
Nevada, Originator or such Affiliate, as applicable, on a basis that
reflects the services rendered to Borrower, Central Nevada, Originator
or such Affiliate, as applicable;
(iv) Borrower will allocate and charge fairly and reasonably
overhead expenses shared with any other Person. To the extent, if any,
that Borrower and any other Person share items of expenses such as
legal, auditing and other professional services, such expenses will be
allocated to the extent practical on the basis of actual use or the
value of services rendered, and otherwise on a basis reasonably related
to the actual use or the value of services rendered;
(v) Borrower's operating expenses will not be paid by any
other Person except as permitted under the terms of this Agreement or
otherwise consented to by Administrator and Lender;
(vi) Borrower's books and records will be maintained
separately from those of any other Person and otherwise in such a
manner that such books and records are readily identifiable as its own
assets rather than assets of Central Nevada, Originator or any
Affiliate thereof;
(vii) Borrower's financial statements will be prepared
separately from Central Nevada, Originator and Borrower will ensure
that any consolidated financial statements of any Person that include
Borrower will contain detailed notes clearly stating that (A) all of
Borrower's assets are owned by Borrower and such assets will be
available first and foremost to satisfy the claims of the creditors of
Borrower, and (B) Borrower is a separate corporate entity;
(viii) Borrower's assets will be maintained in a manner that
facilitates their identification and segregation from those of any
other Person;
(ix) Borrower will strictly observe corporate formalities as a
distinct entity in its dealings with all other Persons and ensure that
all corporate actions relating to (A) the selection, maintenance or
replacement of the Independent Director, (B) the dissolution or
liquidation of Borrower or (C) the initiation of, participation in,
acquiescence in or consent to any bankruptcy, insolvency,
reorganization or similar proceeding involving Borrower, are duly
authorized by unanimous vote of its Board of Directors (including the
Independent Director);
(x) Except as herein specifically otherwise provided, Borrower
will not commingle its funds or other assets with those of any other
Person and will only maintain bank accounts or other depository account
to which Borrower alone is the account party, into which Borrower alone
makes deposits and from which Borrower alone (or Administrator
hereunder) has the power to make withdrawals;
38
(xi) Borrower shall not, directly or indirectly, be named or
enter into an agreement to be named, as a direct or contingent
beneficiary or loss payee, under any insurance policy with respect to
any amounts payable due to occurrences or events related to any other
Person;
(xii) Any Person that renders or otherwise furnishes services
to Borrower will be compensated thereby at market rates for such
services it renders or otherwise furnishes thereto. Borrower will not
hold itself out to be responsible for the debts of any other Person or
the decisions or actions respecting the daily business and affairs of
any other Person and Borrower will not hold out its credit as being
available to satisfy the obligations of any other Person or pledge its
assets for the benefit of any other Person;
(xiii) Borrower will hold itself out to the public and conduct
its own business in its own name and require all full-time employees of
Borrower, if any, identify themselves as such and not as employees of
Central Nevada, Originator or any Affiliate thereof (including, without
limitation, by means of providing appropriate employees with business
or identification cards identifying such employees as Borrower's
employees);
(xiv) Borrower will clearly identify its offices (by signage
or otherwise) as its offices and, if such office is located in the
offices of Central Nevada or Originator, Borrower shall lease such
office at a fair market rent;
(xv) Borrower will have a separate telephone number, which
will be answered only in its name and have separate stationery,
invoices, checks and other business forms in its own name;
(xvi) Borrower will conduct all transactions with Originator
and Servicer strictly on an arm's length basis; and
(xvii) Borrower will take such other actions as are necessary
on its part to ensure that the facts and assumptions set forth in the
opinion issued by the ▇▇▇▇▇▇▇ Law Firm, P.C., L.L.O., as counsel to
Borrower, in connection with this Agreement and relating to substantive
consolidation issues and in the certificates accompanying such opinion,
remain true and correct in all material respects at all times.
(h) Adverse Claims on Receivables. Defend each Receivable against all
claims and demands of all Persons at any time claiming the same or any interest
therein adverse to Administrator and the Secured Parties.
(i) Further Assurances. At their expense, perform all acts and execute
all documents reasonably requested by Administrator at any time to evidence,
perfect, maintain and enforce the title or the security interest of
Administrator in the Receivables and the priority thereof. Borrower hereby
authorizes Administrator to execute on behalf of the Seller as debtor and to
file financing statements and other filing or recording documents with respect
to the Collateral (including any amendments thereto, or continuation or
termination statements thereof), without the signature or other authorization of
Borrower, in such form and in such offices as Administrator reasonably
determines appropriate to perfect or maintain the perfection of the security
interest of the Administrator hereunder. Borrower and Servicer shall cause its
computer
39
records, master data processing records and other books and records relating to
the Receivables to be marked, with a legend stating that the Receivables have
been sold to Borrower and that the Collateral has been pledged to Administrator
for the benefit of the Secured Parties.
(j) Servicing. Servicer shall use all reasonable measures to prevent or
minimize any loss being realized on a Receivable and shall take all reasonable
steps to recover the full amount of such loss. Servicer shall follow such
practices and procedures for servicing the Receivables as would be customary and
usual for a prudent servicer under similar circumstances, including using
reasonable efforts to realize upon any recourse to the Obligors.
(k) Inspection. Servicer and Borrower shall permit Lender,
Administrator or their duly authorized representatives, attorneys or auditors to
inspect the Receivables, the Receivable Files, Documents and the related
accounts, records and computer systems, software and programs used or maintained
by Borrower or Servicer at such times as Lender or Administrator may reasonably
request; provided, that all inspections occurring after a Significant Event has
occurred shall be at the expense of Borrower. Upon instructions from Lender or
Administrator, Borrower or Servicer shall release any Document to Lender or
Administrator, as the case may be.
(l) Cooperation. Borrower and Servicer shall provide such cooperation,
information and assistance, and prepare and supply Administrator with such data
regarding the performance by the Obligors of their obligations under the
Receivables and the performance by Borrower and Servicer of their respective
obligations under the Transaction Documents, as may be reasonably requested by
Administrator from time to time.
(m) Facility. Servicer shall maintain its facility from which it
services the Receivables in its present condition, ordinary wear and tear
excepted, or such other facility of similar quality, security and safety as
Servicer may select from time to time. Servicer shall make all property tax
payments, lease payments and all other payments with respect to such facility.
Servicer shall (i) ensure that Administrator shall have complete and
unrestricted access, at Servicer's expense, to such facility and all computers
and other systems relating to the servicing of the Receivables and all persons
employed at such facility, (ii) use its best efforts to retain the employees
based at such facility to provide assistance to Administrator and (iii) continue
to store on a daily basis all back-up files relating to the Receivables and the
servicing of the Receivables at the facilities of Central Nevada, or such other
storage facility of similar quality, security and safety as Servicer may select
from time to time, in the case of each of clauses (i), (ii) and (iii) until the
receipt of all Collections in respect of all Receivables or all Receivables have
been written off in accordance with the Collection Policy.
(n) Accounts. Borrower shall not maintain any bank accounts other than
the Collection Account and the Depository Account described on Schedule I.
Except as set forth in the last sentence of Section 11.2(c)(ii) Borrower shall
not make, nor will it permit Originator or Servicer to make, any change in its
instructions to Obligors regarding payments to be made to a LockBox. Neither
Borrower nor Servicer shall, nor will it permit Originator to, add any
Collection Account Bank, Depository Account or Collection Account, to those
listed on Schedule I unless Administrator shall have consented thereto and
received a copy of any new duly executed Collection Account Agreement. Neither
Borrower nor Servicer shall, nor will it
40
permit Originator to, terminate any Collection Account Bank or close any
Collection Account or Depository Account unless Administrator shall have
received at least thirty (30) days prior notice of such termination.
SECTION 9.2 NEGATIVE COVENANTS OF BORROWER AND SERVICER.
From the date hereof until the first day, following the Commitment
Termination Date, on which all Obligations shall have been finally and fully
paid and performed, each of Borrower and Servicer hereby covenants and agrees.
(a) Sales, Liens, Etc. Except pursuant to, or as contemplated by, the
Transaction Documents, Borrower shall not sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist voluntarily or,
for a period in excess of 5 days, involuntarily any Adverse Claims upon or with
respect to any of its assets, including, without limitation, the Collateral, any
interest therein or any right to receive any amount from or in respect thereof;
provided however, that Borrower may sell, assign or otherwise dispose of all or
any part of the Collateral on any day with the prior written consent of
Administrator and the Rating Agencies (which consent may be withheld for any
reason or no reason).
(b) Mergers, Acquisitions, Sales, Subsidiaries, Etc.
(i) Certain Restrictions on Borrower. Borrower shall not:
(A) be a party to any merger or consolidation, or
directly or indirectly purchase or otherwise acquire all or
substantially all of the assets or any stock of any class of,
or any partnership or joint venture interest in, any other
Person, except for Permitted Investments, or sell, transfer,
assign, convey or lease any of its property and assets (or any
interest therein) other than pursuant to, or as contemplated
by, this Agreement or the other Transaction Documents;
(B) make, incur or suffer to exist an investment in,
equity contribution to, loan or advance to, or payment
obligation in respect of the deferred purchase price of
property from, any other Person, except for Permitted
Investments or pursuant to the Transaction Documents;
(C) create any direct or indirect Subsidiary or
otherwise acquire direct or indirect ownership of any equity
interests in any other Person other than pursuant to the
Transaction Documents; or
(D) enter into any transaction with any Affiliate
except for the transactions contemplated by the Transaction
Documents and other transactions upon fair and reasonable
terms materially no less favorable to Borrower than would be
obtained in a comparable arm's length transaction with a
Person not an Affiliate.
(c) Change in Business Policy: Change in Collection Policy. Borrower
shall not make any change in the character of its business. Neither Borrower nor
Servicer shall make any change in the Collection Policy that could adversely
affect the collectibility of any Receivable.
41
(d) Other Debt. Borrower shall not incur any Debt to any Person other
than pursuant to this Agreement, the Receivables Purchase Agreement or otherwise
in connection with a transaction involving Lender, Bank, any Credit Bank, any
Liquidity Bank or any other Persons providing liquidity or credit support to
Lender.
(e) Certificate of Incorporation and By-Laws. Borrower shall not amend
its certificate of incorporation or by-laws.
(f) Chief Executive Office and Jurisdiction of Organization. The
jurisdiction of organization, principal place of business and chief executive
office of each of Borrower and Servicer is located at the address referred to on
Schedule VI to this Agreement. Originals or duplicates of documents and records
evidencing all Receivables are kept at, and only at, said offices, and neither
Borrower nor Servicer shall move its jurisdiction of organization, chief
executive office or permit the documents and records evidencing the Receivables
to be moved unless (i) Borrower or Servicer, as the case may be, shall have
given to Administrator at least forty-five (45) days' prior written notice
thereof, clearly describing the new location, and (ii) at least ten (10) days
prior to such change, Borrower shall have taken such action, satisfactory to
Administrator, to maintain the title or ownership of Borrower and any security
interest of Administrator in the Collateral at all times fully perfected and in
full force and effect. Servicer shall not, in any event, move the location where
it conducts the servicing and collection of the Receivables from the address
referred to on Schedule VI to this Agreement, without the prior written consent
of Administrator, which consent shall not be unreasonably withheld.
(g) Financing Statements. Borrower shall not execute any effective
financing statement (or similar statement or instrument of registration under
the laws of any jurisdiction) or statements relating to any Receivables other
than the financing statements described in Section 7.1(e).
(h) Business Restrictions. Without the prior written consent of
Administrator and the Rating Agencies in each case (which consent may be
withheld for any reason or no reason), Borrower shall not (i) engage in any
business or transactions, or be a party to any documents, agreements or
instruments, other than the Transaction Documents or those incidental to the
purposes thereof, or (ii) make any expenditure for any assets (other than
Receivables) if such expenditure, when added to other such expenditures made
during the same calendar year would, in the aggregate, exceed $10,500; provided,
however, that the foregoing will not restrict Borrower's ability to pay
servicing compensation as provided herein and, so long as no Significant Event
or Unmatured Significant Event shall have occurred and be continuing, and that
Borrower's tangible net worth, after giving effect thereto, shall not be less
than $3,000,000, Borrower's ability to pay amounts due on the Originator Note or
other payments or distributions legally made to Borrower's equity owners.
ARTICLE X
SIGNIFICANT EVENTS AND THEIR EFFECT
SECTION 10.1 EVENTS OF DEFAULT.
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Each of the following shall constitute an Event of Default (an "Event
of Default") under this Agreement:
(a) Non-Payment of Loans, Etc. Borrower shall fail to make any payment
when due of any principal of or interest on any Loan, or payment of any other
amount payable by Borrower hereunder, including, without limitation, interest on
any Loan or any Fees, or shall fail to make any deposit required to be made
hereunder when due and such failure shall continue for three (3) Business Days.
(b) Non-Compliance with Other Provisions. Borrower shall fail to
perform or observe any other term, covenant or agreement contained in this
Agreement or any other Transaction Document on its part to be performed or
observed and any such failure shall remain unremedied for thirty (30) days after
Borrower has knowledge thereof.
(c) Breach of Representations and Warranties. Any representation or
warranty of Borrower made or deemed to have been made hereunder or in any other
Transaction Document or any other writing or certificate furnished by or on
behalf of Borrower to Administrator or Lender for purposes of or in connection
with this Agreement or any other Transaction Document shall prove to have been
false or incorrect in any material respect when made or deemed to have been
made, and shall continue to be false or incorrect for a period of thirty (30)
days after Borrower has knowledge thereof.
(d) Bankruptcy. An Event of Bankruptcy shall have occurred and remained
continuing with respect to Borrower.
(e) Tax Liens. The IRS shall file notice of a lien pursuant to Section
6323 of the Code with regard to any of the assets of Borrower, and such lien
shall not have been released within five (5) Business Days.
SECTION 10.2 AMORTIZATION EVENTS.
Each of the following shall constitute an Amortization Event (an
"Amortization Event") under this Agreement:
(a) Servicer Event of Default. A Servicer Event of Default shall have
occurred and remained continuing.
(b) Borrowing Base Deficit. A Borrowing Base Deficit shall exist and
such condition shall continue unremedied for three (3) Business Days.
(c) Default Ratio. The Default Ratio shall be equal to or exceed 5.5%
on a rolling three (3) Due Period average basis.
(d) Delinquency Ratio. The Delinquency Ratio shall be equal to or
exceed 6.0% on a rolling three (3) Due Period average basis.
(e) Dilution Ratio. The Dilution Ratio shall be equal to or exceed 5.5%
on a rolling three (3) Due Period average basis.
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(f) Accounts Receivable Turnover Ratio. The Accounts Receivable
Turnover Ratio is less than 6.5 for any Due Period.
(g) Event of Default. An Event of Default shall have occurred and
remained continuing;
(h) Validity of Transaction Documents. (i) Any Transaction Document, or
any lien or security interest granted thereunder, shall (except in accordance
with its terms), in whole or in part, terminate, cease to be effective or cease
to be the legally valid, binding and enforceable obligation of Borrower,
Servicer or Originator party to such Transaction Document, (ii) Borrower,
Originator or Servicer shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability or (iii) any security
interest securing any Obligation shall, in whole or in part, cease to be a
perfected first priority security interest.
SECTION 10.3 EFFECT OF SIGNIFICANT EVENT.
(a) Optional Termination. Upon the occurrence of a Significant Event
(other than an Event of Default described in Section 10.1(d)), Administrator
may, and at the request of Lender shall, by notice to Borrower (a copy of which
shall be promptly forwarded by Administrator to each Rating Agency), declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable and/or Lender's Commitment (if not theretofore
terminated) to be terminated by declaring the Commitment Termination Date to
have occurred, whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, Lender's Commitment shall terminate.
(b) Automatic Termination. Upon the occurrence of an Event of Default
described in Section 10.1(d)), the Commitment Termination Date shall be deemed
to have occurred automatically, and all outstanding Loans and all other
Obligations shall become immediately and automatically due and payable, all
without presentment, demand, protest, or notice of any kind.
(c) Notice to Rating Agencies. Administrator shall notify each Rating
Agency of the occurrence of any continuing Significant Event, promptly following
its actual knowledge thereof.
ARTICLE XI
THE SERVICER
SECTION 11.1 CENTRAL AS INITIAL SERVICER.
The servicing, administering and collection of the Receivables shall be
conducted by the Person designated from time to time as Servicer hereunder.
Until such time as Administrator shall notify Central Nevada in writing pursuant
to Section 11.6 hereof of the revocation of such power and authority, Borrower,
Lender and Administrator hereby appoint Central Nevada, and Central Nevada
hereby agrees to act, as Servicer hereunder. Originator agrees to act as
subservicer for the purpose of performing certain duties and obligations with
respect to all Receivables purchased by Borrower from Originator pursuant to the
terms of the Receivables
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Purchase Agreement. In so acting as subservicer, Originator shall comply with,
and agrees to be bound by, all of the terms and provisions of this Agreement
applicable to Originator in the performance of its duties as subservicer;
provided, however, that Originator (i) shall cease to act as subservicer upon
the termination of the Servicer pursuant to Section 11.6, (ii) shall receive a
servicing fee payable from Servicer, and (iii) shall not be bound by, or be
deemed to have made, any of the representations, warranties or covenants in
Article VIII except as expressly provided in the Receivables Purchase Agreement.
SECTION 11.2 CERTAIN DUTIES OF SERVICER.
(a) Authorization to Act as Borrower's Agent. Borrower hereby appoints
Servicer as its agent for the following purposes: (i) selecting the amount of
each requested Loan and executing Borrowing Requests on behalf of Borrower, (ii)
making transfers among, deposits to and withdrawals from all deposit accounts of
Borrower for the purposes described in the Transaction Documents, (iii)
arranging payment by Borrower of all Fees, expenses, other Obligations and other
amounts payable under the Transaction Documents, (iv) causing the repayment and
prepayment of the Loans as required or permitted pursuant to Section 4.1 and (v)
executing and preparing the Period Reports; provided, however, that Servicer
shall act in such capacity only as an agent of Borrower and shall incur thereby
no additional obligations with respect to any Loan. Borrower irrevocably agrees
that (A) it shall be bound by all proper actions taken by Servicer pursuant to
the preceding sentence, and (B) Lender, Administrator and the banks holding all
deposit accounts of Borrower are entitled to accept submissions, determinations,
selections, specifications, transfers, deposits and withdrawal requests, and
payments from Servicer on behalf of Borrower.
(b) Central Nevada to Act as Servicer. (i) Servicer shall service and
administer the Receivables on behalf of Borrower and Administrator (for the
benefit of the Secured Parties) and shall have full power and authority, acting
alone and/or through subservicers as provided in Section 11.2(b)(iii), to do any
and all things which it may deem reasonably necessary or desirable in connection
with such servicing and administration and which are consistent with this
Agreement. Consistent with the terms of this Agreement, Servicer may waive,
modify or vary any term of any Receivable or consent to the postponement of
strict compliance with any such term or in any manner, grant indulgence to any
Obligor if, in Servicer's reasonable determination, such waiver, modification,
postponement or indulgence is not materially adverse to the interests of
Borrower or Administrator (for the benefit of the Secured Parties); provided,
however, that Servicer may not permit any modification with respect to any
Receivable that would reduce the Unpaid Balance (except for actual payments
thereof), or extend the due date thereof, except that Servicer may take such
actions with respect to Defaulted Receivables if such actions will, in
Servicer's reasonable business judgment, maximize the Collections thereof.
Without limiting the generality of the foregoing, Servicer in its own name or in
the name of Borrower is hereby authorized and empowered by Borrower when
Servicer believes it appropriate in its best judgment to execute and deliver, on
behalf of Borrower, any and all instruments of satisfaction or cancellation, or
of partial or full release or discharge and all other comparable instruments,
with respect to the Receivables.
(ii) Servicer shall service and administer the Receivables by
employing such procedures (including collection procedures) and degree
of care, in each case consistent with applicable law, with the
Collection Policy and with prudent industry
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standards, as are customarily employed by Servicer in servicing and
administering receivables owned or serviced by Servicer comparable to
the Receivables. Servicer shall not take any action to impair
Administrator's (for the benefit of the Secured Parties) security
interest in any Receivable, except to the extent allowed pursuant to
this Agreement or required by law.
(iii) Servicer may perform any of its duties pursuant to this
Agreement, including those delegated to it pursuant to this Agreement,
through subservicers appointed by Servicer, provided that such
subservicing arrangements may be terminated, at Administrator's
discretion, upon the replacement of Central Nevada as Servicer. Such
subservicers may include Affiliates of Servicer. Notwithstanding any
such delegation of a duty, Servicer shall remain obligated and liable
for the performance of such duty as if Servicer were performing such
duty.
(iv) Servicer may take such actions as are necessary to
discharge its duties as Servicer in accordance with this Agreement,
including the power to execute and deliver on behalf of Borrower such
instruments and documents as may be customary, necessary or desirable
in connection with the performance of Servicer's duties under this
Agreement (including consents, waivers and discharges relating to the
Receivables).
(v) Servicer shall keep separate records covering the
transactions contemplated by this Agreement, including the identity and
collection status of each Receivable purchased by Borrower from
Originator and the Originator Payables.
(c) Collections. (i) On or prior to the Closing Date, Borrower and
Servicer shall have established and shall maintain thereafter the following
system of collecting and processing Collections of Receivables. The Obligors
shall be instructed to make payments of Receivables by wire transfer to the
Collection Account, the Depository Account or by check mailed to a post office
box listed on Schedule I (each a "LockBox" and collectively, the "LockBoxes")
(such payments, upon receipt in a LockBox being referred to herein as "Mail
Payments").
(ii) On or prior to the Closing Date, Administrator shall have
received a consent to assignment of the assignment of each Depository
Account to Administrator. Servicer's right of access thereto shall be
revocable at the option of Administrator upon the occurrence of
Unmatured Significant Event or Significant Event. In addition, after
the occurrence of any Unmatured Significant Event or any Significant
Event, Servicer agrees that it shall, upon the written request of
Administrator, notify all Obligors under Receivables to make payment
thereof to (A) one or more bank accounts and/or post-office boxes
designated by Administrator and specified in such notice or (B) any
successor Servicer appointed hereunder.
(iii) Servicer shall remove all Mail PaymentS, or cause all
Mail Payments to be removed, from each LockBox by the close of business
on each Business Day and deposited into the Collection Account or the
Depository Account. Servicer shall cause all payments received directly
by Servicer, Originator or otherwise (including, without limitation,
all payments received at any local terminal of Servicer or Originator)
to be deposited in the Depository Account or the Collection Account
within one (1) Business
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Day after receipt thereof. Servicer shall process all such Mail
Payments, and all wire transfers, ACH payments and other payments on
the date received by recording the amount of the payment received from
the Obligor and the applicable account or invoice number.
(iv) All Collections received by Originator or Servicer in
respect of Receivables will, pending remittance to the Collection
Account or the Depository Account as provided herein, be held by
Originator or Servicer in trust for the exclusive benefit of
Administrator, and shall not be commingled with any other funds or
property of Originator or Servicer.
(v) Borrower and Servicer hereby irrevocably waive any right
to set off against, or otherwise deduct from, any Collections.
(vi) In performing its duties and obligations hereunder,
Servicer (A) shall not impair the rights of Borrower or Administrator
in any Receivable, (B) shall not amend the terms of any Receivable
other than in accordance with the Collection Policy and this Agreement,
and (C) shall be entitled to commence or settle any legal action to
enforce collection of any Receivable. In the event that Servicer shall
breach any of its covenants set forth in clause (A), (B) or (C) of this
Section 11.2(c)(vi), Servicer shall pay the Unpaid Balance of each
Receivable affected thereby on the Distribution Date following the Due
Period in which such event occurs. For the purposes of Section 11.7
hereof, Servicer shall not be deemed to have breached its obligations
under this Section 11.2(c)(vi) unless it shall fail to make such
payment with respect to any Receivable affected by Servicer's
noncompliance with clause (A), (B) or (C) of this Section 11.2(c)(vi).
(vii) All payments or other amounts collected or received by
Servicer in respect of a Receivable shall be applied to the Unpaid
Balance of such Receivable.
(d) Collection Account. (i) On any Business Day, Borrower may withdraw,
or permit Servicer to withdraw, for any purpose or use permitted hereby,
including, without limitation, paying the purchase price of Receivables acquired
by Borrower under the Receivables Purchase Agreement, funds that are on deposit
in the Collection Account or the Depository Account, provided that (A) no
Significant Event or Unmatured Significant Event has occurred and is continuing
and (B) the Commitment Termination Date has not occurred. On the first Business
Day of each week, the Servicer shall deliver a certificate to Administrator,
which certificate shall be substantially in the form of Exhibit H hereto and
which shall certify to the Administrator that (x) the requirements set forth in
clauses (A) and (B) of the immediately proceeding sentence were satisfied with
respect to each withdrawal made from the Collection Account or the Depository
Account, as the case may be, on any day during the immediately preceding week
and (y) after giving effect to all withdrawals made during the immediately
preceding week, no Borrowing Base Deficit exists or has occurred and, as of the
last day of the previous week, there were funds in the Collection Account at
least equal to the interest on the Loans and the Fees accrued through such date.
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(ii) Prior to 3:00 p.m., New York time, on the Business Day
preceding each Distribution Date (a "Deposit Date"), the Servicer shall
deposit or cause to be deposited in the Collection Account, to the
extent not already on deposit therein, an amount equal to, without
duplication, the lesser of (1) (I) the aggregate amount of all
Collections received during the immediately preceding Due Period, plus
(II) the aggregate amounts due from Servicer on such Distribution Date
pursuant to Section 11.2(c)(vi) hereof, plus (III) the aggregate amount
of Originator Payables paid on such Distribution Date and (2) the
amounts due on such Distribution Date pursuant to clauses first through
sixth of Section 4.2(b), and the remainder of the Collections from such
Due Period shall be applied pursuant to the Receivables Purchase
Agreement, provided that if a Significant Event or Unmatured
Significant Event shall exist on such Distribution Date or the
Commitment Termination Date has occurred, then the Servicer shall
deposit all of the amounts described in this Section 11.2(d)(ii) in the
Collection Account on such Deposit Date.
(iii) Servicer shall distribute the amounts on deposit in the
Collection Account in accordance with Section 4.2 hereof.
(iv) Funds deposited in the Collection Account or the
Depository Account may be invested by Servicer in Permitted Investments
that mature not later than the Business Day next preceding the
Distribution Date. All income, gain or losses realized from any such
investment shall be credited or debited (as applicable) to the balance
of the Collection Account or the Depository Account, as the case may
be. Servicer shall have no obligation to reimburse the Collection
Account or the Depository Account, as the case may be, for any losses
realized by reason of such investments.
(v) On any day on which a Borrowing Base Deficit shall exist,
the Servicer shall cause an amount of Collections equal to such
Borrowing Base Deficit to be set aside and retained in the Collection
Account for application in accordance with this subsection (d). Such
funds shall be held in the Collection Account until the earlier of (i)
any prepayment made pursuant to the provisions of Section 4.1(d) and
(ii) any payment made pursuant to the provisions of Section 4.2(a) or
4.2(b), as the case may be.
SECTION 11.3 SERVICING COMPENSATION.
Servicer, as compensation for its activities hereunder, shall be
entitled to receive the Servicing Fee, which shall be payable by Borrower on
each Distribution Date from funds on deposit in the Collection Account in
accordance with Section 4.2. Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder (including
payment of the fees and expenses of any subservicer) and shall not be entitled
to reimbursement therefor except as specifically provided herein.
SECTION 11.4 AGREEMENT NOT TO RESIGN.
Central Nevada acknowledges that Lender and Administrator have relied
on Central Nevada's agreement to act as Servicer hereunder in their respective
decisions to execute and deliver the respective Transaction Documents to which
they are parties. In recognition of the
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foregoing, Central Nevada agrees not to resign as Servicer voluntarily, except
as required by law (as evidenced by the delivery of an outside opinion of
counsel to Administrator, in form and substance satisfactory to Administrator),
without the prior written consent of Administrator.
SECTION 11.5 DESIGNATION OF SERVICER.
Borrower agrees not to designate any Person other than Central Nevada
as Servicer without the prior written consent of Administrator.
SECTION 11.6 TERMINATION.
The authorization of Servicer to act on behalf of Borrower under this
Agreement and the other Transaction Documents shall terminate at the sole
discretion of Administrator upon the replacement of Servicer by a successor
Servicer selected by Administrator.
SECTION 11.7 SERVICER EVENTS OF DEFAULT.
Each of the following shall constitute a Servicer Event of Default (a
"Servicer Event of Default") under this Agreement:
(a) failure by the Servicer to make any payments required to be made by
it hereunder on the day on which such payment is required to be made and such
failure continues for three (3) Business Days;
(b) failure on the part of the Servicer to observe or perform in any
respect any other covenants or agreements of the Servicer contained herein
(other than as described in clause (a) above) which continues unremedied for a
period of thirty (30) days after Servicer has knowledge thereof;
(c) the delegation by the Servicer of its duties hereunder;
(d) any representation, warranty or certification made by the Servicer
herein proves to have been incorrect when made;
(e) so long as Central Texas is the subservicer pursuant to Section
11.1, the Net Worth of Central Texas shall be less than or equal to the sum of
(i) $25,000,000 plus (ii) 50% of Consolidated Net Income on a cumulative basis
for the third, sixth, ninth and thirteenth Fiscal Periods, commencing after the
Closing Date, plus (iii) 100% of the net proceeds from any equity offering of
Central Nevada, calculated quarterly on the last day of each fiscal quarter;
(f) an Event of Bankruptcy shall have occurred with respect to the
Servicer or Originator;
(g) a final judgment or judgments for the payment of money in excess of
$10,000 in the aggregate shall have been rendered against Borrower or $1,000,000
in the aggregate shall have been rendered against Central Nevada and the same
shall have remained unsatisfied and in effect, without stay of execution, for a
period of 30 consecutive days after the period for appellate review shall have
elapsed; or
49
(h) Central Nevada or Originator shall fail to pay any Debt in excess
of $1,000,000 when due, or a default shall have occurred and be
continuing with respect to any such Debt, which default results in, or
would permit, the acceleration of such Debt.
At any time during the continuance of any Servicer Event of Default,
Administrator may, in its sole discretion, notify Servicer in writing of the
revocation of its appointment as Servicer hereunder. Upon revocation of
Servicer's appointment hereunder, Administrator shall appoint a successor
Servicer.
Servicer agrees that upon receipt of written notification from
Administrator of the revocation of Servicer's appointment as Servicer hereunder,
Servicer shall upon the written request of Administrator (which request may be
contained in the notification of revocation) (i) notify all Obligors under the
Receivables to make payment thereof to a bank account(s) or post office box
designated by Administrator and specified in such notice, and (ii) pay to
Administrator (or its designee) immediately all Collections then held or
thereafter received by Servicer or Originator of Receivables, together with all
other payment obligations of the Servicer hereunder owing to Lender or
Administrator.
Servicer shall, at its sole cost and expense, cooperate with and assist
the successor Servicer (including, without limitation, providing access to, and
transferring, all Receivable Files and all records (including data-processing
records) relating thereto (which shall be held in trust for the benefit of the
parties hereto in accordance with their respective interests)) and allowing the
successor Servicer to use all licenses, hardware or software necessary or
desirable to collect the Receivables). Central Nevada irrevocably agrees to act
(if requested to do so) as the data-processing agent for the successor Servicer
(in substantially the same manner as Central Nevada conducted such
data-processing functions while it acted as Servicer).
ARTICLE XII
ADMINISTRATOR
SECTION 12.1 AUTHORIZATION AND ACTION.
Lender hereby appoints SunTrust Capital Markets, Inc. as its
Administrator for purposes of the Transaction Documents and authorizes SunTrust
Capital Markets, Inc. in such capacity to take such action on its behalf under
each Transaction Document and to exercise such powers hereunder and thereunder
as are delegated to SunTrust Capital Markets, Inc., as Administrator, by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto.
SECTION 12.2 ADMINISTRATOR AND AFFILIATES.
Bank and any of its Affiliates may generally engage in any kind of
business with Borrower, Bank, Servicer, any Obligor, any of their respective
Affiliates and any Person who may do business with or own securities of
Borrower, Bank, Servicer, any Obligor or any of their respective Affiliates, all
as if SunTrust Capital Markets, Inc. were not Administrator and without any duty
to account therefor to Lender.
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ARTICLE XIII
ASSIGNMENTS
SECTION 13.1 RESTRICTIONS ON ASSIGNMENTS.
Neither Borrower nor Servicer may delegate any of its duties, or assign
its rights, hereunder or any interest herein without the prior written consent
of Administrator and Lender. Lender may not assign its rights hereunder, any
Loan or the Lender Note (or any portion thereof) to any Person without the prior
written consent of Borrower; provided, however, that:
(a) Lender may assign, or grant a security interest in, all or any
portion of the Loans and the Lender Note to Credit Bank, any Liquidity Bank (or
any successor of any thereof by merger, consolidation or otherwise), any
Affiliate of Credit Bank or any Liquidity Bank in connection with a draw under
the Liquidity Agreement or a Credit Advance (which may then assign all or any
portion thereof so assigned or any interest therein to such party or parties as
it may choose); and
(b) Lender may assign any Loan to any other Person proposed by Lender
and consented to by Borrower (such consent not to be unreasonably withheld).
Administrator shall promptly provide notice of any such assignment to each
Rating Agency.
Within five (5) Business Days after notice to Borrower of any proposed
assignment by Lender for which Borrower's consent is required, Borrower agrees
to advise Administrator of its consent or non-consent thereto. If Borrower does
not consent to such assignment Lender may immediately assign the Loan (or
portion thereof) that was subject to such proposal to Bank, any Liquidity Bank
or any Affiliate of Bank or any Liquidity Bank. Subject to Section 13.2, all of
the aforementioned assignments shall be upon such terms and conditions as Lender
and the assignee may mutually agree.
SECTION 13.2 DOCUMENTATION.
Lender shall deliver to each assignee an assignment, in such form as
Lender and the related assignee may agree, duly executed by Lender, assigning
any such Loan to the assignee, and Lender shall promptly execute and deliver all
further instruments and documents, and take all further action, that the
assignee may reasonably request, in order to perfect, protect or more fully
evidence the assignee's right, title and interest in and to such Loan, and to
enable the assignee to exercise or enforce any rights hereunder or under the
Lender Note evidencing such Loan.
SECTION 13.3 RIGHTS OF ASSIGNEE.
Upon the foreclosure of any assignment of any Loans made for security
purposes, or upon any other assignment of any Loan from Lender pursuant to this
Article XIII, the respective assignee receiving such assignment shall have all
of the rights of Lender hereunder to the extent of such assignment with respect
to such Loans and all references to Lender in Section 6.1 shall be deemed to
apply to such assignee to the extent of such assignment.
SECTION 13.4 NOTICE OF ASSIGNMENT.
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Lender shall provide notice to Borrower of any assignment hereunder by Lender to
any assignee. Lender authorizes Administrator to, and Administrator agrees that
it shall, endorse the Lender Note to reflect any assignments made pursuant to
this Article XIII or otherwise.
ARTICLE XIV
INDEMNIFICATION
SECTION 14.1 GENERAL INDEMNITY OF BORROWER.
Without limiting any other rights which any such Person may have
hereunder or under applicable law, Borrower hereby agrees to indemnify
Administrator, Lender, Servicer, each Liquidity Bank, each Credit Bank, Bank,
each of Bank's Affiliates and each of their respective successors, transferees,
participants and assigns and all officers, directors, shareholders, controlling
persons, employees and agents of any of the foregoing (each of the foregoing
Persons being individually called an "Indemnified Party"), forthwith on demand,
on an after-tax basis, from and against any and all damages, losses, claims,
liabilities and related costs and expenses, including reasonable attorneys' fees
and disbursements (all of the foregoing being collectively called "Indemnified
Amounts") awarded against or incurred by any of them arising out of or relating
to any Transaction Document or the transactions contemplated thereby, any
commingling of funds (whether or not permitted hereunder), or the use of
proceeds therefrom by Borrower, including (without limitation) in respect of the
funding of any Loan or in respect of any Receivable; excluding, however, (i)
Indemnified Amounts to the extent determined by a court of competent
jurisdiction to have resulted from gross negligence or willful misconduct on the
part of such Indemnified Party and (ii) any tax upon or measured by net income
(except those described in Section 6.1(a)) on any Indemnified Party.
SECTION 14.2 INDEMNITY OF SERVICER.
Without limiting any other rights which any such Person may have
hereunder or under applicable law, Central Nevada as Servicer, hereby agrees to
indemnify each Indemnified Party forthwith on demand, on an after-tax basis,
from and against any and all Indemnified Amounts awarded against or incurred by
any of them arising from, or related to, the negligence or willful misconduct of
Central Nevada, the inaccuracy of any representation or warranty of Central
Nevada, or the failure of Central Nevada to perform its obligations under any
Transaction Document; excluding, however, (i) Indemnified Amounts to the extent
determined by a court of competent jurisdiction to have resulted from gross
negligence or willful misconduct on the part of such Indemnified Party, (ii)
Indemnified Amounts to the extent solely due to non-payment by any Obligor of an
amount due and payable with respect to a Receivable for credit reasons, and
(iii) any tax upon or measured by net income on any Indemnified Party.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 NO WAIVER; REMEDIES.
No failure on the part of Lender, Administrator, any Indemnified Party
or any Affected Party to exercise, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by any of them of any right, power or
52
remedy hereunder preclude any other or further exercise thereof, or the exercise
of any other right, power or remedy. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. Without limiting the
foregoing, each of Bank, each Credit Bank and each Liquidity Bank is hereby
authorized by Borrower at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by Bank, such Credit Bank or such Liquidity Bank to or for the
credit or the account of Borrower, now or hereafter existing under this
Agreement, to Administrator, any Affected Party, any Indemnified Party, or
Lender or their respective successors and assigns.
SECTION 15.2 AMENDMENTS, ETC.
No amendment, modification or waiver of, or consent with respect to,
any provision of this Agreement and any Schedules hereto, or the Lender Note
shall in any event be effective unless the same shall be in writing and signed
and delivered by (i) Borrower, Servicer, Administrator and Lender (with respect
to an amendment), or (ii) Administrator and Lender (with respect to a waiver or
consent by them) or Servicer or Borrower (with respect to a waiver or consent by
them), as the case may be, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no material amendment of this Agreement (other
than an amendment to extend the Scheduled Commitment Termination Date) shall be
effective unless Lender (or Administrator on its behalf) shall have received
written confirmation by the Rating Agencies that such amendment shall not cause
the rating on the then outstanding Commercial Paper Notes to be downgraded or
withdrawn. Administrator shall provide each Rating Agency with a copy of each
amendment to or consent or waiver under this Agreement promptly following the
effective date thereof.
SECTION 15.3 NOTICES, ETC.
All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing (including facsimile
communication) and shall be personally delivered or sent by certified mail,
postage prepaid, or by facsimile, to the intended party at the address or
facsimile number of such party set forth opposite its name on Schedule VI hereto
or at such other address or facsimile number as shall be designated by such
party in a written notice to the other parties hereto. All such notices and
communications shall be effective, (i) if personally delivered, when received,
(ii) if sent by certified mail, three (3) Business Days after having been
deposited in the mail, postage prepaid, (iii) if sent by overnight courier, one
(1) Business Day after having been given to such courier, and (iv) if
transmitted by facsimile, when sent, receipt confirmed by telephone or
electronic means, except that notices and communications pursuant to Section 2.2
shall not be effective until received.
SECTION 15.4 COSTS, EXPENSES AND TAXES.
In addition to its obligations under Section 14.1, Borrower agrees to
pay on demand:
(a) all costs and expenses incurred by Administrator, Lender, each
Liquidity Bank, each Credit Bank and Servicer in connection with (i) the
preparation, execution, delivery, administration and enforcement of, or any
breach of, this Agreement, the Lender Note, the other
53
Transaction Documents, the Liquidity Agreement and, to the extent directly
related to this Agreement, the Program Documents (including any amendments or
modifications of or supplements to the Program Documents directly related to
this Agreement), including, without limitation, the reasonable fees and expenses
of counsel to any of such Persons incurred in connection therewith, (ii) the
perfection of Administrator's security interest in the Collateral, (iii) the
maintenance of the Collection Account, (iv) the audit of the books, records and
procedures of Originator, Servicer and Borrower by Administrator's auditors
(which may be employees of Administrator), and (v) Rating Agency fees related to
the transactions contemplated by this Agreement; and
(b) all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of this
Agreement, the Lender Note, the other Transaction Documents, or (to the extent
directly related to this Agreement) the Program Documents, and agrees to
indemnify each Indemnified Party against any liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and fees.
SECTION 15.5 BINDING EFFECT; SURVIVAL.
This Agreement shall be binding upon and inure to the benefit of
Borrower, Bank, Central Nevada, Lender, Administrator, and their respective
successors and assigns, and the provisions of Article VI and Article XIV shall
inure to the benefit of the Affected Parties and the Indemnified Parties,
respectively, and their respective successors and assigns; provided, however,
nothing in the foregoing shall be deemed to authorize any assignment not
permitted by Article XIII. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until such time, after the Commitment
Termination Date, when all Obligations have been finally and fully paid and
performed. The rights and remedies with respect to any breach of any
representation and warranty made by Borrower or Servicer pursuant to Article
VIII and the indemnification and payment provisions of Article XIV and Article
VI, Sections 15.4, 15.11 and 15.12 shall be continuing and shall survive any
termination of this Agreement and any termination of Central Nevada's rights to
act as Servicer hereunder or under any other Transaction Document.
SECTION 15.6 CAPTIONS AND CROSS REFERENCES.
The various captions (including, without limitation, the table of
contents) in this Agreement are provided solely for convenience of reference and
shall not affect the meaning or interpretation of any provision of this
Agreement. Unless otherwise indicated, references in this Agreement to any
Section, Appendix, Schedule or Exhibit are to such Section of or Appendix,
Schedule or Exhibit to this Agreement, as the case may be, and references in any
Section, subsection, or clause to any subsection, clause or subclause are to
such subsection, clause or subclause of such Section, subsection or clause.
SECTION 15.7 SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability
54
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 15.8 GOVERNING LAW.
THIS AGREEMENT AND THE LENDER NOTE SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
SECTION 15.9 COUNTERPARTS.
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original but all of which
shall constitute together but one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart Agreement.
SECTION 15.10 SUBMISSION TO JURISDICTION; WAIVER OF TRIAL BY JURY.
(a) Borrower and Servicer hereby submit to the nonexclusive
jurisdiction of any United States District Court for the Southern District of
New York and of any New York state court sitting in New York, New York for
purposes of all legal proceedings arising out of, or relating to, the
Transaction Documents or the transactions contemplated thereby. Borrower and
Servicer hereby irrevocably waive, to the fullest extent possible, any objection
it may now or hereafter have to the venue of any such proceeding and any claim
that any such proceeding has been brought in an inconvenient forum. Nothing in
this Section 15.10 shall affect the right of Administrator or Lender to bring
any action or proceeding against Borrower or Servicer or its property in the
courts of other jurisdictions.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF, OR IN CONNECTION WITH, ANY TRANSACTION DOCUMENT OR
ANY MATTER ARISING THEREUNDER.
SECTION 15.11 NO RECOURSE AGAINST LENDER.
The obligations of Lender under this Agreement are solely the corporate
obligations of Lender. No recourse shall be had for any obligation, covenant or
agreement (including, without limitation, the payment of any amount owing in
respect to this Agreement or the payment of any fee hereunder or for any other
obligation or claim) arising out of or based upon this Agreement or any other
agreement, instrument or document entered into pursuant hereto or in connection
herewith against any stockholder, employee, officer, director, manager,
administrator, partner or incorporator of Lender, as such, by the enforcement of
any assessment or by any legal or equitable proceeding, by virtue of any statute
or otherwise.
SECTION 15.12 NO PROCEEDINGS.
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Each of the parties hereto hereby agree that it will not institute
against Lender, or join any other Person in instituting against Lender, any
insolvency proceeding (namely, any proceeding of the type referred to in the
definition of Event of Bankruptcy) so long as any Commercial Paper Notes issued
by Lender shall be outstanding and there shall not have elapsed one year plus
one day since the last day on which any such Commercial Paper Notes shall be
outstanding. The provisions of this Section 15.12 shall survive the termination
of this Agreement, the reduction to zero of the Lender Note and payment of all
obligations hereunder.
SECTION 15.13 LIMITATION ON PAYMENTS.
Notwithstanding any provisions contained in this Agreement to the
contrary, Lender shall not, and shall not be obligated to, pay any amount
pursuant to this Agreement unless (a) Lender has received funds which may be
used to make such payment and which funds are not required to repay the
Commercial Paper Notes and Voluntary Advance Loans when due and (b) after giving
effect to such payment, either (i) there is sufficient liquidity availability
(determined in accordance with the Program Documents), under all of the
liquidity facilities for Lender's commercial paper program, to pay the Face
Amount of all outstanding Commercial Paper Notes and Voluntary Advance Loans
when due or (ii) all Commercial Paper Notes and Voluntary Advance Loans are paid
in full; provided, however, that the foregoing limitations on payments by Lender
shall not apply to any distributions of funds received by Lender pursuant to
Section 4 of the Liquidity Agreement. Any amount which Lender does not pay
pursuant to the operation of he preceding sentence shall not constitute a claim
(as defined in Section 101 of the Bankruptcy Code) against or corporate
obligation of Lender for any such insufficiency unless and until such payment
may be made in accordance with clauses (a) and (b) above. The agreements in this
Section 15.13 shall survive termination of this Agreement, the reduction to zero
of the Lender Note and payment of all obligations hereunder.
SECTION 15.14 CONFIDENTIALITY OF AGREEMENT.
Unless otherwise consented to by Administrator, each of Borrower and
Servicer hereby agrees that it will not disclose the contents of any Transaction
Document, or any other confidential or proprietary information furnished by
Administrator or Lender to any Person other than its Affiliates (which
Affiliates shall have executed an agreement satisfactory in form and in
substance to Administrator to be bound by this Section 15.13) auditors and
attorneys or as required by applicable law.
SECTION 15.15 ENTIRE AGREEMENT.
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS EXECUTED AND
DELIVERED HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND
THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
[SIGNATURE PAGES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
CENTRAL RECEIVABLES, INC.,
as Borrower
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
CENTRAL FREIGHT LINES, INC.,
a Nevada corporation,
as Servicer
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
[Additional signature page to follow.]
57
THREE PILLARS FUNDING CORPORATION,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
SUNTRUST CAPITAL MARKETS, INC.,
as Administrator
By: /s/ J R ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
58
