INTER-CITY PRODUCTS CORPORATION (USA)
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CERTIFICATE PURCHASE AGREEMENT
(Series 1996-1, Class A)
dated as of July 25, 1996
among
INTER-CITY PRODUCTS RECEIVABLES COMPANY, L.P.,
INTER-CITY PRODUCTS CORPORATION (USA)
AS THE INITIAL SERVICER,
THE PURCHASERS DESCRIBED HEREIN,
and
THE CHICAGO CORPORATION,
as Agent
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . .
2
ARTICLE II
PURCHASE AND SALE OF CERTIFICATES
SECTION 2.1 The Commitments; Percentages. . . . . . . . . . . . . . .
2
SECTION 2.2 Purchase Mechanics During Revolving Period. . . . . . . .
3
SECTION 2.3 Reduction of Stated Amounts . . . . . . . . . . . . . . .
4
SECTION 2.4 Certificates. . . . . . . . . . . . . . . . . . . . . . .
4
ARTICLE III
REDUCTIONS IN INVESTED AMOUNT
SECTION 3.1 Transferor's Right to Reduce Invested Amount. . . . . . .
5
SECTION 3.2 Mandatory Reduction of Invested Amount.. . . . . . . . . .
6
SECTION 3.3 Notice to Purchasers. . . . . . . . . . . . . . . . . . .
6
ARTICLE IV
TRANCHES, INTEREST AND FEES
SECTION 4.1 Tranches. . . . . . . . . . . . . . . . . . . . . . . . .
6
SECTION 4.2 Non-Usage and Minimum Usage Fees. . . . . . . . . . . . .
8
SECTION 4.3 Yield Protection. . . . . . . . . . . . . . . . . . . . .
8
SECTION 4.4 Illegality; Unavailability. . . . . . . . . . . . . . . .10
SECTION 4.5 Indemnity . . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 4.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . .12
ARTICLE V
OTHER PAYMENT TERMS
SECTION 5.1 Time and Method of Payment. . . . . . . . . . . . . . . .13
SECTION 5.2 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . .13
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
i
SECTION 6.1 Transferor. . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 6.2 ICP . . . . . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 6.3 Purchasers. . . . . . . . . . . . . . . . . . . . . . . .16
ARTICLE VII
CONDITIONS
SECTION 7.1 Conditions to Initial Purchase. . . . . . . . . . . . . .16
SECTION 7.2 Conditions to Each Purchase . . . . . . . . . . . . . . .20
SECTION 7.3 Conditions to Signing . . . . . . . . . . . . . . . . . .20
ARTICLE VIII
COVENANTS
SECTION 8.1 Affirmative Covenants . . . . . . . . . . . . . . . . . .21
SECTION 8.2 Transfers . . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 8.3 Procedure Letter and Report . . . . . . . . . . . . . . .22
ARTICLE IX
AGENT; REQUIRED PURCHASERS
SECTION 9.1 Appointment . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 9.2 Nature of Duties. . . . . . . . . . . . . . . . . . . . .22
SECTION 9.3 Lack of Reliance on Agent and Financial Advisor . . . . .23
SECTION 9.4 Certain Rights of Agent . . . . . . . . . . . . . . . . .23
SECTION 9.5 Reliance. . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 9.6 Indemnification . . . . . . . . . . . . . . . . . . . . .24
SECTION 9.7 Agent in its Individual Capacity. . . . . . . . . . . . .24
SECTION 9.8 Resignation by Agent. . . . . . . . . . . . . . . . . . .24
SECTION 9.9 Required Purchasers. . . . . . . . . . . . . . . . . . .25
SECTION 9.10 Agent Administration Fee . . . . . . . . . . . . . . . .25
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendments . . . . . . . . . . . . . . . . . . . . . . .25
SECTION 10.2 No Waiver; Remedies. . . . . . . . . . . . . . . . . . .26
SECTION 10.3 Successors and Assigns; Assignments. . . . . . . . . . .26
SECTION 10.4 Survival of Agreement. . . . . . . . . . . . . . . . . .29
SECTION 10.5 Expenses; Indemnification. . . . . . . . . . . . . . . .29
SECTION 10.6 Entire Agreement . . . . . . . . . . . . . . . . . . . .31
SECTION 10.7 Notices. . . . . . . . . . . . . . . . . . . . . . . . .31
SECTION 10.8 No Third-Party Beneficiaries . . . . . . . . . . . . . .31
ii
SECTION 10.9 Severability of Provisions . . . . . . . . . . . . . . .31
SECTION 10.10 Counterparts. . . . . . . . . . . . . . . . . . . . . .32
SECTION 10.11 Governing Law . . . . . . . . . . . . . . . . . . . . .32
SECTION 10.12 Tax Characterization. . . . . . . . . . . . . . . . . .32
SECTION 10.13 No Proceedings. . . . . . . . . . . . . . . . . . . . .32
iii
SCHEDULE
SCHEDULE I Stated Amounts and Percentages
EXHIBITS
EXHIBIT A Form of Pooling and Servicing Agreement
EXHIBIT B Form of Receivables Purchase Agreement
EXHIBIT C Form of Series 1996-1 Supplement
EXHIBIT D Form of Assignment Agreement
APPENDIX
APPENDIX X Index of Additional Defined Terms
iv
This CERTIFICATE PURCHASE AGREEMENT, dated as of July 25, 1996
(this "Agreement"), is made among INTER-CITY PRODUCTS RECEIVABLES COMPANY,
L.P., a Tennessee limited partnership ("Transferor"), INTER-CITY PRODUCTS
CORPORATION (USA), a Delaware corporation ("ICP", "Servicer" or "Initial
Servicer"), the purchasers named on the signatures pages of this Agreement
(together with their respective permitted assigns, the "Purchasers"), and
THE CHICAGO CORPORATION, as agent for the Purchasers (in that capacity,
together with any successors in that capacity, "Agent").
BACKGROUND
1. Transferor will enter into (a) a Pooling and Servicing
Agreement substantially in the form of Exhibit A (the "Pooling Agreement")
with Initial Servicer, as initial Servicer, and, LaSalle National Bank, a
national banking association, as trustee (in that capacity, together with
any successors in that capacity, the "Trustee"), (b) a Receivables Purchase
Agreement substantially in the form of Exhibit B and (c) a Series 1996-1
Supplement to the Pooling Agreement substantially in the form of Exhibit C
(the "Supplement"). Pursuant to the Pooling Agreement and the Supplement,
Transferor will obtain the Series 1996-1, Class A Certificates (the
"Certificates"), which will represent fractional undivided beneficial
interests in the assets of the Inter-City Products Receivables Master Trust
(the "Trust"), a trust to be organized pursuant to the Pooling Agreement.
2. Transferor wishes to sell the Certificates to the Purchasers
and obtain their commitment to purchase fractional undivided beneficial
interests in the assets of the Trust (each a "Trust Interest") that will be
evidenced by the Certificates. Subject to the terms and conditions of this
Agreement, each Purchaser is willing (a) to purchase a Certificate with an
initial Stated Amount in the amount set forth opposite its name on Schedule
I to this Agreement and (b) to agree to so make purchases of Trust
Interests up to the Stated Amount (as defined below) set forth opposite its
name on Schedule I. Initial Servicer has joined in this Agreement to
confirm certain representations, warranties and covenants for the benefit
of the Purchasers and the Agent.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Capitalized terms used and not otherwise
defined herein have the meanings assigned to them in the Supplement or, if
not defined in the Supplement, in Appendix A to the Pooling Agreement. An
index of terms defined directly in this Agreement is attached as Appendix
X.
ARTICLE II
PURCHASE AND SALE OF CERTIFICATES
SECTION 2.1 The Commitments; Percentages. Subject to the terms
and conditions of this Agreement, the Pooling Agreement and the Supplement,
each Purchaser agrees, severally and for itself alone, upon Transferor's
request (through Servicer), to make purchases (each a "Purchase") of Trust
Interests from time to time during the Revolving Period for the 1996-1
Certificates; provided, that no Purchaser will be required or permitted to
make a Purchase on any date if the funded principal amount of its
Certificate, after giving effect to the Purchase, would exceed the lesser
of (a) the Stated Amount of its Certificate and (b) its Class Percentage
multiplied by the Class A Invested Amount. In addition, no Purchaser will
be required or permitted to make a Purchase if, after giving effect thereto
(and any corresponding reduction to the Series Invested Amount pursuant to
Section 3.1), the Net Invested Amount would exceed the Base Amount. The
Purchases by the Purchasers shall be made ratably in accordance with their
respective Class Percentages; provided, that the failure of any Purchaser
to make any Purchase shall not relieve any other Purchaser of its
obligation to make Purchases hereunder. No Purchaser shall, however, be
responsible for the failure of any other Purchaser to make any Purchase.
Subject to the terms of this Agreement, the aggregate principal amount of a
Purchaser's investment represented by its Certificate may be increased or
decreased from time to time.
For purposes of this Agreement, (i) "Class Percentage" means, with
respect to each Purchaser, the percentage equivalent (carried out to twelve
decimal places) of a fraction, the numerator of which is the Stated Amount
of such Purchaser's Certificate and the denominator of which is the sum of
the Stated Amounts of all of the Purchasers' Certificates and (ii) "Series
Percentage" means, with respect to each Purchaser, the percentage
equivalent (carried out to
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twelve decimal places) of a fraction, the numerator of which is the Stated
Amount of such Purchaser's Certificate and the denominator of which is the
sum of the Stated Amounts for all of the Series 1996-1 Certificates. The
initial Class Percentages and Series Percentages of the initial Purchasers
are set forth opposite their names on Schedule I.
SECTION 2.2 Purchase Mechanics During Revolving Period. (a)
During the Revolving Period, whenever Transferor wishes the Purchasers to
make Purchases, it shall cause Servicer to notify the Agent and the Trustee
if the Trust Interests to be purchased initially will be (i) the one
permitted ABR Tranche, not later than 11:00 a.m., New York City time, two
Business Days prior to the date of the proposed Purchase and (ii) one of
the three permitted Eurodollar Tranches, not later than 11:00 a.m., New
York City time, three London/U.S. Business Days prior to the date of the
proposed Purchase; provided that the Trust Interests acquired in the
initial Purchase hereunder shall be the ABR Tranche unless the Servicer
notifies the Agent and obtains the prior written consent of the Agent at
least three London/U.S. Business Days prior to such initial Purchase to
allow such initial Purchase to constitute a Eurodollar Tranche; provided
further that the total number of Tranches may not exceed three at any one
time. Each notice shall be irrevocable and shall in each case refer to
this Agreement and specify (x) the aggregate purchase price for the
requested Purchases (which shall be in a minimum amount of $2,000,000 or a
greater integral multiple of $1,000,000 (or in the total unutilized amount
of the various Purchasers' Stated Amounts)), (y) whether the Trust
Interests to be purchased will be the ABR Tranche or a Eurodollar Tranche
and (z) the date of the Purchase (which shall be a London/U.S. Business
Day) and the amount thereof. The Agent shall promptly advise the
Purchasers of any notice given pursuant to this section and of the amount
of each Purchaser's Purchase. No requests that the Purchasers make
Purchases shall be made by the Transferor during the Amortization Period or
Early Amortization Period.
(b) After receiving notice from the Agent of any notice given
pursuant to subsection (a) and subject to the conditions in Article VII,
each Purchaser shall make a Purchase in the amount of its pro rata portion
of aggregate Purchases requested to be made, ratably according to its Class
Percentage, on the proposed date thereof by wire transfer in Dollars of
immediately available funds to Transferor.
(c) The Agent shall be entitled to receive from Collections a fee
(an "Administration Fee") equal to (i) the aggregate number of Purchases,
reductions in the Invested Amount of a Tranche, reductions in the Stated
Amount and modifications in the allocation of the Trust Interests among the
Eurodollar Tranches and the ABR Tranche occurring during any calendar month
in excess
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of two multiplied by (ii) $1,000. The Administration Fee shall be payable
in arrears on the Distribution Date following such calendar month. Such
Administration Fees shall constitute "Additional Amounts" for purposes of
the Supplement.
(d) Notwithstanding anything to the contrary, if any
Purchaser's funding source fails to provide it with funds necessary to make
a Purchase, such Purchaser shall not have any obligation under Section 2.1
to make such Purchase.
SECTION 2.3 Reduction of Stated Amounts. (a) Transferor may
reduce the Stated Amounts of the Certificates effective as of any
Distribution Date by delivering an irrevocable notice to the Agent and the
Trustee, not later than 11:00 a.m., New York City time, at least ten
Business Days prior to such Distribution Date; provided, that (i) each
partial reduction of the Stated Amounts shall be, in the aggregate for all
Certificates, in an integral multiple of $1,000,000; (ii) no partial
reduction shall be made that would reduce the aggregate Stated Amounts to
an amount less than the Class A Invested Amount at the time of the
reduction; and (iii) no such reduction shall be effected unless the
Commitment Reduction Fee is paid on the date of such reduction. Each
reduction in the Stated Amounts shall be made ratably among the Purchasers
in accordance with their respective Stated Amounts. The Agent shall
promptly advise the Purchasers of any notice given pursuant to this
section. Each reference in this Agreement to the "Stated Amount" of a
Certificate means the Stated Amount of the Certificate after giving effect
to any reductions made pursuant to this section.
(b) Each Purchaser shall be entitled to receive from Collections
a fee (a "Commitment Reduction Fee") determined for each reduction in the
Stated Amount (x) pursuant to this Section 2.3 or (y) upon the occurrence
of an Early Amortization Event (in which case the Stated Amount, for
purposes of this paragraph 2.3(b), will be deemed to be reduced to zero),
equal to the sum of (i) the product of (A) the amount of such reduction
multiplied by (B) the number of months or partial months from the date of
such reduction until the Expected Final Payment Date multiplied by (C)
0.03% and (ii) the product of (A) the lesser of (x) the amount of such
reduction or (y) $35,000,000 less the Stated Amount (after taking into
account such reduction, but in any event, not less than zero) multiplied by
(B) the number of months or partial months from the date of such reduction
until the Expected Final Payment Date multiplied by (C) 0.03%. The
Commitment Reduction Fee shall be payable on the Distribution Date such
reduction is effected.
SECTION 2.4 Certificates. The outstanding amounts of the
Purchases made by each Purchaser shall be evidenced by its Certificate, to
be issued on the Closing Date substantially in the form of Exhibit A (Part
I) to the Supplement.
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Each Purchaser shall and is hereby authorized to record on the grid
attached to its Certificate (or at its option, in its internal books and
records) the date and amount of each Purchase made by it, the amount of
each repayment of the principal amount represented by its Certificate, the
portions of its Purchases that are from time to time allocated to the ABR
Tranche and any Eurodollar Tranche, and any reductions to the Stated Amount
of its Certificate made pursuant to Section 2.3(a) (which shall be
conclusive absent manifest error); provided, that failure to make any
recordation on the grid or records or any error in the grid or records
shall not adversely affect the Purchaser's rights with respect to its
interest in the assets of the Trust and its right to receive interest in
respect of the outstanding principal amount of all Purchases made by the
Purchaser.
ARTICLE III
REDUCTIONS IN INVESTED AMOUNT
SECTION 3.1 Transferor's Right to Reduce Invested Amount. (a)
During the Revolving Period, if Transferor wishes to reduce the Class A
Invested Amount of any Tranche, Transferor shall notify the Agent and the
Trustee in writing, not later than 11:00 a.m., New York City time, three
London/U.S. Business Days prior to the date of the proposed reduction (and
state in such notice the desired amount of the reduction and to which
Tranche(s) such reduction would apply), and cause an amount of funds equal
to the desired amount of the reduction that are available for this purpose
in accordance with the terms of the Supplement to be transferred to the
Agent on the date of the proposed reduction, for the account of the
Purchasers (and application to the respective and ratable reduction of the
funded principal amount of the Certificate of each Purchaser); provided
that any reduction to the aggregate funded principal amounts represented by
the Certificates must be in a minimum amount of $1,000,000 (or the entire
funded principal amount, if less) or integral multiples thereof and the
remaining Class A Invested Amount, if any, must be equal to or greater than
$2,000,000; provided, further that the amount of the desired reduction (as
of the receipt of such notice by the Agent until such funds are transferred
to the Agent) shall not exceed the sum, without duplication, of the funds
that are then available to be applied to reduce the Class A Invested Amount
in accordance with the terms of the Supplement; provided, further, that no
repayment in respect of a Eurodollar Tranche on a day other than the last
day of the related Interest Period shall be permitted unless an amount of
funds equal to the Breakage Fee, if any, payable on the date of such
reduction has been transferred to the Agent on such date. In the event any
Tranche is reduced to zero on a date other than the last day of the
Interest Period applicable to such Tranche, then, notwithstanding anything
herein or in the Supplement to the contrary, such Tranche shall be deemed
to be in
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existence until the last day of such Interest Period for purposes of
calculating the number of outstanding Tranches and determining whether an
additional Eurodollar Tranche or ABR Tranche is available. Such Breakage
Fees shall constitute "Additional Amounts" for purposes of the Supplement.
(b) Notwithstanding the foregoing, any reduction in the Class A
Invested Amount shall only be effective if (i) the Base Amount is then
greater than the Net Invested Amount or (ii) the Transferor or Servicer
obtains the prior written consent from the Agent.
SECTION 3.2 Mandatory Reduction of Invested Amount. During the
Amortization Period or Early Amortization Period, Transferor shall notify
the Agent and the Trustee in writing, not later than 11:00 a.m., New York
City time, three London/U.S. Business Days prior to the Interest Payment
Date applicable to each Tranche that it will repay all or a portion of the
Invested Amount applicable to such Tranche and shall state in such
notice the amount of funds deposited in the Principal Funding Account as of
the time of such notice, and shall cause an amount of funds equal to the
lesser of (i) the principal amount of such Tranche and (ii) the amount of
funds deposited in the Principal Funding Account as of the time of such
notice, to be transferred to the Agent on the date of the reduction, for
the account of the Purchasers (and for application to the respective and
ratable reduction of the funded principal amount of the Certificate of each
Purchaser).
SECTION 3.3 Notice to Purchasers. The Agent shall promptly
advise the Purchasers of any notice received by the Agent pursuant to
Sections 3.1 or 3.2.
ARTICLE IV
TRANCHES, INTEREST AND FEES
SECTION 4.1 Tranches. (a) Each time Transferor requests the
Purchasers to make Purchases hereunder, Transferor will notify the Agent
and Servicer in writing as to whether the Trust Interests included in the
Purchase shall, in whole or in part, be deemed to be the one permitted ABR
Tranche or (subject to subsections (b)(iii) and (b)(iv) below) one of the
three permitted Eurodollar Tranches (subject to the limitation in Section
4.1 of the Supplement that the total number of Tranches may not exceed
three at any one time).
(b) Subject to the terms and conditions set forth in this section
and Sections 4.4 and 4.5, unless Transferor notifies Agent and Servicer to
the contrary on or before 11:00 a.m., New York City time, on the third
London/U.S.
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Business Day preceding the end of an Interest Period, subject to Section
3.1, (x) on the last day of such Interest Period, if such Interest Period
relates to the ABR Tranche, such ABR Tranche shall convert to a Eurodollar
Tranche (and such conversion shall be deemed to increase the number of
Eurodollar Tranches by one and reduce the number of ABR Tranches to zero)
and (y) on the last day of such Interest Period, if such Interest Period
relates to a Eurodollar Tranche, such Eurodollar Tranche shall continue as
a new Eurodollar Tranche (and such continuance shall not be deemed to
increase the number of Eurodollar Tranches), in each case, the Interest
Period for such Tranche shall commence immediately upon the termination of
the prior Interest Period; provided, that:
(i) subject to Section 4.4, each conversion or
continuation shall be made ratably among the Purchasers in
accordance with their respective amounts of the Purchases
comprising the converted or continued Tranche, and
(ii) if less than all of the outstanding amount of any
Tranche shall be converted or continued (i.e., if a portion of the
Class A Invested Amount is reduced pursuant to Article III), the
aggregate amount of the Tranche converted or continued shall be in
an amount equal to $2,000,000 or an integral multiple of
$1,000,000 in excess of $2,000,000.
(c) Subject to the terms and conditions set forth in this
section, if Transferor wishes to continue an existing ABR Tranche for the
subsequent Interest Period applicable to such Tranche, or convert an
existing Eurodollar Tranche into the ABR Tranche for the subsequent
Interest Period applicable to such Tranche, Transferor shall notify the
Agent in writing of such election not later than 11:00 a.m., New York City
time, on the third London/U.S. Business Day preceding the end of the
Interest Period applicable to the Tranche to be so continued or converted,
in which case the number of Eurodollar Tranches and ABR Tranches shall be
adjusted accordingly and the Interest Period for such Tranche shall
commence immediately upon the termination of the prior Interest Period;
provided, that each conversion or continuation shall be made ratably among
the Purchasers in accordance with their respective amounts of the Purchases
comprising the converted or continued Tranche.
(d) In accordance with Section 4.1 of the Supplement, each
Purchaser and the Agent will be entitled to receive additional interest (at
the rate specified therein) on amounts that are not paid when due under
this Agreement or under its Certificate.
(e) The Agent shall promptly advise the Purchasers of any notice
given pursuant to this section and of each Purchaser's portion of any
converted or continued Tranche.
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SECTION 4.2 Non-Usage and Minimum Usage Fees. (a) Each
Purchaser shall be entitled to receive from Collections a fee (a "Non-Usage
Fee") for the period from and including the date hereof, until the end of
the Revolving Period, equal to 0.55% per annum, on the daily average of (i)
the Stated Amount of its Certificate minus (ii) the amount represented by
the Purchaser's Class Percentage of the Class A Invested Amount. The Non-
Usage Fee shall be payable in arrears on each Distribution Date. The Non-
Usage Fee for any Distribution Date shall be calculated on the basis of the
actual number of days elapsed since the preceding Distribution Date (or, if
prior to the first subsequent Distribution Date after the Closing Date,
during the period from the Closing Date to such Distribution Date) over a
year of 360 days.
(b) Each Purchaser shall be entitled to receive from Collections
an annual fee (a "Minimum Usage Fee") determined as of each anniversary of
the First Issuance Date, equal to the product of (i) the difference between
(A) the quotient determined by dividing (x) the aggregate of the amounts
represented by the Purchaser's Class Percentage of the Class A Invested
Amount as of the end of each day in such period by (y) the number of days
in such period minus (B) the result of (1) $11,600,000 minus (2) the
weighted average Class B Invested Amount during such period multiplied by
(ii) 0.65%. The Minimum Usage Fee shall be payable in arrears on the first
Distribution Date following each anniversary of the First Issuance Date.
Such Minimum Usage Fees shall constitute "Additional Amounts" for purposes
of the Supplement.
SECTION 4.3 Yield Protection. (a) Notwithstanding any other
provision herein, if, after the date hereof, either:
(i) any law, rule or regulation (including any imposition
or increase of reserve requirements) or any interpretation or
administration of any law, rule or regulation by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or
(ii) the compliance by a Purchaser with any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising control over banks or
financial institutions generally (whether or not having the force
of law),
shall subject a Purchaser to the imposition or modification of any reserve
(including any imposed by the Federal Reserve Board), special deposit or
similar requirement (including a reserve, special deposit or similar
requirement that takes
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the form of a tax) against assets of, deposits with or for the account of,
or credit extended by, the Purchaser or the office from time to time that
it designates to the Agent as the office through which it makes and
maintains its Purchases comprising part of a Eurodollar Tranche (as to each
Purchaser, its "LIBOR Office") or impose any other condition on a Purchaser
affecting its Eurodollar Tranches or its obligations hereunder, and as a
result of either of the foregoing there shall be any increase in the cost
to the Purchaser of agreeing to make or making, funding or maintaining
Purchases as Eurodollar Tranches, or there shall be a reduction in the
amount received or receivable by the Purchaser or its LIBOR Office, then,
upon written notice from the Purchaser to Transferor and Servicer (with a
copy to the Agent and the Trustee), signed by an officer of the Purchaser
with knowledge of and responsibility for such matters, and setting forth in
reasonable detail the calculation used to arrive at the amounts, additional
amounts sufficient to indemnify that Purchaser against the increased cost
or reduction in amounts received or receivable shall constitute "Additional
Amounts" for purposes of the Supplement, and the Purchaser shall be
entitled to receive these additional amounts solely from amounts allocated
thereto and paid pursuant to the Supplement.
(b) If a Purchaser shall reasonably determine that the adoption
after the date hereof of any law, rule or regulation regarding capital
adequacy or capital maintenance, or any change after the date hereof in any
of the foregoing or in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Purchaser,
any of its lending offices or its holding company with any new or revised
request or directive regarding capital adequacy or capital maintenance
(whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, has or would have the effect
of reducing the rate of return on the Purchaser's capital or the capital of
its holding company as a consequence of this Agreement, the commitment of
such Purchaser to make Purchases or the Purchases made by such Purchaser
pursuant hereto to a level below what the Purchaser or its holding company
could have achieved but for the adoption, change or compliance (taking into
consideration the Purchaser's policies, and the policies of its holding
company, with respect to capital adequacy), then, upon written notice from
the Purchaser to Transferor and Servicer (with a copy to the Agent), signed
by an officer of the Purchaser with knowledge of and responsibility for
such matters, and setting forth in reasonable detail the calculation used
to arrive at the amounts, any additional amounts as will compensate the
Purchaser or its holding company for the reduction shall constitute
"Additional Amounts" for purposes of the Supplement, and the Purchaser
shall be entitled to receive these additional amounts solely from amounts
allocated thereto and paid pursuant to the Supplement.
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(c) A Purchaser shall promptly notify Transferor, Servicer and
the Agent in writing of any event of which it has knowledge occurring after
the date hereof that will entitle it to compensation pursuant to this
section. A certificate of the Purchaser, signed by an officer of the
Purchaser with knowledge of and responsibility for such matters, and
setting forth in reasonable detail the calculation used to arrive at the
amounts necessary to compensate the Purchaser or its holding company as
specified in subsection (a) or (b), as the case may be, shall be delivered
to Transferor and Servicer and shall be conclusive absent manifest error.
(d) Failure on the part of a Purchaser to demand compensation for
any amounts as specified in subsection (a) or (b) with respect to any
period shall not constitute a waiver of its right to demand compensation
with respect to that period or any other period. The protection of this
section shall be available to the Purchasers regardless of any possible
contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition that shall have occurred
or been imposed.
(e) Promptly after giving any notice to Transferor pursuant to
this section, a Purchaser will seek to designate one of its offices located
at an address other than that previously designated pursuant to this
Agreement as the office from which its Purchases will be made after the
designation if it will avoid the need for, or materially reduce the amount
of, any payment to which the Purchaser would otherwise be entitled pursuant
to this section and will not, in the sole discretion of the Purchaser, be
otherwise disadvantageous to the Purchaser.
SECTION 4.4 Illegality; Unavailability. (a) In the event that on
any date any Purchaser shall have determined (which determination shall be
final and conclusive and binding upon all parties) that the making or
continuation of its Purchases as Eurodollar Tranches has become unlawful by
compliance by the Purchaser in good faith with any law, governmental rule,
regulation or order or has become impossible as a result of a contingency
occurring after the date hereof that materially and adversely affects its
interbank eurodollar market, then, and in any such event, such Purchaser
shall promptly give notice (by telephone confirmed in writing) to
Transferor, Servicer and the Agent (which notice the Agent shall promptly
transmit to each other Purchaser) of that determination. The obligation of
the affected Purchaser to make or maintain its Purchases as Eurodollar
Tranches during any such period shall be terminated at the earlier of the
termination of the Interest Period then in effect for any Eurodollar
Tranche or when required by law, and Transferor shall, no later than the
time specified for the termination, convert any Purchases of the affected
Purchaser that constitute part of any Eurodollar Tranche into ABR Tranches
(in which case, notwithstanding anything herein or in the Supplement to the
contrary, the number of ABR Tranches may be increased to up to three).
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(b) If, prior to the beginning of any Interest Period, the Agent
shall have determined (which determination shall be final and conclusive
and binding upon all parties) that: (i) Dollar deposits in the relevant
amount and for the Interest Period are not available in the relevant
interbank eurodollar market or (ii) by reason of circumstances affecting
the interbank eurodollar market, that adequate and fair means do not exist
for ascertaining the LIBOR rate applicable to a Eurodollar Tranche, then
the Agent shall promptly give notice of this determination to Transferor,
Servicer and each Purchaser. Thereafter, and continuing until the Agent
shall notify Transferor, Servicer and each Purchaser that the circumstances
giving rise to this determination no longer exist, (x) each Eurodollar
Tranche will, on the last day of the applicable Interest Period, convert
into a part of the ABR Tranche, (y) the right of Transferor to request
Eurodollar Tranches shall be suspended and (z) any Purchases requested to
be made as Eurodollar Tranches prior to such time but not yet made shall be
made as ABR Tranches.
SECTION 4.5 Indemnity. (a) If a Purchaser shall incur any
losses, expenses or liabilities (including any interest paid to lenders of
funds borrowed by it to fund any Purchase of a Certificate as a Eurodollar
Tranche and any loss sustained in connection with the re-deployment of such
funds) as a result of (i) the failure of a Purchase to be made on a date
specified therefor in a notice delivered by Transferor pursuant to Section
2.2 (other than any such failure resulting from the Purchaser's default in
the performance of its obligations hereunder) or (ii) any repayment,
including under Section 3.1, of any part of the Invested Amount allocated
to a Eurodollar Tranche on a date that is other than the date specified in
a notice of repayment given by Servicer, then, upon written notice (which
notice shall be signed by an officer of the Purchaser with knowledge of and
responsibility for such matters and shall set forth in reasonable detail
the basis for requesting the amounts) from the Purchaser to Transferor and
Servicer, additional amounts sufficient to indemnify the Purchaser against
the losses, expenses and liabilities, but not for any lost profits
associated therewith, shall constitute "Additional Amounts" for purposes of
the Supplement, and the Purchaser shall be entitled to receive these
additional amounts, solely from amounts allocated thereto and paid pursuant
to the Supplement.
(b) In the event the Class A Invested Amount allocable to any
Tranche is reduced on a day other than the last day of the Interest Period
applicable to such Tranche, each Purchaser shall be entitled to receive
from Collections a fee (a "Breakage Fee") which fee shall be payable on the
date of such reduction, in an amount equal to the product of (A) the amount
of such reduction multiplied by (B) the excess, if any, of (x) LIBOR plus
the Class A Certificate Spread (for a Eurodollar Tranche), the Alternate
Base Rate plus the Class A Certificate Spread (for an ABR Tranche) over (y)
the rate quoted by the Trustee on purchases of its
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commercial paper multiplied by (C) the number of days from the day of
determination to the last day of such Distribution Period divided by 360;
provided that if the Trustee's commercial paper ceases to be rated at least
"A-1+" by S&P or if such commercial paper is not available, then the Agent
may designate another commercial paper issuer for purposes of clause (y)
above.
Such Breakage Fees shall constitute "Additional Amounts" for purposes of
the Supplement.
SECTION 4.6 Taxes. (a) Any and all payments made to each
Purchaser under its Certificate shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, duties,
charges, fees, deductions or withholdings of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed, excluding taxes imposed by the
jurisdiction in which that Purchaser's principal office (and/or the office
where it books its investment in its Certificate) is located on all or part
of the net income, profits or gains of that Purchaser (whether worldwide,
or only insofar as such income, profits or gains are considered to arise in
or to relate to a particular jurisdiction, or otherwise) (all the
nonexcluded taxes, levies, imposts, charges, deductions, withholdings and
liabilities being hereinafter referred to as "Taxes"). If Trustee or the
Agent are required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder or under any Certificate to a
Purchaser, then the sum payable shall be increased by the amount necessary
to yield to such Purchaser (after payment of all Taxes) an amount equal to
the sum it would have received had no such deductions or withholdings been
made, and the additional amount shall constitute "Additional Amounts" for
purposes of the Supplement, and the Purchaser shall be entitled to receive
these additional amounts, solely from amounts allocated thereto and paid
pursuant to the Supplement.
(b) Whenever any Taxes are paid by Trustee pursuant to subsection
(a), as promptly as possible thereafter Servicer shall send to the relevant
Purchaser the original or a certified copy of an original official receipt
showing payment thereof (if any) or any other evidence of the payment as
may be available to Servicer through the exercise of its reasonable
efforts. If Trustee fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Purchaser the required receipts
or other required documentary evidence, the Purchaser shall be entitled to
receive, solely from amounts allocated with respect thereto and paid
pursuant to the Supplement, additional amounts necessary to indemnify it
for any incremental taxes, interest or penalties that may become payable by
the Purchaser as a result of any such failure, and the amounts shall
constitute "Additional Amounts" for purposes of the Supplement, and the
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Purchaser shall be entitled to receive these additional amounts, solely
from amounts allocated thereto and paid pursuant to the Supplement.
(c) On or before the date it becomes a party to this Agreement
(and, so long as it may properly do so, periodically thereafter, as
requested by Servicer, to keep forms up to date), each Purchaser, including
any Assignee, that is not a United States person (as defined in section
7701(a)(30) of the Internal Revenue Code), shall deliver to Trustee any
certificates, documents or other evidence that shall be required by the
Internal Revenue Code or Treasury Regulations issued pursuant thereto to
establish that, assuming the Certificates are properly characterized as
indebtedness for Federal income tax purposes, it is exempt from existing
United States Federal withholding (including backup withholding)
requirements, including (i) two original copies of Internal Revenue Service
Form 1001 or Form 4224 or successor applicable form, properly completed and
duly executed by the Purchaser or Assignee certifying that it is entitled
to receive payments under this Agreement or any Certificate without
deduction or withholding of any United States Federal income taxes, and
(ii) an original copy of Internal Revenue Service Form W-8 or W-9 or
applicable successor form, properly completed and duly executed; provided,
that if any Purchaser does not comply with this subsection 4.6(c), amounts
payable to such Purchaser under this Section 4.6 shall be limited to
amounts that would have been payable under this section if such Purchaser
had so complied.
ARTICLE V
OTHER PAYMENT TERMS
SECTION 5.1 Time and Method of Payment. All amounts payable to
any Purchaser hereunder or with respect to its Certificate shall be made to
such Purchaser by wire transfer of immediately available funds in Dollars
not later than 2:00 p.m., New York City time, on the date due. Any funds
received after that time will be deemed to have been received on the next
Business Day.
SECTION 5.2 Pro Rata Treatment. Each repayment of the principal
of the Certificates, each payment of interest thereon, each payment of the
Non-Usage Fee, each reduction of the Stated Amounts of the Certificates and
each conversion or continuation of any Tranche in respect of the
Certificates (except as otherwise required by Sections 4.3(c) and 4.4(b)
with respect to conversions) shall be allocated pro rata among the
Purchasers of the Certificates on the date of payment or reduction, in
accordance with their respective Class Percentages, in which case such
allocation shall be pro rata in accordance with funded principal amounts).
Each Purchaser agrees that in computing its portion of any
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Purchases to be made hereunder, the Agent may, in its discretion, round
each Purchaser's pro rata share of the Purchases to the next higher or
lower whole dollar amount.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 Transferor. As of the Closing Date, Transferor
represents and warrants to the Purchasers and the Agent that each of its
representations and warranties in the Pooling Agreement and Purchase
Agreement is true and correct, as if made on the Closing Date, and further
represents and warrants that:
(a) no Early Amortization Event or Unmatured Early
Amortization Event exists;
(b) assuming the accuracy of each Purchaser's
representations set out in Section 6.3 and that no Purchaser (and
no Person acting on any Purchaser's behalf) has made a general
solicitation or general advertising within the meaning of the
Securities Act, the offer and sale of the Certificates in the
manner contemplated by this Agreement is a transaction exempt from
the registration requirements of the Securities Act, and the
Pooling Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended;
(c) Transferor has not dealt with any financial advisor,
or other Person who may be entitled to any commission or
compensation in connection with the sale of the Certificates;
(d) no information supplied by or on behalf of
Transferor, ICP or any of its Subsidiaries to the Agent or the
Purchasers in connection with the Transaction Documents contains
any untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained herein or
therein not misleading in light of the circumstances under which
they were made; and
(e) the Certificates have been duly and validly
authorized by Transferor and, from and after the date on which the
Certificates are executed by Transferor and authenticated by the
Trustee in accordance with the terms of the Pooling Agreement and
the Supplement and delivered to and paid for by the Purchasers in
accordance with the terms of this Agreement, will be validly
issued and outstanding and will constitute valid and legally
binding obligations of the Trust entitled to the
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benefits of the Pooling Agreement and the Supplement and
enforceable against the Trust in accordance with their terms.
SECTION 6.2 ICP. As of the Closing Date, ICP represents and
warrants to the Purchasers and the Agent that:
(a) each of its representations and warranties in the
Pooling Agreement (in its capacity as Servicer) and the Purchase
Agreement (in its capacity as a Seller) is true and correct, as if
made on the Closing Date with the same effect as if made on that
date (unless specifically stated to relate to an earlier date);
(b) the audited consolidated balance sheet of ICP and its
consolidated Subsidiaries as at the end of ICP's most recent
fiscal year and the related statement of earnings, stockholders'
equity and cash flows of ICP and its consolidated Subsidiaries for
such fiscal year and the unaudited consolidated balance sheet of
ICP and its consolidated Subsidiaries as at the end of ICP's most
recent fiscal quarter and the related statement of earnings,
stockholders' equity and cash flows of ICP and its consolidated
Subsidiaries for such fiscal quarter, copies of which have been
furnished to the Trustee and each Purchaser, fairly present the
consolidated financial position and business of ICP and its
consolidated Subsidiaries as at the dates specified therein and
the consolidated results of the operations of ICP and its
consolidated Subsidiaries for the periods ended on such dates, all
in accordance with GAAP consistently applied throughout the
periods reflected therein;
(c) since January 1, 1996 through the Closing Date, (i)
there has been no material adverse change in the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of Transferor or ICP whether or not arising in
the ordinary course of business, and (ii) there have been no
transactions entered into by Transferor, ICP or the Sellers that
are material with respect to the condition, financial or
otherwise, or the earnings, business affairs or business prospects
of Transferor or ICP; and
(d) no information supplied by or on behalf of
Transferor, ICP or any of its Subsidiaries to the Agent or the
Purchasers in connection with the Transaction Documents contains
any untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained herein or
therein not misleading in light of the circumstances under which
they were made.
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SECTION 6.3 Purchasers. As of the Closing Date (or such later
date on which it acquires its Certificate in accordance with Section 10.3),
each Purchaser represents and warrants (and each Assignee shall be deemed
to represent and warrant as of the date that its assignment becomes
effective) that it is an "accredited investor" as that term is defined in
any of paragraphs (1), (2), (3) or (7) of Rule 501(a) under the Securities
Act and is not purchasing its Certificate with a view to making a
distribution thereof (within the meaning of the Securities Act).
ARTICLE VII
CONDITIONS
SECTION 7.1 Conditions to Initial Purchase. The obligation of
each Purchaser to Purchase its Certificate shall be subject to the
satisfaction of the conditions precedent that
(a) the conditions precedent specified in Section 4.1 of
the Purchase Agreement and Sections 5.1 and 5.2 of the Class B
Certificate Purchase Agreement (other than those that relate to
this Agreement) shall be satisfied;
(b) the Agent shall have received, for the account of such
Purchaser, a duly executed and authenticated Certificate
registered in its name and in a Stated Amount equal to the amount
set out opposite its name on Schedule I to this Agreement;
(c) the Agent shall have received from the Transferor (i)
certain fees and reimbursement of any expenses referred to in
Section 10.5 for which invoices have been presented and (ii) an
arrangement fee in the amount of $350,000 ($100,000 of which the
Agent hereby acknowledges has already been paid) (the "Arrangement
Fee"); and such Purchaser shall have received from the Transferor
(x) certain fees and reimbursement of any expenses referred to in
Section 10.5 for which invoices have been presented and (y) a fee
(the "Commitment Fee") equal to the Stated Amount for its
Certificate multiplied by 0.55%;
(d) the Agent shall have received, for the account of
such Purchaser, an original (except as indicated below)
counterpart of the following (each of which, if not in a form
attached to this Agreement, shall be in form and substance
satisfactory to the Agent):
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(i) the Pooling Agreement, the Purchase Agreement
and the Guaranty, each of which shall be in full force and
effect, and all actions required to be taken under those
documents in connection with the issuance of the
Certificates shall have been taken;
(ii) photocopies of each Account Agreement;
(iii) a certificate of the Secretary, or an
Assistant Secretary, of each of Transferor, Servicer,
Guarantor and each Seller with respect to:
(A) attached copies of resolutions of
its Board of Directors (or, if applicable, its
managing body) then in full force and effect
authorizing the execution, delivery and
performance of the Transaction Documents,
(B) the incumbency and signatures of
those of its officers authorized to act with
respect to the Transaction Documents, and
(C) attached copies of its certificate
of incorporation and by-laws (or, if applicable,
its limited partnership agreement);
(iv) a certificate of an Authorized Officer of
each of Transferor, Servicer and each Seller as to the
satisfaction of the conditions precedent set forth in
Section 7.2, and a certificate of Transferor that the
representations and warranties of the Transferor set out
in this agreement are true and correct as of the date of
such initial purchase and that no Early Amortization Event
or Unmatured Early Amortization Event exists;
(v) a certificate of an appropriate officer of
Trustee stating that the Pooling Agreement has been duly
authorized, executed and delivered by Trustee and the
Certificates have been duly authenticated by Trustee in
accordance with the Pooling Agreement and an opinion of
counsel to Trustee as to related matters;
(vi) evidence that each of S&P and DCR has rated
the Class A Certificates "AAA";
(vii) the Daily Report for the Closing Date;
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(viii) agreed-upon procedures letter, in form and
substance satisfactory to the Agent, from Coopers &
Xxxxxxx LLP with respect to certain historical information
provided by ICP relating to the Receivables;
(ix) copies of any management or other agreements
with regard to the administration of Transferor's
business, certified by an Authorized Officer of
Transferor;
(x) a pro forma balance sheet of Transferor as of
the date hereof, after giving effect to the transactions
contemplated by the Supplement, and a certificate of an
Authorized Officer of ICP as to the capitalization of
Transferor (the amount and type of which capitalization
shall be satisfactory to the Agent);
(xi) results of recent searches of the UCC
filing records and tax and ERISA and judgment lien records
in each jurisdiction in which a filing referred to in
subsection (xii) is to be made for filings against each
Seller (including any predecessors in interest to any
Seller going back five years) and Transferor, showing no
filings of record that cover any of the Receivables or the
other Transferred Assets other than (i) the financing
statements referred to in subsection (xii) (to the extent
shown in the searches) and (ii) any other filings as to
which the Agent has received signed UCC-3 termination
statements or pay-off letters in form and substance
satisfactory to it;
(xii) confirmation satisfactory to the Agent that
(x) the following have been placed with Lexis Document
Services or another filing service selected by the Agent
for filing, the filing to occur on the Closing Date or the
first Business Day thereafter and (y) any filing fees and
indebtedness taxes necessary to perfect or protect true
security interests by means of such filings have been paid
in full:
(A) UCC financing statements naming each
Seller, as seller/debtor, and Transferor, as
secured party/purchaser, in each office where the
filing is necessary for the perfection of the
sales or contribution of Receivables and Related
Assets by each Seller to Transferor;
(B) assignments of such existing UCC
financing statements to Trustee, as assignee of
the secured party, in each office where the filing
is necessary for the perfection
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of the sales of Receivables and Related Assets by
each Seller to Transferor; and
(C) UCC financing statements naming
Transferor, as seller/debtor, and Trustee, as
secured party/purchaser, in each office where the
filing is necessary for the perfection of the
transfers of Receivables and other Transferred
Assets by Transferor to Trustee;
(xiii) the following opinions addressed to the
Agent, the Purchaser and Trustee, and in each case as to
the matters and in such form and substance as shall be
satisfactory to the Agent, the Purchaser and Trustee:
(A) opinions of Steptoe and Xxxxxxx as
to certain corporate and securities matters
concerning ICP, Federal and state tax and UCC
matters, true sale and non-consolidation; and
(B) opinions of Tuke Xxxx & Xxxxxxx as
to certain corporate and securities matters
concerning General and Coastline, and Tennessee
limited partnership, Tennessee state tax and
Tennessee UCC matters; and
(C) opinions of White & Case and Xxxxx,
Rice & Fingersh as to certain state tax matters
under Florida law and Missouri law, respectively;
(xiv) evidence, reasonably satisfactory to the
Agent and the Purchaser, of the payment of all taxes, fees
and other governmental charges, if any, incidental to the
issuance of the Certificates and to the consummation of
the transactions contemplated hereunder and under the
Pooling Agreement;
(xv) a solvency certificate of the chief
financial officer of ICP with respect to the Sellers,
which opinion shall be addressed to the Agent and the
Purchasers and shall be in form and substance satisfactory
to the Agent;
(xvi) such sublicenses and assignments as the
Agent shall require with regard to all computer and data
recovery software used by Servicer or any Seller in
connection with the servicing of the Transferred Assets,
which sublicenses and assignments will permit any
substitute Servicer to use such software; and
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(xvii) any other information, certificates,
opinions and documents as the Agent may have reasonably
requested.
If the conditions specified above have not been fulfilled
on the date hereof, any condition specified in this Agreement shall not
have been fulfilled when and as required in this Agreement or waived by the
Purchasers, in each case a Purchaser's obligations to purchase the
Certificates pursuant to this Agreement may be terminated by notice to
Transferor. In addition, if, under the circumstances, it shall not be
feasible for the Purchasers to invest on the date the funds that are held
available by the Purchasers for the Purchase, Transferor and Servicer,
jointly and severally shall pay the Purchasers interest on the funds at the
Alternate Base Rate plus two percent from the date of the notice until the
next succeeding Business Day on which it is feasible for the Purchasers to
invest the funds in the Certificates. Nothing in this paragraph shall
operate to relieve Transferor from any of its obligations hereunder or
otherwise waive any of the Purchasers' rights against Transferor.
SECTION 7.2 Conditions to Each Purchase. The obligation of each
Purchaser to make any Purchase on any day (including those comprising the
initial Purchase) shall be subject to the Agent's receipt of the Daily
Report for that day and to the conditions precedent that on the date of the
Purchase, before and after giving effect thereto and to the application of
any proceeds therefrom, the following statements shall be true:
(a) the representations and warranties of Transferor and
Initial Servicer set out in this Agreement are true and accurate
as of that date with the same effect as though made on that date
(unless specifically stated to relate to an earlier date); and
(b) no Early Amortization Event or Unmatured Early
Amortization Event has occurred and is continuing.
The giving of any notice pursuant to Section 2.2 shall constitute
a representation and warranty by Transferor, ICP and Initial Servicer that
the foregoing statements (limited, in the case of subsection (a) to the
representations and warranties of the Person deemed to make the
representation and warranty referred to in this sentence) are true.
SECTION 7.3 Conditions to Signing. (a) Amounts received by the
Transferor from the initial Purchase shall be used to pay all expenses then
due and payable under the transaction documents.
(b) If the initial Purchase does not occur on the date hereof,
the Transferor shall nevertheless pay all transaction expenses on the date
hereof,
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including the Arrangement Fee, the Commitment Fee, all legal fees, Rating
Agency fees and Trustee fees.
ARTICLE VIII
COVENANTS
SECTION 8.1 Affirmative Covenants. Transferor and ICP (in its
capacity as a Seller, as Guarantor and as Initial Servicer) each severally
covenant and agree that, until the Certificates have been paid in full, it
will:
(a) duly and timely perform all of its covenants and
obligations under each Transaction Document to which it is a
party;
(b) with reasonable promptness deliver to each Purchaser
such information, documents, records or reports respecting the
Program or the Receivables as the Purchaser may from time to time
reasonably request;
(c) at the same time any report (including any Daily
Report, Monthly Report or annual auditors' report), notice or
other document is provided, or caused to be provided, by
Transferor or Servicer to Trustee under the Pooling Agreement,
provide the Agent and each Purchaser with a copy of the report;
(d) during regular business hours and (so long as no
Early Amortization Event has occurred and is continuing) upon two
Business Days prior written notice, permit the Agent (or such
other Person as the Agent may designate from time to time) and any
Required Person that is a Class A Holder, or their respective
agents or representatives (including certified public accountants
or other auditors), at the expense of the Servicer paid out of the
Servicing Fee, (i) to examine and make copies of and abstracts
from, and to conduct accounting reviews of, all Records in the
possession or under the control of Servicer, Transferor or any
Seller, including the related Contracts and purchase orders,
invoices and other agreements related thereto, and (ii) to visit
the offices and properties of Servicer, Transferor or any Seller
for the purpose of examining such materials described in clause
(i), and to discuss matters relating to the Receivables or the
Related Transferred Assets or the performance by Servicer,
Transferor or any Seller of their respective obligations under any
Transaction Document with any officer, employee or representative
of Servicer, Transferor or any Seller. The Agent may (but shall
not be obligated to) conduct, or cause its agents or
representatives to conduct, reviews of the types described in this
paragraph (each such review, a
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"Receivables Review") whenever the Agent, in its reasonable
judgment, deems any such review appropriate.
SECTION 8.2 Transfers. Purchaser agrees that it will not
transfer its Class A Certificate (or any portion thereof) to any Person
unless such Person shall have provided the Trustee and Transferor with a
certificate to the effect that such Person is an "accredited investor" as
that term is defined in any of paragraphs (1), (2), (3) or (7) of Rule
501(a) under the Securities Act and is not purchasing its Certificate with
a view to making a distribution thereof (within the meaning of the
Securities Act).
SECTION 8.3 Procedure Letter and Report. The Agent shall
receive, for the account of the Purchasers, on or before September 30,
1996, an agreed-upon procedures letter in form and substance similar to the
procedures letter delivered pursuant to Section 7.1(d)(viii) and a report
from Coopers & Xxxxxxx L.L.P. of the type specified in Section 3.7(a)(i) of
the Pooling Agreement except that such report shall pertain only to
Receivables originated by General and Coastline during the period from the
Closing Date through August 31, 1996.
ARTICLE IX
AGENT; REQUIRED PURCHASERS
SECTION 9.1 Appointment. The Purchasers hereby designate The
Chicago Corporation as Agent. Each Purchaser hereby irrevocably authorizes
the Agent to take action on its behalf under the provisions of the
Transaction Documents and any other instruments and agreements referred to
therein and to exercise the powers and perform the duties hereunder and
thereunder that are specifically delegated to or required of the Agent by
the terms hereof and thereof, and any other powers as are reasonably
incidental thereto. The Agent may perform any of its duties by or through
its officers, directors, agents or employees.
SECTION 9.2 Nature of Duties. The Agent shall not have any duties
or responsibilities except those expressly set forth in this Agreement.
Neither the Agent nor any of its officers, directors, agents or employees
shall be liable for any action taken or omitted by it or them under any
Transaction Document or in connection herewith or therewith, unless caused
by their gross negligence or willful misconduct. The duties of the Agent
shall be mechanical and administrative in nature, the Agent shall not have
by reason of this Agreement a fiduciary relationship in respect of any
Purchaser, and nothing in any Transaction Document, expressed or implied,
is intended to or shall be construed as to impose
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upon the Agent any obligations in respect of any Transaction Document
except as expressly set forth herein.
SECTION 9.3 Lack of Reliance on Agent and Financial Advisor.
Independently and without reliance upon the Agent, each Purchaser, to the
extent it deems appropriate, has made and shall continue to make (a) its
own independent investigation of the financial condition and affairs of
Transferor, the Sellers, Servicer, Guarantor and the Trust in connection
with the making and the continuation of each Purchase and the taking or not
taking of any action in connection herewith and (b) its own appraisal of
the creditworthiness of Transferor, the Sellers, Guarantor and Servicer and
the merits and risks of an investment in the Certificates, and, except as
expressly provided in this Agreement, the Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any
Purchaser with any credit or other information with respect thereto,
whether coming into its possession before the making of a Purchase or at
any time or times thereafter. The Agent shall not be responsible to any
Purchaser for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing
delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority
or sufficiency of the Transaction Documents or the financial condition of
Transferor, the Sellers, Guarantor, Servicer or the Trust or be required to
make any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of any Transaction Document, or the
financial condition of Transferor, the Sellers, Guarantor, Servicer or the
Trust or the existence or possible existence of any Early Amortization
Event or Unmatured Early Amortization Event.
SECTION 9.4 Certain Rights of Agent. If the Agent shall request
instructions from the Required Class A Purchasers (as defined below) with
respect to any act or action (including failure to act) in connection with
any Transaction Document, the Agent shall be entitled to refrain from
acting or taking the action unless and until the Agent shall have received
instructions from the Required Class A Purchasers, and the Agent shall not
incur liability to any Person by reason of so refraining. Without limiting
the foregoing, no Purchaser shall have any right of action whatsoever
against the Agent as a result of the Agent acting or refraining from acting
under any Transaction Document in accordance with the instructions of the
Required Class A Purchasers or for refraining to act in the absence of
instruction.
SECTION 9.5 Reliance. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed,
sent or made by any Person that the
-23-
Agent believed to be the proper Person. The Agent may consult with legal
counsel (including counsel for any Related Person), independent public
accountants and other experts selected by the Agent and shall not be liable
for any action taken or omitted to be taken in accordance with the advice
of such counsel, accountants or experts.
SECTION 9.6 Indemnification. To the extent the Agent is not
reimbursed and indemnified by Transferor or Servicer, the Purchasers will
reimburse and indemnify the Agent ratably in accordance with their
respective Series Percentages from and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses or disbursements of whatsoever kind or nature that may be
imposed on, asserted against or incurred or suffered by the Agent
(including fees and expenses of legal counsel, accountants and experts) in
performing its duties or as a result of any action taken or omitted to be
taken by the Agent under any Transaction Document or in any way relating to
or arising out of any Transaction Document; provided that no Purchaser
shall be liable for any portion of these liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final
and non-appealable order).
SECTION 9.7 Agent in its Individual Capacity. The Agent and its
Affiliates may accept deposits from, lend money to and generally engage in
any kind of banking, trust or other business with Transferor or Servicer or
any Related Person as if the Agent were not performing the duties specified
herein, and may accept fees and other consideration from Transferor or
Servicer for services in connection with this Agreement and otherwise
without having to account for the same to the Purchasers.
SECTION 9.8 Resignation by Agent. (a) The Agent may resign at
any time by giving notice to Transferor and the Purchasers. Such
resignation shall take effect upon the appointment of a successor Agent
pursuant to subsections (b) and (c) below or as otherwise provided below.
(b) Upon any notice of resignation of the Agent, the Required
Class A Purchasers shall appoint a successor Agent hereunder who shall be a
commercial bank or trust company, broker-dealer or other financial
institution reasonably acceptable to Transferor (it being understood and
agreed that each of ABN AMRO Securities (USA) Inc., ABN AMRO Bank, N.A. and
any Purchaser is deemed to be acceptable to Transferor).
-24-
(c) If a successor Agent is not appointed pursuant to subsection
(b) within 30 days after the delivery of the notice referred to in
subsection (a), the resigning Agent, with the consent of Transferor, shall
then appoint a successor Agent who shall serve as Agent hereunder until the
time, if any, that the Required Class A Purchasers appoint a successor
Agent as provided above.
(d) If no successor Agent has been appointed pursuant to
subsection (b) or (c) above by the 60th day after the date notice of
resignation was given by the resigning Agent, such Agent's resignation
shall become effective and the Purchasers shall thereafter perform all the
duties of the Agent under the Transaction Documents until the time, if any,
that the Required Class A Purchasers appoint a successor Agent as provided
above.
SECTION 9.9 Required Purchasers. "Required Purchasers" means
Purchasers (defined for purposes of this Section 9.9 as Purchasers
hereunder and under the Certificate Purchase Agreement (Series 1996-1,
Class B) dated as of the date hereof, among Inter-City Products Receivables
Company, L.P., Inter-City Products Corporation (USA) and the Purchasers
described therein) having Series Percentages that aggregate over 50%.
"Required Class A Purchasers" means Purchasers having Class Percentages
that aggregate over 50%.
SECTION 9.10 Agent Administration Fee. The Agent shall be
entitled to receive a fee (an "Agent Administration Fee") of $5,000 per
annum payable in advance as of the Closing Date and each anniversary
thereof for rendering administrative services on behalf of the Purchasers.
The Agent shall also be entitled to receive reimbursement for traveling
expenses incurred in rendering such services. The Agent Administration Fee
and the reimbursement for related travel expenses shall constitute
"Additional Amounts" for purposes of the Supplement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Amendments. Except as provided in Section 13.1(a) or
(b) of the Pooling Agreement, Transferor, ICP and Initial Servicer shall
not amend, waive or otherwise modify any provision of any Transaction
Document to which it is a party, consent to any departure therefrom, or
grant any waiver or consent thereunder, unless the same shall have been
consented to in writing by the Required Purchasers prior to the
effectiveness of the same; provided, however, that no amendment
modification, waiver or consent shall (a) decrease in any manner the amount
of, or delay the timing of, any allocation, payment or
-25-
distribution in respect of any Certificate without the prior written
consent of each Purchaser affected thereby, (b) amend, modify or waive any
provision of this Agreement that requires the approval or consent of a
specified percentage of Purchasers without the prior written consent of
that percentage of Purchasers, (c) amend, modify or waive the provisions of
this section with respect to the rights of any Purchaser, or the Class
Percentage or Series Percentage of any Purchaser, without the consent of
that Purchaser, (d) waive any Early Amortization Event arising from a
Bankruptcy Event with respect to Transferor, ICP or any Seller without the
consent of each Purchaser, (e) amend or modify the Class Percentage of any
Purchaser, without its prior written consent, (f) waive any of the
requirements hereunder that the interests of Trustee in the Receivables and
the other Transferred Assets be perfected by appropriate UCC filings
without the prior written consent of each Purchaser or (g) amend, modify,
waive or otherwise affect the rights or duties of the Agent hereunder
without the prior written consent of the Agent; provided further that
neither the execution and delivery of a Supplement relating to a
refinancing of the Certificates as contemplated by Section 4.9 of the
Supplement relating to the Certificates, nor any other amendment to the
Transaction Documents in connection with such a refinancing, shall require
any consent from any Purchaser, so long as the prior or contemporaneous
repayment in full of the Certificates in accordance with Section 5.2 of the
Supplement relating to the Certificates is a condition to the issuance of
the refinancing certificates, and of the effectiveness of such related
amendment. Each Purchaser shall be bound by any modification, waiver or
consent authorized by this section.
SECTION 10.2 No Waiver; Remedies. Any waiver, consent or approval
given by any party hereto shall be effective only in the specific instance
and for the specific purpose for which given, and no waiver by a party of
any breach or default under this Agreement shall be deemed a waiver of any
other breach or default. No failure on the part of any party hereto to
exercise, and no delay in exercising, any right hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right
hereunder, or any abandonment or discontinuation of steps to enforce the
right, power or privilege, preclude any other or further exercise thereof
or the exercise of any other right. No notice to or demand on any party
hereto in any case shall entitle such party to any other or further notice
or demand in the same, similar or other circumstances. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 10.3 Successors and Assigns; Assignments. (a) This
Agreement shall be binding upon, and inure to the benefit of, Transferor,
Servicer, ICP, the Agent, the Purchasers and their respective successors
and assigns; provided that none of Transferor, Servicer or ICP may assign
its rights or obligations hereunder
-26-
or in connection herewith or any interest herein (voluntarily, by operation
of law or otherwise) without the prior written consent of all the
Purchasers, except that Servicer may be terminated in accordance with
Sections 10.1 and 10.2 of the Pooling Agreement; and provided further, that
no Purchaser or Participant may transfer, pledge, assign, sell
participations in or otherwise encumber its rights or obligations hereunder
or any interest herein except as permitted under this section. The Agent
may (in its sole discretion) assign all or any portion of its rights
hereunder or under the Supplement and/or delegate all or any portion of its
duties hereunder or under the Supplement to one or more third parties, in
which case such assignee or delegee will be deemed the "Agent" with respect
to such assigned right or delegated duty for purposes of this Agreement and
the Supplement.
(b) Subject to the terms of Section 10.3(e), any Purchaser may
at any time assign to any Permitted Transferee or to one or more banks or
institutional investors (each, an "Assignee") all or any part of its
participating interests in all or any portion of its Certificate and its
obligations hereunder (its "Credit Exposure"); provided that (i) unless
assigned to an Affiliate of the Purchaser or to a Permitted Transferee, it
assigns all of its Credit Exposure or a portion of its Credit Exposure in
an amount not less than $5,000,000, (ii) such Assignee, other than an
existing Purchaser, an Affiliate of the Purchaser or a Permitted
Transferee, must be reasonably acceptable to the Agent, which acceptance
shall not be delayed or withheld unreasonably, (iii) if such Assignee is
not a United States person (as defined in section 7701(a)(30) of the
Internal Revenue Code), such Assignee shall satisfy the requirements of
Section 4.6(c), provided, that if such Assignee thereafter fails to comply
with the requirements of Section 4.6, amounts payable to it under Section
4.6 shall be limited to amounts that would be payable if such Assignee had
complied with Section 4.6(c), and (iv) such Assignee shall have certified
to the assigning Purchaser that such Assignee is an "accredited investor"
as that term is defined in any of paragraphs (1), (2), (3) or (7) of Rule
501(a) under the Securities Act.
In the event of any assignment, the Purchaser (x) shall comply
with Article VI of the Pooling Agreement; provided that no Opinion of
Counsel shall be required to be delivered pursuant to Section 6.3(e) of the
Pooling Agreement with respect to any transfer to a Permitted Transferee,
and (y) shall give notice to Transferor and the Agent and shall deliver to
the Agent, for acceptance and recording in its records, an assignment
agreement substantially in the form of Exhibit D together with a processing
and recordation fee of, in the case of assignments to a Purchaser or an
Affiliate of a Purchaser, $1,500 and, in cases of any other assignment,
$3,500. Within five Business Days of receipt thereof, the Agent shall, if
the assignment agreement has been fully executed by the Assignee and the
assignor Purchaser, is completed and is in substantially the form
-27-
of Exhibit D, execute the assignment agreement and record the information
contained therein in its records. Upon the earlier of the expiration of
such five Business Day period or the date of the recording, the assignment
will become effective.
Transferor, Servicer, ICP, the Agent and the Purchasers agree to
extend the rights and benefits with respect to Transferor under this
Agreement to the Assignee to the extent the Assignee would have had if it
were a Purchaser that was an original signatory to this Agreement;
provided, that the parties hereto shall be entitled to continue to deal
solely and directly with the assignor Purchaser in connection with the
interests so assigned to the Assignee until the assignment agreement and
any required fee, as described above, shall have been delivered to the
Agent by the Purchaser and the Assignee and the assignment shall have
become effective. Upon the effective assignment of its Credit Exposure,
the Purchaser shall be relieved of its obligations hereunder to the extent
of the assignment.
(c) The sale or assignment by a Purchaser of any Credit Exposure
to any Assignee (each, a "Transferee") shall not be effective until it has
agreed to be bound by the provisions of Section 10.13 and has obtained the
prior written consent of the Agent. Transferor and, the Sellers, the
Servicer and ICP each authorize the Purchasers to disclose to any
Transferee and any prospective Transferee any and all information in their
possession concerning Transferor, the Sellers, the Servicer or ICP in
connection with the Transferee's credit evaluation of the Program prior to
entering into this Agreement.
(d) Notwithstanding any other provision set forth in this
Agreement, the Purchasers may at any time create a security interest in all
or any portion of their rights under this Agreement and the Certificates in
favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
(e) No transfer, assignment or other conveyance of, or sale of
any Credit Exposure of a Purchaser in, a Certificate shall be made unless
(i) the aggregate outstanding principal amount of all Certificates
transferred, or in which any Credit Exposure is sold, pursuant to such
transfer or sale is equal to a principal amount of Certificates that would
represent at least 2.1% of the total interests in partnership capital or
profits, within the meaning of Treasury Regulation Section 1.7704-1, and
(ii) after giving effect thereto, there shall be no more than 20 Private
Holders of Subject Instruments, as reasonably determined by Transferor. No
Certificate may be subdivided into an aggregate principal amount that would
represent less than 2.1% of the total interest in partnership capital or
profits as determined pursuant to the preceding sentence. Any attempted
transfer, assignment, conveyance, participation or subdivision in
contravention of the
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preceding restrictions, as reasonably determined by the Transferor, shall
be void ab initio and the purported transferor, seller or subdivider of
such Certificate shall continue to be treated as the Certificateholder of
any such Certificate for all purposes of this Agreement.
(f) Each Affected Party with respect to each Purchaser shall be
entitled to receive additional payments pursuant to Sections 4.3, 4.5, 4.6,
and 10.5 as though it were a Purchaser and such Sections applied to its
interest in a Certificate or commitment to make or acquire interests in
Purchases; provided that such Affected Party shall not be entitled to
additional payments pursuant to Section 4.6 attributable to its failure to
satisfy the requirements of subsection 4.6(c) as if it were an Assignee.
(g) Each Affected Party claiming increased amounts described in
Sections 4.3, 4.5, 4.6 or 10.5 shall furnish, through its related
Purchaser, to the Trustee, the Agent, Servicer and Transferor a certificate
setting forth in reasonable detail the basis and amount of each request by
such Affected Party for any such amounts referred to in such Section, which
certificate will be prepared in accordance with the requirements of such
Section (if any). Determinations by an Affected Party of any increased
amounts referred to in such Sections shall be conclusive, absent
demonstrable error. Each Affected Party shall promptly notify, through its
related Purchaser, the Trustee, the Agent, Servicer and Transferor of the
occurrence of any event of which such Affected Party is aware that would be
likely to result in a demand for compensation pursuant to Section 4.3, 4.5,
4.6 or 10.5.
SECTION 10.4 Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the Certificates
delivered pursuant hereto shall survive the making and the repayment of the
Purchases and the execution and delivery of this Agreement and the
Certificates and shall continue in full force and effect until all
obligations have been paid in full and all commitments of the Purchasers
hereunder have been terminated. In addition, the obligations of Transferor
under Sections 2.2(b), 2.3(c), 4.2, 4.3, 4.5, 4.6, 9.10, and 10.5 and the
obligations of the Purchasers under Section 9.6 shall survive the
termination of this Agreement.
SECTION 10.5 Expenses; Indemnification. Transferor and ICP
jointly and severally shall pay on demand (a) all reasonable out-of-pocket
fees and expenses (including reasonable attorneys' fees and expenses) of
the Agent incurred in connection with the preparation, execution, delivery,
administration, amendment, modification and waiver of the Transaction
Documents and the making and repayment of the Purchases, including any
Servicer or collection agent fees paid to any third party for services
rendered to the Purchasers and the Agent in collecting the Receivables and
(b) all reasonable out-of-pocket fees and expenses
-29-
of the Purchasers and the Agent (including reasonable attorneys' fees and
expenses of their counsel) incurred in connection with performance by the
Agent of its administrative duties under this Agreement, any consulting
performed by the Agent at the request of the Transferor, and the
enforcement of the Transaction Documents against Transferor, Servicer,
Guarantor and the Sellers and in connection with any workout or
restructuring of the Transaction Documents. In addition, Transferor will
pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing, recording or
enforcement of this Agreement or any payment made under the Transaction
Documents, and hereby indemnifies and saves the Agent and the Purchasers
harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay the taxes and fees.
Transferor and ICP jointly and severally agree to reimburse and indemnify
the Agent and each Purchaser and their respective officers, directors,
shareholders, controlling Persons, employees and agents (collectively, the
"Indemnitees") from and against any and all actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature that may be imposed
on, asserted against or incurred or suffered by the Agent or the Purchasers
(including fees and expenses of legal counsel, accountants and experts) in
any way relating to or arising out of any Transaction Document. Additional
amounts sufficient to indemnify the Purchasers, Agent or other Indemnitees
under this Section 10.5 shall constitute "Additional Amounts" for purposes
of the Supplement, and the Purchasers, Agent or other Indemnities shall be
entitled to receive these additional amounts, solely from amounts allocated
thereto and paid pursuant to the Supplement.
Notwithstanding the foregoing (and with respect to clause (x)
below, without prejudice to the rights that an Indemnitee may have pursuant
to the other provisions of the Transaction Documents), in no event shall
any Indemnitee be indemnified against any amounts (w) resulting from gross
negligence or willful misconduct on the part of such Indemnitee (or any of
its officers, directors, employees, affiliates or agents) or the failure of
such Indemnitee to perform its obligations under the Transaction Documents,
(x) to the extent they include amounts in respect of Receivables and
reimbursement therefor that would constitute credit recourse to Servicer
for the amount of any Receivable or Related Transferred Asset not paid by
the related Obligor or (y) to the extent they are or result from lost
profits (other than any interest or prepayment premium or early termination
amount).
If for any reason the indemnification provided in this section is
unavailable to an Indemnitee or is insufficient to hold it harmless, then
Transferor and ICP jointly and severally shall contribute to the amount
paid by the Indemnitee as a result of any loss, claim, damage or liability
in a proportion that is appropriate to reflect not only the relative
benefits received by the Indemnitee on the one hand and Transferor and ICP
on the other hand, but also the relative fault of the
-30-
Indemnitee (if any), Transferor and ICP and any other relevant equitable
considerations; provided that the Transferor shall not, and shall not be
obligated to, pay any amount pursuant to this Section unless and to the
extent that the Transferor has funds available to pay such amounts or funds
are allocated thereafter to the Transferor pursuant to the penultimate
paragraph of Section 4.3 or priority fifth of Section 4.4 of the
Supplement, and there shall be no recourse to Transferor for all or any
part of any amounts payable pursuant to this section if the funds are at
any time insufficient to make all or part of any such payments. Any amount
which Transferor does not pay pursuant to the operation of the preceding
sentence shall not constitute a claim (as defined in Sec. 101 of the
Bankruptcy Code) against or corporate obligation of Transferor for any such
insufficiency.
SECTION 10.6 Entire Agreement. This Agreement, together with the
documents delivered pursuant to Section 7.1 and the other Transaction
Documents, including the exhibits and schedules thereto, contains a final
and complete integration of all prior expressions by the parties hereto
with respect to the subject matter hereof and shall constitute the entire
agreement among the parties hereto with respect to the subject matter
hereof, superseding all previous oral statements and other writings with
respect thereto.
SECTION 10.7 Notices. All communications hereunder shall be in
writing and shall be deemed to have been duly given if personally
delivered, sent by overnight courier or mailed by registered mail, postage
prepaid and return receipt requested, or transmitted by facsimile
transmission and confirmed by a similar mailed writing to any party at the
address for that party set forth (a) on the signature page to this
Agreement, (b) in the case of the Trustee, LaSalle National Bank, ABS Trust
Services, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxx, or (c) to another address as that party may designate in
writing to the Agent and Transferor.
SECTION 10.8 No Third-Party Beneficiaries. Nothing expressed
herein is intended or shall be construed to give any Person (other than the
parties hereto, and Assignees described in Section 10.3 and, to the extent
provided in Section 10.3, the other Affected Parties) any legal or
equitable right, remedy or claim under or in respect of this Agreement.
SECTION 10.9 Severability of Provisions. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to be
void or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of this Agreement.
-31-
SECTION 10.10 Counterparts. This Agreement may be executed in any
number of counterparts (which may include facsimile) and by the different
parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
SECTION 10.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
SECTION 10.12 Tax Characterization. Each party to this Agreement
(a) acknowledges that it is the intent of the parties to this Agreement
that, for purposes of Federal, applicable state and local income and
franchise and other taxes measured by or imposed on income, the
Certificates will be treated as evidence of indebtedness secured by the
Transferred Assets and the Trust will not be characterized as an
association (or publicly traded partnership) taxable as a corporation, (b)
agrees that the provisions of the Transaction Documents be construed to
further that intent, and (c) agrees to treat the Certificates, for purposes
of Federal, state and local income and franchise and other taxes measured
by or imposed on income, as indebtedness.
SECTION 10.13 No Proceedings. (a) Each of Servicer, the Agent
(solely in its capacity as such) and each Purchaser (solely in its capacity
as such) hereby agrees that it will not institute against Transferor, or
join any other Person in instituting against Transferor, any insolvency
proceeding (namely, any proceeding of the type referred to in the
definition of "Bankruptcy Event") so long as any Series 1996-1 Certificates
shall be outstanding or there shall not have elapsed one year plus one day
since the last day on which any Series 1996-1 Certificates shall have been
outstanding. The foregoing shall not limit the right of Servicer, the Agent
or any Purchaser to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted against Transferor
by any other Person.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers and delivered as of
the day and year first above written.
INTER-CITY PRODUCTS
RECEIVABLES COMPANY, L.P.
By: Inter-City Products Partner
Corporation, its general partner
By: /s/ Xxxxx X. Xxxx
------------------------------------
Title: Senior Vice President
Address: 000 Xxxx-Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
INTER-CITY PRODUCTS CORPORATION (USA), as
Servicer
By: /s/ Xxxxx X. Xxxx
------------------------------------
Title: Senior Vice President
Address: 000 Xxxx-Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE CHICAGO CORPORATION,
as Agent
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ANAGRAM FUNDING CORP.,
as a Purchaser
By: /s/ Xxxxxx X.Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
Address:
Attention:
Telephone:
Facsimile:
SCHEDULE I
to Certificate Purchase Agreement
Series 1996-1, Class A
AMOUNT OF EACH INITIAL PURCHASER'S CERTIFICATE
----------------------------------------------
Purchaser Stated Amount of Certificate
----------------------------
Anagram Funding Corp. $60,000,000.00
Class Percentage
----------------
Anagram Funding Corp. 100%
Series Percentage
-----------------
Anagram Funding Corp. 85.71%
EXHIBIT A
to Certificate Purchase Agreement
Series 1996-1, Class A
FORM OF POOLING AND SERVICING AGREEMENT
Filed as Exhibit 10.1 to this Amendment No. 1 to Registration Statement on
Form S-4 (File No. 333-58837) and incorporated herein by this reference.
EXHIBIT B
to Certificate Purchase Agreement
Series 1996-1, Class A
FORM OF RECEIVABLES PURCHASE AGREEMENT
Filed as Exhibit 10.3 to this Amendment No. 1 to Registration Statement on
Form S-4 (File No. 333-58837) and incorporated herein by this reference.
EXHIBIT C
to Certificate Purchase Agreement
Series 1996-1, Class A
FORM OF SERIES 1996-1 SUPPLEMENT
Filed as Exhibit 10.2 to this Amendment No. 1 to Registration Statement on
Form S-4 (File No. 333-58837) and incorporated herein by this reference.
EXHIBIT D
to Certificate Purchase Agreement
Series 1996-1, Class A
FORM OF ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT, dated as of [____________] (this
"Agreement"), is made between ____________________ ("Assignor"), and
[_____________________] ("Assignee"). Except as otherwise defined herein,
capitalized terms have the meanings assigned to them in the Certificate
Purchase Agreement (as defined below).
BACKGROUND
A. Assignor is a party to the Certificate Purchase Agreement, dated
as of July 25, 1996 (as amended, supplemented or otherwise modified from time
to time, the "Certificate Purchase Agreement"), among INTER-CITY PRODUCTS
RECEIVABLES COMPANY, L.P., a Tennessee limited partnership ("Transferor"),
INTER-CITY PRODUCTS CORPORATION (USA), a Delaware corporation, the
Purchasers party thereto (including Assignor), and THE CHICAGO CORPORATION,
as Agent.
B. Assignor wishes to assign, and Assignee wishes to be so assigned,
Assignor's rights and obligations arising on and after the Effective Date (as
defined below) under the Certificate Purchase Agreement and its Certificate
including (a) its obligations to make Purchases (its "Credit Exposure") and
(b) its outstanding Purchases (the "Purchases").
C. Assignor and Assignee also wish (a) Assignee to assume the
obligations of Assignor under the Certificate Purchase Agreement with respect
to Assignee's Share (as defined below) to the extent of the rights assigned
and (b) Assignor to be released from the obligations assumed by Assignee.
D. Transferor and the Agent, by their execution hereof, are providing
their written consent to the assignment accomplished by this Agreement.
SECTION 1. Assignment. Effective on the Effective Date (as defined
below) and upon payment of the amount specified in Section 3(a), Assignor
hereby assigns and transfers to Assignee, without recourse, representation or
warranty of any kind, express or implied (except as provided in Sections 6(a)
and
(b)), and subject to Section 4(b), Assignee's Share (as specified in Annex I
hereto) (the "Assignee's Share") of all of Assignor's rights, title and
interest arising under (a) the Certificate Purchase Agreement relating to
Assignor's Credit Exposure including all rights and obligations with respect
to the Purchases attributable to Assignee's Share and (b) Assignor's
Certificate with respect to Assignee's Share as will result in Assignee
having from and after the Effective Date the Class Percentage ("Assignee's
Percentage") specified in Annex I.
SECTION 2. Assumption. Effective on the Effective Date, Assignee
hereby irrevocably purchases, assumes and takes from Assignor, and Assignor
is hereby expressly and absolutely released from, all of Assignor's
obligations arising under the Certificate Purchase Agreement relating to
Assignee's Share and of any outstanding Purchases attributable to Assignee's
Share. Assignee hereby agrees to be bound by the provisions of the
Certificate Purchase Agreement.
SECTION 3. Payment. In consideration of the assignment by Assignor
to Assignee as set forth above, Assignee agrees to pay to Assignor, in
Dollars and in immediately available funds, (a) on or prior to the Effective
Date, an amount specified by Assignor in writing on or prior to the Effective
Date that represents Assignee's Share attributable to the principal amount of
the Purchases made pursuant to the Certificate Purchase Agreement and
outstanding on the Effective Date, and (b) from time to time thereafter,
other amounts (if any) that Assignee has agreed in writing to pay to Assignor
after the Effective Date. In consideration of the assumption by Assignee,
Assignor agrees to pay to Assignee within two Business Days of the Effective
Date, an assignment fee (if any) that previously has been agreed to in
writing by both parties.
Notwithstanding anything to the contrary in this Agreement, if and
when Assignee receives or collects (x) any payment of principal or interest
relating to any Purchases or (y) any payment of fees that are required to be
paid to Assignor pursuant to this Agreement, then Assignee shall forward the
payment to Assignor.
To the extent payment of funds to Assignee or Assignor are not made
within two Business Days, each, as the case may be, shall be entitled to
recover the due amount, together with interest thereon at the Federal Funds
Rate per annum accruing from the date of payment or the date of receipt of
the funds by the other party.
SECTION 4. Effectiveness. (a)(i This Agreement shall become
effective on the date (the "Effective Date") on which it shall have been duly
executed by all parties and the Agent shall have recorded the information
contained herein in its records (or automatically upon the Agent's receipt of
this Agreement signed by Assignor and Assignee if not so recorded within five
Business Days of such
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receipt) Assignor hereby notifies the Agent of the assignment, effective as
of the Effective Date, of Assignee's Share and any Purchases attributable to
the Assignee's Share, and directs the Agent to pay Assignee (A) any payment
of principal of, or interest on, any Purchase attributable to the Assignee's
Share of any Purchases and (B) any Non-Usage Fees attributable to the
Assignee's Share of the Credit Exposure. No (x) failure of either Assignee
or Assignor to settle any amount owed to the other (except with respect to
the payment of the processing and recordation fee to the Agent and the
payment due under Section 3(a)), (y) dispute respecting any other settlement,
including in respect of Transferor, or (z) bankruptcy, insolvency or other
condition whatsoever respecting any Person, shall in any way impair, reduce
or otherwise affect the effectiveness of this Agreement.
(ii Assignor, Assignee and the Agent each acknowledges and agrees
that from and after the Effective Date, the Agent shall make all payments
under the Certificate Purchase Agreement in respect of Assignee's Share
(including all payments of principal, interest and Non-Usage Fees with
respect thereto, whether or not the payments shall have accrued prior to or
after the Effective Date) to Assignee only. Assignor and Assignee hereby
agree further to make all appropriate adjustments in payments to either of
them under the Certificate Purchase Agreement for periods prior to the
Effective Date directly between themselves.
(b With respect to any Purchase attributable to Assignee's Share,
if and when Assignor receives or collects any payment of principal, interest,
Non-Usage Fees or Additional Amounts with respect to Assignee's Share for any
period commencing on or after the Effective Date, Assignor shall distribute
to Assignee the portion attributable to Assignee's Share, but only to the
extent it accrued on or after the Effective Date and was not theretofore paid
to Assignee by Transferor or otherwise. Any principal, interest, Non-Usage
Fees and Additional Amounts paid prior to the Effective Date shall be
retained by Assignor. Any principal, interest, Non-Usage Fees and Additional
Amounts received by Assignee that accrued prior to the Effective Date shall
be forwarded promptly, in the form received, to Assignor. Assignee recognizes
and agrees that (i) it shall receive no payment on account of any Agent's
fees or other amounts or expenses (including counsel fees) payable to the
Agent (in such capacities and for their own account), (ii) this Agreement
shall not operate to assign any rights or delegate any obligations of the
Agent (in such capacities), and (iii) notwithstanding anything to the
contrary in this Agreement, Assignor shall retain all of its rights to
indemnification under the Certificate Purchase Agreement for any events, acts
or omissions occurring prior to the Effective Date.
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(c) The Agent, by its execution hereof, acknowledges the assignment
and agrees to make payments in respect of principal, interest, fees and
Additional Amounts as described in clause (a).
SECTION 5. Rights as Purchaser under Certificate Purchase Agreement.
In accordance with Section 10.3 of the Certificate Purchase Agreement, (a) as
of the Effective Date, Assignee will be a Purchaser under, and party to, the
Certificate Purchase Agreement and shall have (i) all of the rights and
obligations of a Purchaser (to the extent of the assignment and assumption of
Assignee's Share effected by this Agreement) and (ii) the addresses for (A)
notice purposes and (B) LIBOR Office as set forth in items 2 and 3,
respectively, of Annex I hereto and (b) promptly on or after the Effective
Date, Transferor will execute and deliver any documents and instruments that
Assignor or Assignee reasonably may require.
SECTION 6. Representations and Warranties. (a) Each of Assignor
and Assignee represents and warrants to the other as follows:
(i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Agreement, to fulfill
the obligations hereunder and to consummate the transactions
contemplated hereby,
(ii) the making and performance of this Agreement and all
documents required to be executed and delivered hereunder do not and
will not violate any law or regulation of the jurisdiction of its
incorporation or any other applicable law or regulation,
(iii) this Agreement has been duly executed and delivered
and constitutes its legal, valid and binding obligation, enforceable
in accordance with its terms, and
(iv) all approvals, authorizations or other actions by, or
filing with, any Governmental Authority necessary for the validity
or enforceability of its obligations under this Agreement have been
obtained.
(b) Assignor represents and warrants to Assignee that Assignee's
Share and the Purchases attributable to Assignee's Share are not subject to
any liens or security interests created by Assignor.
(c) Except as set forth in subsections (a) and (b), Assignor makes
no representations or warranties, express or implied, to Assignee and shall
not be responsible to Assignee for (i) the execution, effectiveness,
genuineness, legality, validity, enforceability, collectibility, regulatory
status or sufficiency of the Certificate Purchase Agreement or any of the
other Transaction Documents, (ii)
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the perfection, priority, value or adequacy of any collateral security or
guaranty, (iii) the taking of any action, or the failure to take any action,
with respect to any of the Transaction Documents, (iv) any representations,
warranties, recitals or statements made in any of the Transaction Documents
or in any written or oral financial or other statements, instruments,
reports, certificates or documents made or furnished by Assignor to Assignee
or by or on behalf of Transferor or any of its Affiliates to Assignor or
Assignee in connection with the Transaction Documents and the transactions
contemplated thereby, (v) the financial or other condition of Transferor or
any other Person or (vi) any other matter having any relation to any of the
foregoing. Assignor shall not be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained in any of the Transaction Documents or the
existence or possible existence of any Unmatured Early Amortization Event,
Early Amortization Event or Servicer Default. Additionally, Assignor shall
not have any duty or responsibility either initially or on a continuing basis
to make any investigation or any appraisal on Assignee's behalf or to provide
Assignee with any credit or other information with respect thereto, whether
coming into Assignor's possession before the execution of the Certificate
Purchase Agreement or at any time thereafter. Assignor shall have no
responsibility with respect to the accuracy of, or the completeness of, any
information provided to Assignee, whether by Assignor or by or on behalf of
Transferor or any other Person obligated under the Certificate Purchase
Agreement or any related instrument or document.
(d) Assignee represents and warrants that (x) it has made its own
independent investigation of each of the foregoing matters, including the
financial condition and affairs of Transferor and its Affiliates, in
connection with the making of the Purchases and the execution of this
Agreement (including the solvency of Transferor and its Affiliates, their
ability to pay their respective debts as they mature and the capital of
Transferor and its Affiliates remaining after the closing under the
Transaction Documents and the consummation of the transactions contemplated
thereby) and has made and shall continue to make its own appraisal of the
creditworthiness of Transferor and its Affiliates, and (y) the
representations and warranties set forth in Section 6.3 of the Certificate
Purchase Agreement are true and correct with respect to the Assignee.
Assignee hereby agrees that it will not make any general solicitation or
general advertising for the offer or sale of the Certificates. Assignee (i)
confirms that it has received copies of the Transaction Documents together
with copies of certain other closing documents delivered in connection with
the Certificate Purchase Agreement, financial statements and any other
documents and information that it has requested or deemed appropriate to make
its own credit analysis and decision to enter into this Agreement and (ii)
agrees that it will, independently and without reliance upon the Agent,
Assignor or any other Purchaser and based on such documents
-5-
and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Transaction
Documents.
(e) Assignee represents and warrants to Transferor that the
representations and warranties in Section 6.3 of the Certificate Purchase
Agreement are true and correct in respect of such Assignee as of the date
hereof.
SECTION 7. No Proceedings. Assignee hereby agrees to be bound by the
provisions of Section 10.13 of the Certificate Purchase Agreement.
SECTION 8. Withholding Taxes. [In accordance with Section 4.6 of the
Certificate Purchase Agreement, Assignee agrees to execute and deliver to the
Trustee, as Paying Agent, and the Agent, for delivery to Transferor, on or
before the Effective Date, (a) two original copies of Internal Revenue
Service Form 1001 or 4224 or successor applicable form, properly completed
and duly executed by the Assignee certifying that it is entitled to receive
payments under the Certificate Purchase Agreement and any Certificate without
deduction or withholding of any United States Federal income taxes, and (b)
an original copy of Internal Revenue Service Form W-8 or W-9 or applicable
successor form, properly completed and duly executed. Assignee represents and
warrants to Transferor and Assignor that, as of the Effective Date, it shall
be entitled to receive payments of principal and interest under its
Certificate, the Certificate Purchase Agreement and hereunder without
deduction for or on account of any taxes imposed by the United States of
America or any political subdivision thereof. In the event that, after
delivering the applicable form, Assignee shall cease to be exempt from
withholding and/or deduction of taxes, then the Agent may withhold and/or
deduct the applicable amount from any payments of principal, interest and any
fees to which Assignee otherwise would be entitled, and the Agent shall have
no liability whatsoever to Assignee for any such withholding or deduction.
Assignee shall indemnify Transferor and the Agent from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs or expenses that result from Assignee's breach of such
representation and warranty.]1
SECTION 9. Miscellaneous. (a) Each of the parties hereto agrees to
take any action and execute and deliver any documents that any party hereto
reasonably may request from time to time in order to implement more fully the
purposes of this Agreement. Without limiting the generality of the foregoing,
Assignor and Assignee will cooperate in obtaining for Assignee a Certificate
(as well as a replacement Certificate for Assignor representing any retained
interest of Assignor).
--------------------------
1/ If the Assignee is not a U.S. person within the meaning of Section
7701(a)(30) of the Internal Revenue Code.
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(b) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
(c) Except as otherwise set forth herein, this Agreement sets forth
the entire agreement between the parties relating to the subject matter
hereof, and no term or provision of this Agreement may be amended, changed,
waived, discharged or terminated orally or otherwise, except in a writing
signed by Assignor and Assignee.
(d) This Agreement may be executed in any number of counterparts and
by the different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
(e) Each of the parties hereto agrees that each party shall bear its
own expenses in connection with the preparation and execution of this
Agreement and the consummation of the Assignment described herein. Assignee
further agrees that it shall send a check in the amount of [$1,500] [3,500]
to the Agent on or prior to the Effective Date, as payment of the processing
and recordation fee described in Section 10.3(c) of the Certificate Purchase
Agreement. [Select correct amount in accordance with that Section.]
(f) All representations and warranties made, and indemnities
provided for, herein shall survive the consummation of the transactions
contemplated hereby.
(g) Assignor may at any time or from time to time grant assignments
in its rights and obligations under the Certificate Purchase Agreement and
its Certificate to other Persons, but not in the portions thereof assigned to
Assignee.
(h) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. Neither
Assignor nor Assignee may assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of the other party.
The preceding sentence shall not limit the right of Assignee to assign all or
part of Assignee's Share in the manner contemplated by the Certificate
Purchase Agreement.
(i) Assignee acknowledges that all obligations of the Agent are
subject to Article IX of the Certificate Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized officers and delivered as of the
day and year first above written.
-----------------------------,
as Assignor
By:
---------------------------
Title:
------------------------
-----------------------------,
as Assignee
By:
---------------------------
Title:
------------------------
The undersigned hereby acknowledges the terms and provisions of this
Agreement, and agrees to make payments in respect of principal, interest and
fees as described in Section 4(a).
THE CHICAGO CORPORATION,
as Agent
By:
-------------------------------
Title:
----------------------------
ANNEX I
to Assignment Agreement
Item 1. Assignee's Share:
(a) Assignee's Stated Amount $
(b) Assignee's Class Percentage %
Item 2. Address of Assignee for notice purposes:
----------------------------------------
----------------------------------------
----------------------------------------
Attention:
------------------------------
Telephone:
------------------------------
Facsimile:
------------------------------
Item 3. LIBOR Office of Assignee:
----------------------------------------
----------------------------------------
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APPENDIX X
to Certificate Purchase Agreement
Series 1996-1, Class A
INDEX OF ADDITIONAL DEFINED TERMS
Administration Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Agent Administration Fee. . . . . . . . . . . . . . . . . . . . . . . . 25
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Arrangement Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Assignee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Breakage Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Class Percentage. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commitment Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Commitment Reduction Fee. . . . . . . . . . . . . . . . . . . . . . . . 4
Credit Exposure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ICP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indemnitees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Initial Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
LIBOR Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Minimum Usage Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Non-Usage Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Pooling Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Purchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Purchasers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Receivables Review. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Required Class A Purchasers . . . . . . . . . . . . . . . . . . . . . . 25
Required Purchasers . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Series Percentage . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Stated Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Supplement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Transferee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Transferor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trust Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
