EXHIBIT 10(n)
Dated as of 31 October 2003
among
XXXXX, INC.
as GI Seller
GREIF CONTAINERS INC.
as GCI Seller
GREAT LAKES CORRUGATED CORP.
as GLCC Seller
and
XXXXX RECEIVABLES FUNDING LLC
as Purchaser
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SALE AND CONTRIBUTION AGREEMENT
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Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx
Xxxxxx XX0X 0XX
Tel: x00 (0) 00 0000 0000
Fax: x00 (0) 00 0000 000
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms...........................................1
SECTION 1.02. Other Terms.....................................................7
ARTICLE II
AMOUNTS AND TERMS OF PURCHASES
SECTION 2.01. Facility........................................................7
SECTION 2.02. Purchases.......................................................7
SECTION 2.03. Transfer of Collections.........................................8
SECTION 2.04. Settlement Procedures...........................................9
SECTION 2.05. Payments and Computations, Etc.................................10
SECTION 2.06. Security Interest..............................................10
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Sellers..................11
ARTICLE IV
COVENANTS
SECTION 4.01. Covenants of the Sellers.......................................14
ARTICLE V
ADMINISTRATION AND COLLECTION
SECTION 5.01. Designation of Servicer........................................17
SECTION 5.02. Transfer of Records............................................18
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ARTICLE VI
EVENTS OF TERMINATION
SECTION 6.01. Events of Termination..........................................18
ARTICLE VII
INDEMNIFICATION
SECTION 7.01. Indemnities of the Sellers.....................................20
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc................................................22
SECTION 8.02. Notices, Etc...................................................22
SECTION 8.03. Binding Effect; Assignability, Additional Sellers..............23
SECTION 8.04. Costs, Expenses and Taxes......................................24
SECTION 8.05. Rights and Remedies............................................24
SECTION 8.06. Transfer of Records to Purchaser...............................25
SECTION 8.07. Confidentiality................................................25
SECTION 8.08. Disclosure of Tax Treatment....................................25
SECTION 8.09. GOVERNING LAW..................................................26
SECTION 8.10. Third Party Beneficiaries......................................26
SECTION 8.11. No Proceedings.................................................26
SECTION 8.12. Execution in Counterparts......................................27
SECTION 8.13. Submission to Jurisdiction.....................................27
SECTION 8.14. Maximum Interest...............................................27
SECTION 8.15. WAIVER OF JURY TRIAL...........................................28
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EXHIBITS
EXHIBIT A Credit and Collection Policy
EXHIBIT B Seller Details
EXHIBIT C Form of Additional Seller Accession Agreement
NOTE: All Exhibits to this Exhibit 10(n) have not been included as part of this
Form 10-K.
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SALE AND CONTRIBUTION AGREEMENT
SALE AND CONTRIBUTION AGREEMENT (this "Agreement"), dated as of 31 October 2003
by and among XXXXX, INC., a Delaware corporation, as Seller (the "GI Seller"),
GREIF CONTAINERS INC., a Delaware corporation, as Seller (the "GCI Seller"),
GREAT LAKES CORRUGATED CORP., an Ohio corporation, as Seller (the "GLCC Seller"
and, together with the GI Seller, the GCI Seller and any Additional Sellers (as
defined below), the "Sellers" and each a "Seller"), and GREIF RECEIVABLES
FUNDING LLC, a Delaware limited liability company, as Purchaser (the
"Purchaser").
PRELIMINARY STATEMENTS
(A) Certain terms which are capitalized and used throughout this Agreement (in
addition to those defined above) are defined in Article I of this Agreement.
(B) The Sellers have Receivables that they wish to sell from time to time to
the Purchaser, and the Purchaser is prepared to purchase such Receivables on the
terms set forth herein.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms.
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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):
"Accession Agreement" has the meaning specified in Section 8.03(c).
"Additional Seller" means a Person which becomes an Additional Seller
pursuant to and in accordance with Section 8.03(c).
"Administrative Agent" means Fortis Bank S.A./N.V.
"Affected Seller" has the meaning specified in Section 2.04(b).
"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
higher of:
(a) the rate of interest announced publicly by the Administrative Agent in
New York, New York, from time to time as its base rate, or
(b) the Federal Funds Rate.
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"Applicable Daily Settlement Date" means, in relation to any Seller, any
Daily Settlement Date on which such Seller has Receivables available for sale to
the Purchaser hereunder.
"Applicable Transferred Receivable" means, in relation to any Seller, any
Transferred Receivable sold by such Seller hereunder.
"Closing Date" means 31 October 2003.
"Code" means the Internal Revenue Code of 1986, as amended.
"Conduit Purchaser" means Scaldis Capital LLC, a Delaware limited liability
company.
"Credit and Collection Policy" means those receivables credit and
collection policies and practices of the Sellers in effect on the date of this
Agreement applicable to the Receivables and described in Exhibit A, as modified
in compliance with this Agreement.
"Daily Settlement Date" means each Business Day on which a Seller holds
Receivables created by such Seller prior to the close of business on the
preceding Business Day and not previously transferred hereunder to the
Purchaser.
"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; or
(ii) as to which the Obligor thereof or any other Person obligated
thereon or obligated in respect of 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) of the Receivables Purchase Agreement; or
(iii) as to which legal proceedings have been commenced against the
Obligor thereof or any other Person obligated thereon to recover such
Receivable; or
(iv) which, in accordance with the Credit and Collection Policy or
GAAP, has been or should have been written off or provided for in the
relevant Seller's books as uncollectible.
"Eligible Obligor" means an Obligor, so long as such Obligor meets the
following criteria:
(i) the Obligor is organized under the laws of the United States or
any political subdivision thereof and is domiciled within the United
States;
(ii) the Obligor is not a domestic or foreign government;
(iii) the Obligor is not an Affiliate of any Seller; and
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(iv) the Obligor is not the subject of any reorganization,
bankruptcy, receivership, custodianship, insolvency or other similar
proceeding.
"Eligible Receivables" mean, at any time, each Receivable with respect to
which each of the following is true:
(i) such Receivable is free and clear of any Adverse Claim;
(ii) such Receivable is denominated and payable in U.S. Dollars;
(iii) such Receivable is not subject to withholding tax on payments
from the Obligor in respect thereof (or the Outstanding Balance of such
Receivable has been reduced by the amount of any such withholding tax
payable);
(iv) such Receivable is due from an Eligible Obligor;
(v) the terms of such Receivable require it to be paid in full
within 60 days of the original billing date therefor, provided, however,
that up to 20% of the aggregate Outstanding Balance of all Receivables may
consist of Extended Term Receivables having a due date not more than 180
days from the original billing date of such Receivable;
(vi) such Receivable is not a Defaulted Receivable or a Delinquent
Receivable;
(vii) such Receivable is able to be identified for ownership
purposes on any day;
(viii) such Receivable and the related Contract, if any, are in full
force and effect, and constitute the legal, valid, binding and enforceable
obligation of the Obligor of such Receivable, enforceable against such
Obligor in accordance with the terms of such related Contract, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) under the laws of
one of the United States to pay a determinable amount;
(ix) such Receivable is an "account" within the meaning of the UCC,
to the extent the UCC is applicable in jurisdictions governing the
perfection of the interest created by a Receivable Interest;
(x) such Receivable was originated in connection with a sale of
goods and/or services in the ordinary course of one of the Sellers'
businesses, was underwritten in accordance with such Seller's written
credit guidelines and otherwise satisfies the requirements of the Credit
and Collection Policy;
(xi) such Receivable and the related Contract, if any, do not
contravene in any material respect any laws, rules or regulations
applicable thereto (including, without limitation, laws, rules and
regulations relating to usury) and none of the Sellers or the
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Obligor is in violation of any such law, rule or regulation in any material
respect in relation to such Receivable and/or the related Contract, if any;
(xii) the relevant Seller has taken all other actions with respect
to such Receivable that are required to permit the Purchaser to perfect an
assignment of all its right, title and interest in the Receivables prior to
the rights of any third parties;
(xiii) the transfer, sale or assignment of such Receivable does not
contravene any applicable law, rule or regulation;
(xiv) any goods giving rise to such Receivable have been shipped and
any services giving rise to such Receivable have been performed;
(xv) such Receivable is not subject to any bona fide dispute,
setoff, counterclaim or other claim or defense on the part of the Obligor
or any other Person denying liability under such Receivable; provided,
however, that any such Receivable shall constitute an Eligible Receivable
to the extent it is not subject to any such dispute, setoff, counterclaim
or other claim or defense;
(xvi) such Receivable is evidenced by a written contract with or
invoice rendered to the Obligor (which shall include computer records) or
is reflected by computer records maintained by the relevant Seller
evidencing such Receivable and is not evidenced by any instrument or
chattel paper (as the terms "instrument" and "chattel paper" are defined in
Section 9-102 of the UCC) unless such instrument or chattel paper has been
delivered to the Purchaser;
(xvii) such Receivable is not a Receivable owing by an Obligor
having, at the time of any determination of Eligible Receivables, Defaulted
Receivables with an aggregate Outstanding Balance in excess of 5.75% of the
aggregate Outstanding Balance of the Pool Receivables of such Obligor or
such other higher percentage figure as may be determined by the
Administrative Agent;
(xviii) such Receivable is not a Receivable which arose as a result of
the sale of consigned inventory owned by a third party or a sale in which
the Originator acted as agent of any other Person or otherwise not as
principal;
(xix) such Receivable directs payment to be made to a permitted
Lock-Box Account;
(xx) such Receivable has not been selected for funding under the
Facility pursuant to any "adverse selection" procedures; and
(xxi) such Receivable is not an Impaired Eligible Receivable,
provided that if such Receivable is an Impaired Eligible Receivable it
shall be deemed to be an Originator Deemed Collection.
"Event of Termination" has the meaning specified in Section 6.01.
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"Extended Term Receivable" means a Receivable associated with an extended
term program adopted by the relevant Seller in accordance with the Credit and
Collection Policy.
"Facility" means the commitment of the Purchaser to make Purchases of
Receivables from the Sellers from time to time pursuant to the terms of this
Agreement.
"Facility Termination Date" means the earlier of (i) the date of
termination of the Facility pursuant to Section 6.01; (ii) the date which any
Seller designates by at least thirty (30) Business Days' notice to the Purchaser
and (iii) the later of (A) 364 days from the Closing Date or (B) the "Facility
Termination Date" in effect from time to time under the Receivables Purchase
Agreement.
"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 the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Indemnified Amounts" has the meaning specified in Sections 7.01.
"Indemnified Party" has the meaning specified in Sections 7.01.
"Lock-Box Accounts" means Lock-Box Account Numbers xxx-xxxxxx (Xxxxx,
Inc.), xxx-xxxxxx (Great Lakes Corrugated Corp.), xxx-xxxxxx (Massillon Mill)
and xxx-xxxxxx (Riverville Mill), each maintained in the name of the GI Seller
at JPMorgan Chase Bank and Account No. xxx-xxxxxx in the name of the GLCC
Seller at JPMorgan Chase Bank or (subject to the Administrative Agent's prior
written approval) equivalent accounts maintained by any Seller or Sellers at
another bank or other financial institution for the purpose of receiving
Collections.
"Obligor" means a Person (other than an employee, a division or a direct or
indirect Subsidiary of the Servicer or its Affiliates) obligated to make
payments pursuant to a Receivable or a Contract; provided that in the event that
any payments in respect of a Receivable or a Contract are made by any other
Person (including without limitation a bank obligated under a letter of credit),
such other Person shall be deemed to be an Obligor.
"Originator Deemed Collection" has the meaning specified in Section
2.04(a).
"Potential Event of Termination" means an event that but for notice or
lapse of time or both would constitute an Event of Termination.
"Purchase" has the meaning specified in Section 2.02(a).
"Purchase Price" has the meaning specified in Section 2.02(b).
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"Purchaser" means Greif Receivables Funding LLC, a bankruptcy-remote single
purpose limited liability company formed in the state of Delaware.
"Receivable" means the indebtedness of any Obligor resulting from the sale
or provision of merchandise or services by a Seller under a Contract, and
includes the right to payment of any interest or finance charges and other
obligations of such Obligor with respect thereto.
"Receivables Purchase Agreement" means that certain Receivables Purchase
Agreement, dated as of 31 October 2003, among Xxxxx Receivables Funding LLC as
Seller, Xxxxx, Inc. as GI Originator and as Servicer, Greif Containers Inc. as
GCI Originator, Great Lakes Corrugated Corp. as GLCC Originator, Scaldis Capital
LLC as Conduit Purchaser and Fortis Bank S.A./N.V. as Administrative Agent, as
amended or restated from time to time.
"Related Security" means with respect to any Receivable:
(i) all of the relevant 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;
(iv) the Contract, the invoice or invoices 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 to
the extent assignable or licensable under such Contract and under
applicable law.
"Security Agreements" means the agreements in substantially the form set
out in Annex E to the Receivables Purchase Agreement.
"Solvent" means as to any Person at any time, having a state of affairs
such that all of the following conditions are met: (i) the fair value of the
property of such Person is greater than the amount of such Person's liabilities
(including disputed, contingent and unliquidated liabilities) as such value is
established and liabilities evaluated for purposes of Section 101(31) of the
United States Bankruptcy Code, Title 11 of the United States Code; (ii) the
present fair salable value of the property of such Person in an orderly
liquidation of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured; (iii) such Person is able to realize upon its property and pay its
debts and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (iv) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (v) such Person is not engaged in business or a transaction, and is
not
6
about to engage in a business or a transaction, for which such Person's property
would constitute unreasonably small capital.
"Subsidiary" means any corporation or other legal entity of which
securities or other interests having ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions are at
the time directly or indirectly owned by any Seller, or by one or more of any
Seller's Subsidiaries, or by any combination of the Sellers and their respective
Subsidiaries.
"Transferred Receivable" means any Receivable that has been sold by a
Seller hereunder.
"Transferred Relevant Receivable" means any Transferred Receivable in which
the Conduit Purchaser has purchased a Receivable Interest and which was deemed
to be an Eligible Receivable for purposes of calculating the related purchase
price paid by the Conduit Purchaser for such Receivable Interest under Section
2.02(a) of the Receivables Purchase Agreement.
SECTION 1.02. Other Terms.
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All capitalized terms contained herein that are not defined in Section 1.01
above shall have the respective meanings assigned thereto in the Receivables
Purchase Agreement.
All accounting terms not specifically defined herein shall be construed in
accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF PURCHASES
SECTION 2.01. Facility.
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On the terms and conditions hereinafter set forth and without recourse
(except to the extent as is specifically provided herein), the Purchaser agrees
to purchase from the Sellers all Receivables in existence on the date hereof and
all Receivables created by any Seller during the period from the date hereof to
the Facility Termination Date as such Receivables arise, other than any
Receivables transferred to the Purchaser pursuant to Section 2.04(b).
SECTION 2.02. Purchases.
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(a) Each Seller hereby sells, transfers, absolutely assigns, conveys and
sets over to the Purchaser, effective on the Closing Date and on each Applicable
Daily Settlement Date occurring after the Closing Date and prior to the Facility
Termination Date, all Receivables owned by such Seller as of the close of
business on the Business Day immediately preceding such Closing Date or
Applicable Daily Settlement Date (each, a "Purchase").
(b) The purchase price (the "Purchase Price") for the Receivables
(together with the Related Security) payable on the Closing Date or any Daily
Settlement Date shall be an amount equal to the fair market value of such
Receivables, as agreed between the relevant Seller and the Purchaser. The
Purchase Price for the Transferred Receivables sold by each Seller to the
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Purchaser pursuant to this Agreement shall be paid on the Closing Date and each
Daily Settlement Date (i) in cash, and (ii) in the sole discretion of the
relevant Seller, as capital contributed by that Seller to the Purchaser, or any
combination of the foregoing.
(c) Notwithstanding anything herein or in any other Transaction Document
to the contrary, as of the Closing Date and each Daily Settlement Date, if the
fair market value of any Transferred Receivable exceeds the Purchase Price for
such Transferred Receivable previously agreed between the relevant Seller and
the Purchaser, then such excess shall be deemed to be a contribution to the
capital of the Purchaser by the relevant Seller as of such date and shall
increase that Seller's beneficial ownership interest in the Purchaser
accordingly.
(d) Each Seller shall, upon each request of the Purchaser or the
Administrative Agent, confirm each Purchase hereunder on any Applicable Daily
Settlement Date by a certificate of assignment executed by such Seller, a copy
of which certificate shall be provided by the Servicer to the Administrative
Agent pursuant to the Receivables Purchase Agreement. Upon each Purchase of
Receivables, the ownership of each such Receivable shall be vested in the
Purchaser, and no Seller shall take any action inconsistent with such ownership
or claim any ownership interest in any such Receivable.
(e) Each Seller shall indicate in its records that the ownership of each
Applicable Transferred Receivable is held by the Purchaser or its assignee. In
addition, such Seller shall respond to any inquiries with respect to ownership
of an Applicable Transferred Receivable by stating that it is no longer the
owner of such Receivable and that ownership of such Applicable Transferred
Receivable is held by the Purchaser or its assignee. Each Seller will furnish to
the Purchaser from time to time with statements and schedules further
identifying and describing the Applicable Transferred Receivables and with such
other reports in connection with such Transferred Receivables as the Purchaser
may reasonably request, all in reasonable detail.
SECTION 2.03. Transfer of Collections.
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(a) On the Closing Date and each Applicable Daily Settlement Date, each
Seller shall deposit or cause to be deposited into a Lock-Box Account any
Collections of Applicable Transferred Receivables received by such Seller on
such date or deemed to have been received by such Seller on such date pursuant
to Section 2.04(a) and/or Section 2.04(b) and then held by such Seller, provided
that, for the avoidance of doubt, in the event any payment is received by a
Seller in the form of a negotiable instrument or cash or cash equivalent
delivered to such Seller's offices (notwithstanding item (xix) in the definition
of Eligible Receivables), the relevant Seller shall not be obliged to deposit
such funds on the same date but shall take reasonable steps to ensure that such
funds are promptly deposited into a Lock-Box Account.
(b) In the event that a Seller believes that cash and cash proceeds due to
such Seller which are not Collections of Transferred Receivables have been
deposited into an account of the Purchaser or the Purchaser's assignee, such
Seller shall so advise the Purchaser and, promptly following such
identification, the Purchaser shall remit, or shall cause to be remitted, to
such Seller, all cash and cash proceeds so deposited which are identified, to
the Purchaser's satisfaction, to be cash and cash proceeds of Receivables of
such Seller which are not Transferred Receivables. Without limiting the
generality of the preceding sentence, the
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Purchaser shall return or cause to be returned to the relevant Seller any
Collections deposited in a Lock-Box Account in respect of any Receivables
arising prior to the Closing Date and not transferred hereunder.
(c) The parties hereto understand and agree that the Purchaser intends,
contemporaneously with each purchase of Receivables hereunder, to sell
fractional ownership interests in such Receivables as Receivable Interests to
the Conduit Purchaser pursuant to the Receivables Purchase Agreement.
SECTION 2.04. Settlement Procedures.
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(a) If on any day the outstanding balance of any Transferred Receivable is
reduced or adjusted as a result of any defective, rejected or returned
merchandise or services or any cash discount, discount for quick payment or
other adjustment by a Seller or any set-off, such Seller shall be deemed to have
received on such day a Collection of such Transferred Receivable in the amount
of such reduction or adjustment (each, an "Originator Deemed Collection"). Such
Seller shall pay to the Purchaser, in the manner provided in Section 2.03(a),
within three (3) Business Days, all Originator Deemed Collections deemed to have
been received pursuant to this subsection.
(b) Upon discovery by any Seller (the "Affected Seller") or the Purchaser
that at the time of purchase, a Transferred Relevant Receivable sold by the
Affected Seller hereunder was not an Eligible Receivable, such party shall give
prompt written notice thereof to the other party, as soon as practicable and in
any event within three (3) Business Days following such discovery. The Affected
Seller shall, upon not less than two (2) Business Days' notice from the
Purchaser or its assignee or designee, purchase such Transferred Relevant
Receivable for a repurchase price equal to the Outstanding Balance of such
Transferred Relevant Receivable or replace such Transferred Relevant Receivable
with an equivalent Eligible Receivable, each to occur on the next succeeding
Applicable Daily Settlement Date. If such Transferred Relevant Receivable is
replaced, with respect to any portion of the outstanding principal balance of
the replacement Receivable in excess of the outstanding principal balance of the
Transferred Relevant Receivable being replaced, the Purchaser shall pay to the
Affected Seller an amount equal to such portion. Each repurchase of a
Transferred Relevant Receivable shall include repurchase of the Related Security
with respect to such Transferred Relevant Receivable. The proceeds of any
repurchase shall be deemed to be a Collection in respect of such Transferred
Relevant Receivable. The Affected Seller shall pay to the Purchaser on or prior
to the next Applicable Daily Settlement Date the repurchase price required to be
paid pursuant to this subsection as provided in Section 2.03(a).
(c) Except as stated in subsection (a), (b) or (c) 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 designated by such Obligor or, if no Receivables are so designated,
in accordance with the Credit and Collection Policy.
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SECTION 2.05. Payments and Computations, Etc.
------------------------------
All amounts to be paid or deposited by any Seller or the Purchaser hereunder
shall be paid or deposited no later than 11:00 a.m. (New York time) on the day
when due in same day funds to the account of the recipient of such funds as set
forth in a written notice delivered from time to time by the Purchaser to the
Sellers or the applicable Seller to the Purchaser.
(a) Each of the Sellers and the Purchaser shall, to the extent permitted
by law, pay interest on any amount not paid or deposited when due hereunder by
such Person. Such interest shall be payable to the party to whom such amount is
due and at an interest rate per annum equal to the Alternate Base Rate, payable
on demand.
(b) 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 (unless the interest
rate is the Alternate Base Rate, in which case 365 days shall be used). 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. Security Interest.
-----------------
The parties hereto intend that the purchase and sale of Receivables from
each Seller to the Purchaser be treated as a sale of such Receivables and the
proceeds thereof. However, if a determination is made that such transfer shall
not be so treated, this Agreement shall be deemed to constitute a security
agreement and the transactions effected hereby shall be deemed to constitute a
secured financing in each case under applicable law and to that end, as
collateral security for the performance by the relevant Seller of all the terms,
covenants and agreements on the part of such Seller (whether as a Seller or
otherwise) to be performed under this Agreement and any document delivered in
connection with this Agreement in accordance with the terms thereof, including
the punctual payment when due of all obligations of the relevant Seller
hereunder or thereunder, whether for indemnification payments, fees, expenses or
otherwise, each Seller hereby assigns to the Purchaser a security interest in
all of such Seller's right, title and interest in and to (a) all of its
Receivables, the Related Security with respect thereto and the Collections (the
"Receivables Collateral") thereon, (b) subject to the prior rights of the
Secured Parties (as defined in the Receivables Purchase Agreement) under and/or
in connection with the Security Agreements, all "deposit accounts", "securities
accounts", "security entitlements" and "investment property" (as such terms are
defined in the UCC) constituting or relating to the foregoing, and (c) to the
extent not included in the foregoing, all proceeds of any and all of the
foregoing. Each Seller and the Purchaser shall, to the extent consistent with
this Agreement, take such action as may be necessary to ensure that such
security interest will be a perfected first priority security interest in favor
of the Purchaser under applicable law and will be maintained as such throughout
the term of this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Sellers.
---------------------------------------------
Each Seller represents and warrants as follows:
(a) It is a corporation duly incorporated and validly existing under the
laws of its jurisdiction of incorporation, and is duly qualified to do business
in every jurisdiction where the nature of its business requires it to be so
qualified except where the failure to be so qualified would not have a material
adverse effect on the operations or financial condition of such Seller or its
ability to perform its obligations hereunder.
(b) The execution, delivery and performance by it of this Agreement and
the other documents to be delivered by it hereunder, including the sale of
Receivables hereunder and its use of the proceeds of Purchases, (i) are within
its corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) do not contravene (1) its articles of incorporation, (2) any law,
rule or regulation applicable to it, (3) any contractual restriction binding on
or affecting it or its property or (4) any order, writ, judgment, award,
injunction or decree binding on or affecting it or its property, and (iv) do not
result in or require the creation of any Adverse Claim upon or with respect to
any of its properties (except for the transfer of its interest in the Applicable
Transferred Receivables pursuant to this Agreement). This Agreement has been
duly executed and delivered by it.
(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 it of this Agreement or any other
document to be delivered by it hereunder, except for the filing of UCC financing
statements which are referred to herein.
(d) This Agreement constitutes the legal, valid and binding obligation of
such Seller, enforceable against such Seller in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(e) Each sale of Receivables made by such Seller pursuant to this
Agreement will constitute a valid sale, transfer, and assignment of the
Applicable Transferred Receivables to the Purchaser, enforceable against
creditors of, and purchasers from, such Seller. Following each such sale such
Seller shall have no remaining property interest in any Applicable Transferred
Receivable except to the extent that it repurchases or replaces any such
Applicable Transferred Receivable pursuant to Section 2.04(b).
(f) There is no pending or, to such Seller's actual knowledge, threatened
action or proceeding affecting any Seller or any of their respective
Subsidiaries before any court, governmental agency or arbitrator which would
reasonably be expected to materially adversely affect the financial condition or
operations of any Seller or the ability of any Seller to perform its obligations
under this Agreement, or which purports to affect the legality, validity or
11
enforceability of this Agreement. No Seller is in default with respect to any
order of any court, arbitration or governmental body except for defaults with
respect to orders of governmental agencies which defaults are not individually
or in the aggregate material to the business or operations of any Seller.
(g) No proceeds of any Purchase will be used by it to acquire any equity
security of a class which is registered pursuant to Section 12 of the Securities
Exchange Act of 1934.
(h) All written factual information and each exhibit, financial statement,
document, book, record or report furnished by the Sellers to the Purchaser in
connection with this Agreement, taken as a whole, and each representation or
warranty by or on behalf of the Seller contained herein, is accurate in all
material respects as of its date (except as otherwise disclosed in writing to
the Purchaser at such time), and no such document contains any untrue statement
of a material fact which would render any such information, when taken as a
whole, to be misleading.
(i) The transfers of Applicable Transferred Receivables by such Seller to
the Purchaser pursuant to this Agreement, and all other transactions between
such Seller and the Purchaser, have been and will be made in good faith and
without intent to hinder, delay or defraud creditors of such Seller.
(j) Each Applicable Transferred Receivable, together with the Related
Security, is owned (prior to its sale hereunder) by such 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 the Purchaser makes a Purchase, the
Purchaser shall acquire a valid and perfected first priority ownership interest
of each such Applicable Transferred 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 Applicable 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 or the Administrative
Agent in accordance with this Agreement or the Receivables Purchase Agreement
(each as defined in Schedule II to the Receivables Purchase Agreement) or in
connection with any Adverse Claim arising solely as the result of any action
taken by the Purchaser (other than any financing statement identified in
Schedule II to the Receivables Purchase Agreement).
(k) As at the date of this Agreement, and save as referenced to in Section
3.01(j) above, no effective financing statement or other similar instrument
covering any Applicable Transferred Receivable or the Related Security or
Collections thereof is on file in any recording office except those specifically
identified in Schedule III to the Receivables Purchase Agreement (which, for the
avoidance of doubt, shall be subject to partial discharges pursuant to section
3.01(c) and (l) of the Receivables Purchase Agreement).
(l) It has complied in all material respects with the Credit and
Collection Policy in regard to each Applicable Transferred Receivable and the
relevant Contract.
(m) It is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
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(n) It is Solvent, the transactions contemplated by this Agreement will
not impair such Solvent state, and it has an adequate amount of capital to
conduct its business in the ordinary course and to carry out its obligations
hereunder. It is not contemplating the commencement of insolvency, bankruptcy,
liquidation or consolidation proceedings or the appointment of a receiver,
liquidator, conservator, trustee or similar official with respect to it or any
of its assets.
(o) It has filed or caused to be filed all material tax returns which, to
its knowledge, are required to be filed. It has paid or made adequate provisions
for the payment of all material taxes and all material assessments made against
it or any of its property (other than any amount of taxes the validity of which
is currently being contested in good faith by appropriate proceedings and with
respect to which reserves in accordance with GAAP have been provided on its
books), and no material tax lien has been filed and, to its knowledge, no claim
is being asserted, with respect to any such tax, fee or other charge.
(p) The correct legal name, jurisdiction of organization, tax
identification number and chief executive office of such Seller are (i) set out
next to its name on Exhibit B hereto or, if such Seller is Additional Seller,
(ii) set out in Section 2 of its Accession Agreement pursuant to Section
8.03(c).
(q) In the event that the transfer of Receivables from any Seller to the
Purchaser is not treated as a sale of such Receivables and the proceeds thereof,
this Agreement shall be deemed to create a valid and continuing security
interest (as defined in the UCC) in the Receivables Collateral in favour of the
Purchaser, which security interest shall rank prior to any other Adverse Claims,
and is enforceable as such as against the creditors of and purchasers from the
Seller.
(r) The Receivables Collateral constitutes "accounts" within the meaning
of the UCC.
(s) The Sellers have caused or will cause, within ten days of the date of
this Agreement, the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in order to
perfect the security interest in the Receivables Collateral granted to the
Purchaser hereunder.
(t) Other than any security interest granted or to be granted to the
Purchaser pursuant to this Agreement, the Seller has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Receivables Collateral.
(u) No Seller is aware of any material tax lien filings against it.
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ARTICLE IV
COVENANTS
SECTION 4.01. Covenants of the Sellers.
------------------------
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
are written off the books of the Purchaser as uncollectible:
(a) Compliance with Laws, Etc. Each 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 such Seller to perform its obligations under this Agreement.
(b) Offices, Records and Books of Account. No Seller will change its legal
name, state or form of organization, tax identification number or chief
executive office unless (i) such Seller shall have provided the Purchaser with
at least 30 days' prior written notice thereof and (ii) no later than the
effective date of such change, all actions reasonably requested by the Purchaser
to protect and perfect its interest in the Transferred Receivables have been
taken and completed. Each Seller will also maintain and implement administrative
and operating procedures (including, without limitation, an ability to recreate
records evidencing Applicable 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 Applicable Transferred Receivables
(including, without limitation, records adequate to permit the identification,
immediately upon the transfer of each Applicable Transferred Receivable and at
all times thereafter, of each new Applicable Transferred Receivable and all
Collections of and adjustments to each existing Applicable Transferred
Receivable). Each Seller shall make a notation in its books and records,
including its computer files, to indicate which Receivables have been sold to
the Purchaser hereunder.
(c) Performance and Compliance with Contracts and Credit and Collection
Policy. Each 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 Applicable Transferred
Receivables where:
(i) before an Event of Termination that is continuing, such
non-performance or non-compliance would reasonably be expected to give rise
to any dispute, set-off, counterclaim or other claim on the part of the
relevant Obligor (1) that is more than 1% of the Discount Protection Amount
applying at such time (or together with all such disputes, set-offs,
counterclaims or other claims in aggregate, are more than 2% of the
Discount Protection Amount applying at such time), or (2) in respect of
which a corresponding amount has been deposited by the Purchaser in the
Securities Account pursuant to Section 2.04(c)(i) of the Receivables
Purchase Agreement; or
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(ii) at all times following a Event of Termination that is
continuing, such non-performance or non-compliance would reasonably be
expected to give rise to any dispute, set-off, counterclaim or other claim
on the part of the relevant Obligor; and
each Seller will, at its expense, timely and fully perform and comply in all
material respects with the Credit and Collection Policy in regard to each
Applicable Transferred Receivable and the related Contract.
(d) Sales, Liens, Etc. Except for the sales of Receivables contemplated
herein, no Seller will 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 Applicable Transferred Receivable, Related Security,
related Contract or Collections, or upon or with respect to any account to which
any Collections of any Applicable Transferred Receivable are sent, or assign any
right to receive income in respect thereof, provided, however, that the
provisions of this paragraph shall not prevent the existence of inchoate liens
for taxes, assessments and governmental charges or claims not yet due or being
contested in good faith and by appropriate proceedings.
(e) Extension or Amendment of Transferred Receivables. Except in the case
of the GI Seller in its capacity as Servicer as permitted by Section 6.02(c) of
the Receivables Purchase Agreement, no Seller will extend, amend or otherwise
modify the terms of any Applicable Transferred Receivable without the consent of
the Purchaser and the Administrative Agent.
(f) Change in Business or in Credit and Collection Policy. No Seller will
make any change in either (i) the character of its business or (ii) the Credit
and Collection Policy if such change would impair or delay in any material
respect the collectibility of the Transferred Receivables taken as a whole. In
the event that any Seller makes any change to its Credit and Collection Policy
it shall, contemporaneously with such change, provide the Administrative Agent
with an updated Credit and Collection Policy and summary of material changes.
(g) Audits. Each Seller will during regular business hours at any time
following the occurrence of an Event of Termination and otherwise upon two
Business Days prior written request from the Purchaser or the Administrative
Agent, permit the Purchaser, or its agents, representatives or assigns, or the
Administrative Agent under the Receivables Purchase Agreement, or its agents or
representatives (including independent public accountants) in each case at such
Seller's expense:
(i) to conduct an annual audit of the Applicable Transferred
Receivables, the Related Security and the related books and records and
collections systems of such Seller, such audit to be conducted and reported
in conjunction with the timing requirements applicable with regard to the
conduct, preparation and delivery of the Agreed Upon Procedures report
contemplated by Clause 6.06(c) of the Receivables Purchase Agreement;
(ii) 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 such Seller relating to
Applicable Transferred Receivables and the Related Security, including,
without limitation, the Contracts; and
15
(iii) to visit the offices and properties of such Seller for the
purpose of examining such materials described in clause (ii) above, and to
discuss matters relating to Applicable Transferred Receivables and the
Related Security or such Seller's performance hereunder with any of the
officers or employees of such Seller having knowledge of such matters.
(h) Marking of Records. At its expense, each Seller will xxxx its master
data processing records evidencing Applicable Transferred Receivables with a
legend or otherwise xxxx its records to indicate that such Applicable
Transferred Receivables have been sold in accordance with this Agreement.
(i) Further Assurance. Each Seller agrees from time to time at its
expense, promptly to execute and deliver all further instruments and documents,
and to take all further actions that may be necessary or desirable, or that the
Purchaser or its assignee(s) may reasonably request, to perfect, protect or more
fully evidence the sale of Receivables under this Agreement, or to enable the
Purchaser or its assignee(s) to exercise and enforce its respective rights and
remedies under this Agreement. For the avoidance of doubt, notices of the sale
of Receivables hereunder will only be sent to the Obligors after the occurrence
and during the continuance of an Event of Termination. Without limiting the
foregoing, each Seller will, upon the request of the Purchaser or its
assignee(s), (x) 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 Applicable
Transferred Receivables, and (y) if an Event of Termination has occurred,
deliver to the Purchaser all records relating to such Contracts and the
Applicable 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 Administrative Agent's computer equipment).
(j) Reporting Requirements. Each Seller will provide to the Purchaser the
following:
(i) as soon as possible and in any event within five days after a
Seller becoming aware of the occurrence of each Event of Termination or
Potential Event of Termination, a statement of the chief financial officer
or treasurer of such Seller setting forth details of such Event of
Termination or Potential Event of Termination and the action that such
Seller has taken and proposes to take with respect thereto;
(ii) at least 30 days prior to any change in the legal name or
jurisdiction or form of organization or its tax identification number or
any move of its chief executive office, a notice setting forth the new name
or jurisdiction or form of organization and the effective date thereof; and
(iii) such other information respecting the Applicable Transferred
Receivables or the condition or operations, financial or otherwise, of such
Seller as the Purchaser may from time to time reasonably request.
(k) Separate Records. Each 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
16
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 telephone listing separate from that of the
Purchaser; (v) not engage in any transaction with the Purchaser except as
contemplated by this Agreement or as permitted by the Receivables Purchase
Agreement, the Administration Agreement or other Transaction Documents; (vi)
continuously maintain as official records the resolutions, agreements and other
instruments underlying the transactions contemplated by this Agreement; and
(vii) disclose on its annual financial statements the effects of the
transactions contemplated by this Agreement in accordance with GAAP.
(l) Agreement. No Seller will amend, waive or modify any provision of this
Agreement (including any amendment which would add any additional sellers) or
waive the occurrence of any default under this Agreement or consent to any
amendment, modification or waiver of any provision of this Agreement without in
each case the prior written consent of the Conduit Purchaser and the
Administrative Agent, which consent may be conditioned on receipt of
confirmation by the Rating Agencies of the current ratings on the Conduit
Purchaser's commercial paper notes. Each Seller will perform all of its
obligations under this Agreement and will enforce this Agreement in accordance
with its terms.
(m) Transfers. No Seller will take any action:
(i) while no Event of Termination is continuing, that would reasonably be
expected to result in or otherwise cause any Transferred Receivable which
was an Eligible Receivable at the time of transfer to become a non-Eligible
Receivable to the extent that Transferred Receivable has an Outstanding
Balance that is more than 1% of the Discount Protection Amount applying at
such time (or, together with all such Transferred Receivables, has an
aggregate Outstanding Balance that is more than 2% of the Discount
Protection Amount applying at such time), unless in either such case a
corresponding amount has been deposited by the Seller in the Securities
Account pursuant to Section 2.04(c)(i); or
(ii) while an Event of Termination is continuing, that would reasonably be
expected to result in or otherwise cause any Transferred Receivable which
was an Eligible Receivable at the time of transfer to become a non-Eligible
Receivable.
ARTICLE V
ADMINISTRATION AND COLLECTION
SECTION 5.01. Designation of Servicer.
-----------------------
Consistent with the Purchaser's ownership of the Transferred Receivables,
the Purchaser shall have the sole and exclusive rights to service, administer
and collect the Transferred Receivables, to assign such rights and to delegate
any or all of such rights. With respect to the servicing, administration and
collection of the Transferred Receivables, the Servicer has been appointed by
the Purchaser, the Administrative Agent and the Conduit Purchaser as the
Servicer under the Receivables Purchase Agreement, and the Servicer has accepted
such appointment thereunder.
17
SECTION 5.02. Transfer of Records.
-------------------
(a) In connection with the Purchases hereunder, each Seller hereby sells,
transfers, assigns and otherwise conveys to the Purchaser all of such Seller's
right and title to and interest in the records relating to all Applicable
Transferred Receivables, without the need for any further documentation in
connection with any transfer of Receivables.
(b) Each Seller shall take such action as is reasonably requested by the
Purchaser and/or the Servicer, from time to time hereafter, that may be
necessary or appropriate, to ensure that the Purchaser has (i) an enforceable
ownership interest in the records relating to the Applicable Transferred
Receivables and (ii) if an Event of Termination has occurred, an enforceable
right (whether by license or sub-license or otherwise) to use all of the
computer software used to account for the Applicable Transferred Receivables
and/or recreate such records, in each case, without incurring any royalty, cost
or expense on the part of the Purchaser whatsoever.
ARTICLE VI
EVENTS OF TERMINATION
SECTION 6.01. Events of Termination.
---------------------
If any of the following events ("Events of Termination") shall occur and be
continuing:
(a) Any Seller shall fail (i) to transfer to the Purchaser when requested
any rights required to be transferred hereunder, including but not limited to
all of such Seller's right, title and interest in any Applicable Transferred
Receivable and Related Security transferred pursuant to this Agreement, which
failure shall have a material adverse effect upon the interest of the Purchaser
therein, or (ii) to make any payment as and when required under Section 2.04(a)
or 2.04(b) and such failure shall remain unremedied for three Business Days; or
(b) Any representation or warranty made or deemed made by or on behalf of
any Seller (or any of such Seller's officers) under or in connection with this
Agreement or any written information or report delivered by or on behalf of any
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 shall remain
unremedied for thirty (30) days after written notice thereof shall have been
given to the Seller; or
(c) Any 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, which failure shall remain unremedied for three (3) Business Days in
the case of monetary defaults or ten (10) Business Days in the case of
non-monetary defaults; or
(d) After any Purchase hereunder, the Purchaser's interest in the relevant
Receivable, the Related Security and the Collections with respect thereto shall
for any reason cease to constitute a valid and first priority perfected
ownership interest or security interest in favor of the Purchaser of such
Transferred Receivable, Related Security and Collections free and clear of any
Adverse
18
Claim and which cessation shall continue for a period of three (3) Business Days
and such Transferred Receivable shall not have been repurchased or replaced
under Section 2.04(b); or
(e) Any 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 any Seller 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 sixty (60) 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 any Seller shall take any corporate action to
authorize, consent to or initiate any of the actions set forth above in this
subsection (e); or
(f) An Event of Termination shall have occurred under the Receivables
Purchase Agreement; or
(g) Any Seller or any Significant Subsidiary (as such terms are defined in
the Senior Credit Agreement) (collectively, the "Specified Companies" and each a
"Specified Company") shall fail to make any payment in respect of any one or
more issues of Debt or Contingent Obligation having an aggregate principal of
more than the Dollar Equivalent amount of US$20,000,000 beyond the period of
grace, if any, provided in the instrument or agreement under which such Debt or
Contingent Obligation was created or by which it is governed or (ii) any
Specified Company shall fail to perform or observe any term, condition or
covenant (including, without limitation, failure by Xxxxx, Inc. to perform or
observe any financial covenant under the Senior Credit Agreement, where such
failure is continuing and has not been remedied or waived in accordance with the
terms of the Senior Credit Agreement), or any other event shall occur or
condition exist, under any agreement or instrument relating to any Debt or
Contingent Obligation, if the effect of such failure, event or condition is to
cause or to permit the holder or holders of such Debt or beneficiary or
beneficiaries of such Debt or Contingent Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause (with
or without notice or passage of time or both), such Debt declared to be due and
payable prior to its stated maturity or to require any of Xxxxx, Inc. or any of
its Subsidiaries to redeem or purchase, or offer to redeem or purchase, all or
any portion of such Debt, or any such Debt shall be required to be prepaid
(other than by a regularly scheduled required prepayment or redemption) prior to
the stated maturity thereof or such Contingent Obligation to become payable or
cash collateral in respect thereof to be demanded; provided, however, that,
other than in the case of a failure by Xxxxx, Inc. to perform or observe any
financial covenant under the Senior Credit Agreement, the aggregate amount of
all such Debt or Contingent Obligations for all Specified Companies so affected
and cash collateral so required shall be in a Dollar Equivalent amount of
US$20,000,000 or more; or
(h) Any judgment or order for the payment of money in excess of
US$20,000,000 (not covered by insurance from a responsible insurance company
that is not denying its liability with
19
respect thereto) shall be rendered against any Seller or any Significant
Subsidiary (as such term is defined in the Senior Credit Agreement), and such
judgment or order remains undischarged, unbonded or unstayed for a period of
thirty (30) consecutive days from the date of entry thereof; or
(i) An ERISA Event (as defined in the Senior Credit Agreement) shall occur
with respect to a Pension Plan or a Multiemployer Plan (as such terms are
defined in the Senior Credit Agreement) which has resulted or would be
reasonably likely to result in liability of any Specified Company under Title IV
of ERISA to such Pension Plan or Multiemployer Plan or to the United States
Pension Benefit Guaranty Corporation (or any successor thereto) in an aggregate
amount in excess of U.S. $20,000,000; (ii) the aggregate amount of Unfunded
Pension Liability (as defined in the Senior Credit Agreement) among all Pension
Plans at any time exceeds U.S. $20,000,000 and as a result thereof a lien shall
be imposed, a security interest shall be granted or a material liability is
incurred, which lien, security interest or liability, in the reasonable judgment
of the Required Lenders(as defined in the Senior Credit Agreement), would be
reasonably likely to result in a Material Adverse Effect (as defined in the
Senior Credit Agreement); or (iii) noncompliance with respect to Foreign Plans
(as defined in the Senior Credit Agreement) shall occur that, in the opinion of
the Required Lenders, when taken together with all other noncompliance with
respect to Foreign Plans that have occurred, would reasonably be expected to
result in liability of any Seller in an aggregate amount exceeding U.S.
$20,000,000; or
(j) any Seller or any other party shall, directly or indirectly, contest
in any manner the effectiveness, validity, binding nature or enforceability of
this Agreement or the Receivables Purchase Agreement; or
(k) there shall occur a Change in Control of any Seller;
then, and in any such event, the Purchaser may, by notice to the Sellers,
declare the Facility Termination Date to have occurred (in which case the
Facility Termination Date shall be deemed to have occurred); provided, however,
that automatically upon the occurrence of any event (without any requirement for
the passage of time or the giving of notice or making declaration) described in
paragraph (e) of this Section 6.01, the Facility Termination Date shall occur.
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 Transferred
Receivables provided after default under the UCC and under other applicable law,
which rights and remedies shall be cumulative.
ARTICLE VII
INDEMNIFICATION
SECTION 7.01. Indemnities of the Sellers.
--------------------------
Without limiting any other rights which the Purchaser may have hereunder or
under applicable law, each Seller hereby agrees to indemnify the Purchaser and
its assigns and transferees, including without limitation, the Investors, the
Administrative Agent and/or Scaldis
20
Capital Limited (each, an "Indemnified Party"), within 30 days of demand, 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:
(i) any representation or warranty or statement made or deemed
made by or on behalf of such Seller (or any of its officers) under or in
connection with this Agreement, which shall have been incorrect in any
material respect when made;
(ii) the failure by such Seller to comply with any applicable law,
rule or regulation with respect to any Applicable Transferred Receivable;
or the failure of any Applicable Transferred Receivable to conform to any
such applicable law, rule or regulation;
(iii) the failure to vest in the Purchaser absolute ownership of the
Receivables that are, or that purport to be, the subject of a Purchase
under this Agreement and the Related Security and Collections in respect
thereof, free and clear of any Adverse Claim;
(iv) the failure of such Seller to have filed, or any delay in
filing, financing statements or other similar instruments or documents
under the UCC or any similar law of any applicable jurisdiction or to take
all other steps under other applicable laws required in order to effect a
transfer to the Purchaser of a perfected interest in the Applicable
Transferred Receivables and Related Security with respect to any
Receivables of such Seller that are, or that purport to be, the subject of
a Purchase under this Agreement and the Related Security and Collections in
respect thereof, whether at the time of any Purchase or at any subsequent
time;
(v) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
of such Seller that is, or that purports to be, the subject of a Purchase
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 except to the extent that
such dispute, claim, offset or defense results solely from actions or
failures to act of the Purchaser or its assigns;
(vi) any products liability or other claim arising out of or in
connection with merchandise, insurance or services which are the subject of
any Contract;
(vii) the commingling of Collections of Applicable Transferred
Receivables by such Seller at any time with other funds of any Affiliate or
any other Seller;
(viii) any investigation (to the extent in connection with taking
action to enforce this agreement or considering the possibility of such
action), litigation or proceeding related solely to this Agreement or the
ownership of Applicable Transferred Receivables, the Related Security, or
Collections with respect thereto or in respect of any Applicable
21
Transferred Receivable, Related Security or Contract, except to the extent
any such investigation, litigation or proceeding relates to a possible
matter involving an Indemnified Party for which neither such Seller nor any
of its Affiliates is at fault;
(ix) any failure of such Seller to comply with its covenants
contained in Section 4.01;
(x) any claim brought by any Person other than an Indemnified
Party arising from any activity by such Seller or any Affiliate of such
Seller in servicing, administering or collecting any Applicable Transferred
Receivable; or
(xi) any Applicable Transferred Receivable becoming a Diluted
Receivable; or
(xii) any failure by any other Seller to perform any obligation or
make any payment required of it under this Section 7.01.
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 Applicable Transferred
Receivables and (ii) that nothing in this Section 7.01 shall require any Seller
to indemnify any Person (x) 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, or (y) for damages, losses, claims or
liabilities or related costs or expenses resulting from such Person's gross
negligence or willful misconduct.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.
----------------
(a) No amendment or waiver of any provision of this Agreement or consent
to any departure by any Seller therefrom shall be effective unless in a writing
signed by the Purchaser, the Conduit Purchaser and Administrative Agent and, in
the case of any amendment, also signed by each Seller, and any each 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 or any other
Person 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.
(b) The foregoing representations and warranties contained in Sections
3.01(j) and 3.01(q) through (u) shall not be waived by any of the parties hereto
without the prior consent of the Rating Agencies while the Commercial Paper
Notes are rated by a Rating Agency.
SECTION 8.02. Notices, Etc.
-------------
All notices and other communications hereunder shall, unless otherwise
stated herein, be in writing (which shall include electronic transmission),
shall be personally delivered, express
22
couriered, electronically transmitted (whether by facsimile, e-mail or
otherwise) or mailed by registered or certified mail and shall, unless otherwise
expressly provided herein, be effective when received at the address set forth
under a party's name on the signature pages hereof (or, in the case of an
Additional Seller, in its Accession Agreement) or at such other address as shall
be designated by such party in a written notice to the other parties hereto.
SECTION 8.03. Binding Effect; Assignability, Additional Sellers.
-------------------------------------------------
(a) This Agreement shall be binding upon and inure to the benefit of the
Sellers, the Purchaser and their respective successors and assigns; provided,
however, that no Seller may assign its rights or obligations hereunder or any
interest herein without the prior written consent of the Administrative Agent.
(b) This Agreement shall create and constitute the continuing obligation
of each 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 any Seller pursuant to
Article III and the provisions of Article VII and Section 8.04, 8.08, 8.09,
8.10, 8.11, 8.12, 8.13, 8.14 and 8.15 shall be continuing and shall survive any
termination of this Agreement.
(c) Any Subsidiary of Xxxxx, Inc. shall have the right to become an
Additional Seller upon at least 60 Business Days' prior notice to the Purchaser,
each Investor and the Administrative Agent and subject to the fulfillment of the
following conditions precedent to the satisfaction of the Administrative Agent
(acting reasonably):
(i) such Subsidiary shall be a corporation or limited liability company
incorporated or organized (as the case may be) under the laws of one
of the United States of America;
(ii) such Subsidiary and Xxxxx, Inc. shall have executed and delivered to
the Purchaser and Administrative Agent an originally executed
accession agreement substantially in the form of Exhibit C hereto
(an "Accession Agreement") and such Subsidiary shall have delivered
to the Administrative Agent an originally executed Accession
Agreement (as defined in the Receivables Purchase Agreement);
(iii) the Purchaser, each Investor and the Administrative Agent shall have
received one or more opinions, each in form, substance and scope
satisfactory to it, from one or more counsel to such Subsidiary
acceptable, in its reasonable judgement, to the Purchaser, each such
Investor and the Administrative Agent;
(iv) such Subsidiary shall have delivered to the Administrative Agent,
with respect to such Subsidiary as an Originator, each of the
copies, certifications and other evidence required under paragraphs
(a), (b), (c), (d), (i), (j), (k), (l) and (m) of Section 3.01 of
the Receivables Purchase Agreements (in the case of paragraphs (j)
and (k) thereof, the certificates required thereby shall be from the
equivalent officials in the state of incorporation or organization
of such Subsidiary) all relating to such Subsidiary;
23
(v) such Subsidiary shall have delivered to the Administrative Agent
such fully executed Lock Box Agreements as shall be deemed necessary
or advisable by the Administrative Agent in relation to Collections
on Originator Receivables to be purchased from such Subsidiary;
(vi) such UCC and other filings with respect to the receivables and other
assets to be sold by such Subsidiary pursuant to this Agreement have
been made to the reasonable satisfaction of the Administrative
Agent;
(vii) such Subsidiary shall have become a member of the Purchaser on the
terms and subject to the conditions of the LLC Agreement;
(viii) such Subsidiary shall have satisfied each condition precedent in the
Receivables Purchase Agreement to its accession as an Additional
Originator to such Agreement; and
(ix) each Rating Agency shall have confirmed that the accession of such
Subsidiary as an Additional Seller shall not adversely affect the
then current ratings of the Purchaser's commercial paper notes.
Upon satisfaction of such conditions precedent, such Subsidiary shall be an
Additional Seller and a party to this Agreement in such capacity for all
purposes hereunder.
SECTION 8.04. Costs, Expenses and Taxes.
-------------------------
(a) In addition to the rights of indemnification granted to the Purchaser
pursuant to Article VII hereof, the Sellers jointly agree to pay on demand all
costs and expenses incurred in connection with the preparation, execution and
delivery of this Agreement and the other documents and agreements to be
delivered in connection herewith and with the Receivables Purchase Agreement,
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 Sellers
jointly agree 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.
(b) In addition, the Sellers jointly agree 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 each 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 8.05. Rights and Remedies.
-------------------
(a) If any Seller 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 such Seller fails to so perform,
the costs and expenses of the Purchaser
24
incurred in connection therewith shall be payable by such Seller as provided in
Section 7.01 or Section 8.04 as applicable.
(b) Each Seller shall perform all of its obligations under the Contracts
related to the Transferred Receivables to the same extent as if such Seller had
not sold Receivables hereunder and the exercise by the Purchaser of its rights
hereunder shall not relieve such Seller from such obligations or its obligations
with respect to the Applicable 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 relevant Seller thereunder.
(c) Each Seller shall cooperate with the Servicer under the Receivables
Purchase Agreement in collecting amounts due from Obligors in respect of the
Applicable Transferred Receivables.
SECTION 8.06. Transfer of Records to Purchaser.
--------------------------------
Each Purchase of Receivables hereunder shall include the transfer to the
Purchaser of all of the relevant Seller's right and title to and interest in the
records relating to such Receivables.
Each 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
Applicable Transferred Receivables.
SECTION 8.07. Confidentiality.
---------------
Unless otherwise required by applicable law or regulatory request, each
party hereto agrees to maintain the confidentiality of this Agreement and the
related Contracts in communications with third parties and otherwise; provided
that this Agreement and the related Contracts may be disclosed to (i) 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
parties hereto, (ii) any party to the Receivables Purchase Agreement and the
Sellers', the Purchaser's, the Administrative Agent's and the Investors' legal
counsel and accountants, (iii) any Rating Agency rating an Investor's commercial
paper notes or other debt securities or the commercial paper notes or other debt
securities of any Person providing funding to an Investor, (iv) in the event
this Agreement and the related Contracts are or become public information (other
than as a result of the violation of the provisions of this Section 8.07 by the
person making such disclosure) and (v) any of their officers, directors,
managers, employees or agents, provided that the person making such disclosure
shall ensure that any such officer, director, manager, employee or agent shall
agree to keep this Agreement and the related Contracts confidential. In
addition, this Agreement and the related Contracts may be disclosed as provided
in Section 6.03(b)(iii) of the Receivables Purchase Agreement.
SECTION 8.08. Disclosure of Tax Treatment.
----------------------------
Notwithstanding anything to the contrary contained in this Agreement or any
other Transaction Document, all persons may disclose to any and all Persons,
without limitation of any kind, the United States federal income tax treatment
of the transactions contemplated by this
25
Agreement and the other Transaction Documents, any fact relevant to
understanding the United States federal tax treatment thereof, and all materials
of any kind (including opinions or other tax analyses) relating to such United
States federal tax treatment; provided, that no person may disclose the name of
or identifying information with respect to any party identified herein or in the
Transaction Documents or any pricing terms or other non public business or
financial information that is unrelated to the purported or claimed United
States federal income tax treatment of such transactions and is not relevant to
understanding the purported or claimed United States federal income tax
treatment of such transactions, without the prior consent of the Sellers and the
Administrative Agent.
SECTION 8.09. GOVERNING LAW.
-------------
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF OHIO APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE
OF OHIO, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 8.10. Third Party Beneficiaries.
-------------------------
Each of the parties hereto hereby acknowledges that the Purchaser is
transferring interests in the Transferred Receivables and certain of its rights
under this Agreement to the Conduit Purchaser as purchaser, and to Fortis Bank
S.A./N.V. as Administrative Agent, in each case under the Receivables Purchase
Agreement and each Seller hereby consents to such transfers and assignments. All
such assignees, including parties to the Receivables Purchase Agreement in the
case of assignment to such parties, shall be third party beneficiaries of, and
shall be entitled to enforce the undertakings expressly made for their benefit
herein, and following the occurrence of an Event of Termination under the
Receivables Purchase Agreement, to enforce the Purchaser's rights and remedies
under this Agreement to the same extent as if they were parties hereto, except
to the extent specifically limited under the terms of the Receivables Purchase
Agreement or its assignment.
SECTION 8.11. No Proceedings.
--------------
Each Seller hereby agrees that it will not, directly or indirectly,
institute, or cause to be instituted, against the Purchaser, the Conduit
Purchaser or any director, officer or other employee of the Purchaser or Conduit
Purchaser, any bankruptcy, insolvency or similar proceeding under the laws of
any jurisdiction so long as there shall not have elapsed one year plus one (1)
day since the later of (a) the day following the Facility Termination Date on
which the aggregate Capital is reduced to zero and all yield and other amounts
payable under the Receivables Purchase Agreement by the Purchaser hereunder have
been paid in full and (b) the last day on which any commercial paper or other
senior indebtedness issued by the Issuer to purchase Receivable Interests shall
have been outstanding. This Section 8.11 shall survive any termination of this
Agreement.
26
SECTION 8.12. 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. Delivery of an executed
counterparty of a signature page to this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 8.13. SUBMISSION TO JURISDICTION.
--------------------------
WITH RESPECT TO ANY CLAIM OR ACTION ARISING HEREUNDER, THE PARTIES (A)
IRREVOCABLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK, NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF, AND (B) IRREVOCABLY WAIVE ANY OBJECTION WHICH SUCH PARTY MAY HAVE AT
ANY TIME TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT BROUGHT IN ANY SUCH COURT, AND IRREVOCABLY WAIVE
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 8.14. Maximum Interest.
----------------
It is the intention of the parties hereto to conform strictly to applicable
usury laws and, anything herein to the contrary notwithstanding, the obligations
of any party to any other party under this Agreement shall be subject to the
limitation that payments of interest shall not be required to the extent that
receipt or charging thereof would be contrary to provisions of law applicable to
the party charging interest limiting rates of interest which may be charged or
collected by such party. Accordingly, if the transactions contemplated hereby
would be usurious under applicable law (including the Federal and state laws of
the United States of America, or of any other jurisdiction whose laws may be
mandatorily applicable) with respect to the party charging interest, then, in
that event, notwithstanding anything to the contrary in this Agreement, it is
agreed as follows: (a) the provisions of this Section shall govern and control;
(b) the aggregate of all consideration which constitutes interest under
applicable law that is contracted for, charged or received under this Agreement,
or under any of the other aforesaid agreements or otherwise in connection with
this Agreement by such party shall under no circumstances exceed the maximum
amount of interest allowed by applicable law (such maximum lawful interest rate,
if any, with respect to such party herein called the "Highest Lawful Rate"), and
any excess shall be credited to the other party by such party (or, if such
consideration shall have been paid in full, such excess refunded to such other
party); (c) all sums paid, or agreed to be paid, to such party for the use,
forbearance and detention of the amounts owed under this Agreement by such other
party to such party hereunder shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread throughout the full term of such
amounts owed under this Agreement until payment in full so that the actual rate
of interest is uniform throughout the full term thereof; and (d) if at any time
the interest provided pursuant to this Agreement together with any other fees
payable pursuant to this Agreement and deemed interest under applicable law,
27
exceeds that amount which would have accrued at the Highest Lawful Rate, the
amount of interest and any such fees to accrue to such party pursuant to this
Agreement shall be limited, notwithstanding anything to the contrary in this
Agreement to that amount which would have accrued at the Highest Lawful Rate,
but any reductions in the interest otherwise provided pursuant to this
Agreement, as applicable, shall be carried forward and collected in periods in
which the amount of interest accruing otherwise pursuant to this Agreement shall
be less than the Highest Lawful Rate until the total amount of interest
(including such fees deemed to be interest) accrued pursuant to this Agreement
equals the amount of interest which would have accrued to such party if a
varying rate per annum equal to the Alternate Base Rate had at all times been in
effect, plus the amount of fees which would have been received but for the
effect of this Section.
SECTION 8.15. WAIVER OF JURY TRIAL.
--------------------
THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF SUCH PARTIES. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER TRANSACTION DOCUMENT
TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR
EACH PARTY ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER TRANSACTION
DOCUMENT.
[The Remainder of this Page Intentionally Left Blank]
28
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.
XXXXX, INC.,
as GI Seller
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
Address for Notices:
Xxxxx, Inc.
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Treasurer
Facsimile No: x0 000 000 0000
With a copy to the General Counsel at
Xxxxx, Inc.:
000 Xxxxxx Xxxx
Xxxxxxxx XX 00000
Xxxxxx Xxxxxx of America
GREIF CONTAINERS INC.,
as GCI Seller
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
Address for Notices:
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Treasurer
Facsimile No: x0 000 000 0000
[Sale and Contribution Agreement Signature Page]
29
GREAT LAKES CORRUGATED CORP.,
as GLCC Seller
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
Address for Notices:
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Treasurer
Facsimile No: x0 000 000 0000
XXXXX RECEIVABLES FUNDING LLC,
as Purchaser
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
Address for Notices:
c/o The Co-rporation Trust Company
Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: CT Corp
Facsimile No: x0 000 000 0000
[Sale and Contribution Agreement Signature Page]
30