PURCHASE AND CONTRIBUTION AGREEMENT
Dated as of June 10, 1999
Between
WITCO CORPORATION
as Seller
and
WITCO FUNDING CORPORATION
as Purchaser
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENTS 1
ARTICLE I DEFINITIONS 1
SECTION 1.01. Certain Defined Terms 1
Adverse Claim 1
Affiliate 1
Alternate Base Rate 1
Business Day 2
Collection Agent 2
Collection Agent Default 2
Collection Agent Fee 2
Collections 2
Contract 3
Contributed Receivable 3
Credit and Collection Policy 3
Debt 3
Defaulted Receivable 3
Deferred Purchase Price 3
Delinquent Receivable 4
Designated Account" or "Designated Accounts 4
Designated Bank 4
Designated Obligor 4
Dilution 4
Discount 4
Eligible Receivable 4
ERISA 6
Event of Termination 6
Facility 6
Facility Termination Date 6
Federal Funds Rate 6
General Trial Balance 7
Incipient Event of Termination 7
Indemnified Amounts 7
Lock-Box Account 7
Lock-Box Bank 7
Obligor 7
Outstanding Balance 7
Person 7
Xxxxxxxx 0
Xxxxxxxx Date 8
Purchase Price 8
Purchased Receivable 8
Purchaser Loan 8
Receivable 8
Related Security 8
Sale Agreement 9
Seller Report 9
Settlement Date 9
Transferred Receivable 9
UCC 9
SECTION 1.02. Other Terms 9
ARTICLE II AMOUNTS AND TERMS OF PURCHASES AND
CONTRIBUTIONS 9
SECTION 2.01. Facility 9
SECTION 2.02. Making Purchases 10
SECTION 2.03. Collections. 10
SECTION 2.04. Settlement Procedures 11
SECTION 2.05. Payments and Computations, Etc. 12
SECTION 2.06. Contributions 12
ARTICLE III CONDITIONS OF PURCHASES 12
SECTION 3.01. Conditions Precedent to Initial
Purchase from the Seller 12
SECTION 3.02. Conditions Precedent to All Purchases 13
ARTICLE IV REPRESENTATIONS AND WARRANTIES 14
SECTION 4.01. Representations and Warranties of the
Seller 14
ARTICLE V COVENANTS 17
SECTION 5.01. Covenants of the Seller 17
SECTION 5.02. Covenant of the Seller and the
Purchaser 22
ARTICLE VI ADMINISTRATION AND COLLECTION 22
SECTION 6.01. Designation of Collection Agent 22
SECTION 6.02. Duties of Collection Agent 22
SECTION 6.03. Collection Agent Fee 23
SECTION 6.04. Certain Rights of the Purchaser 23
SECTION 6.05. Rights and Remedies. 24
SECTION 6.06. Transfer of Records to Purchaser. 25
ARTICLE VII EVENTS OF TERMINATION 25
SECTION 7.01. Events of Termination 25
ARTICLE VIII INDEMNIFICATION 27
SECTION 8.01. Indemnities by the Seller 27
ARTICLE IX MISCELLANEOUS 29
SECTION 9.01. Amendments, Etc. 29
SECTION 9.02. Notices, Etc. 30
SECTION 9.03. Binding Effect; Assignability 30
SECTION 9.04. Costs, Expenses and Taxes 30
SECTION 9.05. No Proceedings 31
SECTION 9.06. Confidentiality 31
SECTION 9.07. GOVERNING LAW 31
SECTION 9.08. Third Party Beneficiary 31
SECTION 9.09. Execution in Counterparts 31
EXHIBITS
EXHIBIT A Form of Opinion of Counsel for the Seller
EXHIBIT B Credit and Collection Policy
EXHIBIT C Lock-Box Banks
EXHIBIT D Form of Deferred Purchase Price Note
PURCHASE AND CONTRIBUTION AGREEMENT
Dated as of June 10, 1999
WITCO CORPORATION, a Delaware corporation (the
"Seller"), and WITCO FUNDING CORPORATION, a Delaware corporation
(the "Purchaser"), agree as follows:
PRELIMINARY STATEMENTS . (1) Certain terms which are
capitalized and used throughout this Agreement (in addition to
those defined above) are defined in Article I of this Agreement.
(2) The Seller has Receivables that it wishes to
sell to the Purchaser, and the Purchaser is prepared to purchase
such Receivables on the terms set forth herein.
(3) The Seller may also wish to contribute
Receivables to the capital of the Purchaser on the terms set
forth herein.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms . As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Adverse Claim " means a lien, security interest or other
charge or any other encumbrance.
"Affiliate "means, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is
under common control with such Person or, with respect to an
individual, is a director or officer of such Person.
"Alternate Base Rate " means a fluctuating interest rate per
annum as shall be in effect from time to time, which rate shall
be at all times equal to the highest of:
(a) the rate of interest announced publicly by Citibank,
N.A. in New York, New York, from time to time as Citibank, N.A.'s
base rate;
(b) 0.50% above the latest three-week moving average of
secondary market morning offering rates in the United States for
three-month certificates of deposit of major United States money
market banks, such three-week moving average being determined
weekly on each Monday (or, if such day is not a Business Day, on
the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank, N.A. on the basis of
such rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank, N.A. from three
New York certificate of deposit dealers of recognized standing
selected by Citibank, N.A., in either case adjusted to the
nearest 1/4 of one percent or, if there is no nearest 1/4 of one
percent, to the next higher 1/4 of one percent; and
(c) the Federal Funds Rate.
"Business Day " means any day on which banks are not
authorized or required to close in New York City.
"Collection Agent " means at any time the Person then
authorized pursuant to Section 6.01 to administer and collect
Transferred Receivables.
"Collection Agent Default " means any of the following
events:
(i) the Collection Agent (if the Seller or any of its
Affiliates) shall fail to perform or observe any term, covenant
or agreement under Section 6.02 and such failure shall remain
unremedied (in the reasonable judgment of the Purchaser) for 10
days following delivery of written notice of such failure from
the Purchaser; or
(ii) the Collection Agent (if the Seller or any of its
Affiliates) shall fail to make when due any payment or deposit to
be made by it under this Agreement; or
(iii) the occurrence and continuance of any Event of
Termination under Section 7.01(b), Section 7.01(c) (with respect
to any representation or warranty made by the Collection Agent),
Section 7.01(e), Section 7.01(f), Section 7.01(g), Section
7.01(j) (with respect to the Collection Agent), Section 7.01(i)
(with respect to the Collection Agent) or Section 7.01(j).
"Collection Agent Fee " has the meaning specified in Section
6.03.
"Collections " means, with respect to any Receivable, all
cash collections and other cash proceeds of such Receivable,
including, without limitation, all cash proceeds of Related
Security with respect to such Receivable, and all funds deemed
to have been received by the Seller or any other Person as a
Collection pursuant to Section 2.04.
"Contract " means an agreement now or hereafter existing
between the Seller and an Obligor pursuant to or under which such
Obligor shall be obligated to pay for the provision or sale of
specialty chemical products or services from time to time.
"Contributed Receivable " has the meaning specified in
Section 2.06.
"Control Agreement" means a Control Agreement with respect
to Designated Banks in substantially the form attached hereto as
Annex B-1.
"Credit and Collection Policy " means those receivables
credit and collection policies and practices of the Seller in
effect on the date of this Agreement applicable to the
Receivables and described in Exhibit B hereto, as modified in
compliance with this Agreement.
"Debt " means (i) indebtedness for borrowed money,
(ii) obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) obligations to pay the deferred
purchase price of property or services, (iv) obligations as
lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles,
recorded as capital leases, (v) liabilities in respect of
unfunded vested benefits under plans covered by Title IV of ERISA
and (vi) obligations under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the
kinds referred to in clauses (i) through (v) above.
"Defaulted Receivable " means a Receivable:
(i) as to which any payment, or part thereof, remains
unpaid for more than 90 days from the original due date for such
payment;
(ii) as to which the Obligor thereof or any other Person
obligated thereon or providing any Related Security in respect
thereof has taken any action, or suffered any event to occur, of
the type described in Section 7.01(g); or
(iii) which, consistent with the Credit and Collection
Policy, would be written off the Seller's books as uncollectible.
"Deferred Purchase Price " means the portion of the Purchase
Price of Purchased Receivables purchased on any Purchase Date
exceeding the amount of the Purchase Price under Section 2.02 to
be paid in cash, which portion when added to the cumulative
amount of all previous Deferred Purchase Prices (after giving
effect to any payments made on account thereof) shall not exceed
25% of the Outstanding Balance of the Transferred Receivables.
The obligations of the Purchaser in respect of the Deferred
Purchase Price shall be evidenced by the Purchaser's subordinated
promissory note in the form of Exhibit D hereto.
"Delinquent Receivable " means a Receivable that is not a
Defaulted Receivable and:
(i) as to which any payment, or part thereof, remains
unpaid for more than 30 days and less than or equal to 90 days
from the original due date for such payment or
(ii) which, consistent with the Credit and Collection
Policy, would be classified as delinquent by the Seller.
"Designated Account" or "Designated Accounts " means one or
more bank accounts established for the deposit of all Collections
at a Designated Bank and subject to an executed Control
Agreement.
"Designated Bank "means any bank or banks selected by the
Collection Agent from time to time (initially, to be Mellon Bank)
and approved by the Agent (such approval not to be unreasonably
withheld) to establish a Designated Account.
"Designated Obligor " means, at any time, each Obligor;
provided, however, that any Obligor shall cease to be a
Designated Obligor based on an analysis of the creditworthiness
of such Obligor (as determined by the Purchaser (or its assignee)
in its sole reasonable discretion), upon three Business Days'
notice by the Purchaser to the Seller effective with respect to
Eligible Receivables thereafter transferred by the Seller to the
Purchaser.
"Dilution " means, with respect to any Receivable, the
aggregate amount of any reductions or adjustments in the
Outstanding Balance of such Receivable as a result of any
defective, rejected, returned, repossessed or foreclosed
merchandise or services or any cash discount, discount for quick
payment or other adjustment or setoff, excluding adjustments,
reductions or cancellations in respect of such Obligor's
bankruptcy or financial inability to pay.
"Discount " means, in respect of each Purchase, 3% of the
Outstanding Balance of the Receivables that are the subject of
such Purchase; provided, however, the foregoing Discount may be
revised prospectively by request of either of the parties hereto
to reflect changes in recent experience with respect to write-
offs, timing and cost of Collections and cost of funds, provided
that such revision is consented to by both of the parties (it
being understood that each party agrees to duly consider such
request but shall have no obligation to give such consent).
"Eligible Receivable " means a Receivable:
(i) the Obligor of which is a United States resident, is
not an Affiliate of any of the parties hereto, and is not a
government or a governmental subdivision or agency;
(ii) the Obligor of which, at the time of the initial
creation of an interest therein under this Agreement, is a
Designated Obligor and is not the Obligor of any Defaulted
Receivables which in the aggregate constitute 10% or more of the
aggregate Outstanding Balance of all Receivables of such Obligor;
(iii) which at the time of the initial creation of an
interest therein under this Agreement is not a Defaulted or
Delinquent Receivable;
(iv) which, according to the Contract related thereto,
is required to be paid in full within 60 days of the original
billing date therefor;
(v) which is an obligation representing all or part of
the sales price of merchandise, insurance or services within the
meaning of Section 3(c)(5) of the Investment Company Act of 1940,
as amended;
(vi) the purchase of which from the Purchaser with the
proceeds of notes would constitute a "current transaction" within
the meaning of Section 3(a)(3) of the Securities Act of 1933, as
amended;
(vii) which is an "account" within the meaning of
Section 9-106 of the UCC of the applicable jurisdictions
governing the perfection of the interest created by a Receivable
Interest;
(viii) which is denominated and payable only in United
States dollars in the United States;
(ix) which arises under a Contract which, together with
such Receivable, is in full force and effect and constitutes the
legal, valid and binding obligation of the Obligor of such
Receivable and is not subject to any dispute, offset,
counterclaim or defense whatsoever (except the potential
discharge in bankruptcy of such Obligor);
(x) which, together with the Contract related thereto,
does not contravene in any material respect any laws, rules or
regulations applicable thereto (including, without limitation,
laws, rules and regulations relating to usury, consumer
protection, truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection
practices and privacy) and with respect to which none of the
Purchaser, the Seller or the Obligor is in violation of any such
law, rule or regulation in any material respect;
(xi) which arises under a Contract which does not
require the Obligor thereunder to consent to the transfer, sale
or assignment of payment rights of the Purchaser or the Seller
thereunder;
(xii) which was generated in the ordinary course of the
Seller's business;
(xiii) which, at the time of the initial creation of an
interest therein under this Agreement, has not been extended,
rewritten or otherwise modified from the original terms thereof
except in a manner permitted under the Credit and Collection
Policy;
(xiv) which (A) satisfies all applicable requirements of
the Credit and Collection Policy and (B) complies with such other
reasonable criteria and requirements (relating to the
Receivables) as the Purchaser may from time to time specify to
the Seller upon 30 days' notice; and
(xv) as to which, at or prior to the time of the initial
creation of an interest therein under this Agreement, the
Purchaser has not notified the Seller that such Receivable (or
class of Receivables) is no longer acceptable for purchase by
Xxxxxx and the Banks under the Sale Agreement for bona fide
credit-related reasons.
"ERISA " means the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Event of Termination " has the meaning specified in Section
7.01.
"Facility " means the willingness of the Purchaser to
consider making Purchases of Receivables from the Seller from
time to time pursuant to the terms of this Agreement.
"Facility Termination Date " means the earliest of (i) June
10, 2002, (ii) the date of termination of the Facility pursuant
to Section 7.01 and (iii) the date which the Seller designates by
at least two Business Days' notice to the Purchaser.
"Federal Funds Rate " means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by
Citibank, N.A. from three Federal funds brokers of recognized
standing selected by it.
"General Trial Balance " of the Seller on any date means the
Seller's accounts receivable trial balance (whether in the form
of a computer printout, magnetic tape or diskette) on such date,
listing Obligors and the Receivables respectively owed by such
Obligors on such date together with the aged Outstanding Balances
of such Receivables, in form and substance satisfactory to the
Purchaser.
"Incipient Event of Termination " means an event that but
for notice or lapse of time or both would constitute an Event of
Termination.
"Indemnified Amounts " has the meaning specified in Section
8.01.
"Lock-Box Account " means any Designated Account and any
other bank account at a Lock-Box Bank subject to a Lock-Box
Agreement.
"Lock-Box Bank " means (i) each Designated Bank, and (ii)
prior to December 31, 1999, any of the other banks listed on
Schedule I that are the subject of an undated Lock-Box Agreement.
"Material Adverse Effect" means any condition, event or
series of events that has a material adverse effect on: (i) the
Receivables or the collectibility of any material amount of funds
with respect thereto; (ii) the rights of the Purchaser with
respect to the Receivables and the rights set forth in this
Agreement; (iii) the business, consolidated financial position,
consolidated results of operation of the Seller and its
Subsidiaries; (iv) the ability of the Purchaser, the Collection
Agent or the Seller to perform their respective duties and
obligations or exercise their rights and remedies under this
Agreement and the Transaction Documents; or (v) the legality,
validity or enforceability of the Transaction Documents.
"Obligor " means a Person obligated to make payments to the
Seller pursuant to a Contract.
"OPA Assignment" means the assignment agreement, pursuant to
which the Purchaser is assigning this Agreement to Citibank North
America, Inc., as Agent under Sale Agreement, duly acknowledged
and consented to by the Seller, in substantially the form of
Annex E to the Sale Agreement.
"Outstanding Balance " of any Receivable at any time means
the then outstanding principal balance thereof.
"Person " means an individual, partnership, corporation
(including a business trust), limited liability company, joint
stock company, trust, unincorporated association, joint venture
or other entity, or a government or any political subdivision or
agency thereof.
"Purchase " means a purchase by the Purchaser of Receivables
from the Seller pursuant to Article II.
"Purchase Date " means each day on which a Purchase is made
pursuant to Article II.
"Purchase Price " for any Purchase means an amount equal to
the Outstanding Balance of the Receivables that are the subject
of such Purchase as set forth in the Seller's General Trial
Balance, minus the Discount for such Purchase.
"Purchased Receivable " means any Receivable which is
purchased by the Purchaser pursuant to Section 2.02.
"Purchaser Loan " means any loan made by the Purchaser, at
its option, to the Seller, upon the Seller's request, provided
that (a) the aggregate principal amount at any one time
outstanding of Purchaser Loans shall not exceed $30 million and
(b) no such Purchaser Loans may be made if an Event of
Termination or an Incipient Event of Termination has occurred and
is continuing, or would occur after giving effect thereto, or if
any amounts are outstanding under the Deferred Purchase Price.
Purchaser Loans made by the Purchaser hereunder shall be
evidenced by promissory notes of the Seller in substantially the
form of Exhibit E hereto.
"Receivable " means the indebtedness of any Obligor, other
than an Obligor which is not a United States resident, under a
Contract, and includes the right to payment of any interest or
finance charges and other obligations of such Obligor with
respect thereto.
"Related Security " means with respect to any Receivable:
(i) all of the Seller's interest in any merchandise
(including returned merchandise) relating to any sale giving rise
to such Receivable;
(ii) all security interests or liens and property
subject thereto from time to time purporting to secure payment of
such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all financing statements
signed by an Obligor describing any collateral securing such
Receivable;
(iii) all guaranties, insurance and other agreements or
arrangements of whatever character from time to time supporting
or securing payment of such Receivable whether pursuant to the
Contract related to such Receivable or otherwise; and
(iv) the Contract and all other books, records and other
information (including, without limitation, computer programs,
tapes, discs, punch cards, data processing software and related
property and rights) relating to such Receivable and the related
Obligor.
"Sale Agreement " means that certain Receivables Purchase
Agreement, dated as of the date hereof, among the Purchaser, as
seller, Xxxxxx X.X., as purchaser, Citibank, N.A., Citicorp North
America, Inc., as agent, and the Seller, as collection agent, as
amended or restated from time to time.
"Seller Report " means a report, in form and substance
satisfactory to the Purchaser, furnished by the Collection Agent
to the Purchaser pursuant to Section 6.02(b).
"Settlement Date " means the 15th day of each calendar month
(or if such day is not a Business Day, the immediately succeeding
Business Day); provided, however, that following the occurrence
of an Event of Termination, Settlement Dates shall occur on such
days as are selected from time to time by the Purchaser or its
designee in a written notice to the Collection Agent.
"Transaction Documents" means this Agreement, the Sale
Agreement, each Lock-Box Agreement, each Control Agreement, the
OPA Assignment and all other agreements and documents delivered
hereto or thereto.
"Transferred Receivable " means a Purchased Receivable or a
Contributed Receivable.
"UCC " means the Uniform Commercial Code as from time to
time in effect in the specified jurisdiction.
SECTION 1.02. Other Terms . All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles. All terms used in
Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such
Article 9.
ARTICLE II
AMOUNTS AND TERMS OF PURCHASES AND CONTRIBUTIONS
SECTION 2.01. Facility . On the terms and conditions
hereinafter set forth and without recourse to the Seller (except
to the extent as is specifically provided herein), the Seller may
at its option sell or contribute to the Purchaser all Receivables
originated by it from time to time and the Purchaser may at its
option purchase or accept as a contribution from the Seller all
Receivables of the Seller from time to time, in each case during
the period from the date hereof to the Facility Termination Date.
SECTION 2.02. Making Purchases .
(a) Initial Purchase. The Seller shall give the
Purchaser at least one Business Day's notice of its request for
the initial purchase hereunder, which request shall specify the
date of such Purchase (which shall be a Business Day) and the
proposed Purchase Price for such Purchase. The Purchaser shall
promptly notify the Seller whether it has determined to make such
Purchase. On the date of such Purchase, the Purchaser shall,
upon satisfaction of the applicable conditions set forth in
Article III pay the Purchase Price for such Purchase in the
manner provided in Section 2.02(c).
(b) Subsequent Purchases. On each Business Day
following the initial Purchase, unless either party shall notify
the other party to the contrary, the Seller shall sell to the
Purchaser and the Purchaser shall purchase from the Seller all
Receivables originated by the Seller which have not previously
been sold or contributed to the Purchaser; provided, however,
that the Seller may, at its option on any Purchase Date,
contribute all or any of such Receivables to the Purchaser
pursuant to Section 2.06, instead of selling such Receivables to
the Purchaser pursuant to this Section 2.02(b). On the date of
each such Purchase, the Purchaser shall, upon satisfaction of the
applicable conditions set forth in Article III, pay the Purchase
Price for such Purchase in the manner provided in Section
2.02(c).
(c) Payment of Purchase Price. The Purchase Price
for each Purchase shall be paid on the Purchase Date therefor by
means of any one or a combination of the following: (i) a deposit
in same day funds to the Seller's account designated by the
Seller, (ii) an increase in the Deferred Purchase Price (subject
at all times to the limitations contained in the definition
thereof), or (iii) a credit against interest and/or principal
owed by the Seller with respect to any Purchaser Loan. The
allocation of the Purchase Price as among such methods of payment
shall be subject in each instance to the approval of the
Purchaser and the Seller.
(d) Ownership of Receivables and Related Security.
On each Purchase Date, after giving effect to the Purchase (and
any contribution of Receivables) on such date, the Purchaser
shall own all Receivables originated by the Seller as of such
date (including Receivables which have been previously sold or
contributed to the Purchaser hereunder). The Purchase or
contribution of any Receivable shall include all Related Security
with respect to such Receivable.
SECTION 2.03. Collections. (a) Unless otherwise agreed,
the Collection Agent shall, on each Settlement Date, deposit into
an account of the Purchaser or the Purchaser's assignee all
Collections of Transferred Receivables then held by the
Collection Agent.
(b) In the event that the Seller believes that
Collections which are not Collections of Transferred Receivables
have been deposited into an account of the Purchaser or the
Purchaser's assignee, the Seller shall so advise the Purchaser
and, on the Business Day following such identification, the
Purchaser shall remit, or shall cause to be remitted, all
Collections so deposited which are identified, to the Purchaser's
satisfaction, to be Collections of Receivables which are not
Transferred Receivables to the Seller.
(c) On each Settlement Date, the Purchaser shall pay
to the Seller accrued interest on the Deferred Purchase Price and
the Purchaser may, at its option, prepay in whole or in part the
principal amount of the Deferred Purchase Price; provided that
each such payment shall be made solely from (i) Collections of
Transferred Receivables after all other amounts then due from the
Purchaser under the Sale Agreement have been paid in full and all
amounts then required to be set aside by the Purchaser or the
Collection Agent under the Sale Agreement have been so set aside
or (ii) excess cash flow from operations of the Purchaser which
is not required to be applied to the payment of other obligations
of the Purchaser; and provided further, that no such payment
shall be made at any time when an Event of Termination shall have
occurred and be continuing. At such time following the Facility
Termination Date when all Capital, Yield and other amounts owed
by the Purchaser under the Sale Agreement shall have been paid in
full, the Purchaser shall apply, on each Settlement Date, all
Collections of Transferred Receivables received by the Purchaser
pursuant to Section 2.03(a) (and not previously distributed)
first to the payment of accrued interest on the Deferred Purchase
Price, and then to the reduction of the principal amount of the
Deferred Purchase Price.
SECTION 2.04. Settlement Procedures . (a) If on any day
the Outstanding Balance of any Purchased Receivable is reduced or
adjusted as a result of any defective, rejected, returned,
repossessed or foreclosed merchandise or services or any cash
discount, discount for quick payment or other adjustment made by
the Seller, or any set-off or dispute in respect of any claim by
the Obligor thereof against the Seller (whether such claim arises
out of the same or a related transaction or an unrelated
transaction but excluding adjustments, reductions or
cancellations on account of the insolvency, bankruptcy, or
financial inability to pay of the applicable Obligor, whether
pursuant to an adjustment of the payment amount for such
Receivable in accordance with Section 6.02(c) or otherwise), the
Seller shall be deemed to have received on such day a Collection
of such Purchased Receivable in the amount of such reduction or
adjustment. If the Seller is not the Collection Agent, the
Seller shall pay to the Collection Agent on or prior to the next
Settlement Date all amounts deemed to have been received pursuant
to this subsection.
(b) Upon discovery by the Seller or the Purchaser
of a breach of any of the representations and warranties made by
the Seller in Section 4.01(j) with respect to any Transferred
Receivable, such party shall give prompt written notice thereof
to the other party, as soon as practicable and in any event
within three Business Days following such discovery. The Seller
shall, upon not less than two Business Days' notice from the
Purchaser or its assignee or designee, repurchase such
Transferred Receivable on the next succeeding Settlement Date for
a repurchase price equal to the Outstanding Balance of such
Transferred Receivable. Each repurchase of a Transferred
Receivable shall include the Related Security with respect to
such Transferred Receivable. The proceeds of any such repurchase
shall be deemed to be a Collection in respect of such Transferred
Receivable. If the Seller is not the Collection Agent, the
Seller shall pay to the Collection Agent on or prior to the next
Settlement Date the repurchase price required to be paid pursuant
to this subsection.
(c) Except as stated in subsection (a) or (b) of this
Section 2.04 or as otherwise required by law or the underlying
Contract, all Collections from an Obligor of any Transferred
Receivable shall be applied to the Receivables of such Obligor in
the order of the age of such Receivables, starting with the
oldest such Receivable, unless such Obligor designates its
payment for application to specific Receivables.
SECTION 2.05. Payments and Computations, Etc. (a) All
amounts to be paid or deposited by the Seller or the Collection
Agent hereunder shall be paid or deposited no later than 11:00
A.M. (New York City time) on the day when due in same day funds
to an account designated by the Purchaser from time to time,
which account shall initially be account no. 000-0-000000 at
Chase Manhattan Bank.
(b) The Seller shall, to the extent permitted by law,
pay to the Purchaser interest on any amount not paid or deposited
by the Seller (whether as Collection Agent or otherwise) when due
hereunder at an interest rate per annum equal to 1.00% per annum
above the Alternate Base Rate, payable on demand.
(c) All computations of interest and all computations
of fees hereunder shall be made on the basis of a year of 360
days for the actual number of days (including the first but
excluding the last day) elapsed. Whenever any payment or deposit
to be made hereunder shall be due on a day other than a Business
Day, such payment or deposit shall be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of such payment or deposit.
SECTION 2.06. Contributions . The Seller may from time to
time at its option, by notice to the Purchaser on or prior to the
date of the proposed contribution, identify Receivables which it
proposes to contribute to the Purchaser as a capital
contribution. On the date of each such contribution and after
giving effect thereto, the Purchaser shall own in fee simple the
Receivables so identified and contributed (collectively, the
"Contributed Receivables") and all Related Security with respect
thereto. The foregoing notwithstanding, on the date of the
initial Purchase hereunder the Seller agrees to contribute to the
Purchaser all Receivables which are not included in such initial
Purchase.
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01. Conditions Precedent to Initial Purchase from
the Seller . The initial Purchase of Receivables from the Seller
hereunder is subject to the conditions precedent that the
Purchaser shall have received on or before the date of such
Purchase the following, each (unless otherwise indicated) dated
such date, in form and substance satisfactory to the Purchaser:
(a) Certified copies of the resolutions of the Board of
Directors of the Seller approving this Agreement and certified
copies of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this
Agreement.
(b) A certificate of the Secretary or Assistant Secretary
of the Seller certifying the names and true signatures of the
officers of the Seller authorized to sign this Agreement and the
other documents to be delivered by it hereunder.
(c) Acknowledgment copies of proper financing statements,
duly filed on or before the date of the initial Purchase, naming
the Seller as the seller/debtor and the Purchaser as the
purchaser/ secured party, or other similar instruments or
documents, as the Purchaser may deem necessary or desirable under
the UCC of all appropriate jurisdictions or other applicable law
to perfect the Purchaser's ownership of and security interest in
the Transferred Receivables and Related Security and Collections
with respect thereto.
(d) Acknowledgment copies of proper financing statements,
if any, necessary to release all security interests and other
rights of any Person in the Transferred Receivables, Contracts or
Related Security previously granted by the Seller.
(e) Completed requests for information, dated on or
before the date of such initial Purchase, listing the financing
statements referred to in subsection (c) above and all other
effective financing statements filed in the jurisdictions
referred to in subsection (c) above that name the Seller as
debtor, together with copies of such other financing statements
(none of which shall cover any Transferred Receivables, Contracts
or Related Security).
(f) A favorable opinion of (i) Cravath, Swaine & Xxxxx,
counsel for the Seller, and (ii) internal counsel to the Seller,
substantially in the form of Exhibit A hereto, and as to such
other matters as the Purchaser may reasonably request.
(g) An executed copy of the Control Agreement with the
initial Designated Bank and undated executed copies of Lock-Box
Agreements to the other Lock-Box Banks.
SECTION 3.02. Conditions Precedent to All Purchases . Each
Purchase (including the initial Purchase) hereunder shall be
subject to the further conditions precedent that:
(a) with respect to any such Purchase, on or prior to
the date of such Purchase, the Seller shall have delivered to the
Purchaser, (i) if requested by the Purchaser, the Seller's
General Trial Balance (which if in magnetic tape or diskette
format shall be compatible with the Purchaser's computer
equipment) as of a date not more than 31 days prior to the date
of such Purchase, and (ii) a written report identifying, among
other things, the Receivables to be included in such Purchase and
the then outstanding Purchased Receivables and the aged balance
thereof, in each case correlated to Purchases;
(b) with respect to any such Purchase, on or prior to the
date of such Purchase, the Collection Agent shall have delivered
to the Purchaser, in form and substance satisfactory to the
Purchaser, a completed Seller Report for the most recently ended
reporting period for which information is required pursuant to
Section 6.02(b) and containing such additional information as may
reasonably be requested by the Purchaser;
(c) The Seller shall have marked its master data processing
records and, at the request of the Purchaser during the
continuance of a Termination Event or Incipient Event of
Termination, each Contract giving rise to Purchased Receivables
and all other relevant records evidencing the Receivables which
are the subject of such Purchase with a legend, acceptable to the
Purchaser, stating that such Receivables, the Related Security
and Collections with respect thereto, have been sold in
accordance with this Agreement; and
(d) on the date of such Purchase the following statements
shall be true (and the Seller, by accepting the amount of such
Purchase, shall be deemed to have certified that):
(i) The representations and warranties contained in Section
4.01 are correct on and as of the date of such Purchase as though
made on and as of such date,
(ii) No event has occurred and is continuing, or would
result from such Purchase, that constitutes an Event of
Termination or would constitute an Incipient Event of
Termination,
(iii) The Purchaser shall not have delivered to the Seller a
notice that the Purchaser shall not make any further Purchases
hereunder, and
(iv) With respect to all Purchases made on or after January
1, 2000, the Purchaser shall have received evidence satisfactory
to it that Collections are not being sent to any bank account
other than a Designated Account; and
(e) the Purchaser shall have received such other approvals,
opinions or documents as the Purchaser may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller
. The Seller represents and warrants as follows:
(a) The Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware,
and is duly qualified to do business, and is in good standing, in
every jurisdiction where the nature of its business requires it
to be so qualified except to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse
Effect.
(b) The execution, delivery and performance by the
Seller of this Agreement and the other documents to be delivered
by it hereunder, including the Seller's sale and contribution of
Receivables hereunder and the Seller's use of the proceeds of
Purchases, (i) are within the Seller's corporate powers, (ii)
have been duly authorized by all necessary corporate action,
(iii) do not contravene (1) the Seller's charter or by-laws,
(2) any law, rule or regulation applicable to the Seller, (3) any
contractual restriction binding on or affecting the Seller or its
property or (4) any order, writ, judgment, award, injunction or
decree binding on or affecting the Seller or its property, and
(iv) do not result in or require the creation of any lien,
security interest or other charge or encumbrance upon or with
respect to any of its properties (except for the transfer of the
Seller's interest in the Transferred Receivables pursuant to this
Agreement). This Agreement has been duly executed and delivered
by the Seller.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Seller of this Agreement or any other document
to be delivered by it hereunder.
(d) This Agreement constitutes the legal, valid and
binding obligation of the Seller enforceable against the Seller
in accordance with its terms.
(e) Sales and contributions made pursuant to this
Agreement will constitute a valid sale, transfer, and assignment
of the Transferred Receivables to Purchaser, enforceable against
creditors of, and purchasers from, the Seller. The Seller shall
have no remaining property interest in any Transferred
Receivable.
(f) The balance sheets of the Seller and its
consolidated Subsidiaries as at December 31, 1998, and the
related statements of income and retained earnings of the Seller
and its consolidated Subsidiaries for the fiscal year then ended,
copies of which have been furnished to the Agent under the Sale
Agreement, fairly present the financial condition of the Seller
and its consolidated Subsidiaries as at such date and the results
of the operations of the Seller and its consolidated Subsidiaries
for the period ended on such date, all in accordance with
generally accepted accounting principles consistently applied,
and since March 31, 1999 there has been no change in the business
(taken as a whole), consolidated financial condition or
consolidated results of operation of the Seller and its
consolidated Subsidiaries that reasonably could be expected to
result in a Material Adverse Effect.
(g) Except as disclosed in the Form 10-Q filed with the
Securities and Exchange Commission on May 7, 1999, there is no
action, suit or proceeding pending against or, to the knowledge
of the Seller or any of its Subsidiaries, threatened against or
affecting the Seller or any of its Subsidiaries before any court
or arbitrator, any governmental body, agency or official that
reasonably could be expected to result in a Material Adverse
Effect.
(h) No transaction contemplated hereby requires
compliance with any bulk sales act or similar law.
(i) Each Receivable sold by the Seller hereunder (unless
expressly purported not to be an Eligible Receivable) is an
Eligible Receivable, and each such Receivable and each
Transferred Receivable, together with the Related Security, is
owned (prior to its sale or contribution hereunder) by the Seller
free and clear of any Adverse Claim (other than any Adverse Claim
arising solely as the result of any action taken by the
Purchaser). When Purchaser makes a Purchase it shall acquire
valid and perfected first priority ownership of each Purchased
Receivable and the Related Security and Collections with respect
thereto free and clear of any Adverse Claim (other than any
Adverse Claim arising solely as the result of any action taken by
the Purchaser), and no effective financing statement or other
instrument similar in effect covering any Transferred Receivable,
any interest therein, the Related Security or Collections with
respect thereto is on file in any recording office except such as
may be filed in favor of Purchaser in accordance with this
Agreement or in connection with any Adverse Claim arising solely
as the result of any action taken by the Purchaser.
(j) Each Seller Report (if prepared by the Seller, or to
the extent that information contained therein is supplied by the
Seller), information, exhibit, financial statement, document,
book, record or report furnished or to be furnished at any time
by the Seller to the Purchaser in connection with this Agreement
is or will be accurate in all material respects as of its date or
(except as otherwise disclosed to the Purchaser at such time) as
of the date so furnished, and no such document contains or will
contain any untrue statement of a material fact or omits or will
omit to state a material fact necessary in order to make the
statements contained therein, in the light of the circumstances
under which they were made, not misleading.
(k) The principal place of business and chief executive
office of the Seller and the office where the Seller keeps its
records concerning the Transferred Receivables are located at the
address or addresses referred to in Section 5.01(b).
(l) The names and addresses of all the Lock-Box Banks,
together with the account numbers of the Lock-Box Accounts at
such Lock-Box Banks, are specified in Exhibit C (as the same may
be updated from time to time pursuant to Section 5.01(h)).
(m) The Seller is not known by and does not use any
tradename or doing-business-as name.
(n) The purchase of each Receivable from the Seller and
each reinvestment of Collections in Receivables of the Seller
will constitute (i) a "current transaction" within the meaning of
Section 3(a)(3) of the Securities Act of 1933, as amended, and
(ii) a purchase or other acquisition of notes, drafts,
acceptances, open accounts receivable or other obligations
representing part or all of the sales price of merchandise,
insurance or services within the meaning of Section 3(c)(5) of
the Investment Company Act of 1940, as amended.
(o) With respect to any programs used by the Seller in
the servicing of the Receivables, no sublicensing agreements are
necessary in connection with the designation of a new Collection
Agent pursuant to Section 6.01(b) so that such new Collection
Agent shall have the benefit of such programs (it being
understood that, however, the Collection Agent, if other than the
Seller, shall be required to be bound by a confidentiality
agreement reasonably acceptable to the Seller).
(p) The transfers of Transferred Receivables by the
Seller to the Purchaser pursuant to this Agreement, and all other
transactions between the Seller and the Purchaser, have been and
will be made in good faith and without intent to hinder, delay or
defraud creditors of the Seller.
ARTICLE V
COVENANTS
SECTION 5.01. Covenants of the Seller . From the date
hereof until the first day following the Facility Termination
Date on which all of the Transferred Receivables are either
collected in full or become Defaulted Receivables:
(a) Compliance with Laws, Etc. The Seller will comply
in all material respects with all applicable laws, rules,
regulations and orders and preserve and maintain its corporate
existence, rights, franchises, qualifications and privileges
except to the extent that the failure so to comply with such
laws, rules and regulations or the failure so to preserve and
maintain such existence, rights, franchises, qualifications, and
privileges would not materially adversely affect the
collectibility of the Transferred Receivables or the ability of
the Seller to perform its obligations under this Agreement.
(b) Offices, Records and Books of Account. The Seller will
keep its principal place of business and chief executive office
and the office where it keeps its records concerning the
Transferred Receivables at the address of the Seller set forth
under its name on the signature page to this Agreement or, upon
30 days' prior written notice to the Purchaser, at any other
locations in jurisdictions where all actions required by
Section 5.01(j) shall have been taken and completed. The Seller
also will maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate
records evidencing Transferred Receivables and related Contracts
in the event of the destruction of the originals thereof), and
keep and maintain all documents, books, records and other
information reasonably necessary or advisable for the collection
of all Transferred Receivables (including, without limitation,
records adequate to permit the daily identification of each new
Transferred Receivable and all Collections of and adjustments to
each existing Transferred Receivable). The Seller shall make a
notation in its books and records, including its computer files,
to indicate which Receivables have been sold or contributed to
the Purchaser hereunder.
(c) Performance and Compliance with Contracts and Credit
and Collection Policy. The Seller will, at its expense, timely
and fully perform and comply with all material provisions,
covenants and other promises required to be observed by it under
the Contracts related to the Transferred Receivables, and timely
and fully comply in all material respects with the Credit and
Collection Policy in regard to each Transferred Receivable and
the related Contract. Without limiting the generality of the
foregoing, the Seller will not reduce or suffer or permit
reductions in the amounts payable by Obligors on the Receivables
in the form of "volume rebate credits" (including, without
limitation, with respect to Zeneca, Xxxxxxx, Monsanto and
Occidental); provided, that, prior to the occurrence and
continuance of any Event of Termination or Incipient Event of
Termination, the Seller may grant "volume rebate credits" in an
aggregate amount not to exceed $500,000 annually with respect to
all Obligors.
(d) Sales, Liens, Etc. Except for the sales and
contributions of Receivables contemplated herein, the Seller will
not sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create or suffer to exist any Adverse Claim upon
or with respect to, any Transferred Receivable, Related Security,
related Contract or Collections, or upon or with respect to any
account to which any Collections of any Transferred Receivable
are sent, or assign any right to receive income in respect
thereof, other than liens for taxes not yet due and payable.
(e) Extension or Amendment of Transferred Receivables.
Except as provided in Section 6.02(c), the Seller will not
extend, amend or otherwise modify the terms of any Transferred
Receivable, or amend, modify or waive any payment provisions of
any Contract related thereto.
(f) Change in Credit and Collection Policy. The Seller
will not make any change in the Credit and Collection Policy that
would, in either case, materially adversely affect the
collectibility of the Transferred Receivables or the ability of
the Seller to perform its obligations under this Agreement.
(g) Audits. The Seller will, from time to time during
regular business hours and following reasonable notice to the
Seller, permit the Purchaser, or its agents, representatives or
assigns, (i) to examine and make copies of and abstracts from all
books, records and documents (including, without limitation,
computer tapes and disks) in the possession or under the control
of the Seller relating to Transferred Receivables and the Related
Security, including, without limitation, the related Contracts,
and (ii) to visit the offices and properties of the Seller for
the purpose of examining such materials described in clause
(i) above, and to discuss matters relating to Transferred
Receivables and the Related Security or the Seller's performance
hereunder or under the Contracts with any of the officers or
employees of the Seller having knowledge of such matters;
provided, however, prior to the occurrence and continuance of any
Event of Termination or Incipient Event of Termination, audits,
examinations and visits described in (i) and (ii) above (together
with the audit rights set forth in Sections 5.02 and 6.06(a) of
the Sale Agreement) shall occur no more frequently than annually.
(h) Change in Payment Instructions to Obligors. The
Seller will not add any bank or bank account as a Lock-Box Bank
or Lock-Box Account to those listed in Exhibit C to this
Agreement. The Seller will not add any bank as a Designated Bank
unless the Purchaser shall have received notice of such addition
(including an updated Exhibit C) and a fully executed copy of a
lock-box notice agreement for each new Designated Bank. The
Seller will terminate each Lock-Box Account (other than the
Designated Accounts) on or prior to December 31, 1999. Following
the delivery of any lock-box notice or lock-box notice agreement,
the Seller will not make any change in its instructions to
Obligors regarding payments to be made to the Seller or payments
to be made to any Lock-Box Bank, other than instructing Obligors
that are making payments to a Lock-Box Account which is not a
Designated Account to make payments to a Designated Account.
(i) Deposits to Lock-Box Accounts. At all times on and
prior to December 31, 1999, the Seller will deposit, or cause to
be deposited, all Collections of Receivables solely into Lock-Box
Accounts. At all times subsequent to December 31, 1999, the
Seller will deposit, or cause to be deposited, all Collections of
Receivables solely into a Designated Account. The Seller will
not deposit or otherwise credit, or cause or permit to be so
deposited or credited, to any Lock-Box Account cash or cash
proceeds other than Collections of Receivables and shall promptly
(and in any event within two Business Days) cause any Collections
deposited in a Lock-Box Account and not relating to Receivables
to be removed from the applicable Lock-Box Account.
(j) Further Assurances. (i) The Seller agrees from
time to time, at its expense, promptly to execute and deliver all
further instruments and documents, and to take all further
reasonable actions, that may be reasonably necessary or
desirable, or that the Purchaser or its assignee may reasonably
request, to perfect, protect or more fully evidence the sale and
contribution of Receivables under this Agreement, or to enable
the Purchaser or its assignee to exercise and enforce its
respective rights and remedies under this Agreement. Without
limiting the foregoing, the Seller will, upon the request of the
Purchaser or its assignee, (A) execute and file such financing or
continuation statements, or amendments thereto, and such other
instruments and documents, that may be necessary or desirable to
perfect, protect or evidence such Transferred Receivables; and
(B) deliver to the Purchaser copies of all Contracts relating to
the Transferred Receivables and all records relating to such
Contracts and the Transferred Receivables, whether in hard copy
or in magnetic tape or diskette format (which if in magnetic tape
or diskette format shall be compatible with the Purchaser's
computer equipment).
(ii) The Seller authorizes the Purchaser or its
assignee to file financing or continuation statements, and
amendments thereto and assignments thereof, relating to the
Transferred Receivables and the Related Security, the related
Contracts and the Collections with respect thereto without the
signature of the Seller where permitted by law. A photocopy or
other reproduction of this Agreement shall be sufficient as a
financing statement where permitted by law.
(iii) The Seller shall perform its obligations under
the Contracts related to the Transferred Receivables to the same
extent as if the Transferred Receivables had not been sold or
transferred.
(k) Reporting Requirements. The Seller will provide to the
Purchaser the following:
(i) as soon as available and in any event within 60
days after the end of the first three quarters of each fiscal
year of the Seller, consolidated balance sheets of the Seller and
its Subsidiaries as of the end of such quarter and consolidated
statements of income and retained earnings of the Seller and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified by
the chief financial officer, controller or other chief accounting
officer of the Seller;
(ii) as soon as available and in any event within 120
days after the end of each fiscal year of the Seller, a copy of
the annual report for such year for the Seller and its
Subsidiaries, containing financial statements for such year
audited by a "Big 4" accounting firm or other independent public
accountants acceptable to the Purchaser;
(iii) as soon as possible and in any event within five
days after the Seller obtains knowledge of the occurrence of each
Event of Termination or Incipient Event of Termination, to the
extent that such event is continuing, a statement of the chief
financial officer of the Seller setting forth details of such
Event of Termination or event and the action that the Seller has
taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that the Seller sends to any of its
security holders, and copies of all reports and registration
statements that the Seller or any of its Subsidiaries files with
the Securities and Exchange Commission or any national securities
exchange;
(v) promptly after the filing or receiving thereof,
copies of all reports and notices that the Seller or any
Affiliate files under ERISA with the Internal Revenue Service or
the Pension Benefit Guaranty Corporation or the U.S. Department
of Labor or that the Seller or any Affiliate receives from any of
the foregoing or from any multiemployer plan (within the meaning
of Section 4001(a)(3) of ERISA) to which the Seller or any
Affiliate is or was, within the preceding five years, a
contributing employer, in each case in respect of the assessment
of withdrawal liability or an event or condition which could, in
the aggregate, result in the imposition of liability on the
Seller and/or any such Affiliate in excess of $10,000,000;
(vi) at least ten Business Days prior to any change in
the name of the Seller, a notice setting forth the new name and
the effective date thereof; and
(vii) such other information respecting the Receivables
or the condition or operations, financial or otherwise, of the
Seller as the Purchaser may from time to time reasonably request.
(l) Separate Conduct of Business. The Seller will:
(i) maintain separate corporate records and books of account from
those of the Purchaser; (ii) conduct its business from an office
separate from that of the Purchaser; (iii) ensure that all oral
and written communications, including without limitation,
letters, invoices, purchase orders, contracts, statements and
applications, will be made solely in its own name; (iv) have
stationery and other business forms and a mailing address and a
telephone number separate from those of the Purchaser; (v) not
hold itself out as having agreed to pay, or as being liable for,
the obligations of the Purchaser; (vi) not engage in any
transaction with the Purchaser except as contemplated by this
Agreement or as permitted by the Sale Agreement;
(vii) continuously maintain as official records the resolutions,
agreements and other instruments underlying the transactions
contemplated by this Agreement; and (viii) prepare and disclose
on its annual financial statements (A) the effects of the
transactions contemplated by this Agreement in accordance with
generally accepted accounting principles and (B) in manner that
is wholly consistent with the conclusion that the assets of the
Purchaser are not available to pay its creditors; and (ix)
otherwise comply with (and cause to be true and correct) each of
the facts and assumptions contained in Sections 2 through 4 on
pages 5-8 of the opinion of Cravath, Swaine & Xxxxx delivered
pursuant to Section 3.01(g) and designated as Exhibit A to this
Agreement.
SECTION 5.02. Covenant of the Seller and the Purchaser .
The Seller and the Purchaser have structured this Agreement with
the intention that each Purchase of Receivables hereunder be
treated as a sale of such Receivables by the Seller to the
Purchaser for all purposes and each contribution of Receivables
hereunder shall be treated as an absolute transfer of such
Receivables by the Seller to the Purchaser for all purposes. The
Seller and the Purchaser shall record each Purchase and
contribution as a sale or purchase or capital contribution, as
the case may be, on its books and records, and reflect each
Purchase and contribution in its financial statements and tax
returns as a sale or purchase or capital contribution, as the
case may be.
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Collection Agent . The
servicing, administration and collection of the Transferred
Receivables shall be conducted by such Person (the "Collection
Agent") so designated hereunder from time to time. The Seller is
hereby designated as, and hereby agrees to perform the duties and
obligations of, the Collection Agent pursuant to the terms
hereof. Upon the occurrence of a Collection Agent Default, the
Purchaser or its assignee may designate as Collection Agent any
Person (including itself) to succeed the Seller or any successor
Collection Agent, if such Person shall consent and agree to the
terms hereof. Upon the Seller's receipt of such notice, the
Seller agrees that it will terminate its activities as Collection
Agent hereunder in a manner which the Purchaser (or its designee)
believes will facilitate the transition of the performance of
such activities to the new Collection Agent, and the Seller shall
use its best efforts to assist the Purchaser (or its designee) to
take over the servicing, administration and collection of the
Transferred Receivables, including, without limitation, providing
access to and copies of all computer tapes or disks and other
documents or instruments that evidence or relate to Transferred
Receivables maintained in its capacity as Collection Agent and
access to all employees and officers of the Seller responsible
with respect thereto. The Collection Agent may, with the prior
consent of the Purchaser, (such consent not to be unreasonably
withheld) subcontract with any other Person for the servicing,
administration or collection of Transferred Receivables. Any
such subcontract shall not affect the Collection Agent's
liability for performance of its duties and obligations pursuant
to the terms hereof.
SECTION 6.02. Duties of Collection Agent . (a) The
Collection Agent shall take or cause to be taken all such actions
as may be reasonably necessary or advisable to collect each
Transferred Receivable from time to time, all in accordance with
applicable laws, rules and regulations, with reasonable care and
diligence, and in accordance with the Credit and Collection
Policy. The Purchaser hereby appoints the Collection Agent, from
time to time designated pursuant to Section 6.01, as agent to
enforce its ownership and other rights in the Transferred
Receivables, the Related Security and the Collections with
respect thereto. In performing its duties as Collection Agent,
the Collection Agent shall exercise the same care and apply the
same policies as it would exercise and apply if it owned the
Transferred Receivables and shall act in a manner consistent with
the Credit and Collection Policy and in the best interests of the
Purchaser and its assignees.
(b) Prior to the 10th Business Day of each month, the
Collection Agent shall prepare and forward to the Purchaser (i) a
Seller Report, relating to all then outstanding Transferred
Receivables, and the Related Security and Collections with
respect thereto, in each case, as of the close of business of the
Collection Agent on the last day of the immediately preceding
month, and (ii) if requested by the Purchaser, a listing by
Obligor of all Transferred Receivables, together with an aging
report of such Transferred Receivables.
(c) If no Event of Termination or Incipient Event of
Termination shall have occurred and be continuing, the Seller,
while it is the Collection Agent, may, in accordance with the
Credit and Collection Policy, extend the maturity or adjust the
Outstanding Balance of any Transferred Receivable as the Seller
deems appropriate, or otherwise amend or adjust the payment terms
under the related Contract in a manner consistent with the Credit
and Collection Policy, to maximize Collections thereof, provided
that the classification of any such Transferred Receivable as a
Delinquent Receivable or Defaulted Receivable shall not be
affected by any such extension.
(d) The Seller shall deliver to the Collection Agent,
and the Collection Agent shall hold in trust for the Seller and
the Purchaser in accordance with their respective interests, all
documents, instruments and records (including, without
limitation, computer tapes or disks) which evidence or relate to
Transferred Receivables.
(e) The Collection Agent shall as soon as practicable
following receipt turn over to the Seller any cash collections or
other cash proceeds received with respect to Receivables not
constituting Transferred Receivables, less, in the event the
Seller is not the Collection Agent, all reasonable and
appropriate out-of-pocket costs and expenses of the Collection
Agent of servicing, collecting and administering the Receivables
to the extent not covered by the Collection Agent Fee received by
it.
(f) The Collection Agent also shall perform the other
obligations of the "Collection Agent" set forth in this Agreement
with respect to the Transferred Receivables.
SECTION 6.03. Collection Agent Fee . The Purchaser shall
pay to the Collection Agent, so long as it is acting as the
Collection Agent hereunder, a periodic collection fee (the
"Collection Agent Fee") of 0.75% per annum on the average daily
aggregate Outstanding Balance of the Transferred Receivables,
payable on the 15th day of each month (or, if such day is not a
Business Day, the immediately succeeding Business Day) or such
other day during each calendar month as the Purchaser and the
Collection Agent shall agree.
SECTION 6.04. Certain Rights of the Purchaser . (a) The
Seller hereby transfers to the Purchaser (and its assigns and
designees) the exclusive ownership and control of the Lock-Box
Accounts maintained by the Seller for the purpose of receiving
Collections.
(b) At any time following the designation of a Collection
Agent other than the Seller pursuant to Section 6.01 or following
and during the continuance of an Event of Termination or an
Incipient Event of Termination: the Purchaser may give notice of
ownership and/or direct the Obligors of Transferred Receivables
and any Person obligated on any Related Security, or any of them,
that payment of all amounts payable under any Transferred
Receivable shall be made directly to the Purchaser or its
designee; and the Seller shall, upon the Purchaser's request and
at the Seller's expense, (i) give notice of such ownership to
each Obligor of Transferred Receivables and direct that payments
of all amounts payable under such Transferred Receivables be made
directly to the Purchaser or its designee, and (ii) notify all
other obligors to redirect funds and make payment with respect to
amounts owing to the Seller to accounts of the Seller other than
a Designated Account.
(c) At the Purchaser's request and at the Seller's expense,
the Seller and the Collection Agent shall (A) assemble all of the
documents, instruments and other records (including, without
limitation, computer tapes and disks) that evidence or relate to
the Transferred Receivables and the related Contracts and Related
Security, or that are otherwise necessary or desirable to collect
the Transferred Receivables, and shall make the same available to
the Purchaser at a place selected by the Purchaser or its
designee, and (B) segregate all cash, checks and other
instruments received by it from time to time constituting
Collections of Transferred Receivables in a manner acceptable to
the Purchaser and, promptly upon receipt, remit all such cash,
checks and instruments, duly indorsed or with duly executed
instruments of transfer, to the Purchaser or its designee.
(d) The Seller authorizes the Purchaser to take any and all
steps in the Seller's name and on behalf of the Seller that are
necessary or desirable, in the determination of the Purchaser, to
collect amounts due under the Transferred Receivables, including,
without limitation, endorsing the Seller's name on checks and
other instruments representing Collections of Transferred
Receivables and enforcing the Transferred Receivables and the
Related Security and related Contracts.
SECTION 6.05. Rights and Remedies. (a) If the Seller or
the Collection Agent fails to perform any of its obligations
under this Agreement, the Purchaser may (but shall not be
required to) itself perform, or cause performance of, such
obligation, and, if the Seller (as Collection Agent or otherwise)
fails to so perform, the costs and expenses of the Purchaser
incurred in connection therewith shall be payable by the Seller
as provided in Section 8.01 or Section 9.04 as applicable.
(b) The Seller shall perform all of its obligations
under the Contracts related to the Transferred Receivables to the
same extent as if the Seller had not sold or contributed
Receivables hereunder and the exercise by the Purchaser of its
rights hereunder shall not relieve the Seller from such
obligations or its obligations with respect to the Transferred
Receivables. The Purchaser shall not have any obligation or
liability with respect to any Transferred Receivables or related
Contracts, nor shall the Purchaser be obligated to perform any of
the obligations of the Seller thereunder.
(c) The Seller shall cooperate with the Collection Agent in
collecting amounts due from Obligors in respect of the
Transferred Receivables.
(d) The Seller hereby grants to Collection Agent an
irrevocable power of attorney, with full power of substitution,
coupled with an interest, to take in the name of the Seller all
steps necessary or advisable to endorse, negotiate or otherwise
realize on any writing or other right of any kind held or
transmitted by the Seller or transmitted or received by Purchaser
(whether or not from the Seller) in connection with the
collection and enforcement of any Transferred Receivable.
SECTION 6.06. Transfer of Records to Purchaser. Each
Purchase and contribution of Receivables hereunder shall include
the transfer to the Purchaser of all of the Seller's right and
title to and interest in the records relating to such Receivables
and shall include an irrevocable non-exclusive license to the use
of the Seller's computer software system to access and create
such records. Such license shall be without royalty or payment
of any kind, is coupled with an interest, and shall be
irrevocable until all of the Transferred Receivables are either
collected in full or become Defaulted Receivables.
The Seller shall take such action requested by the
Purchaser, from time to time hereafter, that may be necessary or
appropriate to ensure that the Purchaser has an enforceable
ownership interest in the records relating to the Transferred
Receivables and rights (whether by ownership, license or
sublicense) to the use of the Seller's computer software system
to access and create such records.
In recognition of the Seller's need to have access to the
records transferred to the Purchaser hereunder, the Purchaser
hereby grants to the Seller an irrevocable license to access such
records in connection with any activity arising in the ordinary
course of the Seller's business or in performance of its duties
as Collection Agent, provided that (i) the Seller shall not
disrupt or otherwise interfere with the Purchaser's use of and
access to such records during such license period and (ii) the
Seller consents to the assignment and delivery of the records
(including any information contained therein relating to the
Seller or its operations) to any assignees or transferees of the
Purchaser provided they agree to hold such records confidential.
ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01. Events of Termination . If any of the
following events ("Events of Termination") shall occur and be
continuing:
(a) The occurrence of any Collection Agent Default; or
(b) The Seller shall fail (i) following a Collection
Agent Default, to transfer to the Purchaser when requested
rights, pursuant to this Agreement, which the Seller then has as
Collection Agent, or (ii) to make any payment required under
Section 2.04; or
(c) Any representation or warranty made or deemed made
by the Seller or the Collection Agent under this Agreement or any
other Transaction Document or any written information or report
(including, without limitation, any E-Mail Seller Report)
delivered by the Seller pursuant to this Agreement shall prove to
have been incorrect or untrue in any material respect when made
or deemed made or delivered and such condition, to the extent it
is capable of being remedied, shall remain unremedied for 10
days; or
(d) The Seller shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement on
its part to be performed or observed and any such failure shall
remain unremedied for 10 days after written notice thereof shall
have been given to the Seller by the Purchaser; or
(e) The Seller shall fail to pay any payment of
principal, face amount, interest, premium, fees or any similar
obligation in respect of any Debt in an aggregate amount
exceeding $25,000,000 when due or within any applicable grace
period (provided, that if Section 6.01(e) of the Seller's
existing $500,000,000 credit agreement, dated as of March 31,
1997, is amended to provide that no "Event of Default" under such
credit agreement will result until such Debt is declared to be or
otherwise becomes due and payable in such aggregate amount, then
this clause (e) shall not constitute an Event of Termination
hereunder unless such Debt is declared to be or otherwise becomes
due and payable in such aggregate amount); or
(f) Any Purchase or contribution of Receivables
hereunder, the Related Security and the Collections with respect
thereto shall for any reason cease to constitute valid and
perfected ownership of such Receivables, Related Security and
Collections free and clear of any Adverse Claim; or
(g) The Seller shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or
against the Seller seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial
part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of
30 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its
property) shall occur; or the Seller shall take any corporate
action to authorize any of the actions set forth above in this
subsection (g); or
(h) an Event of Termination shall have occurred under
the Sale Agreement; or
(i) There shall have occurred any event or events that
result in a Material Adverse Effect; or
(j) Any of the Seller's long term public senior
unsecured debt securities (having a rating not dependant on any
guaranty) are no longer rated at least BBB- by Standard & Poor's
Rating Services and at least Baa3 by Xxxxx'x Investors Service,
Inc., or the Seller has not maintained both such ratings;
then, and in any such event, the Purchaser may, by notice to the
Seller, take either or both of the following actions: (x)
declare the Facility Termination Date to have occurred (in which
case the Facility Termination Date shall be deemed to have
occurred) and (y) if such Event of Termination coincides with or
also constitutes a Collection Agent Default, and without limiting
any right under this Agreement to replace the Collection Agent,
designate another Person to succeed the Seller as Collection
Agent; provided, that, automatically upon the occurrence of any
event (without any requirement for the passage of time or the
giving of notice) described in paragraph (g) of this Section
7.01, the Facility Termination Date shall occur, the Seller (if
it is then serving as the Collection Agent) shall cease to be the
Collection Agent, and the Purchaser (or its assigns or designees)
shall become the Collection Agent. Upon any such declaration or
designation or upon such automatic termination, the Purchaser
shall have, in addition to the rights and remedies under this
Agreement, all other rights and remedies with respect to the
Receivables provided after default under the UCC and under other
applicable law, which rights and remedies shall be cumulative.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Indemnities by the Seller . Without limiting
any other rights which the Purchaser may have hereunder or under
applicable law, the Seller hereby agrees to indemnify the
Purchaser and its assigns and transferees (each, an "Indemnified
Party") from and against any and all damages, claims, losses,
liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts"), awarded
against or incurred by any Indemnified Party arising out of or as
a result of this Agreement or the purchase or contribution of any
Transferred Receivables or in respect of any Transferred
Receivable or any Contract, including, without limitation,
arising out of or as a result of:
(i) the inclusion, or purported inclusion, in any
Purchase of any Receivable (unless expressly purported not to be
an Eligible Receivable) that is not an Eligible Receivable on the
date of such Purchase, or the characterization in any Seller
Report or other statement made by the Seller of any Transferred
Receivable as an Eligible Receivable which is not an Eligible
Receivable as of the date of such Seller Report or statement;
(ii) reliance on any representation or warranty or
statement made or deemed made by the Seller (or any of its
officers) under or in connection with this Agreement, which shall
have been incorrect in any material respect when made;
(iii) the failure by the Seller to comply with any
applicable law, rule or regulation with respect to any
Transferred Receivable or the related Contract; or the failure of
any Transferred Receivable or the related Contract to conform to
any such applicable law, rule or regulation;
(iv) the failure to vest in the Purchaser absolute
ownership of the Receivables that are, or that purport to be, the
subject of a Purchase or contribution under this Agreement and
the Related Security and Collections in respect thereof, free and
clear of any Adverse Claim;
(v) the failure of the Seller to have filed, or any
delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to any
Receivables that are, or that purport to be, the subject of a
Purchase or contribution under this Agreement and the Related
Security and Collections in respect thereof, whether at the time
of any Purchase or contribution or at any subsequent time;
(vi) any restriction applicable to Persons other than
the Seller that inhibits their ability to exercise their rights
under this Agreement due to a confidentiality provision in a
Contract that purports to restrict the ability of such Persons to
exercise their rights under this Agreement, including, without
limitation, their right to review the Contract;
(vii) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the
payment of any Receivable that is, or that purports to be, the
subject of a Purchase or contribution under this Agreement
(including, without limitation, a defense based on such
Receivable or the related Contract not being a legal, valid and
binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the
sale of the merchandise or services related to such Receivable or
the furnishing or failure to furnish such merchandise or services
or relating to collection activities with respect to such
Receivable (if such collection activities were performed by the
Seller acting as Collection Agent);
(viii) any failure of the Seller, as Collection Agent or
otherwise, to perform its duties or obligations in accordance
with the provisions hereof or to perform its duties or
obligations under any Contract related to a Transferred
Receivable;
(ix) any products liability or other claim arising out
of or in connection with merchandise, insurance or services which
are the subject of any Contract;
(x) the commingling of Collections of Transferred
Receivables by the Seller or a designee of the Seller, as
Collection Agent or otherwise, at any time with other funds of
the Seller or an Affiliate of the Seller;
(xi) any investigation, litigation or proceeding related
to this Agreement or the use of proceeds of Purchases or the
ownership of Receivables, the Related Security, or Collections
with respect thereto or in respect of any Receivable, Related
Security or Contract;
(xii) any failure of the Seller to comply with its
covenants contained in Section 5.01;
(xiii) any Collection Agent Fees or other costs and
expenses payable to any replacement Collection Agent, to the
extent in excess of the Collection Agent Fees payable to the
Seller hereunder;
(xiv) any claim brought by any Person other than an
Indemnified Party arising from any activity by the Seller or any
Affiliate of the Seller in servicing, administering or collecting
any Transferred Receivable; or
(xv) any Dilution with respect to any Transferred
Receivable.
It is expressly agreed and understood by the parties hereto
(i) that the foregoing indemnification is not intended to, and
shall not, constitute a guarantee of the collectibility or
payment of the Transferred Receivables and (ii) that nothing in
this Section 8.01 shall require the Seller to indemnify any
Person (A) for Receivables which are not collected, not paid or
uncollectible on account of the insolvency, bankruptcy, or
financial inability to pay of the applicable Obligor, (B) for
damages, losses, claims or liabilities or related costs or
expenses resulting from such Person's gross negligence or willful
misconduct, or (C) for any income taxes or franchise taxes
incurred by such Person arising out of or as a result of this
Agreement or in respect of any Transferred Receivable or any
Contract.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or consent to any departure by
the Seller therefrom shall be effective unless in a writing
signed by the Purchaser and, in the case of any amendment, also
signed by the Seller, and then such amendment, waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given. No failure on the part of the
Purchaser 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 preclude any other or
further exercise thereof or the exercise of any other right.
SECTION 9.02. Notices, Etc. All notices and other
communications hereunder shall, unless otherwise stated herein,
be in writing (which shall include facsimile communication) and
be faxed or delivered, to each party hereto, at its address set
forth under its name on the signature pages hereof or at such
other address as shall be designated by such party in a written
notice to the other parties hereto. Notices and communications
by facsimile shall be effective when sent (and shall be followed
by hard copy sent by regular mail), and notices and
communications sent by other means shall be effective when
received.
SECTION 9.03. Binding Effect; Assignability . (a) This
Agreement shall be binding upon and inure to the benefit of the
Seller, the Purchaser and their respective successors and
assigns; provided, however, that the Seller may not assign its
rights or obligations hereunder or any interest herein without
the prior written consent of the Purchaser. In connection with
any sale or assignment by the Purchaser of all or a portion of
the Transferred Receivables, the buyer or assignee, as the case
may be, shall, to the extent of its purchase or assignment, have
all rights of the Purchaser under this Agreement (as if such
buyer or assignee, as the case may be, were the Purchaser
hereunder) except to the extent specifically provided in the
agreement between the Purchaser and such buyer or assignee, as
the case may be.
(b) This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with
its terms, and shall remain in full force and effect until such
time, after the Facility Termination Date, when all of the
Transferred Receivables are either collected in full or become
Defaulted Receivables; provided, however, that rights and
remedies with respect to any breach of any representation and
warranty made by the Seller pursuant to Article IV and the
provisions of Article VIII and Sections 9.04, 9.05 and 9.06 shall
be continuing and shall survive any termination of this
Agreement.
SECTION 9.04. Costs, Expenses and Taxes . (a) In addition
to the rights of indemnification granted to the Purchaser
pursuant to Article VIII hereof, the Seller agrees to pay on
demand all costs and expenses in connection with the preparation,
execution and delivery of this Agreement and the other documents
and agreements to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Purchaser with respect thereto and with respect
to advising the Purchaser as to its rights and remedies under
this Agreement, and the Seller agrees to pay all costs and
expenses, if any (including reasonable counsel fees and
expenses), in connection with the enforcement of this Agreement
and the other documents to be delivered hereunder excluding,
however, any costs of enforcement or collection of Transferred
Receivables which are not paid on account of the insolvency,
bankruptcy or financial inability to pay of the applicable
Obligor.
(b) In addition, the Seller agrees to pay any and all
stamp and other taxes and fees payable in connection with the
execution, delivery, filing and recording of this Agreement or
the other documents or agreements to be delivered hereunder, and
the Seller agrees to save each Indemnified Party harmless from
and against any liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees.
SECTION 9.05. No Proceedings . The Seller hereby agrees
that it will not institute against the Purchaser any proceeding
of the type referred to in Section 7.01(g) so long as there shall
not have elapsed one year plus one day since the later of (i) the
Facility Termination Date and (ii) the date on which all of the
Transferred Receivables are either collected in full or become
Defaulted Receivables.
SECTION 9.06. Confidentiality . Unless otherwise required
by applicable law or regulation, each party hereto agrees to
maintain the confidentiality of this Agreement in communications
with third parties and otherwise; provided that this Agreement
may be disclosed to (a) third parties to the extent such
disclosure is made pursuant to a written agreement of
confidentiality in form and substance reasonably satisfactory to
the other party hereto, and such party's assignee, (b) the legal
counsel and auditors of the Seller and the Purchaser if they
agree to hold it confidential, and (c) to rating agencies rating
the Seller's equity and debt instruments.
SECTION 9.07. GOVERNING LAW . THIS AGREEMENT SHALL, IN
ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES
THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY
OTHER JURISDICTION; PROVIDED THAT THE PROVISIONS RELATING TO THE
PERFECTION OF THE PURCHASER'S OWNERSHIP INTEREST IN THE
RECEIVABLES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
CONNECTICUT.
SECTION 9.08. Third Party Beneficiary . Each of the
parties hereto hereby acknowledges that the Purchaser is
assigning its rights (but not its obligations) under this
Agreement to Citicorp North America, Inc., as agent under the
Sale Agreement, that such assignee and any subsequent assignees
may (except as otherwise agreed to by such assignees) further
assign their rights under this Agreement, and the Seller hereby
consents to any such assignments. All such assignees, including
parties to the Sale Agreement in the case of assignment to such
parties, shall be third party beneficiaries of, and shall be
entitled to enforce the Purchaser's rights and remedies under,
this Agreement to the same extent as if they were parties
thereto, except to the extent specifically limited under the
terms of their assignment.
SECTION 9.09. Execution in Counterparts . This Agreement
may be executed in any number of counterparts, each of which when
so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
SELLER: WITCO CORPORATION
By: ___________________________
Title: ____________________
Address:
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: ____________________
Facsimile No.: (___) ___-____
PURCHASER: WITCO FUNDING CORPORATION
By: ___________________________
Title: ____________________
Address:
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: ____________________
Facsimile No.: (___) ___-____
