EXHIBIT 4.1
EXECUTION VERSION
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
dated as of May 17, 2004
among
YORK RECEIVABLES FUNDING LLC,
YORK INTERNATIONAL CORPORATION,
as Servicer
THE MEMBERS OF VARIOUS PURCHASER GROUPS
FROM TIME TO TIME PARTY HERETO
and
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
as Administrator
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TABLE OF CONTENTS
PAGE
ARTICLE I AMOUNTS AND TERMS OF THE PURCHASES................................. 2
Section 1.1. Purchase Facility........................................... 2
Section 1.2. Making Purchases............................................ 2
Section 1.3. Purchased Interest Computation.............................. 5
Section 1.4. Settlement Procedures....................................... 5
Section 1.5. Fees........................................................ 9
Section 1.6. Payments and Computations, Etc.............................. 10
Section 1.7. Increased Costs............................................. 10
Section 1.8. Requirements of Law......................................... 11
Section 1.9. Inability to Determine Euro-Rate............................ 12
Section 1.10. Extension of Termination Date............................... 13
ARTICLE II REPRESENTATIONS AND WARRANTIES; COVENANTS; TERMINATION EVENTS...... 14
Section 2.1. Representations and Warranties; Covenants................... 14
Section 2.2. Termination Events.......................................... 14
ARTICLE III INDEMNIFICATION.................................................... 14
Section 3.1. Indemnities by the Seller................................... 14
Section 3.2. Indemnities by the Servicer................................. 16
Section 3.3. Funding Plan; Funding Losses................................ 16
ARTICLE IV ADMINISTRATION AND COLLECTIONS..................................... 17
Section 4.1. Appointment of the Servicer................................. 17
Section 4.2. Duties of the Servicer...................................... 18
Section 4.3. Lock-Box Account Arrangements............................... 19
Section 4.4. Enforcement Rights.......................................... 20
Section 4.5. Responsibilities of the Seller.............................. 21
Section 4.6. Servicing Fee............................................... 21
ARTICLE V THE AGENTS......................................................... 22
Section 5.1. Appointment and Authorization............................... 22
Section 5.2. Delegation of Duties........................................ 23
Section 5.3. Exculpatory Provisions...................................... 23
Section 5.4. Reliance by Agents.......................................... 23
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TABLE OF CONTENTS
(continude)
PAGE
Section 5.5. Notice of Termination Events............................................ 24
Section 5.6. Non-Reliance on Administrator, Purchaser Agents and Other Purchasers.... 24
Section 5.7. Administrators and Affiliates........................................... 25
Section 5.8. Indemnification......................................................... 25
Section 5.9. Successor Administrator................................................. 26
ARTICLE VI MISCELLANEOUS.................................................................. 26
Section 6.1. Amendments, Etc......................................................... 26
Section 6.2. Notices, Etc............................................................ 26
Section 6.3. Successors and Assigns; Participations; Assignments..................... 27
Section 6.4. Costs, Expenses and Taxes............................................... 29
Section 6.5. No Proceedings; Limitation on Payments.................................. 29
Section 6.6. GOVERNING LAW AND JURISDICTION.......................................... 30
Section 6.7. Execution in Counterparts............................................... 30
Section 6.8. Survival of Termination................................................. 31
Section 6.9. WAIVER OF JURY TRIAL.................................................... 31
Section 6.10. Sharing of Recoveries................................................... 31
Section 6.11. Right of Setoff......................................................... 31
Section 6.12. Entire Agreement........................................................ 31
Section 6.13. Headings................................................................ 31
Section 6.14. Purchaser Groups' Liabilities........................................... 32
Section 6.15. Confidentiality......................................................... 32
EXHIBIT I Definitions
EXHIBIT II Conditions of Purchases
EXHIBIT III Representations and Warranties
EXHIBIT IV Covenants
EXHIBIT V Termination Events
EXHIBIT VI Supplemental Perfection Representations, Warranties and Covenants
SCHEDULE I Credit and Collection Policy
SCHEDULE II Lock-Box Banks and Lock-Box Accounts
SCHEDULE III Trade Names
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ANNEX A Initial Information Package
ANNEX B Form of Purchase Notice
ANNEX C Form of Assumption Agreement
ANNEX D Form of Transfer Supplement
ANNEX E Form of Paydown Notice
ANNEX F List of Eligible Foreign Obligor Countries
This AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (as amended,
amended and restated, supplemented or otherwise modified from time to time, this
"Agreement") is entered into as of May 17, 2004, among YORK RECEIVABLES FUNDING
LLC, a Delaware limited liability company, as seller (the "Seller"), YORK
INTERNATIONAL CORPORATION, a Delaware corporation ("York"), as initial servicer
(in such capacity, together with its successors and permitted assigns in such
capacity, the "Servicer"), GOTHAM FUNDING CORPORATION ("Gotham"), a Delaware
corporation, as a Conduit Purchaser, THE BANK OF TOKYO-MITSUBISHI, LTD., NEW
YORK BRANCH, ("BTMNY"), as agent for the Gotham Purchaser Group, LIBERTY STREET
FUNDING CORP. ("Liberty Street"), a Delaware corporation, as a Conduit
Purchaser, THE BANK OF NOVA SCOTIA ("BNS"), a Canadian chartered bank acting
through its New York Agency, as agent for the Liberty Street Purchaser Group,
each of the other members of each Purchaser Group that become parties hereto by
executing an Assumption Agreement or a Transfer Supplement and BTMNY as
administrator for each Purchaser Group a party hereto or that become parties
hereto (in such capacity, the "Administrator").
PRELIMINARY STATEMENTS. Certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I. References in the Exhibits
hereto to the "Agreement" refer to this Agreement, as amended, amended and
restated supplemented or otherwise modified from time to time.
The Seller desires to sell, transfer and assign an undivided variable
percentage interest in a pool of receivables, and the Purchasers desire to
acquire such undivided variable percentage interest, as such percentage interest
shall be adjusted from time to time based upon, in part, reinvestment payments
that are made by such Purchasers.
This Agreement amends and restates in its entirety, as of the Closing
Date, the Receivables Purchase Agreement, dated as of December 21, 2001 (as
amended, amended and restated, supplemented or otherwise modified prior to the
date hereof, the "Original Agreement"), among the Seller, the Servicer, the
members of the various purchaser groups from time to time party thereto and PNC
Bank, National Association, as administrator. Upon the effectiveness of this
Agreement, the terms and provisions of the Original Agreement shall, subject to
this paragraph, be superseded hereby in their entirety. Notwithstanding the
amendment and restatement of the Original Agreement by this Agreement, (i) the
Seller and York shall continue to be liable to any Indemnified Party or Affected
Person (as such terms are defined in the Original Agreement) with respect to all
unpaid Investment, Discount (as such terms are defined in the Original
Agreement) and fees and expenses (collectively, the "Original Agreement
Outstanding Amounts") under the Original Agreement (which shall continue to
accrue thereunder until such amounts are paid in full) and all agreements to
indemnify such parties in connection with events or conditions arising or
existing prior to the effective date of this Agreement and (ii) the security
interest created under the Original Agreement shall remain in full force and
effect as security for such Original Agreement Outstanding Amounts until such
Original Agreement Outstanding Amounts shall have been paid in full. Upon the
effectiveness of this Agreement, each reference to the Original Agreement in any
other document, instrument or agreement shall mean and be a reference to this
Agreement. Nothing contained herein, unless expressly herein stated to the
contrary, is intended to amend, modify or otherwise affect any
other instrument, document or agreement executed and or delivered in connection
with the Original Agreement.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1.Purchase Facility.
(a) On the terms and subject to the conditions hereof, the Seller
may, from time to time before the Facility Termination Date, request that
the Conduit Purchasers, or, only if a Conduit Purchaser denies such
request or is unable to fund (and provides notice of such denial or
inability to the Seller, the Administrator and its Purchaser Agent),
ratably request that the Related Committed Purchasers, make purchases of
and reinvestments in undivided percentage ownership interests with regard
to the Purchased Interest from the Seller from time to time from the date
hereof to the Facility Termination Date, but solely in the case of
purchases (and not reinvestments), subject to the related Funding Plan.
Subject to Section 1.4(b), concerning reinvestments, at no time will a
Conduit Purchaser have any obligation to make a purchase. Each Related
Committed Purchaser severally hereby agrees, on the terms and subject to
the conditions hereof, to make Purchases before the Facility Termination
Date, based on the applicable Purchaser Group's Ratable Share of each
purchase requested pursuant to Section 1.2(a) (each a "Purchase") (and, in
the case of each Related Committed Purchaser, its Commitment Percentage of
its Purchaser Group's Ratable Share of such Purchase) to the extent its
Investment would not thereby exceed its Commitment and the Aggregate
Investment would not (after giving effect to all Purchases on such date)
exceed the Purchase Limit.
(b) The Seller may, upon at least 60 days' written notice to the
Administrator and each Purchaser Agent terminate the purchase facility
provided for in this Section 1.1(b) in whole or, upon 30 days' written
notice to the Administrator and each Purchaser Agent, from time to time,
irrevocably reduce in part the unfunded portion of the Purchase Limit (but
not below the amount which would cause the Group Investment of any
Purchaser Group to exceed its Group Commitment (after giving effect to
such reduction)); provided that each partial reduction shall be in the
amount of at least $5,000,000, or an integral multiple of $1,000,000 in
excess thereof and unless terminated in whole, the Purchase Limit shall in
no event be reduced below $50,000,000. Such reduction shall at the option
of the Seller be applied either (i) ratably to reduce the Group Commitment
of each Purchaser Group or (ii) to terminate the Group Commitment of any
one Purchaser Group.
Section 1.2. Making Purchases.
(a) Each purchase (but not reinvestment) of undivided percentage
ownership interests with regard to the Purchased Interest hereunder shall
be made upon the Seller's irrevocable written notice in the form of Annex
B hereto delivered to the Administrator
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and each Purchaser Agent in accordance with Section 6.2 (which notice must
be received by the Administrator and each Purchaser Agent before 11:00
a.m., New York City time) at least three Business Days before the
requested Purchase Date, which notice shall specify: (A) the amount
requested to be paid to the Seller (such amount, which shall not be less
than $1,000,000, with respect to each Purchaser Group, being the aggregate
of the Investments of each Purchaser within such Purchaser Group, relating
to the undivided percentage ownership interest then being purchased), (B)
the date of such purchase (which shall be a Business Day), and (C) a pro
forma calculation of the Purchased Interest after giving effect to the
increase in the Aggregate Investment. If the Purchase is requested from a
Conduit Purchaser and such Conduit Purchaser determines, in its sole
discretion, to make the requested Purchase, such Conduit Purchaser shall
transfer to the account of the Seller described in Section 1.2(b), below
(the "Disbursement Account"), an amount equal to such Conduit Purchaser's
Purchaser Group Ratable Share of such Purchase on the requested Purchase
Date. If the Purchase is requested from the Related Committed Purchasers
for a Purchaser Group (in the case where the related Conduit Purchaser
determined not to or was unable to make such Purchase), subject to the
terms and conditions hereof, such Related Committed Purchasers for a
Purchaser Group shall transfer the applicable Purchaser Group's Ratable
Share of each Purchase (and, in the case of each Related Committed
Purchaser, its Commitment Percentage of its Purchaser Group's Ratable
Share of such Purchase) into the Disbursement Account on the Purchase Date
and shall use its reasonable best efforts to make such transfer by no
later than 4:00 p.m. (New York time) on such Purchase Date.
(b) On the date of each Purchase, each Purchaser (or the related
Purchaser Agent on its behalf), shall make available to the Seller in same
day funds, at, Wilmington Trust, account number 57038-0, ABA 000000000, an
amount equal to the proceeds of such Purchase.
(c) Effective on the date of each Purchase pursuant to this
Section 1.2 and each reinvestment pursuant to Section 1.4, the Seller
hereby sells and assigns to the Administrator for the benefit of the
Purchasers (ratably, according to each such Purchaser's Investment) an
undivided percentage ownership interest in: (i) each Pool Receivable then
existing, (ii) all Related Security with respect to such Pool Receivables,
and (iii) all Collections with respect to, and other proceeds of, such
Pool Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary or
otherwise) under this Agreement and the other Transaction Documents to
which it is a party, whether now or hereafter existing or arising, due or
to become due, direct or indirect, absolute or contingent, the Seller
hereby grants to the Administrator, for the benefit of the Purchasers, a
security interest in all of the Seller's right, title and interest
(including any undivided interest of the Seller) in, to and under all of
the following, whether now or hereafter owned, existing or arising: (i)
all Pool Receivables, (ii) all Related Security with respect to such Pool
Receivables, (iii) all Collections with respect to such Pool Receivables,
(iv) the Lock-Box Accounts (and the related lock-boxes) and all amounts on
deposit therein, and all certificates and instruments, if any, from time
to time evidencing such Lock-Box Accounts (and such related lock-boxes)
and amounts on deposit therein,
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(v) all books and records of each Receivable, all rights, remedies, powers
and privileges of the Seller in any accounts into which Collections are or
may be received and all rights (but none of the obligations) of the Seller
under the Purchase and Sale Agreement and (vi) all proceeds and products
of, and all amounts received or receivable under any or all of, the
foregoing (collectively, the "Pool Assets"). The Administrator, for the
benefit of the Purchasers, shall have, with respect to the Pool Assets,
and in addition to all the other rights and remedies available to the
Administrator and the Purchasers, all the rights and remedies of a secured
party under any applicable UCC.
(e) The Seller may, with the written consent of the Administrator
and each Purchaser, add additional Persons as Purchasers (either to an
existing Purchaser Group or by creating new Purchaser Groups) or cause an
existing Purchaser to increase its Commitment in connection with a
corresponding increase in the Purchase Limit; provided, however, that the
Commitment of any Purchaser may only be increased with the consent of such
Purchaser. Each new Purchaser (or Purchaser Group) and each Purchaser
increasing its Commitment shall become a party hereto or increase its
Commitment, as the case may be, by executing and delivering to the
Administrator and the Seller an Assumption Agreement in the form of Annex
C hereto (which Assumption Agreement shall, in the case of any new
Purchaser or Purchasers be executed by each Person in such new Purchaser's
Purchaser Group).
(f) Each Related Committed Purchaser's obligation hereunder shall
be several, such that the failure of any Related Committed Purchaser to
make a payment in connection with any purchase hereunder shall not relieve
any other Related Committed Purchaser of its obligation hereunder to make
payment for any Purchase. Further, in the event any Related Committed
Purchaser fails to satisfy its obligation to make a purchase as required
hereunder, upon receipt of notice of such failure from the Administrator
(or any relevant Purchaser Agent), subject to the limitations set forth
herein, the non-defaulting Related Committed Purchasers in such defaulting
Related Committed Purchaser's Purchaser Group shall purchase the
defaulting Related Committed Purchaser's Commitment Percentage of the
related Purchase pro rata in proportion to their relative Commitment
Percentages (determined without regard to the Commitment Percentage of the
defaulting Related Committed Purchaser; it being understood that a
defaulting Related Committed Purchaser's Commitment Percentage of any
Purchase shall be first put to the Related Committed Purchasers in such
defaulting Related Committed Purchaser's Purchaser Group and thereafter if
there are no other Related Committed Purchasers in such Purchaser Group or
if such other Related Committed Purchasers are also defaulting Related
Committed Purchasers, then such defaulting Related Committed Purchaser's
Commitment Percentage of such Purchase shall be put to each other
Purchaser Group ratably and applied in accordance with this paragraph
(f)). Notwithstanding anything in this paragraph (f) to the contrary, no
Related Committed Purchaser shall be required to make a Purchase pursuant
to this paragraph for an amount which would cause (i) the aggregate
Investment of such Related Committed Purchaser (after giving effect to
such Purchase) to exceed its Commitment or (ii) the sum of the aggregate
Investments of all Purchasers in the Purchaser Group of such Related
Committed Purchaser (after giving effect to such Purchase) to exceed the
sum of the Commitments of all of the Purchasers in such Purchaser Group.
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Section 1.3. Purchased Interest Computation. The Purchased Interest shall
be initially computed on the date of the initial Purchase hereunder. Thereafter,
until the Facility Termination Date, such Purchased Interest shall be
automatically recomputed (or deemed to be recomputed) on each Business Day other
than a Termination Day. From and after the occurrence of any Termination Day,
the Purchased Interest shall (until the event(s) giving rise to such Termination
Day are satisfied or are waived by the Administrator and a Simple Majority of
the Purchasers) be deemed to be 100%. The Purchased Interest shall become zero
when the Aggregate Investment thereof and Aggregate Discount thereon shall have
been paid in full, all the amounts owed by the Seller and the Servicer hereunder
to each Purchaser, the Administrator and any other Indemnified Party or Affected
Person are paid in full, and the Servicer shall have received the accrued
Servicing Fee thereon.
Section 1.4. Settlement Procedures.
(a) The collection of the Pool Receivables shall be administered
by the Servicer in accordance with this Agreement. The Seller shall
provide to the Servicer on a timely basis all information needed for such
administration, including notice of the occurrence of any Termination Day
and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool
Receivables are received (or deemed received) by the Seller or the
Servicer:
(i) set aside and hold in trust (and shall, at the request
of the Administrator (with the consent or at the direction of the
Majority Purchasers), segregate in a separate account approved by
the Administrator if, at the time of such request, there exists an
Unmatured Termination Event or a Termination Event or if the failure
to so segregate reasonably could be expected to cause a Material
Adverse Effect) for the benefit of each Purchaser Group, out of the
Purchasers' Share of such Collections, first, an amount equal to the
Aggregate Discount accrued through such day for each Portion of
Investment and not previously set aside, second, an amount equal to
the fees set forth in each Purchaser Group Fee Letter accrued and
unpaid through such day, and third, to the extent funds are
available therefor, an amount equal to the aggregate of each
Purchaser Group's Ratable Share of the Purchasers' Share of the
Servicing Fee accrued through such day and not previously set aside,
(ii) subject to Section 1.4(f), if such day is not a
Termination Day, remit to the Seller, ratably, on behalf of each
Purchaser Group, the remainder of the Purchasers' Share of such
Collections. Such remainder shall, to the extent representing a
return on the Aggregate Investment, ratably, according to each
Purchaser's Investment, be automatically reinvested in Pool
Receivables, and in the Related Security, Collections and other
proceeds with respect thereto; provided, however, that if the
Purchased Interest would exceed 100%, then the Servicer shall not
reinvest, but shall set aside and hold in trust for the benefit of
the Purchasers (and shall, at the request of the Administrator (with
the consent or at the direction of the Majority Purchasers),
segregate in a separate account approved by the Administrator if, at
the time of such request, there exists an
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Unmatured Termination Event or a Termination Event or if the failure
to so segregate reasonably could be expected to cause a Material
Adverse Effect) a portion of such Collections that, together with
the other Collections set aside pursuant to this paragraph, shall
equal the amount necessary to reduce the Purchased Interest to 100%;
provided, further, that in the case of any Purchaser that has
provided notice (an "Exiting Notice") to its Purchaser Agent of its
refusal, pursuant to Section 1.10, to extend its Commitment
hereunder (an "Exiting Purchaser"), then such Purchaser's ratable
share of such Collections based on its Investment shall not be
reinvested and shall instead be held in trust for the benefit of
such Purchaser and applied in accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day following
the provision of an Exiting Notice), set aside, segregate and hold
in trust (and shall, at the request of the Administrator (with the
consent or at the direction of a Simple Majority of the Purchasers),
segregate in a separate account approved by the Administrator) for
the benefit of each Purchaser Group the entire remainder of the
Purchasers' Share of the Collections (or in the case of an Exiting
Purchaser an amount equal to such Exiting Purchaser's ratable share
of such Collections based on its Investment; provided, that solely
for the purpose of determining such Exiting Purchaser's ratable
share of such Collections applicable to its Investment (and not for
purposes of calculating any Fees or Discount payable to such Exiting
Purchaser hereunder), such Exiting Purchaser's Investment shall be
deemed to remain constant from the date of the provision of an
Exiting Notice until the date such Exiting Purchaser's Investment
has been paid in full; it being understood that if such day is also
a Termination Day, such Exiting Purchaser's Investment shall be
recalculated taking into account amounts received by such Purchaser
in respect of this parenthetical and thereafter Collections shall be
set aside for such Exiting Purchaser ratably in respect of its
Investment (as recalculated)); provided, that if amounts are set
aside and held in trust on any Termination Day of the type described
in clause (a) of the definition of "Termination Day" (or any day
following the provision of an Exiting Notice) and, thereafter, the
conditions set forth in Section 2 of Exhibit II are satisfied or
waived by the Administrator and a Simple Majority of the Purchasers
(or in the case of an Exiting Notice, such Exiting Notice has been
revoked by the related Exiting Purchaser, and written notice thereof
has been provided to the Administrator, the related Purchaser Agent
and the Servicer), such previously set-aside amounts shall, to the
extent representing a return on Aggregate Investment (or the
Investment of the Exiting Purchaser) and ratably in accordance with
each Purchaser's Investment, be reinvested in accordance with clause
(ii) on the day of such subsequent satisfaction or waiver of
conditions or revocation of Exiting Notice, and
(iv) release to the Seller (subject to Section 1.4(f)) for
its own account any Collections in excess of: (x) amounts required
to be reinvested in accordance with clause (ii) or the proviso to
clause (iii) plus (y) the amounts that are required to be set aside
pursuant to clause (i), the proviso to clause (ii) and clause (iii)
plus (z) the Seller's Share of the Servicing Fee accrued and unpaid
through such day
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and all reasonable and appropriate out-of-pocket costs and expenses
of the Servicer for servicing, collecting and administering the Pool
Receivables.
(c) The Servicer shall, in accordance with the priorities set
forth in Section 1.4(d), below, deposit into each applicable Purchaser's
account (or such other account designated by such applicable Purchaser or
its Purchaser Agent), on each Settlement Date (or solely with respect to
Collections held for the Purchasers pursuant to clause (f)(iii) of Section
1.4 such other date approved by the Administrator with at least (5)
Business Days prior written notice to the Administrator of such payment),
Collections held for each Purchaser with respect to such Purchaser's
Portion(s) of Investment pursuant to clause (b)(i) or (f) plus the amount
of Collections then held for such Purchaser pursuant to clauses (b)(ii)
and (iii) of Section 1.4; provided, York may retain the portion of the
Collections set aside pursuant to clause (b)(i) that represents the
aggregate of each Purchaser Group's Ratable Share of the Purchasers' Share
of the Servicing Fee. On or before the last day of each Yield Period with
respect to any Portion of Investment, the applicable Purchaser Agent will
notify the Servicer by facsimile of the amount of the Discount accrued
with respect to each such Portion of Investment during the related Yield
Period then ending.
(d) The Servicer shall distribute the amounts described (and at
the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not a
Termination Day and the Purchased Interest does not exceed 100%,
first to each Purchaser Agent ratably according to the Discount
accrued during such Yield Period (for the benefit of the relevant
Purchasers within such Purchaser Agent's Purchaser Group) in payment
in full of all accrued Discount and fees (other than Servicing Fees)
with respect to each Portion of Investment maintained by such
Purchasers; it being understood that each Purchaser Agent shall
distribute such amounts to the Purchasers within its Purchaser Group
ratably according to Discount, and second, if the Servicer has set
aside amounts in respect of the Servicing Fee pursuant to clause
(b)(i) and has not retained such amounts pursuant to clause (c), to
the Servicer's own account (payable in arrears on each Settlement
Date) in payment in full of the aggregate of each Purchaser Group's
Ratable Share of the Purchasers' Share of accrued Servicing Fees so
set aside, and
(ii) if such distribution occurs on a Termination Day or on a
day when the Purchased Interest exceeds 100%, first to the
Servicer's own account in payment in full of all accrued Servicing
Fees, second to each Purchaser Agent ratably according to Discount
(for the benefit of the relevant Purchasers within such Purchaser
Agent's Purchaser Group) in payment in full of all accrued Discount
with respect to each Portion of Investment funded or maintained by
the Purchasers within such Purchaser Agent's Purchaser Group, third
to each Purchaser Agent ratably according to the Group Investment of
such Purchaser Agent's Purchaser Group (for the benefit of the
relevant Purchasers within such Purchaser Agent's Purchaser Group)
in payment in full of each Purchaser's Investment (or, if such day
is not a Termination Day, the amount necessary to
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reduce the Purchased Interest to 100%); it being understood that
each Purchaser Agent shall distribute the amounts described in the
first and second clauses of this Section 1.4(d)(ii) to the
Purchasers within its Purchaser Group ratably according to Discount
and Investment, respectively and fourth, if the Aggregate Investment
and accrued Aggregate Discount with respect to each Portion of
Investment for all Purchaser Groups have been reduced to zero, and
all accrued Servicing Fees payable to the Servicer have been paid in
full, to each Purchaser Group ratably (for the benefit of the
Purchasers within such Purchaser Group) in accordance with its
Ratable Share, the Administrator and any other Indemnified Party or
Affected Person in payment in full of any other amounts owed thereto
by the Seller or Servicer hereunder.
After the Aggregate Investment, Aggregate Discount, fees payable pursuant to
each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased
Interest, and any other amounts payable by the Seller and the Servicer to each
Purchaser Group, the Administrator or any other Indemnified Party or Affected
Person hereunder, have been paid in full, all additional Collections with
respect to the Purchased Interest shall be paid to the Seller for its own
account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool
Receivable is reduced or adjusted as a result of any defective,
rejected, returned, repossessed or foreclosed goods or services, or
any revision, cancellation, allowance, discount or other adjustment
made by the Seller or any Affiliate of the Seller, or the Servicer
or any Affiliate of the Servicer, or any setoff or dispute between
the Seller or any Affiliate of the Seller, or the Servicer or any
Affiliate of the Servicer and an Obligor, the Seller shall be deemed
to have received on such day a Collection of such Pool Receivable in
the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties
in Section 1(g) or (n) of Exhibit III is not true with respect to
any Pool Receivable, the Seller shall be deemed to have received on
such day a Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as
otherwise required by applicable law or the relevant Contract, all
Collections received from an Obligor of any 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 in writing its payment for
application to specific Receivables; and
(iv) if and to the extent the Administrator, any Purchaser
Agent or any Purchaser shall be required for any reason to pay over
to an Obligor (or any trustee, receiver, custodian or similar
official in any Insolvency Proceeding) any amount received by it
hereunder, such amount shall be deemed not to have been so received
by such Person but rather to have been retained by the Seller and,
accordingly, such Person shall have a claim against the Seller for
such amount,
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payable when and to the extent that any distribution from or on
behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of
Aggregate Investment (but not to commence the liquidation, or reduction to
zero, of the entire Aggregate Investment), the Seller may do so as
follows, but subject to the related Funding Plan for the applicable
calendar month:
(i) the Seller shall give the Administrator, each Purchaser
Agent and the Servicer written notice in the form of Annex E hereto
(A) at least two Business Days' prior written notice thereof for any
reduction of Aggregate Investment less than or equal to $10,000,000
and (B) at least three Business Days' prior written notice thereof
for any reduction of Aggregate Investment greater than $10,000,000
(in each case such notice shall include the amount of such proposed
reduction and the proposed date on which such reduction will
commence);
(ii) on the proposed date of commencement of such reduction
and on each day thereafter, the Servicer shall cause Collections not
to be reinvested until the amount thereof not so reinvested shall
equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for
the benefit of each Purchaser ratably according to its Investment,
for payment to each such Purchaser (or its related Purchaser Agent
for the benefit of such Purchaser) on the (i) next Settlement Date
with respect to any Portions of Investment maintained by such
Purchaser immediately following the related current Yield Period or
(ii) such other date approved by the Administrator with at least
five Business Days prior written notice to the Administrator of such
payment, and the Aggregate Investment (together with the Investment
of any related Purchaser) shall be deemed reduced in the amount to
be paid to such Purchaser (or its related Purchaser Agent for the
benefit of such Purchaser) only when in fact finally so paid;
provided, that:
(A) the amount of any such reduction shall be not less than
$1,000,000 for each Purchaser Group and shall be an integral multiple of
$100,000, and the entire Aggregate Investment after giving effect to such
reduction shall be not less than $50,000,000 and shall be in an integral
multiple of $100,000 (unless the Aggregate Investment shall have been
reduced to zero); and
(B) with respect to any Portion of Investment, the Seller shall
choose a reduction amount, and the date of commencement thereof, so that
to the extent practicable such reduction shall commence and conclude in
the same Yield Period.
Section 1.5. Fees. The Seller shall pay to each Purchaser Agent for the
benefit of the related Purchasers certain fees in the amounts and on the dates
set forth in letters, dated the date
9
hereof (or dated the date any such Purchaser Agent and the related Purchaser
Group become a party hereto pursuant to an Assumption Agreement, a Transfer
Supplement or otherwise), each such letter (as amended, amended and restated,
supplemented, or otherwise modified from time to time, a "Purchaser Group Fee
Letter") in each case among the Seller, the Servicer, the related Purchasers and
the related Purchaser Agent.
Section 1.6. Payments and Computations, Etc.
(a) All amounts to be paid or deposited by the Seller or the
Servicer hereunder shall be made without reduction for offset or
counterclaim and shall be paid or deposited no later than 2:00 p.m. (New
York City time) on the day when due in same day funds to the applicable
Purchaser's account (as such account is identified in the related
Purchaser Group Fee Letter). All amounts received after 2:00 p.m. (New
York City time) will be deemed to have been received on the next Business
Day.
(b) The Seller or the Servicer, as the case may be, shall, to the
extent permitted by law, pay interest on any amount not paid or deposited
by the Seller or the Servicer, as the case may be, when due hereunder, at
an interest rate equal to the Base Rate, payable on demand.
(c) All computations of interest under clause (b) and all
computations of Discount, fees and other amounts hereunder shall be made
on the basis of a year of 360 (or 365 or 366, as applicable, with respect
to Discount or other amounts calculated by reference to the Base Rate)
days for the actual number of days 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 Business Day and
such extension of time shall be included in the computation of such
payment or deposit.
Section 1.7. Increased Costs.
(a) If any Purchaser Agent, Purchaser, Liquidity Provider, the
Administrator, the Program Administrator or any other Program Support
Provider or any of their respective Affiliates (each an "Affected Person")
reasonably determines that the existence of or compliance with: (i) any
law or regulation or generally accepted accounting standard or any change
therein or in the interpretation or application thereof, in each case
adopted, issued or occurring after the date hereof, or (ii) any request,
guideline or directive from any central bank or other Governmental
Authority (whether or not having the force of law) issued or occurring
after the date of this Agreement, affects or would affect the amount of
capital required or expected to be maintained by such Affected Person, and
such Affected Person determines that the amount of such capital is
increased by or based upon the existence of any commitment to make
purchases of (or otherwise to maintain the investment in) Pool Receivables
related to this Agreement or any related liquidity facility, credit
enhancement facility or other commitments of the same type, then, upon
demand by such Affected Person (with a copy to the Administrator), the
Seller shall promptly pay to the Administrator, for the account of such
Affected Person, from time to time as specified by such Affected Person,
additional amounts sufficient to compensate such Affected Person for both
increased costs and
10
maintenance of bargained for yield in the light of such circumstances, to
the extent that such Affected Person reasonably determines such increase
in capital to be allocable to the existence of any of such commitments. A
certificate as to such amounts submitted to the Seller and the
Administrator by such Affected Person shall be conclusive and binding for
all purposes, absent manifest error.
(b) If, due to either: (i) the introduction of or any change in or
in the interpretation of any law, regulation or generally accepted
accounting standard or (ii) compliance with any guideline or request from
any central bank or other Governmental Authority (whether or not having
the force of law), there shall be any increase in the cost to any Affected
Person of agreeing to purchase or purchasing, or maintaining the ownership
of, the Purchased Interest or any portion thereof in respect of which
Discount is computed by reference to the Euro-Rate, then, upon demand by
such Affected Person, the Seller shall promptly pay to such Affected
Person, from time to time as specified by such Affected Person, additional
amounts sufficient to compensate such Affected Person for both increased
costs and maintenance of bargained for yield. A certificate as to such
amounts submitted to the Seller and the Administrator by such Affected
Person shall be conclusive and binding for all purposes, absent manifest
error.
(c) If such increased costs affect the related Affected Person's
portfolio of financing transactions, such Affected Person shall use
reasonable averaging and attribution methods to allocate such increased
costs to the transactions contemplated by this Agreement.
(d) Each Affected Person will notify Seller and the applicable
Purchaser Agent promptly after it has received official notice of any
event which will entitle such Affected Person to such additional amounts
as compensation pursuant to this Section 1.7. Such additional amounts
shall accrue from the date as to which such Affected Person becomes
subject to such additional costs as a result of such event (or if such
notice of such event is not given to Seller by such Affected Person within
90 days after such Affected Person received such official notice of such
event, from the date which is 90 days prior to the date such notice is
given to Seller by such Affected Person).
For avoidance of doubt any increase in cost and/or reduction in yield
caused by regulatory capital allocation adjustments due to Financial
Accounting Standards Board's Interpretation 46 (or any future statement or
interpretation issued by the Financial Accounting Standards Board or any
successor thereto) shall be covered by this Section 1.7.
Section 1.8. Requirements of Law.
If any Affected Person reasonably determines that the existence of
or compliance with: (a) any law or regulation or any change therein or in
the interpretation or application thereof, in each case adopted, issued or
occurring after the date hereof, or (b) any request, guideline or
directive from any central bank or other Governmental Authority (whether
or not having the force of law) issued or occurring after the date of this
Agreement:
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(i) does or shall subject such Affected Person to any tax of
any kind whatsoever with respect to this Agreement, any increase in
the Purchased Interest or any portion thereof or in the amount of
such Person's Investment relating thereto, or does or shall change
the basis of taxation of payments to such Affected Person on account
of Collections, Discount or any other amounts payable hereunder
(excluding taxes imposed on the overall pre-tax net income of such
Affected Person, and franchise taxes imposed on such Affected
Person, by the jurisdiction under the laws of which such Affected
Person is organized or a political subdivision thereof),
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for
the account of, purchases, advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of
such Affected Person that are not otherwise included in the
determination of the Euro-Rate or the Base Rate hereunder, or
(iii) does or shall impose on such Affected Person any other
condition,
and the result of any of the foregoing is: (A) to increase the cost to such
Affected Person of acting as Administrator or as a Purchaser Agent, or of
agreeing to purchase or purchasing or maintaining the ownership of undivided
percentage ownership interests with regard to the Purchased Interest (or
interests therein) or any Portion of Investment, or (B) to reduce any amount
receivable hereunder (whether directly or indirectly), then, in any such case,
upon demand by such Affected Person, the Seller shall promptly pay to such
Affected Person additional amounts necessary to compensate such Affected Person
for such additional cost or reduced amount receivable. All such amounts shall be
payable as incurred. A certificate from such Affected Person to the Seller and
the Administrator certifying, in reasonably specific detail, the basis for,
calculation of, and amount of such additional costs or reduced amount receivable
shall be conclusive and binding for all purposes, absent manifest error;
provided, however, that no Affected Person shall be required to disclose any
confidential or tax planning information in any such certificate.
Each Affected Person will notify Seller and the applicable Purchaser Agent
promptly after it has received official notice of any event which will entitle
such Affected Person to such additional amounts as compensation pursuant to this
Section 1.8. Such additional amounts shall accrue from the date as to which such
Affected Person becomes subject to such additional costs as a result of such
event (or if such notice of such event is not given to Seller by such Affected
Person within 90 days after such Affected Person received such official notice
of such event, from the date which is 90 days prior to the date such notice is
given to Seller by such Affected Person).
Section 1.9. Inability to Determine Euro-Rate. (a) If the Administrator
(or any Purchaser Agent) determines before the first day of any Yield Period
(which determination shall be final and conclusive) that, by reason of
circumstances affecting the interbank eurodollar market generally, deposits in
dollars (in the relevant amounts for such Yield Period) are not being offered to
banks in the interbank eurodollar market for such Yield Period, or adequate
means do
12
not exist for ascertaining the Euro-Rate for such Yield Period, then the
Administrator shall give notice thereof to the Seller. Thereafter, until the
Administrator or such Purchaser Agent notifies the Seller that the circumstances
giving rise to such suspension no longer exist, (A) no Portion of Investment
shall be funded at the Yield Rate determined by reference to the Euro-Rate and
(B) the Discount for any outstanding Portions of Investment then funded at the
Yield Rate determined by reference to the Euro-Rate shall, on the last day of
the then current Yield Period, be converted to the Yield Rate determined by
reference to the Base Rate.
(b) If, on or before the first day of any Yield Period, the Administrator
shall have been notified by any Purchaser, Purchaser Agent or Liquidity Provider
that, such Person has determined (which determination shall be final and
conclusive) that, any enactment, promulgation or adoption of or any change in
any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by a governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Person with any guideline, request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for such Person to fund or maintain any Portion
of Investment at the Yield Rate and based upon the Euro-Rate, the Administrator
shall notify the Seller thereof. Upon receipt of such notice, until the
Administrator notifies the Seller that the circumstances giving rise to such
determination no longer apply, (A) no Portion of Investment funded by the
affected Person shall be funded at the Yield Rate determined by reference to the
Euro-Rate and (B) the Discount for any outstanding Portions of Investment then
funded at the Yield Rate determined by reference to the Euro-Rate shall be
converted to the Yield Rate determined by reference to the Base Rate either (i)
on the last day of the then current Yield Period if such Person may lawfully
continue to maintain such Portion of Investment at the Yield Rate determined by
reference to the Euro-Rate to such day, or (ii) immediately, if such Person may
not lawfully continue to maintain such Portion of Investment at the Yield Rate
determined by reference to the Euro-Rate to such day.
Section 1.10. Extension of Termination Date. The Seller may advise the
Administrator and each Purchaser Agent in writing of its desire to extend the
Facility Termination Date for an additional 364 days, provided such request is
made not more than 90 days prior to, and not less than 60 days prior to, the
then current Facility Termination Date. In the event that the Purchaser Agents
are all agreeable to such extension, the Administrator shall so notify the
Seller in writing (it being understood that the Purchaser Agents may accept or
decline such a request in their sole discretion and on such terms as they may
elect) not less than 30 days prior to the then current Facility Termination Date
and the Seller, the Administrator, the Purchaser Agents and the Purchasers shall
enter into such documents as the Purchasers may deem necessary or appropriate to
reflect such extension, and all reasonable costs and expenses incurred by the
Purchasers, the Administrator and the Purchaser Agents in connection therewith
(including reasonable Attorneys' Costs) shall be paid by the Seller. In the
event the Purchaser Agents decline the request for such extension, the
Administrator shall so notify the Seller of such determination; provided,
however, that the failure of the Administrator to notify the Seller of the
determination to decline such extension shall not affect the understanding and
agreement that the Purchaser Agents shall be deemed to have refused to grant the
requested extension in the event the Administrator fails to affirmatively notify
the Seller, in writing, of their agreement to accept the requested extension.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section 2.1. Representations and Warranties; Covenants. Each of the Seller
and the Servicer hereby makes the representations and warranties, and hereby
agrees to perform and observe the covenants, applicable to it set forth in
Exhibits III, IV and VI, respectively.
Section 2.2. Termination Events. If any of the Termination Events set
forth in Exhibit V shall occur, the Administrator may (with the consent of a
Simple Majority of the Purchasers) or shall (at the direction of a Simple
Majority of the Purchasers), by notice to the Seller, declare the Facility
Termination Date to have occurred (in which case the Facility Termination Date
shall be deemed to have occurred); 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 (f) of Exhibit V, the Facility
Termination Date shall occur. Upon any such declaration, occurrence or deemed
occurrence of the Facility Termination Date, the Administrator, each Purchaser
Agent and each Purchaser shall have, in addition to the rights and remedies that
they may have under this Agreement, all other rights and remedies provided after
default under the New York UCC and under other applicable law, which rights and
remedies shall be cumulative.
ARTICLE III
INDEMNIFICATION
Section 3.1. Indemnities by the Seller. Without limiting any other rights
that any Purchaser Agent, Purchaser, Liquidity Provider, the Administrator, the
Program Administrator or any Program Support Provider or any of their respective
Affiliates, shareholders, employees, officers, directors, managers, agents,
counsel, successors, transferees or assigns (each, an "Indemnified Party") may
have hereunder or under applicable law, the Seller hereby agrees to indemnify
each Indemnified Party from and against any and all claims, damages, expenses,
costs, losses and liabilities (including Attorney Costs) (all of the foregoing
being collectively referred to as "Indemnified Amounts") arising out of or
resulting from this Agreement (whether directly or indirectly), the use of
proceeds of purchases or reinvestments, the ownership of the Purchased Interest,
or any interest therein, or the funding or maintenance thereof, or in respect of
any Receivable, Related Security or Contract, excluding, however: (a)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnified Party or its officers, directors,
agents or counsel, (b) recourse with respect to any Receivable to the extent
that such Receivable is uncollectible on account of the insolvency, bankruptcy
or lack of credit worthiness of the related Obligor, or (c) any overall net
income taxes or franchise taxes imposed on such Indemnified Party by the
jurisdiction under the laws of which such Indemnified Party is organized or any
political subdivision thereof. Without limiting or being limited by the
foregoing, and subject to the exclusions set forth in the preceding sentence,
the Seller shall pay on demand (which demand shall be accompanied by
documentation of the Indemnified Amounts, in reasonable detail) to each
Indemnified Party any and all amounts necessary to indemnify such Indemnified
Party from and against any and all Indemnified Amounts relating to or resulting
from any of the following:
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(i) the failure of any Receivable included in the
calculation of the Net Receivables Pool Balance as an Eligible
Receivable to be an Eligible Receivable, the failure of any
information contained in an Information Package to be true and
correct as of the date such information was provided (except to
extent that such in formation relates expressly to an earlier date,
and in which case such information shall be true and correct as of
such earlier date), or the failure of any other information provided
to such Indemnified Party by the Seller or Servicer with respect to
Receivables or this Agreement to be true and correct as of the date
such information was provided (except to extent that such in
formation relates expressly to an earlier date, and in which case
such information shall be true and correct as of such earlier date),
(ii) the failure of any representation, warranty or statement
made or deemed made by the Seller (or any of its officers) under or
in connection with this Agreement to have been true and correct as
of the date made or deemed made in all respects when made,
(iii) the failure by the Seller to comply with any applicable
law, rule or regulation with respect to any Pool Receivable or the
related Contract, or the failure of any Pool Receivable or the
related Contract to conform to any such applicable law, rule or
regulation,
(iv) the failure to vest in the Administrator (for the
benefit of the Purchasers) a valid and enforceable: (A) perfected
undivided percentage ownership interest, to the extent of the
Purchased Interest, in the Receivables in, or purporting to be in,
the Receivables Pool and the other Pool Assets, or (B) first
priority perfected security interest in the Pool Assets, in each
case, free and clear of any Adverse Claim,
(v) the failure 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 in, or purporting to be in, the
Receivables Pool and the other Pool Assets, whether at the time of
any purchase or reinvestment or at any subsequent time,
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the
payment of any Receivable in, or purporting to be in, the
Receivables Pool (including 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 goods or
services related to such Receivable or the furnishing or failure to
furnish such goods or services or relating to collection activities
with respect to such Receivable,
(vii) any failure of the Seller, any Originator, any Affiliate
of the Seller or the Servicer to perform its duties or obligations
in accordance with the
15
provisions hereof and the other Transaction Documents to which it is
a party or under the Contracts,
(viii) any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with
merchandise, insurance or services that are the subject of any
Contract,
(ix) the commingling of Collections at any time with other
funds,
(x) the use of proceeds of purchases or reinvestments, or
(xi) any reduction in the Aggregate Investment as a result of
the distribution of Collections pursuant to Section 1.4(d), if all
or a portion of such distributions shall thereafter be rescinded or
otherwise must be returned for any reason.
Section 3.2. Indemnities by the Servicer. Without limiting any other
rights that any Indemnified Party may have hereunder or under applicable law,
the Servicer hereby agrees to indemnify each Indemnified Party from and against
any and all Indemnified Amounts arising out of or resulting from (whether
directly or indirectly): (a) the failure of any information contained in an
Information Package to be true and correct as of the date such information was
provided (except to extent that such in formation relates expressly to an
earlier date, and in which case such information shall be true and correct as of
such earlier date), or the failure of any other information provided to such
Indemnified Party by, or on behalf of, the Servicer to be true and correct as of
the date such information was provided (except to extent that such in formation
relates expressly to an earlier date, and in which case such information shall
be true and correct as of such earlier date), (b) the failure of any
representation, warranty or statement made or deemed made by the Servicer (or
any of its officers) under or in connection with this Agreement or any other
Transaction Document to which it is a party to have been true and correct as of
the date made or deemed made in all respects when made, (c) the failure by the
Servicer to comply with any applicable law, rule or regulation with respect to
any Pool Receivable or the related Contract, (d) any dispute, claim, offset or
defense of the Obligor to the payment of any Receivable in, or purporting to be
in, the Receivables Pool resulting from or related to the collection activities
with respect to such Receivable, (e) any failure of the Servicer to perform its
duties or obligations in accordance with the provisions hereof or any other
Transaction Document to which it is a party, (f) the failure of the Servicer 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 in, or purporting to be in, the
Receivables Pool and the other Pool Assets, for the benefit of the Affected
Parties or otherwise, whether at the time of any purchase or reinvestment or at
any subsequent time, or (g) any commingling by the Servicer of Collections at
any time with other funds.
Section 3.3. Funding Plan; Funding Losses. On or before the first Business
Day of each calendar month, the Servicer (on behalf of the Seller) shall provide
the Administrator and each Purchaser Agent with the Funding Plan for such
calendar month (for the avoidance of doubt, any such anticipated purchases (but
not reinvestments) and repayments under any Funding Plan remain subject to each
of the terms and conditions of this Agreement). If any Affected Person
16
actually incurs any loss (including loss of Yield), cost or expense (including
any loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Affected Person), at any time, that is
not otherwise paid in connection with the payment of Discount hereunder, as a
result of (a) any settlement (including any full or partial repayment of
principal) with respect to any Portion of Investment, howsoever funded, being
made on any day other than the scheduled last day of an applicable Yield Period
with respect thereto or a day set forth in the related Funding Plan, (b) any
Purchase not being completed by Seller in accordance with its request therefor
under Section 1.2, or (c) any other reduction in a Purchaser's Investment not
permitted pursuant to the terms of this Agreement then, upon written notice from
the applicable Purchaser Agent to the Seller, the Seller shall pay to such
Purchaser Agent for the account of the applicable Affected Persons within 5
Business Days the amount of such loss or expense. Each Affected Person agrees to
use commercially reasonable efforts to mitigate any such loss, cost or expense.
If an Affected Person incurs any loss or expense (including any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Affected Person), at any time, and is not entitled to
reimbursement for such loss or expense in the manner set forth above, such
Affected Party shall individually bear such loss or expense without recourse to,
or payment from, any other Affected Party.
ARTICLE IV
ADMINISTRATION AND COLLECTIONS
Section 4.1. Appointment of the Servicer.
(a) The servicing, administering and collection of the Pool
Receivables shall be conducted by the Person so designated from time to
time as the Servicer in accordance with this Section. Until the
Administrator gives notice to York (in accordance with this Section 4.1)
of the designation of a new Servicer, York is hereby designated as, and
hereby agrees to perform the duties and obligations of, the Servicer
pursuant to the terms hereof. Upon the occurrence of a Termination Event,
the Administrator may (with the consent of the Majority Purchasers) or
shall (at the direction of the Majority Purchasers) designate as Servicer
any Person (including itself) to succeed York or any successor Servicer,
on the condition in each case that any such Person so designated shall
agree to perform the duties and obligations of the Servicer pursuant to
the terms hereof.
(b) Upon the designation of a successor Servicer as set forth in
clause (a), York agrees that it will terminate its activities as Servicer
hereunder in a manner that the Administrator reasonably determines will
facilitate the transition of the performance of such activities to the new
Servicer, and York shall cooperate with and assist such new Servicer. Such
cooperation shall include access to and transfer of related records
(including all Contracts) and, subject to restrictions in applicable
contracts and agreements use by the new Servicer of all licenses, hardware
or software necessary or desirable to collect the Pool Receivables and the
Related Security.
(c) York acknowledges that, in making their decision to execute
and deliver this Agreement, the Administrator and each Purchaser Group
have relied on York's agreement to act as Servicer hereunder. Accordingly,
York agrees that it will not voluntarily resign as Servicer.
17
(d) The Servicer may delegate its duties and obligations hereunder
to any subservicer (each a "Sub-Servicer"); provided, that, in each such
delegation: (i) such Sub-Servicer shall agree in writing to perform the
duties and obligations of the Servicer pursuant to the terms hereof, (ii)
the Servicer shall remain primarily liable for the performance of the
duties and obligations so delegated, (iii) the Seller, the Administrator
and each Purchaser Group shall have the right to look solely to the
Servicer for performance, and (iv) the terms of any agreement with any
Sub-Servicer shall provide that the Administrator may terminate such
agreement upon the termination of the Servicer hereunder by giving notice
of its desire to terminate such agreement to the Servicer (and the
Servicer shall provide appropriate notice to each such Sub-Servicer);
provided, however, that if any such delegation is to any Person other than
an Originator or an Affiliate thereof, the Administrator and the Majority
Purchasers shall have consented in writing in advance to such delegation.
(e) The Administrator and the Purchasers consent to the
outsourcing of certain functions related to the servicing hardware and
software utilized by the Servicer to Electronic Data Systems Corporation
("EDSC") as in effect on the date hereof; provided, that (i) the Servicer
shall remain primarily liable for the performances and obligations
subcontracted and (ii) the Seller, the Administrator, and each Purchaser
Group shall have the right to look to the Servicer for performance of such
subcontracts. York agrees that it shall provide the Administrator and each
Purchaser Agent with: (I) within 10 Business Days of its receipt of a
notice of termination from EDSC (or any Person acting on behalf of EDSC)
related to such subcontract, a copy of such notice of termination; (II) a
copy of any notice of termination issued by it to EDSC, contemporaneously
with such delivery to EDSC; and (III) within 10 Business Days of the
effectiveness of any material amendment, change, modification or waiver
with respect to such subcontract to the extent related to accounts
receivable outsourcing, an executed copy of such amendment, modification
or waiver.
Section 4.2. Duties of the Servicer.
(a) The Servicer shall take or cause to be taken all such action
as may be necessary or advisable to administer and collect each Pool
Receivable from time to time, all in accordance with this Agreement and
all applicable laws, rules and regulations, with reasonable care and
diligence, and in accordance with the Credit and Collection Policies. The
Servicer shall set aside, for the account of each Purchaser Group, the
amount of the Collections to which each such Purchaser Group is entitled
in accordance with Article I. The Servicer may, in accordance with the
applicable Credit and Collection Policy, take such action as the Servicer
may determine to be appropriate to maximize Collections thereof or reflect
adjustments required under the applicable Contract; provided, however,
that: (i) such action shall not change the number of days such Pool
Receivable has remained unpaid from the date of the original due date
related to such Pool Receivable, (ii) such action shall not alter the
status of such Pool Receivable as a Delinquent Receivable or a Defaulted
Receivable or limit the rights of the Administrator or any Purchaser Group
under this Agreement and (iii) if a Termination Event has occurred and
York or an Affiliate thereof is serving as the Servicer, York or such
Affiliate may take such action only upon the prior approval of the
Administrator (with the consent of the
18
Majority Purchasers). The Seller shall deliver to the Servicer and the
Servicer shall hold for the benefit of the Seller and the Administrator
(individually and for the benefit of each Purchaser Group), in accordance
with their respective interests, all records and documents (including
computer tapes or disks) with respect to each Pool Receivable.
Notwithstanding anything to the contrary contained herein, the
Administrator may direct the Servicer (whether the Servicer is York or any
other Person) to commence or settle any legal action to enforce collection
of any Pool Receivable or to foreclose upon or repossess any Related
Security; provided, however, that no such direction may be given unless
either: (A) a Termination Event has occurred or (B) the Administrator
believes in good faith that failure to commence, settle or effect such
legal action, foreclosure or repossession could adversely affect
Receivables constituting a material portion of the Pool Receivables.
(b) The Servicer shall, as soon as practicable following actual
receipt of collected funds, turn over to the Seller the collections of any
indebtedness that is not a Pool Receivable, less, if York or an Affiliate
thereof is not the Servicer, all reasonable and appropriate out-of-pocket
costs and expenses of such Servicer of servicing, collecting and
administering such collections. The Servicer, if other than York or an
Affiliate thereof, shall, as soon as practicable upon demand, deliver to
the Seller all records in its possession that evidence or relate to any
indebtedness that is not a Pool Receivable, and copies of records in its
possession that evidence or relate to any indebtedness that is a Pool
Receivable.
(c) The Servicer's obligations hereunder shall terminate on the
later of: (i) the Facility Termination Date and (ii) the date on which all
amounts required to be paid to the Purchaser Agents, each Purchaser, the
Administrator and any other Indemnified Party or Affected Person hereunder
shall have been paid in full.
After such termination, if York or an Affiliate thereof was not the
Servicer on the date of such termination, the Servicer shall promptly deliver to
the Seller all books, records and related materials that the Seller previously
provided to the Servicer, or that have been obtained by the Servicer, in
connection with this Agreement.
Section 4.3. Lock-Box Account Arrangements. Upon the occurrence of a
Termination Event, the Administrator may (with the consent of a Simple Majority
of the Purchasers) or shall (upon the direction of a Simple Majority of the
Purchasers) at any time thereafter give notice to each Lock-Box Bank that the
Administrator is exercising its rights under the Lock-Box Agreements to do any
or all of the following: (a) to have the exclusive ownership and control of the
Lock-Box Accounts (and the related lock-boxes) transferred to the Administrator
(for the benefit of the Purchasers) and to exercise exclusive dominion and
control over the funds deposited therein, (b) to have the proceeds that are sent
to the respective Lock-Box Accounts (and the respective related lock-boxes)
redirected pursuant to the Administrator's instructions rather than deposited in
the applicable Lock-Box Account (or sent to the applicable related lock-box),
and (c) to take any or all other actions permitted under the applicable Lock-Box
Agreement. The Seller hereby agrees that if the Administrator at any time takes
any action set forth in the preceding sentence, the Administrator shall have
exclusive control (for the benefit of the Purchasers) of the proceeds (including
Collections) of all Pool Receivables and the Seller
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hereby further agrees to take any other action that the Administrator or any
Purchaser Agent may reasonably request to transfer such control. Any proceeds of
Pool Receivables received by the Seller or the Servicer thereafter shall be sent
immediately to the Administrator. The parties hereto hereby acknowledge that if
at any time the Administrator takes control of any Lock-Box Account (and any
such related lock-box), the Administrator shall not have any rights to the funds
therein in excess of the unpaid amounts due to the Administrator, the Purchaser
Groups, any Indemnified Party or any other Person hereunder, and the
Administrator shall distribute or cause to be distributed such funds in
accordance with Section 4.2(b) and Article I (in each case as if such funds were
held by the Servicer thereunder).
Section 4.4. Enforcement Rights.
(a) At any time following the occurrence of a Termination Event:
(i) the Administrator may (with the consent or at the
direction of the Majority Purchasers) direct the Obligors that
payment of all amounts payable under any Pool Receivable is to be
made directly to the Administrator or its designee,
(ii) the Administrator may (with the consent or at the
direction of the Majority Purchasers) instruct the Seller or the
Servicer to give notice of the Purchaser Groups' interest in Pool
Receivables to each Obligor, which notice shall direct that payments
be made directly to the Administrator or its designee (on behalf of
such Purchaser Groups), and the Seller or the Servicer, as the case
may be, shall give such notice at the expense of the Seller or the
Servicer, as the case may be; provided, that if the Seller or the
Servicer, as the case may be, fails to so notify each Obligor, the
Administrator (at the Seller's or the Servicer's, as the case may
be, expense) may so notify the Obligors, and
(iii) the Administrator may (with the consent or at the
direction of the Majority Purchasers) request the Servicer to, and
upon such request the Servicer shall: (A) assemble all of the
records necessary or desirable to collect the Pool Receivables and
the Related Security, and transfer or license (or cause to be
licensed) to a successor Servicer the use of all software necessary
or desirable to collect the Pool Receivables and the Related
Security, and make the same available to the Administrator or its
designee (for the benefit of the Purchasers) at a place selected by
the Administrator, and (B) segregate all cash, checks and other
instruments received by it from time to time constituting
Collections in a manner acceptable to the Administrator and,
promptly upon receipt, remit all such cash, checks and instruments,
duly endorsed or with duly executed instruments of transfer, to the
Administrator or its designee.
(b) The Seller hereby authorizes the Administrator (on behalf of
each Purchaser Group), and irrevocably appoints the Administrator as its
attorney-in-fact with full power of substitution and with full authority
in the place and stead of the Seller, which appointment is coupled with an
interest, to take any and all steps in the name of the Seller and on
behalf of the Seller necessary or desirable, in the determination of the
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Administrator, after the occurrence of a Termination Event, to collect any
and all amounts or portions thereof due under any and all Pool Assets,
including endorsing the name of the Seller on checks and other instruments
representing Collections and enforcing such Pool Assets. Notwithstanding
anything to the contrary contained in this subsection, none of the powers
conferred upon such attorney-in-fact pursuant to the preceding sentence
shall subject such attorney-in-fact to any liability if any action taken
by it shall prove to be inadequate or invalid, nor shall they confer any
obligations upon such attorney-in-fact in any manner whatsoever.
(c) The parties hereto hereby acknowledge that if at any time the
Administrator takes steps in the name of Seller and on behalf of the
Seller pursuant to the powers granted in Section 4.4(b) to collect any and
all amounts or portions thereof due under any Pool Assets, the
Administrator shall not have any rights to collect amounts or portions
thereof in excess of the unpaid amounts due to the Administrator, the
Purchaser Groups, any Indemnified Party or any other Persons hereunder,
and the Administrator shall distribute or cause to be distributed such
amounts in accordance with Section 4.2(b) and Article I (in each case as
if such amounts were hold by the Servicer thereunder).
Section 4.5. Responsibilities of the Seller.
(a) Anything herein to the contrary notwithstanding, the Seller
shall: (i) perform all of its obligations, if any, under the Contracts
related to the Pool Receivables to the same extent as if interests in such
Pool Receivables had not been transferred hereunder, and the exercise by
the Administrator, the Purchaser Agents or the Purchasers of their
respective rights hereunder shall not relieve the Seller from such
obligations, and (ii) pay when due any taxes, including any sales taxes
payable in connection with the Pool Receivables and their creation and
satisfaction. The Administrator, the Purchaser Agents or any of the
Purchasers shall not have any obligation or liability with respect to any
Pool Asset, nor shall any of them be obligated to perform any of the
obligations of the Seller, Servicer, York or the Originators thereunder.
(b) York hereby irrevocably agrees that if at any time it shall
cease to be the Servicer hereunder, it shall act (if the then-current
Servicer so requests) as the data-processing agent of the Servicer and, in
such capacity, York shall conduct the data-processing functions of the
administration of the Receivables and the Collections thereon in
substantially the same way that York conducted such data-processing
functions while it acted as the Servicer and shall be entitled to recover
from the Servicing Fee its reasonable costs and expenses incurred while
acting as such data-processing agent of the Servicer.
Section 4.6. Servicing Fee. (a) Subject to clause (b), the Servicer shall
be paid a fee (the "Servicing Fee") equal to 1.00% per annum of the daily
average aggregate Outstanding Balance of the Pool Receivables. The Aggregate of
each Purchaser Group's Ratable Share of such fee shall be paid through the
distributions contemplated by Section 1.4(d), and the Seller's Share of such fee
shall be paid by the Seller.
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(b) If the Servicer ceases to be York or an Affiliate thereof, the
servicing fee shall be the greater of: (i) the amount calculated pursuant to
clause (a), and (ii) an alternative amount specified by the successor Servicer
not to exceed 110% of the aggregate reasonable costs and expenses incurred by
such successor Servicer in connection with the performance of its obligations as
Servicer.
ARTICLE V
THE AGENTS
Section 5.1. Appointment and Authorization. (a) Each Purchaser and each
Purchaser Agent hereby irrevocably designates and appoints BTMNY as the
"Administrator" hereunder and authorizes the Administrator to take such actions
and to exercise such powers as are delegated to the Administrator hereby and to
exercise such other powers as are reasonably incidental thereto. Further,
Gotham, pursuant to the Program Administration Agreement, has appointed and
authorized the Program Administrator (or its respective designees) to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Program Administrator by the terms hereof, together with
such powers as are reasonably incidental thereto. The Administrator shall hold,
in its name, for the benefit of each Purchaser, ratably, the Purchased Interest.
The Administrator shall not have any duties other than those expressly set forth
herein or any fiduciary relationship with any Purchaser or Purchaser Agent, and
no implied obligations or liabilities shall be read into this Agreement, or
otherwise exist, against the Administrator. The Administrator does not assume,
nor shall it be deemed to have assumed, any obligation to, or relationship of
trust or agency with, the Seller or Servicer. Notwithstanding any provision of
this Agreement or any other Transaction Document to the contrary, in no event
shall the Administrator ever be required to take any action which exposes the
Administrator to personal liability or which is contrary to the provision of any
Transaction Document or applicable law.
(b) Each Purchaser hereby irrevocably designates and appoints the
respective institution identified as the Purchaser Agent for such Purchaser's
Purchaser Group on the signature pages hereto or in the Assumption Agreement or
Transfer Supplement pursuant to which such Purchaser becomes a party hereto, and
each authorizes such Purchaser Agent to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and perform such duties
as are expressly delegated to such Purchaser Agent by the terms of this
Agreement, if any, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, no Purchaser Agent shall have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any
Purchaser or other Purchaser Agent or the Administrator, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities on
the part of such Purchaser Agent shall be read into this Agreement or otherwise
exist against such Purchaser Agent.
(c) Except as otherwise specifically provided in this Agreement, the
provisions of this Article V are solely for the benefit of the Purchaser Agents,
the Administrator and the Purchasers, and none of the Seller or Servicer shall
have any rights as a third-party beneficiary or otherwise under any of the
provisions of this Article V, except that this Article V shall not affect any
obligations which any Purchaser Agent, the Administrator or any Purchaser may
have to the
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Seller or the Servicer under the other provisions of this Agreement.
Furthermore, no Purchaser shall have any rights as a third-party beneficiary or
otherwise under any of the provisions hereof in respect of a Purchaser Agent
which is not the Purchaser Agent for such Purchaser.
(d) In performing its functions and duties hereunder, the Administrator
shall act solely as the agent of the Purchasers and the Purchaser Agents and
does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Seller or Servicer or any of
their successors and assigns. In performing its functions and duties hereunder,
each Purchaser Agent shall act solely as the agent of its respective Purchaser
and does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Seller, the Servicer, any other
Purchaser, any other Purchaser Agent or the Administrator, or any of their
respective successors and assigns.
Section 5.2. Delegation of Duties. The Administrator may execute any of
its duties through agents or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. The Administrator
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
Section 5.3. Exculpatory Provisions. None of the Purchaser Agents, the
Administrator, the Program Administrator or any of their shareholders,
directors, officers, managers, agents or employees shall be liable for any
action taken or omitted (i) with the consent or at the direction of the Majority
Purchasers (or in the case of any Purchaser Agent, the Purchasers within its
Purchaser Group that have a majority of the aggregate Commitment of such
Purchaser Group) or (ii) in the absence of such Person's gross negligence or
willful misconduct. The Administrator shall not be responsible to any Purchaser,
Purchaser Agent, the Program Administrator or other Person for (i) any recitals,
representations, warranties or other statements made by the Seller, Servicer, or
any of their Affiliates, (ii) the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any Transaction Document, (iii) any failure of
the Seller, any Originator or any of their Affiliates to perform any obligation
or (iv) the satisfaction of any condition specified in Exhibit II. The
Administrator shall not have any obligation to any Purchaser or Purchaser Agent
to ascertain or inquire about the observance or performance of any agreement
contained in any Transaction Document or to inspect the properties, books or
records of the Seller, Servicer, any Originator or any of their Affiliates.
Section 5.4. Reliance by Agents. (a) Each Purchaser Agent, the Program
Administrator and the Administrator shall in all cases be entitled to rely, and
shall be fully protected in relying, upon any document or other writing or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person and upon advice and statements of legal
counsel (including counsel to the Seller), independent accountants and other
experts selected by the Administrator. Each Purchaser Agent and the
Administrator shall in all cases be fully justified in failing or refusing to
take any action under any Transaction Document unless it shall first receive
such advice or concurrence of the Majority Purchasers (or in the case of any
Purchaser Agent, the Purchasers within its Purchaser Group that have a majority
of the aggregate Commitment of such Purchaser Group), and assurance of its
indemnification, as it deems appropriate.
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(b) The Administrator shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement in accordance with a request
of the Majority Purchasers or the Purchaser Agents, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all
Purchasers, the Administrator and Purchaser Agents.
(c) The Purchasers within each Purchaser Group with a majority of the
Commitment of such Purchaser Group shall be entitled to request or direct the
related Purchaser Agent to take action, or refrain from taking action, under
this Agreement on behalf of such Purchasers. Such Purchaser Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of such majority Purchasers, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all of such Purchaser Agent's Purchasers.
(d) Unless otherwise advised in writing by a Purchaser Agent or by any
Purchaser on whose behalf such Purchaser Agent is purportedly acting, each party
to this Agreement may assume that (i) such Purchaser Agent is acting for the
benefit of each of the Purchasers in respect of which such Purchaser Agent is
identified as being the "Purchaser Agent" in the definition of "Purchaser Agent"
hereto, as well as for the benefit of each assignee or other transferee from any
such Person, and (ii) each action taken by such Purchaser Agent has been duly
authorized and approved by all necessary action on the part of the Purchasers on
whose behalf it is purportedly acting. Each Purchaser Agent and its Purchaser(s)
shall agree amongst themselves as to the circumstances and procedures for
removal, resignation and replacement of such Purchaser Agent.
Section 5.5. Notice of Termination Events. Neither any Purchaser Agent nor
the Administrator shall be deemed to have knowledge or notice of the occurrence
of any Termination Event or Unmatured Termination Event unless such Person has
received notice from any Purchaser, Purchaser Agent, the Servicer or the Seller
stating that a Termination Event or an Unmatured Termination Event has occurred
hereunder and describing such Termination Event or Unmatured Termination Event.
In the event that the Administrator receives such a notice, it shall promptly
give notice thereof to each Purchaser Agent whereupon each such Purchaser Agent
shall promptly give notice thereof to its Purchasers. In the event that a
Purchaser Agent receives such a notice (other than from the Administrator), it
shall promptly give notice thereof to the Administrator. The Administrator shall
take such action concerning a Termination Event or an Unmatured Termination
Event as may be directed by the Majority Purchasers (unless such action
otherwise requires the consent of all Purchasers), but until the Administrator
receives such directions, the Administrator may (but shall not be obligated to)
take such action, or refrain from taking such action, as the Administrator deems
advisable and in the best interests of the Purchasers and Purchaser Agents.
Section 5.6. Non-Reliance on Administrator, Purchaser Agents and Other
Purchasers. Each Purchaser expressly acknowledges that none of the
Administrator, the Purchaser Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrator, or any
Purchaser Agent hereafter taken, including any review of the affairs of the
Seller, York, Servicer or any Originator, shall be deemed to constitute any
representation or warranty by the Administrator or such Purchaser Agent, as
applicable. Each Purchaser represents and warrants
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to the Administrator and the Purchaser Agents that, independently and without
reliance upon the Administrator, Purchaser Agents or any other Purchaser and
based on such documents and information as it has deemed appropriate, it has
made and will continue to make its own appraisal of and investigation into the
business, operations, property, prospects, financial and other conditions and
creditworthiness of the Seller, York, Servicer or the Originators, and the
Receivables and its own decision to enter into this Agreement and to take, or
omit, action under any Transaction Document. Except for items specifically
required to be delivered hereunder, the Administrator shall not have any duty or
responsibility to provide any Purchaser Agent with any information concerning
the Seller, York, Servicer or the Originators or any of their Affiliates that
comes into the possession of the Administrator or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
Section 5.7. Administrators and Affiliates. Each of the Purchasers, the
Program Administrator and the Administrator and their Affiliates may extend
credit to, accept deposits from and generally engage in any kind of banking,
trust, debt, equity or other business with the Seller, York, Servicer or any
Originator or any of their Affiliates and BTMNY may exercise or refrain from
exercising its rights and powers as if it were not the Administrator. With
respect to the acquisition of the Eligible Receivables pursuant to this
Agreement, each of the Purchaser Agents and the Administrator shall have the
same rights and powers under this Agreement as any Purchaser and may exercise
the same as though it were not such an agent, and the terms "Purchaser" and
"Purchasers" shall include each of the Purchaser Agents and the Administrator in
their individual capacities.
Section 5.8. Indemnification. Each Purchaser Group shall indemnify and
hold harmless the Administrator (but solely in its capacity as Administrator)
and its officers, directors, employees, representatives, counsel and agents (to
the extent not reimbursed by the Seller, York or Servicer and without limiting
the obligation of the Seller, York or Servicer to do so), ratably in accordance
with its Ratable Share from and against any and all liabilities, obligations,
losses, damages, penalties, judgments, settlements, costs, expenses and
disbursements of any kind whatsoever (including in connection with any
investigative or threatened proceeding, whether or not the Administrator or such
Person shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against the Administrator or such Person as a result of,
or related to, any of the transactions contemplated by the Transaction Documents
or the execution, delivery or performance of the Transaction Documents or any
other document furnished in connection therewith (but excluding any such
liabilities, obligations, losses, damages, penalties, judgments, settlements,
costs, expenses or disbursements resulting solely from the gross negligence or
willful misconduct of the Administrator or such Person as finally determined by
a court of competent jurisdiction); provided, that in the case of each Purchaser
that is a commercial paper conduit, such indemnity shall be provided solely to
the extent of amounts received by such Purchaser under this Agreement which
exceed the amounts required to repay such Purchaser's outstanding Notes.
Notwithstanding anything in this Section 5.8 to the contrary, each of the
Administrator, each Purchaser Agent and each Purchaser hereby covenants and
agrees that it shall not institute against, or join any other Person in
instituting against, any Conduit Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law, for one year and a day after the
latest maturing Note issued by such Conduit Purchaser is paid in full.
25
Section 5.9. Successor Administrator. The Administrator may, upon at least
five (5) days notice to the Seller, each Purchaser and each Purchaser Agent,
resign as Administrator. Such resignation shall not become effective until a
successor agent is appointed by the Majority Purchasers and has accepted such
appointment. Upon such acceptance of its appointment as Administrator hereunder
by a successor Administrator, such successor Administrator shall succeed to and
become vested with all the rights and duties of the retiring Administrator, and
the retiring Administrator shall be discharged from its duties and obligations
under the Transaction Documents. After any retiring Administrator's resignation
hereunder, the provisions of Sections 3.1 and 3.2 and this Article V shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
the Administrator.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Transaction Document, or consent to any departure by
the Seller or the Servicer therefrom, shall be effective unless in a writing
signed by the Administrator and each of the Majority Purchasers, and, in the
case of any amendment, by the other parties thereto; and then such amendment,
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that, if required by the
securitization program documents governing any Conduit Purchaser's commercial
paper program, no such material amendment shall be effective until both Xxxxx'x
and Standard & Poor's have notified the related Purchaser Agent in writing that
such action will not result in a reduction or withdrawal of the rating of any
Notes; provided, further that no such amendment or waiver shall, without the
consent of each affected Purchaser, (A) extend the date of any payment or
deposit of Collections by the Seller or the Servicer, (B) reduce the rate or
extend the time of payment of Discount, (C) reduce any fees payable to the
Administrator, any Purchaser Agent or any Purchaser pursuant to the applicable
Purchaser Group Fee Letter, (D) change the amount of Investment of any
Purchaser, any Purchaser's pro rata share of the Purchased Interest or any
Related Committed Purchaser's Commitment, (E) amend, modify or waive any
provision of the definition of "Majority Purchaser" or this Section 6.1, (F)
consent to or permit the assignment or transfer by the Seller of any of its
rights and obligations under this Agreement, (G) change the definition of
"Concentration Percentage," "Concentration Reserve," "Concentration Reserve
Percentage," "Eligible Receivable," "Ineligible Elimination Amounts," "Loss
Reserve," "Loss Reserve Percentage," "Dilution Reserve," "Dilution Reserve
Percentage," "Specifically Reserved Dilution Amount," "Termination Event,"
"Total Reserve," "Yield Reserve," or "Yield Reserve Percentage", (H) amend or
modify any defined term (or any defined term used directly or indirectly in such
defined term) used in clauses (A) through (G) above in a manner that would
circumvent the intention of the restrictions set forth in such clauses, or (I)
otherwise materially and adversely affect the rights of any such Purchaser
hereunder. No failure on the part of the Purchasers or the Administrator 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 6.2. Notices, Etc. All notices and other communications hereunder
shall, unless otherwise stated herein, be in writing (which shall include
facsimile communication) and be sent or delivered to each party hereto at its
address set forth under its name on the signature pages
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hereof (or in any Assumption Agreement pursuant to which it became a party
hereto) 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 first class mail), and notices and communications sent by other means shall
be effective when received.
Section 6.3. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns. Except as otherwise provided herein, neither the
Seller nor York, as Servicer, may assign or transfer any of its respective
rights or obligations or delegate any of its respective duties hereunder
or under any Transaction Document without the prior written consent of the
Administrator, the Purchaser Agents and the Purchasers.
(b) Participations. Any Purchaser may sell to one or more Persons
(each a "Participant") participating interests in the interests of such
Purchaser hereunder; provided, however, that no Purchaser shall grant any
participation under which the Participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Transaction
Document. Such Purchaser shall remain solely responsible for performing
its obligations hereunder, and the Seller, each Purchaser Agent and the
Administrator shall continue to deal solely and directly with such
Purchaser in connection with such Purchaser's rights and obligations
hereunder. A Purchaser shall not agree with a Participant to restrict such
Purchaser's right to agree to any amendment hereto, except amendments that
require the consent of all Purchasers.
(c) Assignments by Certain Related Committed Purchasers. Any
Related Committed Purchaser may assign to one or more Persons (each a
"Purchasing Related Committed Purchaser"), reasonably acceptable to the
related Purchaser Agent in its sole discretion, any portion of its
Commitment pursuant to a supplement hereto, substantially in the form of
Annex D hereto with any changes as have been approved by the parties
thereto (a "Transfer Supplement"), executed by each such Purchasing
Related Committed Purchaser, such selling Related Committed Purchaser,
such related Purchaser Agent. Any such assignment by Related Committed
Purchaser cannot be for an amount less than $10,000,000. Upon (i) the
execution of the Transfer Supplement, (ii) delivery of an executed copy
thereof to the Seller, such related Purchaser Agent and the Administrator
and (iii) payment by the Purchasing Related Committed Purchaser to the
selling Related Committed Purchaser of the agreed purchase price, such
selling Related Committed Purchaser shall be released from its obligations
hereunder to the extent of such assignment and such Purchasing Related
Committed Purchaser shall for all purposes be a Related Committed
Purchaser party hereto and shall have all the rights and obligations of a
Related Committed Purchaser hereunder to the same extent as if it were an
original party hereto. The amount of the Commitment of the selling Related
Committed Purchaser allocable to such Purchasing Related Committed
Purchaser shall be equal to the amount of the Commitment of the selling
Related Committed Purchaser transferred regardless of the purchase price
paid therefor. The Transfer Supplement shall be an amendment hereof only
to the extent necessary to reflect the addition of such Purchasing
27
Related Committed Purchaser as a "Related Committed Purchaser" and any
resulting adjustment of the selling Related Committed Purchaser's
Commitment.
(d) Replaceable Related Committed Purchaser. If any Related
Committed Purchaser (a "Replaceable Related Committed Purchaser") shall
(i) petition the Seller for any amounts under Section 1.7 or 1.8 or (ii)
cease to have a short-term debt rating of "A-1" by Standard & Poor's or
"P-1" by Xxxxx'x (if such a rating is required by the related Purchaser's
securitization program), the related Purchaser Agent or the Administrator
may and if requested by the Seller, use its reasonable best efforts to
designate a replacement financial institution (a "Replacement Related
Committed Purchaser"), to which such Replaceable Related Committed
Purchaser shall, subject to its receipt of an amount equal to the
aggregate outstanding principal balance of its Investment and accrued and
unpaid Discount thereon (and, if applicable, its receipt (unless a later
date for the remittance thereof shall be agreed upon by the Seller and
such Replaceable Related Committed Purchaser) of all amounts claimed under
Section 1.7 and/or 1.8) promptly assign all of its rights, obligations and
Commitment hereunder, together with all of its right, title and interest
in, to and under the Purchased Interest allocable to it, to the
Replacement Related Committed Purchaser in accordance with Section 6.3(c),
above. Once such assignment becomes effective, the Replacement Related
Committed Purchaser shall be deemed to be a "Related Committed Purchaser"
for all purposes hereof and such Replaceable Related Committed Purchaser
shall cease to be "Related Committed Purchaser" for all purposes hereof
and shall have no further rights or obligations hereunder.
(e) Assignment by Conduit Purchasers. Each party hereto agrees and
consents (i) to any Conduit Purchaser's assignment, participation, grant
of security interests in or other transfers of any portion of, or any of
its beneficial interest in, the Purchased Interest (or portion thereof),
including without limitation to any collateral agent or Program Support
Provider in connection with its commercial paper program and (ii) to the
complete assignment by any Conduit Purchaser of all of its rights and
obligations hereunder to any other Person, and upon such assignment such
Conduit Purchaser shall be released from all obligations and duties, if
any, hereunder; provided, however, that such Conduit Purchaser may not,
without the prior consent of its Related Committed Purchasers, make any
such transfer of its rights hereunder under clause (ii) above unless the
assignee (i) is principally engaged in the purchase of assets similar to
the assets being purchased hereunder, (ii) has as its Purchaser Agent the
Purchaser Agent of the assigning Conduit Purchaser and (iii) issues
commercial paper or other Notes with credit ratings substantially
comparable to the ratings of the assigning Conduit Purchaser. Any
assigning Conduit Purchaser shall deliver to any assignee a supplement
hereto, substantially in the form of Annex D hereto with any changes as
have been approved by the parties thereto (also, a "Transfer Supplement"),
duly executed by such Conduit Purchaser, assigning any portion of its
interest in the Purchased Interest to its assignee. Such Conduit Purchaser
shall promptly (i) notify each of the other parties hereto of such
assignment and (ii) take all further action that the assignee reasonably
requests in order to evidence the assignee's right, title and interest in
such interest in the Purchased Interest and to enable the assignee to
exercise or enforce any rights of such Conduit Purchaser hereunder. Upon
the assignment of any portion of its interest in the Purchased Interest,
28
the assignee shall have all of the rights hereunder with respect to such
interest (except that the Discount therefor shall thereafter accrue at the
rate, determined with respect to the assigning Conduit Purchaser unless
the Seller, the related Purchaser Agent and the assignee shall have agreed
upon a different Discount).
(f) Opinions of Counsel. If required by the Administrator or the
applicable Purchaser Agent or to maintain the ratings of any Conduit
Purchaser's Notes, each Transfer Supplement must be accompanied by an
opinion of counsel of the assignee as to such matters as the Administrator
or such Purchaser Agent may reasonably request.
Section 6.4. Costs, Expenses and Taxes. (a) In addition to the rights of
indemnification granted under Section 3.1, the Seller agrees to pay on demand
(which demand shall be accompanied by documentation thereof in reasonable
detail) all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic audits by the
Administrator of Pool Receivables) of this Agreement, the other Transaction
Documents and the other documents and agreements to be delivered hereunder (and
all reasonable costs and expenses in connection with any amendment, waiver or
modification of any thereof), including: (i) Attorney Costs for the
Administrator, each Purchaser Group and their respective Affiliates and agents
with respect thereto and with respect to advising the Administrator, each
Purchaser Group and their respective Affiliates and agents as to their rights
and remedies under this Agreement and the other Transaction Documents, (ii) all
reasonable costs and expenses (including Attorney Costs and due diligence costs
and expenses), if any, of the Administrator, each Purchaser Group and their
respective Affiliates and agents in connection with the enforcement of this
Agreement and the other Transaction Documents and (iii) all costs and expenses
(including Attorney Costs) of the Administrator, each Purchaser Group and their
respective Affiliates and agents in connection with any Take Out Securitization
or the satisfaction of the conditions precedent thereto.
(b) In addition, the Seller shall pay on demand 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 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 6.5. No Proceedings; Limitation on Payments.
(a) Each of the Seller, York, the Servicer, the Administrator, the
Purchaser Agents, the Purchasers, each assignee of the Purchased Interest
or any interest therein, and each Person that enters into a commitment to
purchase the Purchased Interest or interests therein, hereby covenants and
agrees that it will not institute against, or join any other Person in
instituting against, any Conduit Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding
under any federal or state bankruptcy or similar law, for one year and one
day after the latest maturing Note issued by such Conduit Purchaser is
paid in full. The provisions of this Section 6.5(a) shall survive any
termination of this Agreement.
29
(b) Notwithstanding any provisions contained in this Agreement to
the contrary, no Conduit Purchaser shall or shall be obligated to, pay any
amount, if any, payable by it pursuant to this Agreement or any other
Transaction Document unless (i) such Conduit Purchaser has received funds
which may be used to make such payment and which funds are not required to
repay the Notes when due and (ii) after giving effect to such payment,
either (x) such Conduit Purchaser could issue Notes to refinance all
outstanding Notes (assuming such outstanding Notes matured at such time)
in accordance with the program documents governing such Conduit
Purchaser's securitization program or (y) all Notes are paid in full. Any
amount which such Conduit Purchaser does not pay pursuant to the operation
of the preceding sentence shall not constitute a claim (as defined in
Section. 101 of the Bankruptcy Code) against or company obligation of such
Conduit Purchaser for any such insufficiency unless and until such Conduit
Purchaser satisfies the provisions of clauses (i) and (ii) above. The
provisions of this Section 6.5(b) shall survive any termination of this
Agreement.
Section 6.6. GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE
OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK; AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION
OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE
MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED
HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH SERVICE MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NEW YORK LAW.
Section 6.7. 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.
30
Section 6.8. Survival of Termination. The provisions of Sections 1.7, 1.8,
3.1, 3.2, 6.4, 6.5, 6.6, 6.9 and 6.14 shall survive any termination of this
Agreement.
Section 6.9. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES
THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING THAT SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY
PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 6.10. Sharing of Recoveries. Each Purchaser agrees that if it
receives any recovery, through set-off, judicial action or otherwise, on any
amount payable or recoverable hereunder in a greater proportion than should have
been received hereunder or otherwise inconsistent with the provisions hereof,
then the recipient of such recovery shall purchase for cash an interest in
amounts owing to the other Purchasers (as return of Investment or otherwise),
without representation or warranty except for the representation and warranty
that such interest is being sold by each such other Purchaser free and clear of
any Adverse Claim created or granted by such other Purchaser, in the amount
necessary to create proportional participation by the Purchaser in such
recovery. If all or any portion of such amount is thereafter recovered from the
recipient, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.
Section 6.11. Right of Setoff. During a Termination Event, each Purchaser
is hereby authorized (in addition to any other rights it may have) to setoff,
appropriate and apply (without presentment, demand, protest or other notice
which are hereby expressly waived) any deposits and any other indebtedness held
or owing by such Purchaser (including by any branches or agencies of such
Purchaser) to, or for the account of, the Seller against amounts owing by the
Seller hereunder (even if contingent or unmatured).
Section 6.12. Entire Agreement. This Agreement and the other Transaction
Documents embody the entire agreement and understanding between the parties
hereto, and supersede all prior or contemporaneous agreements and understandings
of such Persons, verbal or written, relating to the subject matter hereof and
thereof.
Section 6.13. Headings. The captions and headings of this Agreement and
any Exhibit, Schedule or Annex hereto are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
31
Section 6.14. Purchaser Groups' Liabilities. The obligations of each
Purchaser Agent and each Purchaser under the Transaction Documents are solely
the corporate obligations of such Person. Except with respect to any claim
arising out of the intentional breach of this Agreement, willful misconduct or
gross negligence of the Administrator, any Purchaser Agent or any Purchaser, no
claim may be made by the Seller or the Servicer or any other Person against the
Administrator, any Purchaser Agent or any Purchaser or their respective
Affiliates, shareholders, directors, officers, employees, managers, attorneys or
agents (including X.X. Management Corporation) for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by the Agreement or any other Transaction Document, or any act,
omission or event occurring in connection therewith; and each of Seller and
Servicer hereby waives, releases, and agrees not to xxx upon any claim for any
such damages, whether or not accrued and whether or not known or suspected to
exist in its favor.
Section 6.15. Confidentiality. Unless otherwise required by applicable
law, each of the Seller and the Servicer agrees to maintain the confidentiality
of this Agreement and the other Transaction Documents (and all drafts thereof)
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 Administrator, and (b) the Seller's legal counsel
and auditors if they agree to hold it confidential. Unless otherwise required by
applicable law, each of the Administrator, the Purchaser Agents and the
Purchasers agree to maintain the confidentiality of non-public financial
information regarding York and its Subsidiaries and Affiliates; provided, that
such information 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 York, (ii) legal counsel and auditors
of the Purchasers, the Purchaser Agents or the Administrator if they agree to
hold it confidential, (iii) the rating agencies rating the Notes, (iv) any
Program Support Provider, potential Program Support Provider and the Program
Administrator (if they agree to hold it confidential), (v) any placement agent
placing the Notes and (vi) any regulatory authorities having jurisdiction over
BTMNY, BNS, the Purchasers, the Purchaser Agents or any Program Support
Provider.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
32
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.
YORK RECEIVABLES FUNDING LLC, as Seller
By: _______________________________________________
Name: _________________________________________
Title: ________________________________________
Address:
York Receivables Funding LLC
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
YORK INTERNATIONAL CORPORATION
By: _______________________________________________
Name: _________________________________________
Title: ________________________________________
Address:
York International Corporation
000 X. Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-1 Amended and Restated Receivables Purchase
Agreement
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW
YORK BRANCH,
as Administrator
By: ________________________________________
Name:___________________________________
Title:__________________________________
Address:
The Bank of Tokyo-Mitsubishi, Ltd.,
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Securitization Group
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
S-2 Amended and Restated Receivables Purchase
Agreement
PURCHASERS:
GOTHAM FUNDING CORPORATION, as a Conduit
Purchaser
By: _______________________________________
Name: _________________________________
Title: ________________________________
Address:
Gotham Funding Corporation
c/o X.X. Management Corporation
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
With a copy to:
The Bank of Tokyo-Mitsubishi, Ltd.,
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Securitization Group
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
S-3 Amended and Restated Receivables Purchase
Agreement
LIBERTY STREET FUNDING CORP.,
as a Conduit Purchaser
By: ______________________________________
Name: ________________________________
Title: _______________________________
Address:
Liberty Street Funding Corp.
c/o Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
S-4 Amended and Restated Receivables Purchase
Agreement
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH,
as Gotham Purchaser Agent
By: _______________________________________
Name:__________________________________
Title:_________________________________
Address:
The Bank of Tokyo-Mitsubishi, Ltd.,
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Securitization Group
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH,
as Related Committed Purchaser
By:_________________________________
Name:_______________________________
Title:______________________________
The Bank of Tokyo-Mitsubishi, Ltd.,
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Commitment $100,000,000
S-5 Amended and Restated Receivables Purchase
Agreement
THE BANK OF NOVA SCOTIA,
as Liberty Street Purchaser Agent and Related Committed
Purchaser
By: ________________________________________________
Name:___________________________________________
Title:__________________________________________
Address:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Commitment $100,000,000
S-6 Amended and Restated Receivables Purchase
Agreement
EXHIBIT I
DEFINITIONS
As used in the Agreement (including its Exhibits, Schedules and Annexes),
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).
Unless otherwise indicated, all Section, Annex, Exhibit and Schedule references
in this Exhibit are to Sections of and Annexes, Exhibits and Schedules to the
Agreement.
"Administrator" has the meaning set forth in the preamble to the
Agreement.
"Adverse Claim" means a lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement; it being understood
that any thereof in favor of the Administrator (for the benefit of the
Purchasers ) or the federal government with respect to any Receivable described
in clause (a)(ii) of the definition of "Eligible Receivable" shall not
constitute an Adverse Claim.
"Affected Person" has the meaning set forth in Section 1.7 of the
Agreement.
"Affiliate" means, as to any Person: (a) any Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person, or (b) who is a director or officer: (i) of such Person or (ii) of
any Person described in clause (a), except that, in the case of each Conduit
Purchaser, Affiliate shall mean the holder of its capital stock. For purposes of
this definition, control of a Person shall mean the power, direct or indirect:
(x) to vote 25% or more of the securities having ordinary voting power for the
election of directors of such Person, or (y) to direct or cause the direction of
the management and policies of such Person, in either case whether by ownership
of securities, contract, proxy or otherwise.
"Aggregate Discount" at any time, means the sum of the aggregate for each
Purchaser of the accrued and unpaid Discount with respect to each such
Purchaser's Investment at such time.
"Aggregate Investment" means the amount paid to the Seller in respect of
the Purchased Interest or portion thereof by each Purchaser pursuant to the
Agreement, as reduced from time to time by Collections distributed and applied
on account of such Aggregate Investment pursuant to Section 1.4(d) of the
Agreement; provided, that if such Aggregate Investment shall have been reduced
by any distribution, and thereafter all or a portion of such distribution is
rescinded or must otherwise be returned for any reason, such Aggregate
Investment shall be increased by the amount of such rescinded or returned
distribution as though it had not been made.
"Agreement" has the meaning set forth in the preamble to the Agreement.
"Assumption Agreement" means an agreement substantially in the form set
forth in Annex C to the Agreement.
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel.
I-1
"Bankruptcy Code" means the United States Bankruptcy Reform Act of 1978
(11 U.S.C. Section 101, et seq.), as amended from time to time.
"Base Rate" means, for any day, (a) in the case of the Purchaser Group
including Gotham, the Gotham Base Rate, (b) in the case of the Purchaser Group
including Liberty Street, the Liberty Street Base Rate, and (c) in the case of
each other Purchaser Group, shall mean the rate set forth as the Base Rate for
such Purchaser Group in the related Purchaser Group Fee Letter.
"BBA" means the British Bankers' Association.
"Benefit Plan" means any employee benefit pension plan as defined in
Section 3(2) of ERISA in respect of which the Seller, any Originator, York or
any ERISA Affiliate is, or at any time during the immediately preceding six
years was, an "employer" as defined in Section 3(5) of ERISA.
"BTMNY" has the meaning set forth in the preamble to the Agreement.
"BTM Trust Company" means the Program Administrator.
"Business Day" means any day (other than a Saturday or Sunday) on which:
(a) banks are not authorized or required to close in New York City, New York and
(b) if this definition of "Business Day" is utilized in connection with the
Euro-Rate, dealings are carried out in the London interbank market.
"Cancelled Distributor" means each of the Obligors listed in the most
recently delivered Information Package, with whom no Originator is doing
business.
"Cancelled Obligor" means an Obligor with whom York or any other
Originator has ceased transacting business.
"Change in Control" means (a) with respect to Seller, that at any time
York shall fail to own, directly or indirectly through one or more wholly-owned
Subsidiaries free and clear of any Adverse Claim, 100% of the shares of
outstanding voting stock of the Seller on a fully diluted basis, (b) with
respect to any Originator other than York, that at any time York shall fail to
own, directly or indirectly through one or more wholly-owned Subsidiaries free
and clear of any Adverse Claim, 100% of the share of outstanding voting stock of
such Originator on a fully diluted basis, and (c) with respect to York, the
acquisition by any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) of 20% or more of the
shares of outstanding voting stock of York.
"Closing Date" means May 17, 2004.
"Collections" means, with respect to any Pool Receivable: (a) all funds
that are received by any Originator, York, the Seller or the Servicer in payment
of any amounts owed in respect of such Receivable (including purchase price,
finance charges, interest and all other charges), or that are applied to amounts
owed in respect of such Receivable (including insurance payments and net
proceeds of the sale or other disposition of repossessed goods or other
collateral or
I-2
property of the related Obligor or any other Person directly or indirectly
liable for the payment of such Pool Receivable and available to be applied
thereon), (b) all amounts deemed to have been received pursuant to Section
1.4(e) of the Agreement and (c) all other proceeds of such Pool Receivable.
"Commitment" means, with respect to each Related Committed Purchaser, the
maximum amount which such Purchaser is obligated to pay hereunder on account of
any Purchase, as set forth below its signature to this Agreement or in the
Assumption Agreement pursuant to which it became a Purchaser, as such amount may
be modified in connection with any subsequent assignment pursuant to Section
6.3(c) or in connection with a change in the Purchase Limit pursuant to Section
1.1(b).
"Commitment Percentage" means, for each Related Committed Purchaser in a
Purchaser Group, such Related Committed Purchaser's Commitment divided by the
total of all Commitments of all Related Committed Purchasers in such Purchaser
Group.
"Company Note" has the meaning set forth in Section 3.1 of the Purchase
and Sale Agreement.
"Concentration Percentage" means as to any Obligor which is (a) a Group A
Obligor, 16.0%, (b) a Group B Obligor, 16.0%, (c) a Group C Obligor, 8.0%, or
(d) a Group D Obligor, 5.0%.
"Concentration Reserve" means, on any day, an amount equal to: (a) the
Aggregate Investment at the close of business of the Servicer on such date
multiplied by (b) (i) the Concentration Reserve Percentage on such date, divided
by (ii) 100% minus the Concentration Reserve Percentage on such date.
"Concentration Reserve Percentage" means, on any date, the quotient of (i)
the greatest of (a) the largest aggregate Outstanding Balance of the Receivables
of any single Group A Obligor or Group B Obligor, (b) the sum of the largest
aggregate Outstanding Balances of the Receivables of any two Group C Obligors or
(c) the sum of the largest aggregate Outstanding Balances of the Receivables of
any four Group D Obligors, divided by (ii) the aggregate Outstanding Balance of
all Eligible Receivables, on such date. For the purposes of this definition the
Outstanding Balance of an Obligor shall exclude the Excess Concentration Amounts
for such Obligor.
"Conduit Purchasers" means each commercial paper conduit that is a party
to the Agreement, as a purchaser, or that becomes a party to the Agreement, as a
purchaser pursuant to an Assumption Agreement.
"Contract" means, with respect to any Receivable, any and all contracts,
understandings, instruments, agreements, leases, invoices, notes or other
writings pursuant to which such Receivable arises or that evidence such
Receivable or under which an Obligor becomes or is obligated to make payment in
respect of such Receivable.
"CP Rate" for any Yield Period for any Portion of Investment (a) in the
case of the Purchaser Group including Gotham, means the Gotham CP Rate, (b) in
the case of the Purchaser
I-3
Group including Liberty Street, means the Liberty Street CP Rate and (c) in the
case of each other Purchaser Group, shall mean the rate set forth as the CP Rate
for such Purchaser Group in the related Purchaser Group Fee Letter.
"Credit and Collection Policy" means, as the context may require, those
receivables credit and collection policies and practices of each Originator and
of York in effect on the date of the Agreement and described in Schedule I to
the Agreement, as the same may be modified from time to time in compliance with
the Agreement.
"Current Days' Sales Outstanding" means, for any calendar month, an amount
computed as of the last day of such calendar month equal to: (a) the average of
the Outstanding Balance of all Pool Receivables that are not passed their
respective due date as of the last day of the most recent three calendar months
divided by (b)(i) the average of the aggregate credit sales made by the
Originators during most recent three calendar months divided by (ii) 90.
"Cut-off Date" has the meaning set forth in the Purchase and Sale
Agreement.
"Debt" means: (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases that shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, and (e) 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 (a) through (d).
"Default Ratio" means the ratio (expressed as a percentage and rounded to
the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the
last day of each calendar month by dividing: (a) the aggregate Outstanding
Balance of all Pool Receivables that became Defaulted Receivables (other than
any Receivable the Obligor of which is an Affiliate of any Originator) during
such month excluding Ineligible Elimination Amounts, by (b)(i) at all times
during which the Current Days' Sales Outstanding is less than or equal to 45,
the aggregate credit sales made by the Originators (other than any sales made to
an Obligor which is an Affiliate of any Originator) during the month that is
five months before such month and (ii) at all other times, the aggregate credit
sales made by the Originators (other than any sales made to an Obligor which is
an Affiliate of any Originator) during the month that is six months before such
month.
"Defaulted Receivable" means a Receivable:
(a) as to which any payment, or part thereof, remains unpaid for
more than 120 days, in each case from the due date for such payment, or
(b) without duplication (i) as to which an Insolvency Proceeding
shall have occurred with respect to the Obligor thereof or any other
Person obligated thereon or owning any Related Security with respect
thereto, (ii) that has been charged-off as uncollectible or (iii) that
should have been charged-off as uncollectible pursuant to the Credit and
Collection Policy. The "Outstanding Balance" of any Defaulted Receivable
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the Obligor of which is not a Cancelled Obligor shall be determined
without regard to any credit memos or balances. The "Outstanding Balance"
of any Defaulted Receivable the Obligor of which is a Cancelled Obligor
shall be determined with regard to any credit memos or balances applicable
to such Cancelled Obligor, provided that such credit memos or balances are
applied in chronological order beginning with the most current
"Outstanding Balances"; provided, however, that if such credit memos or
balances exceed the "Outstanding Balances" of such Cancelled Obligor then
the excess of such credit memos or balances over such "Outstanding
Balances" shall be applied and reported to the "current aging" category as
set forth on the Information Package.
"Delinquency Ratio" means the ratio (expressed as a percentage and rounded
to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of
the last day of each calendar month by dividing: (a) the aggregate Outstanding
Balance of all Pool Receivables that were Delinquent Receivables (other than any
Receivable the Obligor of which is an Affiliate of any Originator) on such day
excluding Ineligible Elimination Amounts by (b) the aggregate Outstanding
Balance of all Pool Receivables (other than any Receivable the Obligor of which
is an Affiliate of any Originator) on such day.
"Delinquent Receivable" means a Receivable (a) as to which any payment, or
part thereof, remains unpaid for more than 90 days from the due date for such
payment or (b) without duplication, which has been (or consistent with the
Credit and Collection Policy, would be) classified as a Delinquent Receivable by
the applicable Originator. The `Outstanding Balance' of any Delinquent
Receivable the Obligor of which is not a Cancelled Obligor shall be determined
without regard to any credit memos or balances. The "Outstanding Balance" of any
Delinquent Receivable the Obligor of which is a Cancelled Obligor shall be
determined with regard to any credit memos or balances applicable to such
Cancelled Obligor provided that such credit memos or balances are applied in
chronological order beginning with the most current "Outstanding Balances";
provided, however, that if such credit memos or balances exceed the "Outstanding
Balances" of such Cancelled Obligor then the excess of such credit memos or
balances over such "Outstanding Balances" shall be applied and reported to the
"current aging" category as set forth on the Information Package.
"Dilution Ratio" means the ratio (expressed as a percentage and rounded to
the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward), computed as of
the last day of each calendar month by dividing: (a) the aggregate amount of
payments made or owed by the Seller pursuant to Section 1.4(e)(i) of the
Agreement during such calendar month excluding payments related to Ineligible
Elimination Amounts, Specifically Reserved Dilution Amount and amounts reported
as non-dilutive credits and rebills on the Information Package, by (b) the
aggregate credit sales made by the Originators during the calendar month that is
one month prior to such calendar month.
"Dilution Reserve" means, on any day, an amount equal to: (a) the
Aggregate Investment at the close of business of the Servicer on such date
multiplied by (b) (i) the Dilution Reserve Percentage on such date, divided by
(ii) 100% minus the Dilution Reserve Percentage on such date.
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"Dilution Reserve Percentage" means, on any date that the Servicer has
long-term senior unsecured debt ratings as set forth in the grid below, the
applicable percentage determined in accordance with the formula indicated under
the heading "Dilution Reserve Percentage Clause":
YORK RECEIVABLES FUNDING LLC
DILUTION RESERVE PERCENTAGE
DILUTION RESERVE PERCENTAGE
XXXXX'X RATING S&P RATING CLAUSE
------------------ ------------------ ----------------------------
Better than Baa1 Better than BBB+ (I)
Baa1 BBB+ (I)
Baa1 BBB (II)
Baa1 BBB- (II)
Baa1 Lower than BBB- (III)
Baa2 BBB+ (II)
Baa2 BBB (II)
Baa2 BBB- (II)
Baa2 Lower than BBB- (III)
Baa3 BBB+ (II)
Baa3 BBB (II)
Baa3 BBB- or Lower (III)
Lower than Baa3 BBB+ (III)
Lower than Baa3 BBB (III)
Lower than Baa3 BBB- (III)
Lower than Baa3 Lower than BBB- (III)
Not Rated Not Rated (III)
Ratings based on Servicer's long-term unsecured debt ratings.
Where:
(I) = 10%
(II) the greater of (a) 10.00%,or (b) the percentage determined by the
following formula: ED x DHR
(III) the greater of (a) 10.00% or (b) the percentage determined by the
following formula: [[(2.0 x ED) + ((DS-ED) x DS/ED))] x DHR];
provided that, (i) if the Servicer has only one long-term unsecured debt rating,
the Servicer may obtain an additional long-term senior unsecured debt rating
from a nationally recognized rating agency reasonably acceptable to the
Administrative Agent, and until the issuance of such additional rating, the
Dilution Reserve Percentage shall be determined by reference to the ratings
level which is one ratings level lower than the ratings level of the available
rating and (ii) if any rating shall be changed (other than as a result of a
change in the rating system of the applicable Rating Agency), such change shall
be effective as of the date on which such change is first announced by the
applicable Rating Agency.
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For the purposes of this definition, the abbreviations set forth in the formulas
above shall have the following meanings:
ED = the "Expected Dilution," which shall be equal to the 12-month rolling
average Dilution Ratio, expressed as a percentage;
DS = the "Dilution Spike," which shall be equal to the highest one month
Dilution Ratio over the immediately preceding 12 months, expressed as a
percentage; and
DHR = the "Dilution Horizon Ratio," which shall be equal to the aggregate credit
sales made by the Originators (other than sales to Obligors which are Affiliates
of any Originator) during the two preceding calendar months divided by the Net
Receivables Pool Balance as of the last day of most recent calendar month;
provided, however, if the Servicer has a rating of at least BBB- from Standard &
Poor's and Baa3 from Moody's, the "Dilution Horizon Ratio" shall be equal to:
(i) the aggregate credit sales made by the Originators (other than sales to
Obligors which are Affiliates of any Originator) during the preceding calendar
month plus (ii) 50% of the aggregate credit sales made by the Originators (other
than sales to Obligors which are Affiliates of any Originator) during the
penultimate calendar month.
"Discount" means with respect to any Purchaser:
(a) for any Portion of Investment for any Yield Period with respect
to any Purchaser to the extent such Portion of Investment will be funded
by such Purchaser during such Yield Period through the issuance of Notes:
CPR x I x ED/360
(b) for any Portion of Investment for any Yield Period with respect
to any Purchaser to the extent such Portion of Investment will not be
funded by such Purchaser during such Yield Period through the issuance of
Notes:
YR x I x ED/Year + TF
where:
YR = the Yield Rate, as applicable, for such Portion of
Investment for such Yield Period with respect to such
Purchaser,
I = the Investment with respect to such Portion of
Investment during such Yield Period with respect to such
Purchaser,
CPR = the CP Rate for the Portion of Investment for such Yield
Period with respect to such Purchaser,
ED = the actual number of days during such Yield Period,
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Year = if such Portion of Investment is funded based upon: (a)
the Euro-Rate, 360 days, and (b) the Base Rate, 365 or
366 days, as applicable, and
TF = the Termination Fee, if any, for the Portion of
Investment for such Yield Period with respect to such
Purchaser;
provided, that no provision of the Agreement shall require the payment or permit
the collection of Discount in excess of the maximum permitted by applicable law;
and provided further, that Discount for any Portion of Investment shall not be
considered paid by any distribution to the extent that at any time all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
"Eligible Foreign Obligor" means an Obligor which is:
(a) (i) a resident of any country listed on Annex F to the Agreement, (ii)
a member of the Organisation for Economic Co-operation and Development (or any
successor organization) and (iii) has a short-term foreign currency rating (or,
if such country does not have such a short-term foreign currency rating, a
long-term foreign currency rating) of at least "A-2" (or "A+") by Standard &
Poor's and "P-2" (or "A1") by Moody's; provided, that the Eligible Receivables
(to the extent that they satisfy each of the other requirements in the
definition of Eligible Receivable) related to such Obligors in the aggregate,
shall not exceed 5.00% of the aggregate Outstanding Balance of all other
Eligible Receivables at such time; or
(b) (i) a Canadian resident, (ii) a member of the Organisation for
Economic Co-operation and Development (or any successor organization), and (iii)
Canada then maintains a short-term foreign currency rating (or, if Canada does
not have such a short-term foreign currency rating, a long-term foreign currency
rating) of at least "A-1" (or "A+") by Standard & Poor's and "P-1" (or "A1") by
Moody's; provided that Eligible Receivables (to the extent that they satisfy
each of the other requirements in the definition of Eligible Receivable),
related to such Obligors in the aggregate shall not exceed 5.00% of the
aggregate Outstanding Balance of all other Eligible Receivables at such time.
"Eligible Receivable" means, at any time, a Pool Receivable:
(a) the Obligor of which is: (A)(i) a United States resident or
(ii) an Eligible Foreign Obligor, (B) such Receivable results from goods
and services sold in and performed in and/or shipped from the United
States by the applicable Originator and (C) payment for such goods and
services is denominated and payable only in U.S. dollars in the United
States and payable to such Originator at a Lock-Box Bank and subject to a
Lock-Box Agreement, (D) not a Government Authority; provided, however,
that if the Obligor of such Receivable is a Government Authority, such
Receivable shall be deemed to satisfy the requirements of this clause (D)
to the extent that the sum of aggregate Outstanding Balance of such
Receivables at such time is less than or equal to 6.00% of the aggregate
Outstanding Balance of all other Eligible Receivables at such time, as
determined, without giving effect to this proviso or the provisos to
clause (a)(i); provided, further that if a Servicer Downgrade Event
exists, the percentage of Receivables the
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Obligors of which are Government Authorities described in clause (D) above
shall automatically be reduced to zero (0.00%) (it being understood that
during the continuance of a Servicer Downgrade Event, if, with respect to
any Receivable the Obligor of which is a Government Authority, the Seller
and the applicable Originator shall have provided evidence reasonably
satisfactory to the Administrator that any such Receivable complies fully
with the Federal Assignment of Claims Act and all other similar applicable
laws of Governmental Authorities with respect to any transfer or pledge of
such Receivable have been fully complied with and such Receivable
otherwise satisfies the requirements of this definition, such Receivable
shall be deemed to satisfy the requirements of this clause (D) upon
written notice thereof by the Administrator; (iii) not subject to any
action of the type described in paragraph (f) of Exhibit V to the
Agreement; and (iv) not an Affiliate of York (for the avoidance of doubt,
after each of the conditions set forth in Section (q) of paragraph 1 of
Exhibit IV are satisfied, no foreign receivable shall be an "Eligible
Receivable" hereunder),
(b) that is denominated and payable only in U.S. dollars in the
United States,
(c) that does not have a stated maturity which is more than 60
days after the original invoice date of such Receivable; provided,
however, that up to 10.00% of the aggregate Outstanding Balance of all
Receivables may have a stated maturity which is more than 60 days but not
more than 180 days from the original invoice date of such Receivable;
provided, further, that up to 10.00% of the aggregate Outstanding Balance
of all Receivables may have a stated maturity which is more than 180 days
but not more than 360 days from the original invoice date of such
Receivables and such Receivables are covered by an insurance policy in
form and substance acceptable to the Purchasers,
(d) that arises under a duly authorized Contract for the sale and
delivery of goods and services in the ordinary course of an Originator's
business,
(e) that arises under a duly authorized Contract that is in full
force and effect and that is a legal, valid and binding obligation of the
related Obligor, enforceable against such Obligor in accordance with its
terms,
(f) that conforms in all material respects with all applicable
laws, rulings and regulations in effect,
(g) that is not the subject of any asserted dispute, offset, hold
back defense, Adverse Claim or other claim,
(h) that satisfies all applicable requirements of the applicable
Credit and Collection Policy,
(i) that has not been modified, waived or restructured since its
creation, except as permitted pursuant to Section 4.2 of the Agreement,
(j) in which the Seller owns good and marketable title, free and
clear of any Adverse Claims, and that is freely assignable by the Seller
(including without any consent of the related Obligor),
I-9
(k) for which the Administrator (for the benefit of each
Purchaser) shall have a valid and enforceable undivided percentage
ownership or security interest, to the extent of the Purchased Interest,
and a valid and enforceable first priority perfected security interest
therein and in the Related Security and Collections with respect thereto,
in each case free and clear of any Adverse Claim,
(l) that constitutes an account as defined in the UCC, and that is
not evidenced by instruments or chattel paper,
(m) that is not a Defaulted Receivable or a Delinquent Receivable,
(n) for which none of the Originator thereof, the Seller and the
Servicer has established any offset arrangements with the related Obligor,
(o) for which Defaulted Receivables of the related Obligor
do not exceed 25% of the Outstanding Balance of all such Obligor's
Receivables,
(p) that represents amounts earned and payable by the Obligor that
are not subject to the performance of additional services by the
Originator or Servicer thereof, including without limitation, any progress
billed Receivables,
(q) the Obligor of which is neither a Cancelled Distributor, nor
Rheem Manufacturing Company or any of its successors,
(r) does not have "pay-when-pay" or other similar terms where the
related original due date is not a date certain set forth in the related
Contract; provided however, that so long as such Receivable meets all of
the other requirements of this definition, up to 2.00% of the aggregate
Outstanding Balance of all Eligible Receivables may be "Eligible
Receivables" without satisfying this clause (r), and
(s) that represents amounts payable by the Obligor that are not
related to maintenance xxxxxxxx that are billed in advance of the related
service period or performance as set forth on the Servicer's books and
records; provided however so long as a Receivable meets all of the other
requirements of this definition, up to 4.00% of the aggregate Outstanding
Balance of all Eligible Receivables may be "Eligible Receivables" without
satisfying this clause (s).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"ERISA Affiliate" means: (a) any corporation that is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Internal Revenue Code) as the Seller, any Originator or York, (b) a trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Internal Revenue Code) with the Seller, any Originator
or York, or (c) a member of the same affiliated service group (within the
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meaning of Section 414(m) of the Internal Revenue Code) as the Seller, any
Originator, any corporation described in clause (a) or any trade or business
described in clause (b).
"Euro-Rate" means with respect to any Yield Period, the interest rate per
annum determined by the Administrator by dividing (the resulting quotient
rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the
rate of interest determined by the applicable Purchaser Agent in accordance with
its usual procedures (which determination shall be conclusive absent manifest
error) to be the average of the London interbank market offered rates for U.S.
dollars quoted by the BBA as set forth on Dow Xxxxx Markets Service (formerly
known as Telerate) (or appropriate successor or, if BBA or its successor ceases
to provide display page 3750 (or such other display page on the Dow Xxxxx
Markets Service system as may replace display page 3750) at or about 11:00 a.m.
(London time) on the Business Day which is two (2) Business Days prior to the
first day of such Yield Period for an amount comparable to the Portion of
Investment to be funded at the Yield Rate and based upon the Euro-Rate during
such Yield Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage. The Euro-Rate may also be expressed by the following formula:
Average of London interbank offered rates quoted
by BBA as shown on Dow Xxxxx Markets Service
display page 3750 or appropriate successor
Euro-Rate = --------------------------------------------------
1.00 - Euro-Rate Reserve Percentage
where "Euro-Rate Reserve Percentage" means, the maximum effective percentage in
effect on such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve requirements
(including without limitation, supplemental, marginal, and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities"). The Euro-Rate shall be adjusted with respect to any
Portion of Investment funded at the Yield Rate and based upon the Euro-Rate that
is outstanding on the effective date of any change in the Euro-Rate Reserve
Percentage as of such effective date. The applicable Purchaser Agent shall give
prompt notice to the Seller of the Euro-Rate as determined or adjusted in
accordance herewith (which determination shall be conclusive absent manifest
error).
"Excess Concentration" means, on any date, the sum of the amounts by which
the Outstanding Balance of Eligible Receivables of each Obligor then in the
Receivables Pool exceeds an amount equal to: (a) the applicable Concentration
Percentage for such Obligor multiplied by (b) the Outstanding Balance of all
Eligible Receivables, on such date.
"Excluded Foreign Receivables" each Receivable, the Obligor of which is
not a United States resident to the extent originated from and after the cut-off
date identified in the notice under Section (q) of section 1 of Exhibit IV.
"Exiting Notice" has the meaning set forth in Section 1.4(b)(ii).
"Exiting Purchaser" has the meaning set forth in Section 1.4(b)(ii).
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"Facility Termination Date" means the earliest to occur of: (a) with
respect to each Purchaser, May 16, 2005, subject to any extension pursuant to
Section 1.10 of the Agreement (it being understood that if any such Purchaser
does not extend its Commitment hereunder then the Purchase Limit shall be
reduced ratably with respect to the Purchasers in each Purchaser Group by an
amount equal to the Commitment of such Exiting Purchaser and the Commitment
Percentages and Group Commitments of the Purchasers within each Purchaser Group
shall be appropriately adjusted), (b) the date determined pursuant to Section
2.2 of the Agreement, (c) the date the Purchase Limit reduces to zero pursuant
to Section 1.1(b) of the Agreement, (d) with respect to each Purchaser Group,
the date that the commitments of all of the Liquidity Providers terminate under
the related Liquidity Agreements, (e) with respect to each Purchaser Group, the
date that the commitment, of all of the Related Committed Purchasers of such
Purchaser Group terminate pursuant to Section 1.10 and (f) the failure to cause
the amendment or modification of any Transaction Document or related opinion as
required by Moody's or Standard & Poor's and such failure shall continue for 10
Business Days after such amendment is initially requested.
"Federal Funds Rate" means, for any day, the per annum rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)." If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective Rate." If
on any relevant day the appropriate rate is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such day will be
the arithmetic mean as determined by the applicable Purchaser Agent of the rates
for the last transaction in overnight Federal funds arranged before 9:00 a.m.
(New York time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by such Purchaser Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
"Fees" means the fees payable by the Seller to each Purchaser Group
pursuant to the applicable Purchaser Group Fee Letter.
"Funding Plan" means, a written report delivered by the Seller (or the
Servicer on its behalf) to the Administrator and each Purchaser Agent on or
before the first Business Day of each calendar month setting forth each Business
Day during such calendar month that the Seller anticipates either making a
purchase (but not a reinvestment) in accordance with and subject to the terms
and provisions of the Agreement (including Section 1.1(a)) or causing a
reduction in the Aggregate Investment in accordance with and pursuant to the
terms and provisions of the Agreement (including Section 1.4(f)); provided, that
in no event shall the total number of Business Days for such anticipated changes
set forth any Funding Plan on which either a purchase or a reduction is
anticipated exceed four.
"GAAP" means the generally accepted accounting principles and practices in
the United States, consistently applied.
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"Gotham" has the meaning set forth in the preamble to the Agreement.
"Gotham Base Rate" means, in the case of Gotham or any Purchaser in its
Purchaser Group, for any day, 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 in effect for such day as publicly
announced from time to time by BTM Trust Company as its "prime rate" in
the United States, such rate to change as and when such designated rate
changes (this "prime rate" is not intended to be the lowest rate of
interest charged by BTM Trust Company in connection with extensions of
credit to debtors), and
(b) 0.50% per annum above the latest Federal Funds Rate determined
by its Purchaser Agent.
"Gotham CP Rate" means, with respect to Gotham for any Yield Period with
respect to any Portion of Investment, the per annum rate calculated by its
Purchaser Agent to reflect Gotham's cost of financing such Portion of
Investment, taking into account the "weighted average cost" (as defined below)
related to the issuance of Gotham's Notes that are allocated, in whole or in
part, by Gotham (or by its Purchaser Agent) to fund or maintain such Portion of
Investment (and which may also be allocated in part to the funding of other
Portions of Investment hereunder or of other assets of Gotham); provided,
however, that if any component of such rate is a discount rate, in calculating
the "Gotham CP Rate" for such Portion of Investment for such Yield Period,
Gotham shall for such component use the rate resulting from converting such
discount rate to an interest bearing equivalent rate per annum. As used in this
definition, Gotham's "weighted average cost" shall consist of (x) the actual
interest rate (or discount) paid to purchasers of Gotham's Notes, together with
the commissions of placement agents and dealers in respect of such Notes, to the
extent such commissions are allocated, in whole or in part, to such Notes by
Gotham (or by its Purchaser Agent) and (y) any incremental carrying costs
incurred with respect to Gotham's Notes maturing on dates other than those on
which corresponding funds are received by Gotham. Notwithstanding the foregoing,
the "Gotham CP Rate" for any day while a Termination Event exists shall be an
interest rate equal to 2% above the Gotham Base Rate in effect on such day.
"Gotham Yield Rate" for any Yield Period for any Portion of Investment of
the Purchased Interest in the case of Gotham or any Purchaser in its Purchaser
Group, means an interest rate per annum equal to: (a) the rate set forth as the
"Applicable Margin" in the Purchaser Group Fee Letter relating to Gotham above
the Euro-Rate for such Yield Period, or (b) if requested by the Seller, the Base
Rate for such Yield Period; provided, however, that in the case of:
(i) any Yield Period on or before the first day of which the
Administrator shall have been notified by any Purchaser within the Gotham
Purchaser Group or other Program Support Provider that the introduction of
or any change in or in the interpretation of any law or regulation makes
it unlawful, or any central bank or other Governmental Authority asserts
that it is unlawful, for such Person, to fund any Euro-
I-13
Rate Portion of Investment (and such Person shall not have subsequently
notified the Administrator that such circumstances no longer exist),
(ii) any Yield Period of one to (and including) 29 days,
(iii) any Yield Period as to which the Administrator does not
receive notice before noon (New York City time) on the third Business Day
preceding the first day of such Yield Period that the Seller desires that
the related Portion of Investment be a Euro-Rate Portion of Investment, or
(iv) any Yield Period relating to a Portion of Investment that is
less than $5,000,000,
the "Yield Rate" for each such Yield Period shall be an interest rate per annum
equal to the Base Rate in effect on each day of such Yield Period. The "Yield
Rate" for any day while a Termination Event exists shall be an interest rate
equal to 2.5% per annum above the applicable Base Rate in effect on such day.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including any court, and any Person owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Group A Obligor" means an Obligor with a short-term senior unsecured
indebtedness rating (or, if such Obligor does not have such a short-term rating,
a long-term senior unsecured indebtedness rating) of at least "A-1" (or "A+") by
Standard & Poor's and "P-1" (or "A1") by Moody's.
"Group B Obligor" means an Obligor with a short-term senior unsecured
indebtedness rating (or, if such Obligor does not have such a short-term rating,
a long-term senior unsecured indebtedness rating) of at least "A-2" (or "BBB+")
by Standard & Poor's and "P-2" (or "Baa1") by Moody's, that is not a Group A
Obligor.
"Group C Obligor" means an Obligor with a short-term senior unsecured
indebtedness rating (or, if such Obligor does not have such a short-term rating,
a long-term senior unsecured indebtedness rating) of at least "A-3" (or "BBB-")
by Standard & Poor's and "P-3" (or "Baa3") by Moody's, that is not a Group A
Obligor or a Group B Obligor.
"Group Commitment" means with respect to any Purchaser Group the aggregate
of the Commitments of each Purchaser within such Purchaser Group.
"Group D Obligor" means an Obligor which is not a Group A Obligor, a Group
B Obligor, a Group C Obligor or an Eligible Foreign Obligor.
"Group Investment" means with respect to any Purchaser Group, an amount
equal to the aggregate of all Investments of the Purchasers within such
Purchaser Group.
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"Indemnified Amounts" has the meaning set forth in Section 3.1 of the
Agreement.
"Indemnified Party" has the meaning set forth in Section 3.1 of the
Agreement.
"Independent Director" has the meaning set forth in paragraph 3(c) of
Exhibit IV to the Agreement.
"Ineligible Elimination Amounts" means amounts which are reported by the
Servicer as inputs to the Information Package as credit memos or aged invoices
which relate to Receivables, the Obligors of which are Cancelled Distributors.
"Information Package" means a report, in substantially the form of Annex A
to the Agreement (with appropriate additions and adjustments as may be requested
by the Administrator or any Purchaser Agent, as such requested additions or
adjustments are reasonably available or determinable by the Servicer), including
all supporting input information, source data information, worksheets and
calculations furnished to the Administrator and each Purchaser Group Agent
pursuant to the Agreement.
"Insolvency Proceeding" means: (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of creditors
of a Person or, composition, marshaling of assets for creditors of a Person, or
other, similar arrangement in respect of its creditors generally or any
substantial portion of its creditors, in each of cases (a) and (b) undertaken
under U.S. Federal, state or foreign law, including the Bankruptcy Code.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of the Internal Revenue Code also refer to any successor
sections.
"Investment" means with respect to any Purchaser the amount paid to the
Seller by such Purchaser pursuant to the Agreement, or such amount divided or
combined in accordance with the Agreement, in each case reduced from time to
time by Collections distributed and applied on account of such Investment
pursuant to Section 1.4(d) of the Agreement; provided, that if such Investment
shall have been reduced by any distribution and thereafter all or a portion of
such distribution is rescinded or must otherwise be returned for any reason,
such Investment shall be increased by the amount of such rescinded or returned
distribution as though it had not been made.
"Liberty Street" has the meaning set forth in the preamble to the
Agreement.
"Liberty Street Base Rate" means, in the case of Liberty Street or any
Purchaser in its Purchaser Group, for any day, 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 in effect for such day as publicly announced from
time to time by BNS in New York, New York as its "reference rate". Such
"reference rate" is set by BNS based
I-15
upon various factors, including BNS's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above or below such announced rate, and
(b) 0.50% per annum above the latest Federal Funds Rate.
"Liberty Street CP Rate" means, with respect to Liberty Street for any
Yield Period with respect to any Portion of Investment, the per annum rate
equivalent to the "weighted average cost" (as defined below) related to the
issuance of Liberty Street's Notes that are allocated, in whole or in part, by
Liberty Street (or by its Purchaser Agent) to fund or maintain such Portion of
Investment (and which may also be allocated in part to the funding of other
Portions of Investment hereunder or of other assets of Liberty Street);
provided, however, that if any component of such rate is a discount rate, in
calculating the "Liberty Street CP Rate" for such Portion of Investment for such
Yield Period, Liberty Street shall for such component use the rate resulting
from converting such discount rate to an interest bearing equivalent rate per
annum. As used in this definition, Liberty Street's "weighted average cost"
shall consist of (x) the actual interest rate (or discount) paid to purchasers
of Liberty Street's Notes, together with the commissions of placement agents and
dealers in respect of such Notes, to the extent such commissions are allocated,
in whole or in part, to such Notes by Liberty Street (or by its Purchaser Agent)
and (y) any incremental carrying costs incurred with respect to Liberty Street's
Notes maturing on dates other than those on which corresponding funds are
received by Liberty Street. Notwithstanding the foregoing, the "Liberty Street
CP Rate" for any day while a Termination Event exists shall be an interest rate
equal to 2% above the Base Rate in effect on such day.
"Liberty Street Yield Rate" for any Yield Period for any Portion of
Investment of the Purchased Interest in the case of Liberty Street or any
Purchaser in its Purchaser Group, means an interest rate per annum equal to: (a)
the rate set forth as the "Applicable Margin" in the Purchaser Group Fee Letter
relating to Liberty Street above the Euro-Rate for such Yield Period, or (b) if
requested by the Seller the Base Rate for such Yield Period; provided, however,
that in the case of:
(i) any Yield Period on or before the first day of which BNS
shall have been notified by any Purchaser within the Liberty Street
Purchaser Group or other Program Support Provider that the
introduction of or any change in or in the interpretation of any law
or regulation makes it unlawful, or any central bank or other
Governmental Authority asserts that it is unlawful, for such Person,
to fund any Euro-Rate Portion of Investment (and such Person shall
not have subsequently notified BNS that such circumstances no longer
exist),
(ii) any Yield Period of one to (and including) 29 days,
(iii) any Yield Period as to which BNS does not receive notice
before noon (New York City time) on the third Business Day preceding
the first day of such Yield Period that the Seller desires that the
related Portion of Investment be a Euro-Rate Portion of Investment,
or
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(iv) any Yield Period relating to a Portion of Investment
that is less than $5,000,000,
the "Yield Rate" for each such Yield Period shall be an interest rate per annum
equal to the Base Rate in effect on each day of such Yield Period. The "Yield
Rate" for any day while a Termination Event exists shall be an interest rate
equal to 2% per annum above the applicable Base Rate in effect on such day.
"Liquidity Agent" means each of the banks acting as agent for the various
Liquidity Banks under each Liquidity Agreement.
"Liquidity Agreement" means any agreement entered into in connection with
this Agreement pursuant to which a Liquidity Provider agrees to make purchases
or advances to, or purchase assets from, any Conduit Purchaser in order to
provide liquidity for such Conduit Purchaser's Purchases.
"Liquidity Provider" means each bank or other financial institution that
provides liquidity support to any Conduit Purchaser pursuant to the terms of a
Liquidity Agreement.
"Lock-Box Account" means an account in the name of the Seller and
maintained by the Seller at a bank or other financial institution for the
purpose of, directly or indirectly, receiving Collections.
"Lock-Box Agreement" means (i) with respect to any lock-box agreement
executed prior to the Closing Date, an agreement, among, inter alia, each
applicable Originator, the Seller, the Servicer, the Administrator and a
Lock-Box Bank and (ii) with respect to any lock-box agreement executed on or
after the Closing Date, an agreement, among, inter alia, each Originator, the
Seller, the Servicer, the Administrator and a Lock-Box Bank.
"Lock-Box Bank" means any of the banks or other financial institutions
holding one or more Lock-Box Accounts.
"Loss Horizon" (a) (i) at all times during which the Current Days' Sales
Outstanding is less than or equal to 45, the aggregate credit sales (other than
sales made to an Obligor which is an Affiliate of any Originator) made by the
Originators during the five most recent calendar months, and (ii) at all other
times, the aggregate credit sales (other than sales made to an Obligor which is
an Affiliate of any Originator) made by the Originators during the six most
recent calendar months divided by (b) the Net Receivables Pool Balance as of
such date.
"Loss Reserve" means, on any date, an amount equal to (a) the Aggregate
Investment at the close of business of the Servicer on such date multiplied by
(b) (i) the Loss Reserve Percentage on such date divided by (2) 100% minus the
Loss Reserve Percentage on such date.
"Loss Reserve Percentage" means, on any date, the greater of, (a) 15.0%
and (b) the product of (i) 2 times (ii) the highest average of the Default
Ratios for any three consecutive calendar months during the twelve most recent
calendar months multiplied by (iii) the Loss Horizon.
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"Majority Purchasers" means, at any time, Purchasers whose Commitments
aggregate more than 66.67% of the aggregate of the Commitments of all
Purchasers; provided, however, that so long as any Purchaser's Commitment is
greater than 50% of the aggregate Commitments, then "Majority Purchasers" shall
mean a minimum of two Purchasers whose Commitments aggregate more than 50% of
the aggregate Commitments.
"Material Adverse Effect" means, relative to any Person with respect to
any event or circumstance, a material adverse effect on:
(a) the assets, operations, business or financial condition of
such Person.
(b) the ability of any of such Person to perform its obligations
under the Agreement or any other Transaction Document to which it is a
party,
(c) the validity or enforceability of any other Transaction
Document, or the validity, enforceability or collectibility of a material
portion of the Pool Receivables, or
(d) the status, perfection, enforceability or priority of any
Purchaser's or the Seller's interest in the Pool Assets.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Receivables Pool Balance" means, at any time: (a) the Outstanding
Balance of Eligible Receivables then in the Receivables Pool minus (b) the sum
of (i) the Excess Concentration and (ii) Specifically Reserved Dilution Amount;
provided that such calculation shall exclude the Receivables for which the
related Obligor has a net credit balance with respect to such Obligor's Eligible
Receivables.
"Notes" means short-term promissory notes issued, or to be issued, by each
Conduit Purchaser to fund its investments in accounts receivable or other
financial assets.
"Obligor" means, with respect to any Receivable, the Person obligated to
make payments pursuant to the Contract relating to such Receivable.
"Original Agreement" has the meaning set forth in the preliminary
statements of the Agreement.
"Original Agreement Outstanding Amounts" has the meaning set forth in the
preliminary statements of the Agreement.
"Originator" has the meaning set forth in the Purchase and Sale Agreement.
"Originator Assignment Certificate" means each assignment, in
substantially the form of Exhibit C to the Purchase and Sale Agreement,
evidencing Seller's ownership of the Receivables generated by Originator, as the
same may be amended, supplemented, amended and restated, or otherwise modified
from time to time in accordance with the Purchase and Sale Agreement.
I-18
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
"Payment Date" has the meaning set forth in Section 2.2 of the Purchase
and Sale Agreement.
"Performance Guaranty" means the Amended and Restated Performance
Guaranty, dated as of the Closing Date, by York in favor of the Administrator,
on behalf of the Purchasers, as such agreement may be amended, amended and
restated, supplemented or otherwise modified from time to time.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Pool Assets" has the meaning set forth in Section 1.2(d) of the
Agreement.
"Pool Receivable" means a Receivable in the Receivables Pool.
"Portion of Investment" means, with respect to any Purchaser and its
related Investment, the portion of such Investment being funded or maintained by
such Purchaser by reference to a particular interest rate basis.
"Program Administration Agreement" means that certain management agreement
between Gotham and BTM Trust Company governing certain aspects of the
administration of Gotham's commercial paper facility.
"Program Administrator" means Bank of Tokyo-Mitsubishi Trust Company, a
New York corporation and its successors under the Program Administration
Agreement.
"Program Support Agreement" means and includes any Liquidity Agreement and
any other agreement entered into by any Program Support Provider providing for:
(a) the issuance of one or more letters of credit for the account of any Conduit
Purchaser, (b) the issuance of one or more surety bonds for which the such
Conduit Purchaser is obligated to reimburse the applicable Program Support
Provider for any drawings thereunder, (c) the sale by such Conduit Purchaser to
any Program Support Provider of the Purchased Interest (or portions thereof)
maintained by such Conduit Purchaser and/or (d) the making of loans and/or other
extensions of credit to any Conduit Purchaser in connection with such Conduit
Purchaser's securitization program contemplated in the Agreement, together with
any letter of credit, surety bond or other instrument issued thereunder (but
excluding any discretionary advance facility provided by the Administrator).
"Program Support Provider" means and includes with respect to each Conduit
Purchaser any Liquidity Provider and any other Person (other than any customer
of such Conduit Purchaser) now or hereafter extending credit or having a
commitment to extend credit to or for the account of, or to make purchases from,
such Conduit Purchaser pursuant to any Program Support Agreement.
I-19
"Purchase" is defined in Section 1.1(a).
"Purchase and Sale Agreement" means the Purchase and Sale Agreement, dated
as of December 21, 2001, among the Seller and the Originators, as such agreement
may be amended, amended and restated, supplemented or otherwise modified from
time to time.
"Purchase and Sale Indemnified Amounts" has the meaning set forth in
Section 9.1 of the Purchase and Sale Agreement.
"Purchase and Sale Indemnified Party" has the meaning set forth in Section
9.1 of the Purchase and Sale Agreement.
"Purchase and Sale Termination Date" has the meaning set forth in Section
1.4 of the Purchase and Sale Agreement.
"Purchase and Sale Termination Event" has the meaning set forth in Section
8.1 of the Purchase and Sale Agreement.
"Purchase Date" means the date of which a Purchase or a reinvestment is
made pursuant to the Agreement.
"Purchase Facility" has the meaning set forth in Section 1.1 of the
Purchase and Sale Agreement.
"Purchase Limit" means $200,000,000, as such amount may be reduced
pursuant to Section 1.1(b) of the Agreement. References to the unused portion of
the Purchase Limit shall mean, at any time, the Purchase Limit minus the then
outstanding Aggregate Investment.
"Purchase Price" has the meaning set forth in Section 2.1 of the Purchase
and Sale Agreement.
"Purchase Report" has the meaning set forth in Section 2.2 of the Purchase
and Sale Agreement.
"Purchased Interest" means, at any time, the undivided percentage
ownership interest in: (a) each and every Pool Receivable now existing or
hereafter arising, (b) all Related Security with respect to such Pool
Receivables and (c) all Collections with respect to, and other proceeds of, such
Pool Receivables and Related Security. Such undivided percentage interest shall
be computed as:
Aggregate Investment + Total Reserves
-----------------------------------------------
Net Receivables Pool Balance
The Purchased Interest shall be determined from time to time pursuant to
Section 1.3 of the Agreement.
"Purchaser" means each Conduit Purchaser and/or each Related Committed
Purchaser, as applicable.
I-20
"Purchaser Agent" means each Person acting as agent on behalf of a
Purchaser Group and designated as a Purchaser Agent for such Purchaser Group on
the signature pages to the Agreement or any other Person who becomes a party to
this Agreement as a Purchaser Agent pursuant to an Assumption Agreement or a
Transfer Supplement.
"Purchaser Group" means, for each Conduit Purchaser, such Conduit
Purchaser, its Related Committed Purchasers and its related Purchaser Agent.
"Purchaser Group Fee Letter" has the meaning set forth in Section 1.5 of
the Agreement.
"Purchasers' Share" of any amount means such amount multiplied by the
Purchased Interest at the time of determination.
"Ratable Share" means, for each Purchaser Group, such Purchaser Group's
aggregate Commitments divided by the aggregate Commitments of all Purchaser
Groups.
"Rating Agency" means each of Standard & Poor's and Xxxxx'x.
"Rating Agency Condition" means, with respect to any material event or
occurrence, receipt by the Administrator (or the applicable Purchaser Agent) of
written confirmation from each of Standard & Poor's and Moody's that such event
or occurrence shall not cause the rating on the then outstanding Notes of any
applicable Conduit Purchaser to be downgraded or withdrawn.
"Receivable" means any indebtedness and other obligations (whether or not
earned by performance) owed to the Seller or any Originator by, or any right of
the Seller or any Originator to payment from or on behalf of, an Obligor (other
than (i) any YorkSource Receivables, (ii) only after each of the conditions set
forth in clause (q) of paragraph 1 of Exhibit IV the Agreement have been
satisfied, Excluded Foreign Receivables and any other foreign receivables
included at the time of such Take-Out Securitization pursuant to and in
accordance with such clause (q), or (iii) such Originator's "Miami Export
Portfolio" relating to its Latin America operations and individuals on their
books and records under the indicator "Company 810"), whether constituting an
account, chattel paper, instrument or general intangible, arising in connection
with property or goods that have been or are to be sold or otherwise disposed
of, or services rendered or to be rendered by an Originator, and includes the
obligation to pay any finance charges, fees and other charges with respect
thereto. Indebtedness and other obligations arising from any one transaction,
including indebtedness and other obligations represented by an individual
invoice or agreement, shall constitute a Receivable separate from a Receivable
consisting of the indebtedness and other obligations arising from any other
transaction.
"Receivables Pool" means, at any time, all of the then outstanding
Receivables purchased or otherwise acquired by the Seller pursuant to the
Purchase and Sale Agreement prior to the Facility Termination Date.
"Related Committed Purchaser" means each Person listed as such (and its
respective Commitment) for each Conduit Purchaser as set forth on the signature
pages of the Agreement or in any Assumption Agreement or Transfer Supplement.
I-21
"Related Rights" has the meaning set forth in Section 1.1 of the Purchase
and Sale Agreement.
"Related Security" means, with respect to any Receivable:
(a) all of the Seller's and the Originator thereof's interest in any
goods (including returned goods), and documentation of title evidencing
the shipment or storage of any goods (including returned goods), relating
to any sale giving rise to such Receivable,
(b) all instruments and chattel paper that may evidence such
Receivable,
(c) all other 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 UCC financing statements or similar filings relating
thereto, and
(d) all of the Seller's and the Originator thereof's rights,
interests and claims under the Contracts and all guaranties, indemnities,
insurance, letters of credit and other agreements (including the related
Contract) or arrangements of whatever character from time to time
supporting or securing payment of such Receivable or otherwise relating to
such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise.
"Seller" has the meaning set forth in the preamble to the Agreement.
"Seller's Share" of any amount means the greater of: (a) $0 and (b) such
amount minus the product of (i) such amount multiplied by (ii) the Purchased
Interest.
"Servicer" has the meaning set forth in the preamble to the Agreement.
"Servicer Downgrade Event" means either a withdrawal of York's long-term
senior unsecured debt rating by Standard & Poor's or Moody's or the reduction of
such rating below "BBB-" by Standard & Poor's or below "Baa3" by Moody's.
"Servicing Fee" shall mean the fee referred to in Section 4.6 of the
Agreement.
"Settlement Date" means (a) prior to the Facility Termination Date the
23rd calendar day of each calendar month or if such day is not a Business Day
the next succeeding Business Day and (b) on and after the Facility Termination
Date, each day selected from time to time by the Administrator (it being
understood that the Administrator may select such Settlement Date to occur as
frequently as daily), or in the absence of any such selection, the day which
would be the Settlement Date for the Portion of Investment pursuant to clause
(a) of this definition; provided, that the initial Settlement Date shall be the
Closing Date.
"Simple Majority" means, at any time, Purchasers whose Commitments
aggregate 50% or more of the aggregate of the Commitments of all Purchasers;
provided, however, that so long as any Purchaser's Commitment is greater than
50% but less than 100% of the aggregate
I-22
Commitments, then "Simple Majority" shall mean a minimum of two Purchasers whose
Commitments aggregate more than 50% of the aggregate Commitments.
"Solvent" means, with respect to any Person at any time, a condition under
which:
(a) the fair value and present fair saleable value of such
Person's total assets is, on the date of determination, greater than such
Person's total liabilities (including contingent and unliquidated
liabilities) at such time;
(b) the fair value and present fair saleable value of such
Person's assets is greater than the amount that will be required to pay
such Person's probable liability on its existing debts as they become
absolute and matured ("debts," for this purpose, includes all legal
liabilities, whether matured or unmatured, liquidated or unliquidated,
absolute, fixed, or contingent);
(c) such Person is and shall continue to be able to pay all of its
liabilities as such liabilities mature; and
(d) such Person does not have unreasonably small capital with
which to engage in its current and in its anticipated business.
For purposes of this definition:
(A) the amount of a Person's contingent or unliquidated
liabilities at any time shall be that amount which, in light of all the
facts and circumstances then existing, represents the amount which can
reasonably be expected to become an actual or matured liability;
(B) the "fair value" of an asset shall be the amount which may be
realized within a reasonable time either through collection or sale of
such asset at its regular market value;
(C) the "regular market value" of an asset shall be the amount
which a capable and diligent business person could obtain for such asset
from an interested buyer who is willing to Purchase such asset under
ordinary selling conditions; and
(D) the "present fair saleable value" of an asset means the amount
which can be obtained if such asset is sold with reasonable promptness in
an arm's-length transaction in an existing and not theoretical market.
"Specifically Reserved Dilution Amount" means, at any time, the sum of (A)
the greater of (i) the UPG Cash Discount Reserve and (ii) an amount equal to the
product of (x) 0.008 and (y) the aggregate credit sales made by the Unitary
Products Group segment of York in the most recent calendar month; (B) the
greater of (i) the UPG Co-op Advertising Reserve and (ii) an amount equal to the
product of (x) 0.01 and (y) the aggregate credit sales made by the Unitary
Products Group segment of York in the most recent
I-23
calendar month; (C) the greater of (i) the UPG Volume Rebates Reserve and (ii)
an amount equal to the product of (x) .002 and (y) the aggregate credit sales
made by the Unitary Products Group segment of York in the most recent calendar
month; (D) the greater of (i) the York Refrigeration Group Rebate Reserve and
(ii) an amount equal to the product of (x) 0.0225 and (y) the aggregate credit
sales made by the York Refrigeration Group segment of York in the most recent
calendar month; and (E) the UPG Price Discount Matrix Reserve; it being
understood that in each case, such other factor as reasonably determined by York
with the consent of the Purchasers, the Purchaser Agents and the Administrator
may be used in lieu of the specific factor stated herein.
"Standard & Poor's" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Subsidiary" means, as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock of each class or
other interests having ordinary voting power (other than stock or other
interests having such power only by reason of the happening of a contingency) to
elect a majority of the Board of Directors or other managers of such entity are
at the time owned, or management of which is otherwise controlled: (a) by such
Person, (b) by one or more Subsidiaries of such Person or (c) by such Person and
one or more Subsidiaries of such Person.
"Take Out Securitization" means, subject to Section (q) of paragraph 1 of
Exhibit IV, any asset securitization, secured loan, receivables sale or similar
transaction undertaken by the Seller with a third party (excluding any
Originator) involving foreign receivables (and the Related Security with respect
thereto), other than one pursuant to the Transaction Documents; provided, that
the effective date of any such Take Out Securitization shall occur on the last
day of a monthly accounting period and; provided further that Seller
concurrently notifies the Originators that foreign receivables shall no longer
be acquired by it under the Purchase and Sale Agreement as of the cut-off date
specified in the notice delivered under Section (q) of paragraph 1 of Exhibit
IV.
"Tangible Net Worth" means, with respect to any Person, the tangible net
worth of such Person as determined in accordance with GAAP.
"Termination Day" means: (a) each day on which the conditions set forth in
Section 2 of Exhibit II to the Agreement are not satisfied or (b) each day that
occurs on or after the Facility Termination Date.
"Termination Event" has the meaning specified in Exhibit V to the
Agreement.
"Termination Fee" means, for any Yield Period, with respect to any
Purchaser, the amount, if any, by which: (a) the additional Discount related to
such Purchaser's Investment (calculated without taking into account any
Termination Fee or any shortened duration of such Yield Period) that would have
accrued during such Yield Period on the reductions of Investment relating to
such Yield Period had such reductions not been made, exceeds (b) the income, if
any, received by such Purchaser from investing the proceeds of such reductions
of Investment, as determined by the such Purchaser's Purchaser Agent, which
determination shall be binding and conclusive for all purposes, absent manifest
error.
"Total Reserves" means, at any time, the sum of the Yield Reserve and the
greater of (a) the sum of the Loss Reserve and the Dilution Reserve, or (b) the
Concentration Reserve.
I-24
"Transaction Documents" means the Agreement, the Lock-Box Agreements, each
Purchaser Group Fee Letter, the Purchase and Sale Agreement, the Performance
Guaranty and all other certificates, instruments, UCC financing statements,
reports, notices, agreements and documents executed or delivered under or in
connection with any of the foregoing, in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
Agreement.
"Transfer Supplement" has the respective meanings set forth in Sections
6.3(c) and 6.3(e).
"Turnover Rate" means, for any calendar month, an amount computed as of
the last day of such calendar month equal to: (a) the Outstanding Balance of all
Pool Receivables as of the last day of the most recent calendar month, divided
by (b) the quotient of (i) the aggregate credit sales made by the Originators
during the three calendar months ended on the last day of such calendar month,
divided by (ii) 3.
"UCC" means the Uniform Commercial Code as from time to time in effect in
the applicable jurisdiction.
"Unmatured Purchase and Sale Termination Event" means any event which,
with the giving of notice or lapse of time, or both, would become a Purchase and
Sale Termination Event.
"Unmatured Termination Event" means an event that, with the giving of
notice or lapse of time, or both, would constitute a Termination Event.
"UPG Cash Discount Reserve" means, at any time, the greater of (a) the
balance as of the end of the most recent calendar month of reserves or
liabilities maintained on the books and records of the Unitary Products Group
segment of York or the Servicer in the ordinary course of business according to
policies consistently applied and reported on the Information Package related
to, or in anticipation of, cash discounts affecting the Receivables; or (b) the
highest amount of credits issued in any calendar month over the immediately
preceding three calendar months related to such cash discounts credits.
"UPG Co-op Advertising Reserve" means, at any time, the greater of (a) the
balance as of the beginning of the most recent calendar month of reserves or
liabilities maintained on the books and records of the Unitary Products Group
segment of York or the Servicer in the ordinary course of business according to
policies consistently applied and reported on the Information Package related
to, or in anticipation of, co-op advertising programs affecting the Receivables;
or (b) the amount of credits issued in the most recent calendar month related to
such co-op advertising programs.
"UPG Price Discount Matrix Reserve" means, at any time, the greater of (a)
the balance as of the end of the most recent calendar month of reserves or
liabilities maintained on the books and records of the Unitary Products Group
segment of York or the Servicer in the ordinary course of business according to
policies consistently applied and reported on the Information Package related
to, or in anticipation of, price discounts affecting the Receivables; or (b) the
actual amount of credits issued against Receivables in the most recent calendar
month related to such pricing discounts.
I-25
"UPG Volume Rebates Reserve" means, at any time, an amount equal to the
sum of (A) an amount equal to the product of (x) 0.50 and (y) the balance as of
the beginning of the most recent calendar month of reserves or liabilities
maintained on the books and records of the Unitary Products Group segment of
York or the Servicer in the ordinary course of business according to policies
consistently applied and reported on the Information Package related to, or in
anticipation of, volume rebates affecting the Receivables; and (B) the amount of
credits issued in the most recent calendar month related to such volume rebates
(if current month credits are less than or equal to $0, then credits issued in
the calendar month that is one month prior to the current calendar month).
"Yield Period" means, with respect to each Portion of Investment: (a)
before the Facility Termination Date: (i) initially the period commencing on the
date of the initial Purchase pursuant to Section 1.2 of the Agreement (or in the
case of any fees payable hereunder, commencing on the Closing Date) and ending
on (but not including) the next Settlement Date, and (ii) thereafter, each
period commencing on such Settlement Date and ending on (but not including) the
next Settlement Date, and (b) on and after the Facility Termination Date, such
period (including a period of one day) as shall be selected from time to time by
the Administrator or, in the absence of any such selection, each period of 30
days from the last day of the preceding Yield Period.
"Yield Rate" for any Yield Period for any Portion of Investment of the
Purchased Interest (a) in the case of the Purchaser Group including Gotham,
means the Gotham Yield Rate, (b) in the case of the Purchaser Group including
Liberty Street, means the Liberty Street Yield Rate and (c) in the case of each
other Purchaser Group, shall mean the rate set forth as the Yield Rate for such
Purchaser Group in the related Purchaser Group Fee Letter.
"Yield Reserve" shall be equal to the Aggregate Investment multiplied by a
percentage equal to (a) the Yield Reserve Percentage divided by (b) 100% minus
the Yield Reserve Percentage.
"Yield Reserve Percentage" means, on any date, an amount equal to (a) the
sum of the Base Rate for the most recent period plus 1.0%, multiplied by (b) the
product of 1.5 times the Turnover Rate, divided by (c) 12.
"York" has the meaning set forth in the preamble to the Agreement.
"York Refrigeration Group Rebate Reserve" means, at any time, the greater
of (a) the balance as of the beginning of the most recent calendar month of
reserves or liabilities maintained on the books and records of the York
Refrigeration Group segment of York or the Servicer in the ordinary course of
business according to policies consistently applied and reported on the
Information Package related to, or in anticipation of, rebate programs affecting
the Receivables; or (b) the amount of credits issued in the most recent calendar
month related to such rebate programs.
"YorkSource Receivables" means any indebtedness and other obligations
(whether or not earned by performance) owed to the Seller or any Originator by,
or any right of the Seller or any Originator to payment from or on behalf of, an
Obligor arising after July 16, 2004 related to an Originator's YorkSource
program with respect to bundled design, installation, operation and
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maintenance contracts (including the related usage xxxxxxxx and equipment costs)
as set forth on such Originator's books and records.
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. Unless the context
otherwise requires, "or" means "and/or," and "including" (and with correlative
meaning "include" and "includes") means including without limiting the
generality of any description preceding such term. Unless the context otherwise
requires, any reference to a calendar month, whether used in any calculation or
otherwise, which such calendar month occurred prior to the Closing Date shall be
and shall be deemed to be a reference to a "Fiscal Month" (as such term is
defined in the Original Agreement).
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EXHIBIT II
CONDITIONS OF PURCHASES
1. Conditions Precedent to Initial Purchase. The initial Purchase under
this Agreement is subject to the following conditions precedent that the
Administrator and each Purchaser Agent shall have received on or before the date
of such Purchase, each in form and substance (including the date thereof)
satisfactory to the Administrator and each Purchaser Agent:
(a) A counterpart of the Agreement and the other Transaction
Documents executed by the parties thereto.
(b) Certified copies of: (i) the resolutions of the Board of
Directors, the Managing Member or other managers of each of the Seller,
the Originators and York authorizing the execution, delivery and
performance by the Seller, such Originator and York, as the case may be,
of the Agreement and the other Transaction Documents to which it is a
party; (ii) all documents evidencing other necessary organizational action
and governmental approvals, if any, with respect to the Agreement and the
other Transaction Documents and (iii) the certificate of incorporation and
by-laws or certificate of formation and limited liability company
agreement or any other organizational document, as applicable, of the
Seller, each Originator and York.
(c) A certificate of the Secretary or Assistant Secretary of the
Seller, the Originators and York certifying the names and true signatures
of its officers who are authorized to sign the Agreement and the other
Transaction Documents. Until the Administrator and each Purchaser Agent
receives a subsequent incumbency certificate from the Seller, an
Originator or York, as the case may be, the Administrator and each
Purchaser Agent shall be entitled to rely on the last such certificate
delivered to it by the Seller, such Originator or York, as the case may
be.
(d) Acknowledgment copies, or time stamped receipt copies, of
proper financing statements, duly filed on or before the date of such
initial purchase under the UCC of all jurisdictions that the Administrator
may deem necessary or desirable in order to perfect the interests of the
Seller, York and the Administrator (on behalf of each Purchaser)
contemplated by the Agreement and the Purchase and Sale Agreement.
(e) Acknowledgment copies, or time-stamped receipt copies, of
proper financing statements, if any, necessary to release all security
interests and other rights of any Person in the Receivables, Contracts or
Related Security previously granted by the Originators, York or the Seller
(other than the financing statements in favor of the "Administrator" under
the Original Agreement and each of which shall have been fully assigned to
the Administrator).
(f) Completed UCC search reports, dated on or shortly before the
date of the initial purchase hereunder, listing the financing statements
filed in all applicable jurisdictions referred to in subsection (d) above
that name the Originators or the Seller as
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debtor, together with copies of such other financing statements, and
similar search reports with respect to judgment liens, federal tax liens
and liens of the Pension Benefit Guaranty Corporation in such
jurisdictions, as the Administrator or any Purchaser Agent may request,
showing no Adverse Claims on any Pool Assets.
(g) Copies of executed Lock-Box Agreements with each Lock-Box Bank
and each amendment thereto.
(h) Favorable opinions, in form and substance reasonably
satisfactory to the Administrator and each Purchaser Agent, of: (i) Blank
Rome LLP, counsel for the Seller, each Originator, York and the Servicer,
and (ii) general counsel for Seller, York and each Originator.
(i) Satisfactory results of a review and audit (performed by
representatives of each Purchaser Agent) of the Servicer's collection,
operating and reporting systems, the Credit and Collection Policy of each
Originator, historical receivables data and accounts, including
satisfactory results of a review of the Servicer's operating location(s)
in each case, in the sole discretion of the Administrator and each
Purchaser.
(j) An Information Package representing the performance of the
Receivables Pool for the calendar month before closing and a Funding Plan
for the calendar month during which the Closing Date occurs.
(k) Evidence of payment by the Seller of all accrued and unpaid
fees (including those contemplated by each Purchaser Group Fee Letter),
costs and expenses to the extent then due and payable on the date thereof,
including any such costs, fees and expenses arising under or referenced in
Section 6.4 of the Agreement and the Fee Letter.
(l) Each Purchaser Group Fee Letter (received only by the related
Purchaser Group Agent) duly executed by the Seller and the Servicer.
(m) Good standing certificates with respect to each of the Seller,
the Originators and the Servicer issued by the Secretary of State (or
similar official) of the state of each such Person's organization and
principal place of business.
(n) To the extent required by each Conduit Purchaser's commercial
paper program, letters from each of the rating agencies then rating the
Notes confirming the rating of such Notes after giving effect to the
transaction contemplated by the Agreement.
(o) Each Liquidity Agreement (received only by the related
Purchaser Group Agent) and all other Transaction Documents duly executed
by the parties thereto.
(p) A computer file containing all information with respect to the
Receivables as the Administrator or any Purchaser Agent may reasonably
request.
(q) Such other approvals, opinions or documents as the
Administrator or any Purchaser Agent may reasonably request.
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2. Conditions Precedent to All Purchases and Reinvestments. Each
Purchase (including the initial Purchase) and each reinvestment shall be subject
to the further conditions precedent that:
(a) solely in the case of each purchase but not a reinvestment,
the Servicer shall have delivered to the Administrator and each such
Purchaser Agent on or before such purchase, in form and substance
satisfactory to the Administrator and such Purchaser Agent, a Funding
Plan, a completed pro forma Information Package to reflect the level of
Investment with respect to each Purchaser Group and related reserves and
the calculation of the Purchased Interest after such subsequent purchase
and a completed purchase notice in the form of Annex B to the Agreement;
and
(b) on the date of such purchase or reinvestment, the following
statements shall be true (and acceptance of the proceeds of such purchase
or reinvestment shall be deemed a representation and warranty by the
Seller that such statements are then true):
(i) the representations and warranties contained in Exhibit
III to the Agreement are true and correct in all material respects
on and as of the date of such purchase or reinvestment as though
made on and as of such date (except to the extent that such
representations and warranties relate expressly to an earlier date,
and in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date);
(ii) no event has occurred and is continuing, or would result
from such purchase or reinvestment, that constitutes a Termination
Event or an Unmatured Termination Event;
(iii) after giving effect to such purchase or reinvestment,
the Purchased Interest will not exceed 100% and the Aggregate
Investment will not exceed the Purchase Limit; and
(iv) the Facility Termination Date shall not have occurred.
II-3
EXHIBIT III
REPRESENTATIONS AND WARRANTIES
1. Representations and Warranties of the Seller. The Seller represents
and warrants as follows:
(a) The Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and is duly qualified to do business and is in good standing as
a foreign organization 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.
(b) The execution, delivery and performance by the Seller of the
Agreement and the other Transaction Documents to which it is a party,
including its use of the proceeds of purchases and reinvestments: (i) are
within its organizational powers; (ii) have been duly authorized by all
necessary organizational action; (iii) do not contravene or result in a
default under or conflict with: (A) its certification of formation or
limited liability company agreement, (B) any law, rule or regulation
applicable to it, (C) any indenture, loan agreement, mortgage, deed of
trust or other material agreement or instrument to which it is a party or
by which it is bound, or (D) any order, writ, judgment, award, injunction
or decree binding on or affecting it or any of 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. The Agreement and the other Transaction
Documents to which it is a party have been duly executed and delivered by
the Seller.
(c) No authorization, approval or other action by, and no notice
to or filing with, any Governmental Authority or other Person is required
for its due execution, delivery and performance by the Seller of the
Agreement or any other Transaction Document to which it is a party, other
than the Uniform Commercial Code filings referred to in Exhibit II to the
Agreement, all of which shall have been filed on or before the date of the
first purchase hereunder.
(d) Each of the Agreement and the other Transaction Documents to
which the Seller is a party constitutes its legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws from time to time in
effect affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(e) There is no pending or, to Seller's best knowledge, threatened
action or proceeding affecting Seller or any of its properties before any
Governmental Authority or arbitrator.
(f) No proceeds of any purchase or reinvestment will be used to
acquire any equity security of a class that is registered pursuant to
Section 12 of the Securities Exchange Act of 1934.
III-1
(g) The Seller is the legal and beneficial owner of the Pool
Receivables and Related Security, free and clear of any Adverse Claim.
Upon each purchase or reinvestment, Administrator (for the benefit of each
Purchaser) shall acquire a valid and enforceable perfected undivided
percentage ownership or security interest, to the extent of the Purchased
Interest, in each Pool Receivable then existing or thereafter arising and
in the Related Security, Collections and other proceeds with respect
thereto, free and clear of any Adverse Claim. The Agreement creates a
security interest in favor of the Administrator (for the benefit of each
Purchaser) in the Pool Assets, and the Administrator (for the benefit of
each Purchaser) has a first priority perfected security interest in the
Pool Assets, free and clear of any Adverse Claims. No effective financing
statement or other instrument similar in effect covering any Pool Asset is
on file in any recording office, except those filed in favor of the Seller
pursuant to the Purchase and Sale Agreement and the Administrator (for the
benefit of each Purchaser) relating to the Agreement, or in respect of
which the Administrator has received evidence satisfactory to the
Administrator of acknowledgment copies, or time-stamped receipt copies, of
proper financing statements releasing or terminating, as applicable, all
security interests and other rights of any Person in such Pool Asset.
(h) Each Information Package (if prepared by the Seller or one of
its Affiliates, or to the extent that information contained therein is
supplied by the Seller or an Affiliate), information, exhibit, financial
statement, document, book, record or report furnished or to be furnished
at any time by or on behalf of the Seller to the Administrator or any
Purchaser Agent in connection with the Agreement or any other Transaction
Document to which it is a party is or will be complete and accurate in all
material respects as of its date or as of the date so furnished, and does
not and will not contain any material misstatement of fact or omit to
state a material fact or any fact necessary to make the statements
contained therein not misleading.
(i) The Seller's principal place of business and chief executive
office (as such terms are used in the UCC) and the office where it keeps
its records concerning the Receivables are located at the address referred
to in Section 1(b) and 2(b) of Exhibit IV to the Agreement. The Seller is
a limited liability company, organized under the laws of the State of
Delaware and its organizational number is 3469762.
(j) The names and addresses of all the Lock-Box Banks, together
with the account numbers of the Lock-Box Accounts (and the related
lock-boxes) at such Lock-Box Banks, are specified in Schedule II to the
Agreement (or at such other Lock-Box Banks and/or with such other Lock-Box
Accounts (and such other related lock-boxes) as have been notified to the
Administrator in accordance with the Agreement) and all Lock-Box Accounts
(and all related lock-boxes) are subject to Lock-Box Agreements. Seller
has not granted to any Person, other than the Administrator as
contemplated by the Agreement, dominion and control of any Lock-Box
Account, or the right to take dominion and control of any such account at
a future time or upon the occurrence of a future event.
(k) The Seller is not in violation of any order of any court,
arbitrator or Governmental Authority.
III-2
(l) Neither the Seller nor any of its Affiliates has any direct or
indirect ownership or other financial interest in any Purchaser.
(m) No proceeds of any purchase or reinvestment will be used for
any purpose that violates any applicable law, rule or regulation,
including Regulations T, U or X of the Federal Reserve Board.
(n) Each Pool Receivable included as an Eligible Receivable in the
calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) No event has occurred and is continuing that constitutes a
Termination Event or an Unmatured Termination Event and no event would
result from a purchase in respect of, or reinvestment in respect of, the
Purchased Interest or from the application of the proceeds therefrom that
constitutes a Termination Event or an Unmatured Termination Event.
(p) The Seller has accounted for each sale of undivided percentage
ownership interests in Receivables in its books and financial statements
as sales, consistent with generally accepted accounting principles.
(q) The Seller has complied in all material respects with the
Credit and Collection Policy of each Originator with regard to each
Receivable originated by such Originator.
(r) The Seller has complied in all material respects with all of
the terms, covenants and agreements contained in the Agreement and the
other Transaction Documents that are applicable to it and all laws, rules,
regulations and orders that are applicable to it.
(s) The Seller's complete organizational name is set forth in the
preamble to the Agreement, and it does not use and has not during the last
six years used any other organizational name, trade name, doing-business
name or fictitious name, except as set forth on Schedule III to the
Agreement and except for names first used after the date of the Agreement
and set forth in a notice delivered to the Administrator pursuant to
Section 1(k)(iv) of Exhibit IV to the Agreement.
(t) The Seller 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. In addition, the Seller is not
a "holding company," a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(u) With respect to each Receivable transferred to the Seller
under the Purchase and Sale Agreement, Seller has given reasonably
equivalent value to the Originator thereof in consideration therefor and
such transfer was not made for or on account of an antecedent debt. No
transfer by any Originator of any Receivable under the
III-3
Purchase and Sale Agreement is or may be voidable under any section of the
Bankruptcy Code.
(v) Each Contract with respect to each Receivable is effective to
create, and has created, a legal, valid and binding obligation of the
related Obligor to pay the Outstanding Balance of the Receivable created
thereunder and any accrued interest thereon, enforceable against the
Obligor in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other
similar laws relating to or limiting creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
(w) Since its most recent fiscal year end, there has been no
change in the business, operations, financial condition, properties or
assets of the Seller which would have a Material Adverse Effect on its
ability to perform its obligations under the Agreement or any other
Transaction Document to which it is a party or materially and adversely
affect the transactions contemplated under the Agreement or such other
Transaction Documents.
(x) The Seller has filed all tax returns and reports required by
law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which
are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been
set aside on its books.
2. Representations and Warranties of York (including in its capacity as
the Servicer). York, individually and in its capacity as the Servicer,
represents and warrants as follows:
(a) York is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and is duly
qualified to do business and is in good standing as a foreign corporation
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.
(b) The execution, delivery and performance by York, of the
Agreement and the other Transaction Documents to which it is a party,
including the Servicer's use of the proceeds of purchases and
reinvestments: (i) are within its corporate powers; (ii) have been duly
authorized by all necessary corporate action; (iii) do not contravene or
result in a default under or conflict with: (A) its charter or by-laws,
(B) any law, rule or regulation applicable to it, (C) any indenture, loan
agreement, mortgage, deed of trust or other material agreement or
instrument to which it is a party or by which it is bound, or (D) any
order, writ, judgment, award, injunction or decree binding on or affecting
it or any of 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. The Agreement and the other Transaction Documents to which
York is a party have been duly executed and delivered by York.
III-4
(c) No authorization, approval or other action by, and no notice
to or filing with any Governmental Authority or other Person, is required
for the due execution, delivery and performance by York of the Agreement
or any other Transaction Document to which it is a party.
(d) Each of the Agreement and the other Transaction Documents to
which York is a party constitutes the legal, valid and binding obligation
of York enforceable against York in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws from time to time in effect affecting the enforcement
of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(e) The balance sheets of York and its consolidated Subsidiaries
as at December 31, 2003, and the related statements of income and retained
earnings for the fiscal year then ended, copies of which have been
furnished to the Administrator and each Purchaser Agent, fairly present
the financial condition of York and its consolidated Subsidiaries as at
such date and the results of the operations of York and its Subsidiaries
for the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied, and since December
31, 2003 there has been no event or circumstances which have had a
Material Adverse Effect.
(f) Except as disclosed in the most recent audited financial
statements of York furnished to the Administrator and each Purchaser
Agent, there is no pending or, to its best knowledge, threatened action or
proceeding affecting it or any of its Subsidiaries before any Governmental
Authority or arbitrator that could have a Material Adverse Effect.
(g) No proceeds of any purchase or reinvestment will be used to
acquire any equity security of a class that is registered pursuant to
Section 12 of the Securities Exchange Act of 1934.
(h) Each Information Package (if prepared by York or one of its
Affiliates, or to the extent that information contained therein is
supplied by York or an Affiliate), information, exhibit, financial
statement, document, book, record or report furnished or to be furnished
at any time by or on behalf of the Servicer to the Administrator, any
Purchaser or any Purchaser Agent in connection with the Agreement is or
will be complete and accurate in all material respects as of its date or
as of the date so furnished and does not and will not contain any material
misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein not materially
misleading.
(i) The principal place of business and chief executive office (as
such terms are used in the UCC) of York and the office where it keeps its
records concerning the Receivables are located at the address referred to
in Section 2(b) of Exhibit IV to the Agreement. York is a corporation,
organized under the laws of the State of Delaware and its organizational
number is 2164946.
III-5
(j) York is not in violation of any order of any court, arbitrator
or Governmental Authority, which could have a Material Adverse Effect.
(k) Neither York nor any of its Affiliates has any direct or
indirect ownership or other financial interest in any Purchaser.
(l) The Servicer has complied in all material respects with the
Credit and Collection Policy of each Originator with regard to each
Receivable originated by such Originator.
(m) York has complied in all material respects with all of the
terms, covenants and agreements contained in the Agreement and the other
Transaction Documents that are applicable to it.
(n) York 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. In addition, York is not a "holding company," a
"subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(o) Since its most recent fiscal year end, there has been no
change in the business, operations, financial condition, properties or
assets of the Servicer which would have a Material Adverse Effect on its
ability to perform its obligations under the Agreement or any other
Transaction Document to which it is a party or materially and adversely
affect the transactions contemplated under the Agreement or such other
Transaction Documents.
(p) [RESERVED].
(q) The Servicer has filed all tax returns and reports required by
law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which
are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been
set aside on its books.
III-6
EXHIBIT IV
COVENANTS
1. Covenants of the Seller. Until the latest of the Facility
Termination Date, the date on which no Investment of or Discount in respect of
the Purchased Interest shall be outstanding or the date all other amounts owed
by the Seller under the Agreement to any Purchaser, Purchaser Agent, the
Administrator and any other Indemnified Party or Affected Person shall be paid
in full:
(a) Compliance with Laws, Etc. The Seller shall comply in all
material respects with all applicable laws, rules, regulations and orders,
and preserve and maintain its organizational 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 rights, franchises, qualifications and
privileges would not have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Seller: (i)
shall keep its principal place of business and chief executive office (as
such terms or similar terms are used in the UCC) and the office where it
keeps its records concerning the Receivables at the address of the Seller
set forth under its name on the signature page to the Agreement and keep
its state of organization at the state set forth in Section 1(a) of
Exhibit III or, pursuant to clause (k)(iv) below, at any other locations
in jurisdictions where all actions reasonably requested by the
Administrator to protect and perfect the interest of the Administrator
(for the benefit of the Purchasers) in the Receivables and related items
(including the Pool Assets) have been taken and completed and (ii) shall
provide the Administrator with at least 30 days' written notice before
making any change in the Seller's name or making any other change in the
Seller's identity or organizational structure (including a Change in
Control) that could render any UCC financing statement filed in connection
with this Agreement "seriously misleading" as such term (or similar term)
is used in the UCC or to be filed in the incorrect jurisdiction in order
to protect and perfect the interest of the Administrator (for the benefit
of the Purchasers) in the Receivables and related items (including the
Pool Assets) as a first priority security interest; each notice to the
Administrator pursuant to this sentence shall set forth the applicable
change and the effective date thereof. The Seller also will maintain and
implement (or cause the Servicer to maintain and implement) administrative
and operating procedures (including an ability to recreate records
evidencing Receivables and related Contracts in the event of the
destruction of the originals thereof), and keep and maintain (or cause the
Servicer to keep and maintain) all documents, books, records, computer
tapes and disks and other information reasonably necessary or advisable
for the collection of all Receivables (including records adequate to
permit the daily identification of each Receivable and all Collections of
and adjustments to each existing Receivable). The Seller will (and will
cause each Originator to) on or prior to the date of the Agreement, xxxx
its master data processing records and other books and records relating to
the Purchased Interest (and at all times thereafter (until the latest of
the Facility Termination Date or the date all other amounts owed by the
Seller under the Agreement shall be paid in full) continue to maintain
such records) with a legend, acceptable to the Administrator, describing
the Purchased Interest.
IV-1
(c) Performance and Compliance with Contracts and Credit and
Collection Policy. The Seller shall (and shall cause the Servicer to), 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 Receivables and timely and fully comply
in all material respects with the applicable Credit and Collection
Policies with regard to each Receivable and the related Contract.
(d) Ownership Interest, Etc. The Seller shall (and shall cause the
Servicer to), at its expense, take all action necessary or desirable to
establish and maintain a valid and enforceable undivided percentage
ownership or security interest, to the extent of the Purchased Interest
which shall not be greater than 100%, in the Pool Receivables, the Related
Security and Collections with respect thereto, and a first priority
perfected security interest in the Pool Assets, in each case free and
clear of any Adverse Claim, in favor of the Administrator (for the benefit
of the Purchasers), including taking such action to perfect, protect or
more fully evidence the interest of the Administrator (for the benefit of
the Purchasers) as the Administrator, may reasonably request.
(e) Sales, Liens, Etc. The Seller shall 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 or all of
its right, title or interest in, to or under any Pool Assets (including
the Seller's undivided interest in any Receivable, Related Security or
Collections, or upon or with respect to any account to which any
Collections of any Receivables are sent), or assign any right to receive
income in respect of any items contemplated by this paragraph; provided
however, the Seller may (I) sell (or direct the Servicer on its behalf to
sell) to a third-party collection agency, any Receivables (and the Related
Security with respect thereto) in an arms-length transaction which,
consistent with the Credit and Collection Policy and the terms and
conditions of this Agreement and the other Transaction Documents, have
been written off the Seller's books as uncollectible if all proceeds of
any such sale are remitted to a Lock-Box Account and are treated and
applied as Collections hereunder and distributed as such in accordance
herewith and (II) may sell and assign, without recourse, any Excluded
Foreign Receivables (and the Related Security with respect thereto) in
connection with a Take Out Securitization, after satisfaction of each of
the conditions set forth in clause (q) of this Exhibit IV and if all
proceeds of any such sale are remitted to a Lock-Box Account and are
treated and applied as Collections hereunder and distributed as such in
accordance herewith; provided, further, no such sale or assignment, as
applicable, shall be permitted (A) at any time a Termination Event or an
Unmatured Termination Event exists or would result from such sale or
assignment, as applicable and (B) unless each buyer or assignor, as
applicable, in any such sale or assignment, as applicable, agrees that any
amounts payable by a Conduit Purchaser in connection with any such sale or
assignment, as applicable, are subject to the limitations set forth in
Section 6.5(b) of the Agreement and that it will not institute any
proceeding of the type described in clause (f) of Exhibit V hereto against
any Conduit Purchaser until a year and a day after the latest maturing
Note issued by such Conduit Purchaser has finally been paid in full. The
Administrator and each Purchaser Agent agree that each (i) automatically
and without any further consent or action release and all of their right,
title and interest in, to and under each such Receivable (and the Related
Security with respect thereto) which has
IV-2
been sold or assigned, as applicable, in accordance with the terms of this
clause (e) and (ii) agree, from time to time take such action, or execute
and deliver such instruments, at the sole expense of the Seller,
(including authorizing the filing UCC3 termination statements) as may be
reasonably requested by the Seller (or the Servicer on its behalf) in
order to release the Administrator's security interest in such Receivable
(and the Related Security with respect thereto) so sold or assigned, as
applicable.
(f) Extension or Amendment of Receivables. Except as provided in
the Agreement, the Seller shall not, and shall not permit the Servicer to,
extend the maturity or adjust the Outstanding Balance or otherwise modify
the terms of any Pool Receivable, or amend, modify or waive any term or
condition of any related Contract.
(g) Change in Business or Credit and Collection Policy. The Seller
shall not make (or permit any Originator to make) any change in the
character of its business or in any Credit and Collection Policy that
would have a Material Adverse Effect. The Seller shall not make (or permit
any Originator to make) any other change in any Credit and Collection
Policy without the prior written consent of thereof to the Administrator
and each Purchaser Agent.
(h) Audits. The Seller shall (and shall cause each Originator to),
from time to time during regular business hours, but no more frequently
than annually unless (x) a Termination Event or an Unmatured Termination
Event has occurred and is continuing or (y) in the opinion of the
Administrator (with the consent or at the direction of the Majority
Purchasers) reasonable grounds for insecurity exist with respect to the
collectibility of a material portion of the Pool Receivables or with
respect to the Seller's performance or ability to perform in any material
respect its obligations under the Agreement, as reasonably requested in
advance (unless a Termination Event or Unmatured Termination Event exists)
by the Administrator or any Purchaser, permit the Administrator or any
Purchaser, or agent or representatives of the Administration or any
Purchaser: (i) to examine and make copies of and abstracts from all books,
records and documents (including computer tapes and disks) in the
possession or under the control of the Seller (or any such Originator)
relating to Receivables and the Related Security, including the related
Contracts, and (ii) to visit the offices and properties of the Seller and
the Originators for the purpose of examining such materials described in
clause (i) above, and to discuss matters relating to Receivables and the
Related Security or the Seller's, York's or the Originator's performance
under the Transaction Documents or under the Contracts with any of the
officers, employees, agents or contractors of the Seller, York or the
Originator having knowledge of such matters and (iii) without limiting
clauses (i) and (ii) above, no more than once annually (unless a
Termination Event or an Unmatured Termination Event exists or there shall
be a material variance in the performance of the Receivables), during
regular business hours, and upon reasonable prior notice, to engage
certified public accountants or other auditors acceptable to the Seller
and the Administrator to conduct, at the Seller's expense, a review of the
Seller's books and records with respect to such Receivables.
(i) Change in Lock-Box Banks, Lock-Box Accounts and Payment
Instructions to Obligors. The Seller shall not, and shall not permit the
Servicer or any
IV-3
Originator to, add or terminate any bank as a Lock-Box Bank or any account
as a Lock-Box Account (or any related lock-box) from those listed in
Schedule II to the Agreement, or make any change in its instructions to
Obligors regarding payments to be made to the Seller, the Originators, the
Servicer or any Lock-Box Account (or related lock-box), unless the
Administrator and the Majority Purchasers shall have consented thereto in
writing and the Administrator shall have received copies of all agreements
and documents (including Lock-Box Agreements) that it may reasonably
request in connection therewith. Notwithstanding anything herein to the
contrary, the Administrator and the Majority Purchasers shall not be
required to consent in connection with the Seller's request to terminate
and/or add any bank as a Lock-Box Bank and/or Lock-Box Account provided
that the new Lock-Box Bank or Lock-Box Account to be added is (or is with)
a commercial bank having a combined capital and surplus of at least
$250,000,000. The Seller will not (and will not permit the Servicer to)
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, including, from and after the effectiveness of any Take Out
Securitization, cash or cash proceeds related to Excluded Foreign
Receivables or any cash or cash proceeds of receivables which do not
constitute "Receivables" under the Transaction Documents at the time of
deposit.
(j) Deposits to Lock-Box Accounts. The Seller shall (or shall
cause the Servicer to): (i) deposit, or cause to be deposited, any
Collections received by it, the Servicer or any Originator into Lock-Box
Accounts not later than one Business Day after receipt thereof, and (ii)
instruct all Obligors to make payments of all Receivables to one or more
Lock-Box Accounts or to lock-boxes to which only Lock-Box Banks have
access (and shall instruct the Lock-Box Banks to cause all items and
amounts relating to such Receivables received in such lock-boxes to be
removed and deposited into a Lock-Box Account on a daily basis). Each
Lock-Box Account shall at all times be subject to a Lock-Box Agreement.
The Seller will not (and will not permit the Servicer to) 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
including, from and after the effectiveness of any Take Out
Securitization, cash or cash proceeds related to Excluded Foreign
Receivables cash or cash proceeds of receivables which do not constitute
"Receivables" under the Transaction Documents at the time of deposit.
(k) Reporting Requirements. The Seller will provide to the
Administrator (in multiple copies, if requested by the Administrator) and
each Purchaser Agent the following:
(i) as soon as available and in any event within 90 days
after the end of each fiscal year of the Seller, unaudited financial
statements for such year certified as to accuracy by the chief
financial officer or treasurer of the Seller;
(ii) as soon as possible and in any event within five days
after the occurrence of each Termination Event or Unmatured
Termination Event, a statement of the chief financial officer of the
Seller setting forth details of such Termination Event or Unmatured
Termination Event and the action that the Seller has taken and
proposes to take with respect thereto;
IV-4
(iii) 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, 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 of its Affiliates 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 that could, in the aggregate, result in the
imposition of material liability on the Seller and/or any such
Affiliate;
(iv) at least 30 days before any change in the Seller's name
or any other change requiring the amendment of UCC financing
statements, a notice setting forth such changes and the effective
date thereof;
(v) promptly after the Seller obtains knowledge thereof,
notice of any: (A) litigation, investigation or proceeding that may
exist at any time between the Seller and any Person or (B)
litigation or proceeding relating to any Transaction Document;
(vi) promptly after obtaining knowledge thereof, notice of a
material adverse change in the business, operations, property or
financial or other condition of the Seller, the Servicer or any
Originator; and
(vii) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of the Seller or
any of its Affiliates as the Administrator or any Purchaser Agent
may from time to time reasonably request.
(l) Certain Agreements. Without the prior written consent of the
Administrator and the Majority Purchasers, the Seller will not (and will
not permit any Originator to) amend, modify, waive, revoke or terminate
any Transaction Document to which it is a party or any provision of
Seller's certificate of incorporation or by-laws.
(m) Restricted Payments. (i) Except pursuant to clause (ii) below,
the Seller will not: (A) purchase or redeem any shares of its capital
stock, (B) declare or pay any dividend or set aside any funds for any such
purpose, (C) prepay, purchase or redeem any Debt, (D) lend or advance any
funds or (E) repay any loans or advances to, for or from any of its
Affiliates (the amounts described in clauses (A) through (E) being
referred to as "Restricted Payments").
(ii) Subject to the limitations set forth in clause (iii)
below, the Seller may make Restricted Payments so long as such
Restricted Payments are made only in one or more of the following
ways: (A) the Seller may make cash payments (including prepayments)
on the Company Note in accordance with its terms, and (B) if no
amounts are then outstanding under the Company Note, the Seller may
declare and pay dividends.
IV-5
(iii) The Seller may make Restricted Payments only out of the
funds it receives pursuant to Sections 1.4(b)(ii) and (iv) of the
Agreement. Furthermore, the Seller shall not pay, make or declare:
(A) any dividend if, after giving effect thereto, the Seller's
Tangible Net Worth would be less than $20,000,000 or (B) any
Restricted Payment (including any dividend) if, after giving effect
thereto, any Termination Event or Unmatured Termination Event shall
have occurred and be continuing.
(n) Other Business. The Seller will not: (i) engage in any
business other than the transactions contemplated by the Transaction
Documents; (ii) create, incur or permit to exist any Debt of any kind (or
cause or permit to be issued for its account any letters of credit or
bankers' acceptances) other than pursuant to this Agreement or the Company
Note; or (iii) form any Subsidiary or make any investments in any other
Person; provided, however, that the Seller shall be permitted to incur
minimal obligations to the extent necessary for the day-to-day operations
of the Seller (such as expenses for stationery, audits, maintenance of
legal status, etc.).
(o) Use of Seller's Share of Collections. The Seller shall apply
the Seller's Share of Collections to make payments in the following order
of priority: (i) the payment of its expenses (including all obligations
payable to the Purchaser Groups and the Administrator under the Agreement
and under each Purchaser Group Fee Letter); (ii) the payment of accrued
and unpaid interest on the Company Note; and (iii) other legal and valid
organizational purposes.
(p) Tangible Net Worth. The Seller will not permit its Tangible
Net Worth, at any time, to be less than $20,000,000.
(q) Take Out Securitization of Foreign Receivables. The Seller
may, upon not less than 30 days prior written notice from it (or the
Servicer on its behalf) to the Administrator, the Originators and each
Purchaser (which notice shall specify the cut-off date after which foreign
receivables shall no longer be sold by Originators and purchased by the
Seller under the Purchase and Sale Agreement), enter into a Take Out
Securitization, but solely to the extent that each of the following
conditions have been satisfied:
(i) On or prior to the effectiveness of such Take Out
Securitization and the documents relating thereto and if requested
by the Administrator or any Purchaser Agent, the applicable
transferees, lenders, investors and/or similar parties under such
Take Out Securitization shall have delivered a fully executed copy
of an intercreditor agreement among, inter alia, the Administrator
and each Purchaser Agent, in form and substance reasonably
acceptable to the Administrator and each such Purchaser Agent, and
all of the conditions precedent to such intercreditor agreement
shall have been satisfied;
(ii) On or prior to the effectiveness of such Take Out
Securitization and the documents relating thereto, at the request of
the Administrator or any Purchaser Agent, the Servicer shall have
provided a twelve-month pro forma
IV-6
Information Package restating all applicable historical data and
information from the Closing Date through the effective date of such
Take Out Securitization, related to the Receivables Pool after
giving effect to such Take Out Securitization;
(iii) On or prior to the effectiveness of such Take Out
Securitization and the documents relating thereto, each of the
Servicer and the Seller shall have delivered an officer certificate,
stating that immediately prior to the effectiveness of the Take Out
Securitization and immediately after giving effect thereto:
(A) each of the representations and warranties contained in
the Agreement are correct on and as of such dates as though made on
and as of such dates and shall be deemed to have been made on such
dates;
(B) no Termination Event or Unmatured Termination Event has
occurred and is continuing, or would result from such Take Out
Securitization;
(C) the Purchased Interest will not exceed 100% and the
Aggregate Investment will not exceed the Purchase Limit;
(D) the Facility Termination Date shall not have occurred;
and
(E) upon the Administrator's consent referred to in clause
(v) below related to the foreign Receivables with respect thereto
the proceeds from any such Take Out Securitization have been
remitted to a Lock-Box Account and are and will be treated and
applied as Collections under the Agreement and distributed as such
in accordance therewith.
(iv) On or prior to the effectiveness of such Take Out
Securitization and the documents relating thereto, each of the
Seller and the Servicer shall have provided the Administrator and
each Purchaser Agent with such other approvals, opinions, reports or
documents or shall enter into any amendments hereto as the
Administrator or any Purchaser Agent may reasonably request.
(v) Upon the satisfaction of each of the conditions set
forth in this Section 1(q) and payment of the fees set forth in
Section 6.4 of the Agreement, the Administrator and each Purchaser
Agent may, prior to the specified cut off date for such Take Out
Securitization, consent to the Seller's disposal of the foreign
Receivables in which it or any Purchaser then has an interest, and
absent such consent the Seller shall not include any foreign
receivable in which any Purchaser has an interest in the Take-Out
Securitization (which excludes Excluded Foreign Receivables).
2. Covenants of the Servicer and York. Until the latest of the Facility
Termination Date, the date on which no Investment of or Discount in respect of
the Purchased Interest shall be outstanding or the date all other amounts owed
by the Seller under the Agreement to the Purchaser Agents, the Purchasers, the
Administrator and any other Indemnified Party or Affected Person shall be paid
in full:
IV-7
(a) Compliance with Laws, Etc. The Servicer and, to the extent
that it ceases to be the Servicer, York shall comply (and shall cause each
Originator to 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 have a
Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Servicer and,
to the extent that it ceases to be the Servicer, York, shall keep (and
shall cause each Originator to keep) its principal place of business and
chief executive office (as such terms or similar terms are used in the
applicable UCC) and the office where it keeps its records concerning the
Receivables at the address of the Servicer set forth under its name on the
signature page to the Agreement or, upon at least 30 days' prior written
notice of a proposed change to the Administrator, at any other locations
in jurisdictions where all actions reasonably requested by the
Administrator to protect and perfect the interest of the Administrator
(for the benefit of each Purchaser) in the Receivables and related items
(including the Pool Assets) have been taken and completed. The Servicer
and, to the extent that it ceases to be the Servicer, York, also will (and
will cause each Originator to) maintain and implement administrative and
operating procedures (including an ability to recreate records evidencing
Receivables and related Contracts in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records,
computer tapes and disks and other information reasonably necessary or
advisable for the collection of all Receivables (including records
adequate to permit the daily identification of each Receivable and all
Collections of and adjustments to each existing Receivable). The Servicer
will (and will cause each Originator to) on or prior to the date of the
Agreement, xxxx its master data processing records and other books and
records relating to the Purchased Interest (and at all times thereafter
(until the latest of the Facility Termination Date or the date all other
amounts owing by the Seller under the Agreement shall be paid in full)
continue to maintain such records) with a legend, acceptable to the
Administrator, describing the Purchased Interest.
(c) Performance and Compliance with Contracts and Credit and
Collection Policy. The Servicer and, to the extent that it ceases to be
the Servicer, York, shall (and shall cause each Originator to), 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 Receivables, and timely and fully comply in all
material respects with the applicable Credit and Collection Policies with
regard to each Receivable and the related Contract.
(d) Extension or Amendment of Receivables. Except as provided in
the Agreement, the Servicer and, to the extent that it ceases to be the
Servicer, York, shall not extend (and shall not permit any Originator to
extend), the maturity or adjust the Outstanding Balance or otherwise
modify the terms of any Pool Receivable, or amend, modify or waive any
term or condition of any related Contract.
IV-8
(e) Change in Business or Credit and Collection Policy. The
Servicer and, to the extent that it ceases to be the Servicer, York, shall
not make (and shall not permit any Originator to make) any change in the
character of its business or in any Credit and Collection Policy that
would have a Material Adverse Effect. The Servicer and, to the extent that
it ceases to be the Servicer, York, shall not make (and shall not permit
any Originator to make) any other change in any Credit and Collection
Policy without the prior written consent of the Administrator and each
Purchaser Agent.
(f) Audits. The Servicer and, to the extent that it ceases to be
the Servicer, York, shall (and shall cause each Originator to), from time
to time during regular business hours, but no more frequently than annual
unless (x) a Termination Event or Unmatured Termination Event has occurred
and is continuing or (y) in the opinion of the Administrator (with the
consent or at the direction of the Majority Purchasers) reasonable grounds
for insecurity exist with respect to the collectibility of a material
portion of the Pool Receivables or with respect to the Servicer's
performance or ability to perform in any material respect its obligations
under the Agreement, as reasonably requested in advance (unless a
Termination Event or Unmatured Termination Event exists) by the
Administrator or a Purchaser, permit the Administrator or a Purchaser, or
of the Administrator or any Purchaser agent or representative: (i) to
examine and make copies of and abstracts from all books, records and
documents (including computer tapes and disks) in its possession or under
its control relating to Receivables and the Related Security, including
the related Contracts; and (ii) to visit its offices and properties for
the purpose of examining such materials described in clause (i) above, and
to discuss matters relating to Receivables and the Related Security or its
performance hereunder or under the Contracts with any of its officers,
employees, agents or contractors having knowledge of such matters and
(iii) without limiting clauses (i) and (ii) above, no more than once
annually (unless a Termination Event or an Unmatured Termination Event
exists or there shall be a material variance in the performance of the
Receivables), during regular business hours, and upon reasonable prior
notice, to engage certified public accountants or other auditors
acceptable to the Servicer and the Administrator to conduct, at the
Servicer's expense, a review of the Servicer's books and records with
respect to such Receivables.
(g) Change in Lock-Box Banks, Lock-Box Accounts and Payment
Instructions to Obligors. The Servicer and, to the extent that it ceases
to be the Servicer, York, shall not (and shall not permit any Originator
to) add or terminate any bank as a Lock-Box Bank or any account as a
Lock-Box Account (or any related lock-box) from those listed in Schedule
II to the Agreement, or make any change in its instructions to Obligors
regarding payments to be made to the Servicer or any Lock-Box Account (or
related lock-box), unless the Administrator and the Majority Purchasers
shall have consented thereto in writing and the Administrator shall have
received copies of all agreements and documents (including Lock-Box
Agreements) that it may reasonably request in connection therewith.
Notwithstanding anything herein to the contrary, the Administrator and the
Majority Purchasers shall not be required to consent in connection with
the Servicer's request to terminate and/or add any bank as a Lock-Box Bank
and/or Lock-Box Account provided that the new Lock-Box Bank or Lock-Box
Account to be added is (or is with) a commercial bank having a combined
capital and surplus of at least
IV-9
$250,000,000. The Servicer 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, including, from and after the
effectiveness of any Take Out Securitization, cash or cash proceeds
related to Excluded Foreign Receivables or any cash or cash proceeds of
receivables which do not constitute "Receivables" under the Transaction
Documents at the time of deposit.
(h) Deposits to Lock-Box Accounts. The Servicer shall: (i)
deposit, or cause to be deposited, any Collections received by it into
Lock-Box Accounts not later than one Business Day after receipt thereof,
and (ii) instruct all Obligors to make payments of all Receivables to one
or more Lock-Box Accounts or to lock-boxes to which only Lock-Box Banks
have access (and shall instruct the Lock-Box Banks to cause all items and
amounts relating to such Receivables received in such lock-boxes to be
removed and deposited into a Lock-Box Account on a daily basis). Each
Lock-Box Account shall at all times be subject to a Lock-Box Agreement.
The Servicer 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, including, from and after the effectiveness of any
Take Out Securitization, cash or cash proceeds related to Excluded Foreign
Receivables. or any cash or cash proceeds of receivables which do not
constitute "Receivables" under the Transaction Documents at the time of
deposit.
(i) Reporting Requirements. York shall provide to the
Administrator (in multiple copies, if requested by the Administrator) and
each Purchaser Agent the following:
(i) as soon as available and in any event within 45 days
after the end of the first three quarters of each fiscal year of
York and the Seller, balance sheets of York and its consolidated
Subsidiaries and of Seller as of the end of such quarter and
statements of income, retained earnings and cash flow of York and
its consolidated Subsidiaries and the Seller 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 of
such Person;
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of York and of Seller, a copy of
the annual report for such year for York and its consolidated
Subsidiaries and the Seller, containing financial statements for
such year audited by independent certified public accountants of
nationally recognized standing;
(iii) as to the Servicer only, as soon as available and in any
event not later than two Business Days prior to the Settlement Date,
an Information Package as of the last day of such month or, within
10 Business Days of a request by the Administrator or any Purchaser
Agent, an Information Package for such periods as is specified by
the Administrator or such Purchaser Agent (including on a
semi-monthly, weekly or daily basis);
IV-10
(iv) as soon as possible and in any event within five days
after becoming aware of the occurrence of each Termination Event or
Unmatured Termination Event, a statement of the chief financial
officer of York setting forth details of such Termination Event or
Unmatured Termination Event and the action that such Person has
taken and proposes to take with respect thereto;
(v) promptly after the sending or filing thereof, copies of
all reports that York sends to any of its security holders, and
copies of all reports and registration statements that York or any
Subsidiary files with the Securities and Exchange Commission or any
national securities exchange; provided, that any filings with the
Securities and Exchange Commission that have been granted
"confidential" treatment shall be provided promptly after such
filings have become publicly available;
(vi) promptly after the filing or receiving thereof, copies
of all reports and notices that York or any of its Affiliate files
under ERISA with the Internal Revenue Service, the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor or that such
Person or any of its Affiliates receives from any of the foregoing
or from any multiemployer plan (within the meaning of Section
4001(a)(3) of ERISA) to which such Person or any of its 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 that could, in the aggregate, result in the
imposition of a liability on York and/or any such Affiliate;
(vii) at least thirty days before any change in York's or any
Originator's name or any other change requiring the amendment of UCC
financing statements, a notice setting forth such changes and the
effective date thereof;
(viii) promptly after York obtains knowledge thereof, notice
of any: (A) litigation, investigation or proceeding that may exist
at any time between York or any of its Subsidiaries and any
Governmental Authority that, if not cured or if adversely
determined, as the case may be, would have a Material Adverse
Effect; (B) litigation or proceeding adversely affecting such Person
or any of its Subsidiaries in which the amount involved is
$1,000,000 or more and not covered by insurance or in which
injunctive or similar relief is sought; or (C) litigation or
proceeding relating to any Transaction Document;
(ix) promptly after obtaining knowledge thereof, notice of a
material adverse change in the business, operations, property or
financial or other condition of the Servicer, the Seller or York or
any of its subsidiaries;
(x) promptly after the occurrence thereof, notice of any
downgrade or withdrawal of any of York's debt ratings (long or short
term) by any Rating Agency;
(xi) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of York or any of
its Affiliates as the
IV-11
Administrator or any Purchaser Agent may from time to time
reasonably request; and
(xii) promptly after the occurrence thereof, notice of any
material acquisition or investment by York of or in any Person,
business or operation.
3. Separate Existence. Each of the Seller and York hereby acknowledges
that the Purchasers, the Purchaser Agents, the Administrator and the Liquidity
Providers are entering into the transactions contemplated by this Agreement and
the other Transaction Documents in reliance upon the Seller's identity as a
legal entity separate from York and its Affiliates. Therefore, from and after
the date hereof, each of the Seller and York shall take all steps specifically
required by the Agreement or reasonably required by the Administrator to
continue the Seller's identity as a separate legal entity and to make it
apparent to third Persons that the Seller is an entity with assets and
liabilities distinct from those of York and any other Person, and is not a
division of York, its Affiliates or any other Person. Without limiting the
generality of the foregoing and in addition to and consistent with the other
covenants set forth herein, each of the Seller and York shall take such actions
as shall be required in order that:
(a) The Seller will be a limited purpose limited liability company
whose primary activities are restricted in its limited liability company
agreement to: (i) purchasing or otherwise acquiring from the Originators,
owning, holding, granting security interests or selling interests in Pool
Assets, (ii) entering into agreements for the selling and servicing of the
Receivables Pool, and (iii) conducting such other activities as it deems
necessary or appropriate to carry out its primary activities;
(b) The Seller shall not engage in any business or activity, or
incur any indebtedness or liability, other than as expressly permitted by
the Transaction Documents;
(c) Not less than one member of the Seller's Board of Directors
(the "Independent Director") shall be an individual who is not a direct,
indirect or beneficial stockholder, officer, director, employee,
affiliate, associate or supplier of York or any of its Affiliates. The
limited liability company agreement of the Seller shall provide that: (i)
the Seller's Board of Directors shall not approve, or take any other
action to cause the filing of, a voluntary bankruptcy petition with
respect to the Seller unless the Independent Director shall approve the
taking of such action in writing before the taking of such action, and
(ii) such provision cannot be amended without the prior written consent of
the Independent Director;
(d) The Independent Director shall not at any time serve as a
trustee in bankruptcy for the Seller, York or any Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be
compensated from the Seller's funds for services provided to the Seller.
The Seller will not engage any agents other than its attorneys, auditors
and other professionals, and a servicer and any other agent contemplated
by the Transaction Documents for the Receivables Pool, which
IV-12
servicer will be fully compensated for its services by payment of the
Servicing Fee, and a manager, which manager will be fully compensated from
the Seller's funds;
(f) The Seller will contract with the Servicer to perform for the
Seller all operations required on a daily basis to service the Receivables
Pool. The Seller will pay the Servicer the Servicing Fee pursuant to the
Agreement. The Seller will not incur any material indirect or overhead
expenses for items shared with York (or any other Affiliate thereof) that
are not reflected in the Servicing Fee. To the extent, if any, that the
Seller (or any Affiliate thereof) shares items of expenses not reflected
in the Servicing Fee or the manager's fee, such as legal, auditing and
other professional services, such expenses will be allocated to the extent
practical on the basis of actual use or the value of services rendered,
and otherwise on a basis reasonably related to the actual use or the value
of services rendered; it being understood that York shall pay all expenses
relating to the preparation, negotiation, execution and delivery of the
Transaction Documents, including legal, agency and other fees;
(g) The Seller's operating expenses will not be paid by York or
any other Affiliate thereof;
(h) All of the Seller's business correspondence and other
communications shall be conducted in the Seller's own name and on its own
separate stationery;
(i) The Seller's books and records will be maintained separately
from those of York and any other Affiliate thereof;
(j) All financial statements of York or any Affiliate thereof that
are consolidated to include Seller will contain detailed notes clearly
stating that: (i) a special purpose limited liability company exists as a
Subsidiary of York, and (ii) the Originators have sold receivables and
other related assets to such special purpose Subsidiary that, in turn, has
sold undivided interests therein to certain financial institutions and
other entities;
(k) The Seller's assets will be maintained in a manner that
facilitates their identification and segregation from those of York or any
Affiliate thereof;
(l) The Seller will strictly observe organizational formalities in
its dealings with York or any Affiliate thereof, and funds or other assets
of the Seller will not be commingled with those of York or any Affiliate
thereof except as permitted by the Agreement in connection with servicing
the Pool Receivables. The Seller shall not maintain joint bank accounts or
other depository accounts to which York or any Affiliate thereof (other
than York in its capacity as the Servicer) has independent access. The
Seller is not named, and has not entered into any agreement to be named,
directly or indirectly, as a direct or contingent beneficiary or loss
payee on any insurance policy with respect to any loss relating to the
property of York or any Subsidiary or other Affiliate of York. The Seller
will pay to the appropriate Affiliate the marginal increase or, in the
absence of such increase, the market amount of its portion of the premium
payable with respect to any insurance policy that covers the Seller and
such Affiliate;
IV-13
(m) The Seller will maintain arm's-length relationships with York
(and any Affiliate thereof). Any Person that renders or otherwise
furnishes services to the Seller will be compensated by the Seller at
market rates for such services it renders or otherwise furnishes to the
Seller. Neither the Seller nor York will be or will hold itself out to be
responsible for the debts of the other or the decisions or actions
respecting the daily business and affairs of the other. The Seller and
York will immediately correct any known misrepresentation with respect to
the foregoing, and they will not operate or purport to operate as an
integrated single economic unit with respect to each other or in their
dealing with any other entity; and
(n) York shall not pay the salaries of Seller's employees, if any.
IV-14
EXHIBIT V
TERMINATION EVENTS
Each of the following shall be a "Termination Event":
(a) (i) the Seller, York, any Originator or the Servicer shall fail to
perform or observe any term, covenant or agreement under the Agreement or any
other Transaction Document and, except as otherwise provided herein, such
failure shall continue for more than 15 Business Days after knowledge or notice
thereof, (ii) the Seller or the Servicer shall fail to make when due any payment
or deposit to be made by it under the Agreement (without counting any amounts
made available in connection with the Take Out Securitization) and such failure
shall continue unremedied for one Business Day, (iii) York shall resign as
Servicer, and no successor Servicer reasonably satisfactory to the Administrator
and the Majority Purchasers shall have been appointed, (iv) the Seller shall
have breached any of its covenants and agreements set forth in the first
sentence of paragraph 1(b), or in paragraphs 1(d), 1(e), 1(f), 1(i), 1(j), 1(l),
1(m), 1(n) or paragraph 3 of Exhibit IV to the Agreement, after giving effect to
any applicable cure period, if any, expressly set forth therein, and solely to
the extent that no cure period is set forth in the related paragraph, the
applicable cure period shall be 5 Business Days or (v) York or the Servicer
shall have breached any of its covenants and agreements set forth in the first
sentence of paragraph 2(b), or in paragraphs 2(d), 2(g) or 2(h) or paragraph 3
of Exhibit IV to the Agreement, after giving effect to any applicable cure
period, if any, expressly set forth therein, and solely to the extent that no
cure period is set forth in the related paragraph, the applicable cure period
shall be 5 Business Days;
(b) York (or any Affiliate thereof) shall fail to transfer to any
successor Servicer when required any rights pursuant to the Agreement that York
(or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller,
the Servicer, York or any Originator (or any of their respective officers) under
or in connection with the Agreement or any other Transaction Document, or any
information or report (other than in any Information Package) delivered by the
Seller, the Servicer, York or any Originator pursuant to the Agreement or any
other Transaction Document, shall prove to have been incorrect or untrue in any
respect when made or deemed made or delivered; provided, however, if the
violation of this paragraph (c) by the Seller, the Servicer or any Originator
may be cured without any potential or actual detriment to the Issuer, the
Administrator or any Program Support Provider, the Seller, the Servicer, York,
or such Originator, as applicable, shall have 15 Business Days from the earlier
of (i) such Person's actual knowledge of such failure and (ii) notice to such
Person of such failure to so cure any such violation before a Termination Event
shall occur so long as such Person is diligently attempting to effect such cure;
(d) the Seller or the Servicer shall fail to deliver the Information
Package pursuant to the Agreement, and such failure shall remain unremedied for
two Business Days;
(e) the Agreement or any purchase or reinvestment pursuant to the
Agreement shall for any reason: (i) cease to create, or the Purchased Interest
shall for any reason cease to be, a valid and enforceable perfected undivided
percentage ownership or security interest to the extent
V-1
of the Purchased Interest in each Pool Receivable, the Related Security and
Collections with respect thereto, free and clear of any Adverse Claim, or (ii)
cease to create with respect to the Pool Assets, or the interest of the
Administrator (for the benefit of the Purchasers) with respect to such Pool
Assets shall cease to be, a valid and enforceable first priority perfected
security interest, free and clear of any Adverse Claim;
(f) the Seller, York or any Originator 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, York
or any Originator 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 60
days, or any of the actions sought in such proceeding (including 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, York or any Originator shall take any organizational
action to authorize any of the actions set forth above in this paragraph (f);
(g) (i) (A) the Default Ratio shall exceed 4%, or (B) the Delinquency
Ratio shall exceed 13% or (c) the Current Days' Sales Outstanding shall exceed
50 days or (ii) the average for three consecutive calendar months of (A) the
Default Ratio shall exceed 3.5%, (B) the Delinquency Ratio shall exceed 12%, or
(C) the Dilution Ratio shall exceed 7.25%;
(h) a Change in Control shall occur with respect to Seller, any
Originator or York;
(i) at any time (i) the sum of (A) the Aggregate Investment plus (B) the
Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance at
such time plus (B) the Purchasers' Share of the amount of Collections then on
deposit in the Lock-Box Accounts (other than amounts set aside therein
representing Discount and Fees), and such circumstance shall not have been cured
within five days;
(j) (i) York or any of its Subsidiaries shall fail to pay any principal
of or premium or interest on any of its Debt that is outstanding in a principal
amount of at least $25,000,000 in the aggregate when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement, mortgage, indenture or instrument
relating to such Debt (and shall have not been waived); or (ii) any other event
shall occur or condition shall exist under any agreement, mortgage, indenture or
instrument relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement, mortgage, indenture or
instrument (and shall have not been waived), if, in either case: (a) the effect
of such non-payment, event or condition is to give the applicable debtholders
the right (whether acted upon or not) to accelerate the maturity of such Debt,
or (b) any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), redeemed,
purchased or defeased, or an offer to repay, redeem, purchase
V-2
or defease such Debt shall be required to be made, in each case before the
stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect to any
Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA and
such failure shall not be cured within 10 days, (ii) the Internal Revenue
Service shall file a notice of lien asserting a claim or claims of $250,000 or
more in the aggregate pursuant to the Internal Revenue Code with regard to any
of the assets of Seller, any Originator, York or any ERISA Affiliate and such
lien shall have been filed and not released within 10 days, or (iii) the Pension
Benefit Guaranty Corporation shall, or shall indicate its intention in writing
to the Seller, any Originator, York or any ERISA Affiliate to, either file a
notice of lien asserting a claim pursuant to ERISA with regard to any assets of
the Seller, any Originator, York or any ERISA Affiliate or terminate any Benefit
Plan that has unfunded benefit liabilities, or any steps shall have been taken
to terminate any Benefit Plan subject to Title IV of ERISA so as to result in
any liability in excess of $1,000,000 and such lien shall have been filed and
not released within 10 days;
(l) one or more final judgments for the payment of money shall be
entered against the Seller or (ii) one or more final judgments for the payment
of money in an amount in excess of $20,000,000, individually or in the
aggregate, shall be entered against the Servicer or any Originator on claims not
covered by insurance or as to which the insurance carrier has denied its
responsibility, and such judgment shall continue unsatisfied and in effect for
sixty (60) consecutive days without a stay of execution; or
(m) the "Purchase and Sale Termination Date" under and as defined in the
Purchase and Sale Agreement shall occur under the Purchase and Sale Agreement or
any Originator shall for any reason cease to transfer, or cease to have the
legal capacity to transfer, or otherwise be incapable of transferring
Receivables to the Seller under the Purchase and Sale Agreement.
V-3
EXHIBIT VI
SUPPLEMENTAL PERFECTION REPRESENTATIONS,
WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in
Exhibit III and Exhibit IV hereof, the Seller hereby makes the following
additional representations, warranties and covenants:
1. Receivables; Lock-box Accounts.
(a) Pool Receivables. The Pool Receivables constitute "accounts",
"general intangibles" or "tangible chattel paper", each within the meaning of
the applicable UCC.
(b) Lock-Box Accounts. Each Lock-Box Account constitutes a
"deposit account" within the meaning of the applicable UCC.
2. Creation of Security Interest. The Seller owns and has good and
marketable title to the Pool Receivables and Lock-Box Accounts (and the related
lock-boxes), free and clear of any Adverse Claim. The Agreement creates a valid
and continuing security interest (as defined in the applicable UCC) in the Pool
Receivables and the Lock-Box Accounts (and the related lock-boxes) in favor of
the Administrator (for the benefit of the Purchasers), which security interest
is prior to all other Adverse Claims and is enforceable as such as against any
creditors of and purchasers from the Seller.
3. Perfection.
(a) General. The Seller has or has caused, or will or will cause
within ten days after the date hereof, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the sale of the Pool Receivables from the
Originators to the Seller pursuant to the Purchase and Sale Agreement and the
security interest granted by the Seller to the Administrator (for the benefit of
the Purchasers) in the Receivables and Lock-Box Accounts (and the related
lock-boxes) hereunder.
(b) Tangible Chattel Paper. With respect to any Pool Receivable
that constitutes "tangible chattel paper", the Servicer is in possession of the
original copies of the tangible chattel paper that constitute or evidence such
Pool Receivables, and the Seller has filed and has caused each Originator to
file, or will file or will cause each Originator to file within ten days after
the date hereof, the financing statements described in paragraph (a) above, each
of which will contain a statement that: "A purchase of or a grant of a security
interest in any property described in this financing statement will violate the
rights of the Administrator." The Pool Receivables to the extent they are
evidenced by "tangible chattel paper" do not have any marks or notations
indicating that they have been pledged, assigned or otherwise conveyed to any
Person other than the Seller or the Administrator.
(c) Lock-Box Accounts. With respect to all Lock-Box Accounts (and
all related lock-boxes), the Seller has delivered to the Administrator, on
behalf of the Purchasers, a fully executed Lock-Box Agreement pursuant to which
the applicable Lock-Box Bank has agreed, following the occurrence and
continuation of a Termination Event, to comply with all
VI-4
instructions given by the Administrator with respect to all funds on deposit in
such Lock-Box Account (and all funds sent to the respective lock-box), without
further consent by the Seller or the Servicer.
4. Priority.
(a) Other than the transfer of the Receivables by the Originators
to the Seller pursuant to the Purchase and Sale Agreement and the grant of
security interest by the Seller to the Administrator (for the benefit of the
Purchasers) in the Pool Receivables and Lock-Box Accounts (and the related
lock-boxes) hereunder, neither the Seller nor any Originator has pledged,
assigned, sold, conveyed, or otherwise granted a security interest in any of the
Pool Receivables or Lock-Box Accounts (and the related lock-boxes) to any other
Person.
(b) Neither the Seller nor any Originator has authorized, or is
aware of, any filing of any financing statement against the Seller or any
Originator that include a description of collateral covering the Pool
Receivables or any other Pool Assets, other than any financing statement filed
pursuant to the Purchase and Sale Agreement and the Agreement or financing
statements that have been validly terminated prior to the date hereof.
(c) The Seller is not aware of any judgment, ERISA or tax lien
filings against either the Seller or any Originator.
(d) None of the Lock-Box Accounts (and the related lock-boxes) are
in the name of any Person other than the Seller or the Administrator. Neither
the Seller, the Servicer or any Originator has consented to any Lock-Box Bank's
complying with instructions of any person other than the Administrator.
5. Survival of Supplemental Representations. Notwithstanding any other
provision of the Agreement or any other Transaction Document, the
representations contained in this Exhibit VI shall be continuing, and remain in
full force and effect until such time as all the Investment has finally been
paid in full and all other obligations of the Seller under the Agreement or any
other Transaction Documents have been fully performed.
6. No Waiver. The parties to the Agreement: (i) shall not, without
obtaining a written confirmation of the then-current rating of the Notes by the
rating agencies then rating the Notes, waive any of the representations set
forth in this Exhibit VI; (ii) shall provide the ratings agencies rating the
Notes with prompt written notice of any breach of any representations set forth
in this Exhibit VI, and (iii) shall not, without obtaining a written
confirmation of the then-current rating of the Notes by the rating agencies then
rating the Notes (as determined after any adjustment or withdrawal of the
ratings following notice of such breach) waive a breach of any of the
representations set forth in this Exhibit VI.
7. Seller or Servicer to Maintain Perfection and Priority. In order to
evidence the interests of the Administrator under this Agreement, the Seller or
Servicer shall, from time to time take such action, or execute and deliver such
instruments (other than filing financing statements) as may be necessary or
advisable (including, without limitation, such actions as are requested by the
Administrator on behalf of the Purchasers) to maintain and perfect, as a
first-priority interest, the Administrator's security interest (for the benefit
of the Purchasers) in the
VI-5
Pool Assets. The Seller or Servicer shall, from time to time and within the time
limits established by law, prepare and present to the Administrator for the
Administrator's authorization and approval all financing statements, amendments,
continuations or initial financing statements in lieu of a continuation
statement, or other filings necessary to continue, maintain and perfect the
Administrator's security interest (for the benefit of the Purchasers in the Pool
Assets as a first-priority interest. The Administrator's approval of such
filings shall authorize the Seller or Servicer to file such financing statements
under the UCC without the signature of the Seller, any Originator or the
Administrator where allowed by applicable law. Notwithstanding anything else in
the Transaction Documents to the contrary, neither the Seller, the Servicer, nor
any Originator, shall have any authority to file a termination, partial
termination, release, partial release or any amendment that deletes the name of
a debtor or excludes collateral of any such financing statements, without the
prior written consent of the Administrator, on behalf of the Purchasers.
VI-6
SCHEDULE I
CREDIT AND COLLECTION POLICY
[to be inserted]
Schedule I-1
SCHEDULE II
LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
Lock-Box Bank Lock-Box(es) Account
Schedule II-1
SCHEDULE III
TRADE NAMES
Organizational Name Trade Names / Fictitious Names
York Receivables Funding LLC None
Schedule III-1
ANNEX A
TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
INITIAL INFORMATION PACKAGE
[to be inserted]
Annex A-1
ANNEX B
TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
FORM OF PURCHASE NOTICE
May 12, 2004
The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as Administrator and as a
Purchaser Agent
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
The Bank of Nova Scotia, as a Purchaser Agent
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables Purchase
Agreement, dated as of May 17, 2004, (as heretofore amended, amended and
restated, supplemented or otherwise modified, the "Receivables Purchase
Agreement"), among York Receivables Funding LLC ("Seller "), York International
Corporation, as Servicer, Gotham Funding Corporation, Liberty Street Funding
Corp., The Bank of Nova Scotia, the various other Purchaser Groups from time to
time a party thereto and The Bank of Tokyo-Mitsubishi, Ltd., New York Branch,
(the "Administrator"). Capitalized terms used in this Purchase Notice and not
otherwise defined herein shall have the meanings assigned thereto in the
Receivables Purchase Agreement.
This letter constitutes a Purchase Notice pursuant to Section 1.2(a) of
the Receivables Purchase Agreement. Seller desires to sell an undivided variable
interest in a pool of receivables on ___________, [2004], for a purchase price
of $____________. Subsequent to this Purchase, the Aggregate Investment will be
$___________. Each Purchaser's Purchaser Group Ratable Share of such Purchase is
set forth on Schedule I attached hereto.
Seller hereby represents and warrants as of the date hereof, and as of the
date of Purchase, as follows:
(i) the representations and warranties contained in Exhibit III of the
Receivables Purchase Agreement are correct on and as of such dates as though
made on and as of such dates and shall be deemed to have been made on such
dates;
(ii) no Termination Event or Unmatured Termination Event has occurred and
is continuing, or would result from such purchase;
(iii) after giving effect to the purchase proposed hereby, the Purchased
Interest will not exceed 100% and the Aggregate Investment will not exceed the
Purchase Limit; and
(iv) the Facility Termination Date shall not have occurred.
Annex B-1
IN WITNESS WHEREOF, the undersigned has caused this Purchase Notice to be
executed by its duly authorized officer as of the date first above written.
YORK RECEIVABLES FUNDING LLC
By:_______________________________
Name Printed:_____________________
Title:____________________________
Annex B-2
SCHEDULE I TO
PURCHASE NOTICE
Purchaser Group
Purchaser Ratable Share
Annex B-3
ANNEX C
TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
FORM OF ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of [______ __,
____], is among YORK RECEIVABLES FUNDING LLC (the "Seller"), [________], as
purchaser (the "[_____]Conduit Purchaser"), [________], as the related committed
purchaser (the "[______] Related Committed Purchaser" and together with the
Conduit Purchaser, the "[_____] Purchasers"), and [________], as agent for the
Purchasers (the "[______] Purchaser Agent" and together with the Purchasers, the
"[_______] Purchaser Group").
BACKGROUND
The Seller and various others are parties to a certain Amended and
Restated Receivables Purchase Agreement, dated as of May 17, 2004 (as amended,
amended and restated, supplemented or otherwise modified through the date
hereof, the "Receivables Purchase Agreement"). Capitalized terms used and not
otherwise defined herein have the respective meaning assigned to such terms in
the Receivables Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. This letter constitutes an Assumption Agreement pursuant to
Section 1.2(e) of the Receivables Purchase Agreement. The Seller desires [the
[_____] Purchasers] [the [______] Related Committed Purchaser] to [become
Purchasers under] [increase its existing Commitment under] the Receivables
Purchase Agreement and upon the terms and subject to the conditions set forth in
the Receivables Purchase Agreement, the [________] Purchasers agree to [become
Purchasers thereunder] [increase its Commitment in an amount equal to the amount
set forth as the "Commitment" under the signature of the [______] Related
Committed Purchaser hereto].
Seller hereby represents and warrants to the [________] Purchasers as of
the date hereof, as follows:
(i) the representations and warranties contained in Exhibit III of the
Receivables Purchase Agreement are correct on and as of such dates as though
made on and as of such dates and shall be deemed to have been made on such
dates;
(ii) no Termination Event or Unmatured Termination Event has occurred and
is continuing, or would result from such purchase; and
(iii) the Facility Termination Date shall not have occurred.
SECTION 2. Upon execution and delivery of this Agreement by the Seller and
each member of the [______] Purchaser Group, satisfaction of the other
conditions to assignment specified in Section 1.2(e) of the Receivables Purchase
Agreement (including the consent of the Administrator and each of the other
Purchasers party thereto) and receipt by the Administrator of counterparts of
this Agreement (whether by facsimile or otherwise) executed by each of the
Annex C-1
parties hereto, [the [_____] Purchasers shall become a party to, and have the
rights and obligations of Purchasers under, the Receivables Purchase Agreement]
[the [______] Related Committed Purchaser shall increase its Commitment in the
amount set forth as the "Commitment" under the signature of the [______] Related
Committed Purchaser, hereto].
SECTION 3. Each party hereto hereby covenants and agrees that it will not
institute against, or join any other Person in instituting against, any Conduit
Purchaser, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, for one year and one day after the latest maturing
Notes issued by such Conduit Purchaser is paid in full. The covenant contained
in this paragraph shall survive any termination of the Receivables Purchase
Agreement.
SECTION 4. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Agreement may not be amended, supplemented or waived
except pursuant to a writing signed by the party to be charged. This Agreement
may be executed in counterparts, and by the different parties on different
counterparts, each of which shall constitute an original, but all together shall
constitute one and the same agreement.
(continued on following page)
Annex C-2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
[___________], as a Conduit Purchaser
By:_____________________________________________________
Name Printed:___________________________________________
Title:__________________________________________________
[Address]
[___________], as a Related Committed Purchaser
By:_____________________________________________________
Name Printed:___________________________________________
Title:__________________________________________________
[Address]
[Commitment]
[_____________], as Purchaser Agent for [_________]
By:_____________________________________________________
Name Printed:___________________________________________
Title:__________________________________________________
[Address]
S-1
YORK RECEIVABLES FUNDING LLC,
as Seller
By:____________________________
Name Printed:____________________
Title:___________________________
Consented and Agreed:
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
as Administrator
By:____________________________
Name Printed:____________________
Title:___________________________
Consented and Agreed:
[THE PURCHASERS]
S-2
ANNEX D
TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
FORM OF TRANSFER SUPPLEMENT
WITH RESPECT TO
YORK RECEIVABLES FUNDING LLC
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
[_______ __, ______]
Section 1.
[Commitment assigned: $_________
Assignor's remaining Commitment: $_________
Investment allocable to Commitment assigned: $_________
Investment assigned:](1)
Assignor's remaining Investment: $_________
Discount (if any) allocable to Investment assigned: $_________
Discount(if any) allocable to Assignor's remaining Investment: $_________
Section 2.
Effective Date of this Transfer Supplement: [__________]
Upon execution and delivery of this Transfer Supplement by transferee and
transferor and the satisfaction of the other conditions to assignment specified
in [Section 6.3(c)] [Section 6.3(e)] of the Receivables Purchase Agreement, from
and after the effective date specified above, the transferee shall become a
party to, and have the rights and obligations of a [Conduit Purchaser] [Related
Committed Purchaser] under, the Amended and Restated Receivables Purchase
Agreement, dated as of May 17, 2004 (as amended, amended and restated,
supplemented or otherwise modified through the date hereof, the "Receivables
Purchase Agreement"), among YORK RECEIVABLES FUNDING LLC, YORK INTERNATIONAL
CORPORATION and various other parties.
----------
(1) Bracketed language is only applicable to assignments by Related Committed
Purchasers pursuant to Section 6.3(c).
Annex D-1
ASSIGNOR: [_________], as a [Related
Committed Purchaser for
[_______]] [Conduit Purchaser]
By: ___________________________________
Name:______________________________
Title:_____________________________
ASSIGNEE: [_________], as a [Related
Committed Purchaser for
[_______]] [Conduit Purchaser]
By: ___________________________________
Name:______________________________
Title:_____________________________
[Address]
[Commitment Assigned](2)
----------
(2) Bracketed language is only applicable to assignments by Related Committed
Purchasers pursuant to Section 6.3(c).
Annex D-2
Accepted as of date first above written:
[___________],
as Purchaser Agent for the
[______] Purchaser Group
By: _______________________________________________
Name:__________________________________________
Title:_________________________________________
Annex D-3
ANNEX E
TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
FORM OF PAYDOWN NOTICE
[_____________, 20___]
The Bank of Tokyo-Mitsubishi, Ltd., New York Branch
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Securitization Group
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Last
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables Purchase
Agreement, dated as of May 17, 2004 (as heretofore amended, amended and
restated, supplemented or otherwise modified, the "Receivables Purchase
Agreement"), among York Receivables Funding LLC ("Seller"), York International
Corporation, as Servicer, Gotham Funding Corporation, Liberty Street Funding
Corp., The Bank of Nova Scotia, the various other Purchaser Groups from time to
time a party thereto and The Bank of Tokyo-Mitsubishi, Ltd., New York Branch
(the "Administrator"). Capitalized terms used in this Purchase Notice and not
otherwise defined herein shall have the meanings assigned thereto in the
Receivables Purchase Agreement.
This letter constitutes a Paydown Notice pursuant to Section 1.4(f)(i) of
the Receivables Purchase Agreement. Seller desires to reduce the Aggregate
Investment on ______________, ___ by(3) the application of $____________ in cash
to pay the Aggregate Investment and Discount to accrue (until such cash can be
used to pay commercial paper notes) with respect to such Aggregate Investment,
together with all cost related to such reduction of Aggregate Investment.
----------
(3) Notice must be given at least three Business Days' prior to the requested
paydown date, in the case of reductions greater than $10,000,000, or at
least two Business Days prior to the requested paydown date, in case of
reductions less than or equal to $10,000,000.
Annex E-1
IN WITNESS WHEREOF, the undersigned has caused this Paydown Notice to be
executed by its duly authorized officer as of the date first above written.
YORK RECEIVABLES FUNDING LLC
By:_______________________________
Name Printed:_____________________
Title:____________________________
Annex E-2
ANNEX F
TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
LIST OF ELIGIBLE FOREIGN OBLIGOR COUNTRIES
- Australia
- Canada
- France
- Xxxxxxx
- Xxxxx
- Xxxxx
- Xxxxx
- Xxxxxx
- Xxxxx
- Sweden
Annex G-1
