Exhibit 10.39
PURCHASE AND CONTRIBUTION AGREEMENT
Dated as of November 15, 1996
Between
MAIL-WELL I CORPORATION
WISCO ENVELOPE CORP.
XXXXX ENVELOPE AND TAG CORP.
MAIL-WELL WEST, INC.
WISCO II, L.L.C.
MAIL-WELL CANADA HOLDINGS, INC.
GRAPHIC ARTS CENTER, INC.
WISCO III, L.L.C.
SUPREMEX INC.
INNOVA ENVELOPE INC.
as Sellers
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and
MAIL-WELL TRADE RECEIVABLES CORPORATION
as Purchaser
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TABLE OF CONTENTS
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Page
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PRELIMINARY STATEMENTS
ARTICLE I DEFINITIONS
SECTION 1.01. Certain Defined Terms......................................1
Affiliate...........................................................1
Alternate Base Rate.................................................1
Asset Purchase Agreement............................................2
Banque Paribas......................................................2
BPNY................................................................2
Billing Date........................................................2
Business Day........................................................2
Canadian Sellers....................................................2
Collections.........................................................2
Contract............................................................2
Contributed Receivable..............................................2
Credit and Collection Policy........................................3
Defaulted Receivable................................................3
Designated Obligor..................................................3
Dilution............................................................3
Discount............................................................3
ERISA...............................................................4
Event of Termination................................................4
Facility............................................................4
Facility Termination Date...........................................4
Federal Funds Rate..................................................4
Financing Agreements................................................4
General Trial Balance...............................................5
Incipient Event of Termination......................................5
Indebtedness........................................................5
Indemnified Amounts.................................................5
Lien................................................................5
Liquidity Agent.....................................................6
Lock-Box Account....................................................6
Lock-Box Agreement..................................................6
Lock-Box Bank.......................................................6
Minimum Return......................................................6
Obligor.............................................................6
Outstanding Balance.................................................6
Parent..............................................................6
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Person...............................................................6
Pooling and Servicing Agreement......................................6
Purchase.............................................................7
Purchase Date........................................................7
Purchase Price.......................................................7
Purchased Receivable.................................................7
Purchaser Invested Amount............................................7
Receivable...........................................................7
Receivables Purchase Request.........................................7
Related Security.....................................................7
Seller Report........................................................8
Series Representative................................................8
Servicer.............................................................8
Servicer Fee.........................................................8
Settlement Date......................................................8
Transferred Receivable...............................................8
Trustee..............................................................8
UCC..................................................................8
SECTION 1.02. Other Terms................................................8
ARTICLE II AMOUNTS AND TERMS OF PURCHASES AND
CONTRIBUTIONS
SECTION 2.01. Facility...................................................9
SECTION 2.02. Making Purchases..........................................10
SECTION 2.03. Collections...............................................10
SECTION 2.04. Settlement Procedures.....................................10
SECTION 2.05. Payments and Computations, Etc............................11
SECTION 2.06. Contributions.............................................11
SECTION 2.07. Addition of Sellers.......................................11
SECTION 2.08. Termination of Status as a Seller.........................12
ARTICLE III CONDITIONS OF PURCHASES
SECTION 3.01. Conditions Precedent to Initial Purchase from
the Sellers..............................................13
SECTION 3.02. Conditions Precedent to All Purchases.....................14
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Sellers.............15
ARTICLE V COVENANTS
SECTION 5.01. Covenants of the Sellers..................................18
SECTION 5.02. Grant of Security Interest................................22
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SECTION 5.03. Covenant of the Sellers and the Purchaser.................22
SECTION 5.04. Repurchase................................................23
ARTICLE VI ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Servicer...................................23
SECTION 6.02. Duties of Servicer........................................24
SECTION 6.03. Servicer Fee..............................................25
SECTION 6.04. Certain Rights of the Purchaser...........................25
SECTION 6.05. Rights and Remedies.......................................26
SECTION 6.06. Transfer of Records to Purchaser..........................26
ARTICLE VII EVENTS OF TERMINATION
SECTION 7.01. Events of Termination.....................................27
ARTICLE VIII INDEMNIFICATION
SECTION 8.01. Indemnities by the Sellers................................29
ARTICLE IX MISCELLANEOUS
SECTION 9.01. Amendments, Etc...........................................31
SECTION 9.02. Notices, Etc..............................................31
SECTION 9.03. Binding Effect; Assignability.............................31
SECTION 9.04. Costs, Expenses and Taxes.................................32
SECTION 9.05. No Proceedings............................................32
SECTION 9.06. Confidentiality...........................................33
SECTION 9.07. GOVERNING LAW.............................................33
SECTION 9.08. Third Party Beneficiary...................................33
SECTION 9.09. Execution in Counterparts.................................33
EXHIBITS
EXHIBIT A [Intentionally Omitted.]
EXHIBIT B Credit and Collection Policy
EXHIBIT C Lock-Box Banks
SCHEDULE 1 Tradenames
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[Purchase and Contribution Agreement]
PURCHASE AND CONTRIBUTION AGREEMENT
Dated as of November 15, 1996
MAIL-WELL I CORPORATION, (the "Parent"), WISCO ENVELOPE CORP., XXXXX
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ENVELOPE AND TAG CORP., MAIL-WELL WEST, INC., WISCO II, L.L.C., MAIL-WELL CANADA
HOLDINGS, INC., GRAPHIC ARTS CENTER, INC., WISCO III, L.L.C., SUPREMEX INC.,
INNOVA ENVELOPE INC. (the Parent and each of the other foregoing parties, a
"Seller" and together with all other Persons added pursuant to Section 2.08, the
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"Sellers"), and MAIL-WELL TRADE RECEIVABLES FUNDING CORPORATION, a Colorado
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corporation (the "Purchaser"), agree as follows:
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PRELIMINARY STATEMENTS. (1) Certain terms which are capitalized and
used throughout this Agreement (in addition to those defined above) are defined
in Article I of this Agreement.
(2) Each Seller has Receivables that it wishes to sell to the
Purchaser, and the Purchaser is prepared to purchase such Receivables on the
terms set forth herein.
(3) The Parent may also wish to contribute Receivables to the capital
of the Purchaser on the terms set forth herein.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
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following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Affiliate" means, with respect to any specified Person, any other
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Person controlling or controlled by or under common control with such
specified Person. For the purpose of this definition, "control" shall mean
the power to direct the management and policies of a Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms "controlling" and "controlled" have meaning
correlative to the foregoing.
"Alternate Base Rate" means a fluctuating interest rate per annum as
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shall be in effect from time to time, which rate shall be at all times
equal to the higher of:
[Purchase and Contribution Agreement]
(a) the rate of interest announced publicly by Banque Paribas in
New York, New York from time to time as BPNY's base rate; and
(b) the Federal Funds Rate.
"Asset Purchase Agreement" means that certain Asset Purchase
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Agreement, dated the date hereof, among the Trustee, Corporate Receivables
Corporation, Citicorp North America, Inc. and BPNY, as amended from time to
time.
"Banque Paribas" means Banque Paribas, a French banking corporation.
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"BPNY" means Banque Paribas, New York Branch, a branch of Banque
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Paribas, licensed under the laws of the State of New York.
"Billing Date" means the date on which the invoice with respect to a
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Receivable was generated.
"Business Day" means any day other than (a) a Saturday or Sunday or
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(b) any other day on which national banking associations or state banking
institutions in New York, New York or Denver, Colorado are authorized or
obligated by law, executive order or governmental decree to be closed.
"Canadian Receivable" means any Receivable originated by a Canadian
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Seller.
"Canadian Sellers" means, collectively, Supremex Inc. and Innova
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Envelope Inc.
"Collections" means, with respect to any Receivable, all cash
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collections and other cash proceeds of such Receivable, including, without
limitation, all cash proceeds of Related Security with respect to such
Receivable, and all funds deemed to have been received by the Seller or any
other Person as a Collection pursuant to Section 2.04.
"Contract" means an agreement between a Seller and an Obligor pursuant
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to or under which such Obligor shall be obligated to pay for merchandise or
services from time to time.
"Contributed Receivable" has the meaning specified in Section 2.07.
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[Purchase and Contribution Agreement]
"Credit and Collection Policy" means those receivables credit and
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collection policies and practices of the Sellers in effect on the date of
this Agreement applicable to the Receivables and described in Exhibit B
hereto, as modified in compliance with this Agreement.
"Defaulted Receivable" means a Receivable:
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(i) as to which any payment, or part thereof, remains unpaid
for 150 or more days from the original Billing Date thereof;
(ii) as to which the Obligor thereof or any other Person
obligated thereon has taken any action, or suffered any event to occur, of
the type described in Section 7.01(g); or
(iii) which, consistent with the Credit and Collection Policy,
would be written off the applicable Seller's books as uncollectible.
"Designated Obligor" means, at any time, each Obligor; provided,
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however, that any Obligor shall cease to be a Designated Obligor upon three
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Business Days' notice by the Purchaser to the Seller that the Purchaser (or
its assignee) has determined in its reasonable business judgment that such
Obligor is no longer acceptable and provided, further, that any Person
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added as an Obligor after the date hereof shall be judged to be acceptable
or not acceptable in the sole discretion of the Purchaser (or its
assignee).
"Dilution" means, with respect to any Receivable, (a) the aggregate
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amount of any reductions or adjustments in the Outstanding Balance of such
Receivable as a result of (i) any failure by any Seller to deliver any
merchandise or services or otherwise to perform under the underlying
Contract, or (ii) any change in or cancellation of any of the terms of such
Contract or any other adjustment by any Seller which reduces the amount
payable by the Obligor on the related Receivables or (iii) any setoff in
respect of any claim by the Obligor thereof (whether such claim arises out
of the same or a related transaction or an unrelated transaction) or (b)
the Outstanding Balance of such Receivable subject to any specific dispute,
offset, counterclaim or defense whatsoever (except the discharge in
bankruptcy of the Obligor thereof); provided, that Dilution does not
include (x) contractual adjustments to the amount payable by an Obligor
that are eliminated from the Receivables balance sold to the Seller through
a reduction in the purchase price for the related Receivable or (y) any
portion of those Receivables for which a production prepayment has been
received.
"Discount" means, in respect of each Purchase, a percentage amount
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calculated by the Seller and approved from time to time by the Purchaser,
equal to:
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[Purchase and Contribution Agreement]
(a) the Outstanding Balance of Receivables that are the subject
of such Purchase, minus
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(b) the expected costs to be incurred by the Purchaser of
financing such Purchase until the Outstanding Balance of such
Receivable is paid in full, minus
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(c) the portion of such Receivables that are reasonably expected
by the Seller to become Defaulted Receivables, minus
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(d) the portion of such Receivables that are reasonably expected
by the Seller to be reduced by means other than receipt of Collections
on such Receivables or pursuant to (c) above,
each of (b), (c) and (d) determined based on historical experience of the
related Seller.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Event of Termination" has the meaning specified in Section 7.01.
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"Facility" means the willingness of the Purchaser to consider making
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Purchases of Receivables from the Sellers from time to time pursuant to the
terms of this Agreement.
"Facility Termination Date" means the earliest of (i) November 15,
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2001, (ii) the date of termination of the Facility pursuant to Section
7.01 and (iii) the date which the Parent designates by at least two
Business Days' notice to the Purchaser.
"Federal Funds Rate" means, with respect to any day, the rate set
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forth in H.15(519) for that day opposite the caption "Federal Funds
(Effective)". If on any date of determination, such rate is not published
in H.15(519), such rate will be the rate set forth in Composite 3:30 P.M.
Quotations for U.S. Government Securities for that day under the caption
"Federal Funds/Effective Rate". If on any date of determination, the
appropriate rate is not published in either H.15(519) or Composite 3:30
P.M. Quotations for U.S. Government Securities, such rate will be the
arithmetic mean of the rates for the last transaction in overnight Federal
funds arranged by three leading brokers of Federal funds transactions in
New York City prior to 9:00 A.M., New York City time, on that day.
"Financing Agreements" means the Third Amended and Restated Credit
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Agreement, dated as of the date hereof, among certain of the Sellers,
Banque Paribas, as
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[Purchase and Contribution Agreement]
Agent, and the Lenders named therein and the Amended and Restated Credit
Agreement, dated as of the date hereof, among certain of the Sellers,
Banque Paribas, as Agent, and the Lenders named therein.
"General Trial Balance" of a Seller on any date means the Seller's
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accounts receivable trial balance (whether in the form of a computer
printout, magnetic tape or diskette) on such date, listing Obligors and the
Receivables respectively owed by such Obligors on such date together with
the aged Outstanding Balances of such Receivables, in form and substance
satisfactory to the Purchaser.
"Incipient Event of Termination" means an event that but for notice or
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lapse of time or both would constitute an Event of Termination.
"Indebtedness" of any Person means indebtedness, obligations and
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liabilities of such Person (a) for borrowed money, (b) evidenced by
promissory notes, bonds, debentures, notes or other similar instruments,
(c) to pay the deferred purchase price of property or services other than
trade accounts payable of such Person arising in the ordinary course of
business that are not past due by more than 90 days, (d) as lessee under
leases which have been or should be, in accordance with GAAP, recorded as
capital leases, (e) secured by any lien or other charge upon property or
assets owned by such Person, even though such Person has not assumed or
become liable for the payment of such obligations, (f) under any interest
rate, swap, "cap", "collar" or other hedging agreement, (g) under
reimbursement agreements or similar agreements with respect to the issuance
of letters of credit (other than obligations in respect of letters of
credit opened to provide for payment of goods and services purchased in the
ordinary course of business) and (h) 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 (g) above, provided, however, that any assignment or
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transfer with respect to any Purchase hereunder shall not be deemed to
constitute a Lien.
"Indemnified Amounts" has the meaning specified in Section 8.01.
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"Lien" means any mortgage, deed of trust, pledge, hypothecation,
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assignment, deposit arrangement, encumbrance, lien (statutory or other), or
other security agreement of any kind or nature whatsoever, including any
conditional sale or other title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing and
the filing of any financing statement under the UCC (other than any such
financing statement filed for informational purposes only) or comparable
law of any jurisdiction to evidence any of the foregoing, excluding any
lien or filing pursuant to this Agreement.
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[Purchase and Contribution Agreement]
"Liquidity Agent" means BPNY in its capacity as Liquidity Agent under
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the Asset Purchase Agreement.
"Lock-Box Account" means one or more accounts, under the exclusive
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ownership and control of the Purchaser (or its assignees or designees),
maintained for the purpose of receiving Collections.
"Lock-Box Agreement" means an agreement among a Seller, the Purchaser
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(and/or its assignees or designees), the Trustee and any Lock-Box Bank in
form and substance satisfactory to the Purchaser (or its assignees or
designees).
"Lock-Box Bank" means any of the banks or other financial institutions
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holding one or more Lock-Box Accounts.
"Minimum Return" means as of any date of determination, 50% of the
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Outstanding Balance of Transferred Receivables for the calendar week on
which such date ends.
"Obligor" means a Person obligated to make payments to a Seller
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pursuant to a Contract.
"Outstanding Balance" of any Receivable at any time means the then
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outstanding principal balance thereof after reductions, cancelations and
adjustments resulting from Dilution; provided, however, that with respect
to any Canadian Receivable, Outstanding Balance at any time shall mean the
United States Dollar equivalent of the then outstanding principal balance
thereof as determined by reference to the weighted average rate for the
notional amount of Canadian Receivables pursuant to any applicable hedge
agreement.
"Parent" has the meaning specified in the Preamble hereto.
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"Person" means an individual, partnership, corporation (including a
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business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision
or agency thereof.
"Pooling and Servicing Agreement" means that certain Pooling and
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Servicing Agreement, dated as of the date hereof, among the Purchaser, as
seller, Norwest Bank Colorado, National Association, as Trustee, and the
Parent, as Servicer, together with all supplements thereto, each as amended
or restated from time to time.
6
[Purchase and Contribution Agreement]
"Purchase" means a purchase by the Purchaser of Receivables from a
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Seller pursuant to Article II.
"Purchase Date" has the meaning specified in Section 2.02(a).
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"Purchase Price" has the meaning specified in Section 2.02(b).
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"Purchased Receivable" means any Receivable which, pursuant to the
--------------------
procedure described in Section 2.02(c), has been identified as a Purchased
Receivable.
"Purchaser Invested Amount" means the sum of amounts paid by the
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Purchaser to the Sellers for each Purchase of Receivables from the Seller
pursuant to Section 2.02, reduced from time to time by Collections of such
Receivables actually received by the Purchaser in excess of the applicable
portion of the Discount representing yield (assumed to be 2.5% unless
otherwise mutually agreed); provided, however, that such Purchaser Invested
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Amount shall not be reduced by any Collections to the extent that at any
time such Collections are rescinded or must otherwise be returned for any
reason.
"Receivable" means the indebtedness of any Obligor resulting from the
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provision or sale of merchandise, insurance or services by a Seller under a
Contract, and includes the right to payment of any interest or finance
charges and other obligations of such Obligor with respect thereto.
"Receivables Purchase Request" has the meaning specified in Section
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2.02(a).
"Related Security" means with respect to any Receivable all of the
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related Seller's interest in:
(i) any merchandise (including returned merchandise) relating to
any sale giving rise to such Receivable;
(ii) all security interests or liens and property subject thereto
from time to time purporting to secure payment of such Receivable, whether
pursuant to the Contract related to such Receivable or otherwise, together
with all financing statements signed by an Obligor describing any
collateral securing such Receivable;
(iii) all guaranties, insurance and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of such Receivable whether pursuant to the Contract related to such
Receivable or otherwise; and
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[Purchase and Contribution Agreement]
(iv) the Contract and all other books, records and other
information (including, without limitation, computer programs, tapes,
discs, punch cards, data processing software and related property and
rights) relating to such Receivable and the related Obligor.
"Seller Report" means a report, in form and substance satisfactory to
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the Purchaser, furnished by the Servicer to the Purchaser pursuant to
Section 6.02(b).
"Series Representative" means Citicorp North America, Inc. or the
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Liquidity Agent, in each case in their capacities as Series Representative
under the Pooling and Servicing Agreement.
"Servicer" means at any time the Person then authorized pursuant to
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Section 6.01 to service, administer and collect Transferred Receivables.
"Servicer Fee" has the meaning specified in Section 6.03.
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"Settlement Date" means the fifteenth day of each month (or if such
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day is not a Business Day, the immediately succeeding Business Day);
provided, however, that following the occurrence of an Event of
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Termination, Settlement Dates shall occur on such days as are selected from
time to time by the Purchaser or its designee in a written notice to the
Servicer.
"Transferred Receivable" means a Purchased Receivable or a Contributed
----------------------
Receivable which, in either case, has not been transferred back to the
applicable seller pursuant to Section 5.04 (unless thereafter repurchased
by or recontributed to the Purchaser).
"Trustee" means Norwest Bank Colorado, National Association in its
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capacity as Trustee under the Pooling and Servicing Agreement.
"UCC" means the Uniform Commercial Code as from time to time in effect
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in the specified jurisdiction.
SECTION 1.02. Other Terms. All accounting terms not specifically
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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.
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[Purchase and Contribution Agreement]
ARTICLE II
AMOUNTS AND TERMS OF PURCHASES AND CONTRIBUTIONS
SECTION 2.01. Facility. On the terms and conditions hereinafter set
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forth and without recourse (except to the extent as is specifically provided
herein), the Purchaser may purchase Receivables of each Seller from such Seller
from time to time during the period from the date hereof to the Facility
Termination Date.
SECTION 2.02. Making Purchases.
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(a) Purchases. Each Purchase from a Seller shall be made on notice
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from such Seller to the Purchaser given no later than 10:00 A.M. (New York City
time) on the date of such Purchase. Each such request for a Purchase (each a
"Receivables Purchase Request") shall specify the date of such Purchase (which
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shall be a Business Day) and the proposed purchase price (as determined pursuant
to Section 2.02(b)) for such Purchase. The Purchaser shall promptly notify such
Seller whether it has determined to make such Purchase. On the date of each
Purchase (each a "Purchase Date"), the Purchaser shall, upon satisfaction of the
-------------
applicable conditions set forth in Article III, pay the purchase price for such
Purchase by deposit of such amount in same day funds to such Seller's account
designated by such Seller.
(b) Determination of Purchase Price. The purchase price (the
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"Purchase Price") for the Receivables that are the subject of any Purchase
---------------
hereunder shall be determined on or prior to the date of such Purchase, and
shall be equal to the Outstanding Balance of such Receivables as set forth in
the related Seller's General Trial Balance, minus the Discount for such
Purchase.
(c) Identification of Purchased Receivables. On each Purchase Date, a
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sufficient number of Receivables (that do not already constitute Transferred
Receivables hereunder) of the applicable Seller shall be identified as Purchased
Receivables so that the Outstanding Balance of such Purchased Receivables so
identified shall result in the purchase price determined in accordance with
Section 2.02(b). The Purchased Receivables will be identified by reference to
the General Trial Balance of such Seller. Starting with the first Obligor
listed on the General Trial Balance, each Receivable owed by such Obligor (that
does not already constitute a Transferred Receivable hereunder) shall constitute
a Purchased Receivable. Additional Purchased Receivables shall be identified in
a similar manner by proceeding down the General Trial Balance of such Seller, in
alphabetical/numerical sequence for subsequent Obligors.
(d) Ownership of Receivables and Related Security. On each Purchase
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Date, after giving effect to each Purchase, the Purchaser shall own the
Purchased Receivables which
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[Purchase and Contribution Agreement]
been identified according to the procedure described in subsection (c)
above. The Purchase of any Receivable shall include all Related Security with
respect to such Receivable.
(e) Reconstruction of General Trial Balance. If at any time a Seller
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fails to generate its General Trial Balance, the Purchaser shall have the right
to reconstruct such General Trial Balance so that a determination of the
Purchased Receivables can be made pursuant to Section 2.02(c). Each Seller
agrees to cooperate with such reconstruction of the General Trial Balance,
including, without limitation, the delivery to the Purchaser, upon the
Purchaser's request, of copies of all Contracts and all records relating to the
Contracts and the Receivables.
SECTION 2.03. Collections. (a) Unless otherwise agreed, the
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Servicer shall, on each Settlement Date, deposit into an account of the
Purchaser or the Purchaser's assignee all Collections of Transferred Receivables
then held by the Servicer.
(b) In the event that a Seller believes that Collections which are not
Collections of Transferred Receivables have been deposited into an account of
the Purchaser or the Purchaser's assignee, such Seller shall so advise the
Purchaser and, on the Business Day following such identification, the Purchaser
shall remit, or shall cause to be remitted, all Collections so deposited which
are identified, to the Purchaser's satisfaction, to be Collections of
Receivables which are not Transferred Receivables to such Seller.
SECTION 2.04. Settlement Procedures. (a) If on any day the
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Outstanding Balance of any Purchased Receivable is reduced or adjusted as a
result of any defective, rejected, returned, repossessed or foreclosed
merchandise or services or any cash discount or other adjustment made by the
Seller, or any set-off or dispute in respect of any claim by the Obligor thereof
against the related Seller (whether such claim arises out of the same or a
related transaction or an unrelated transaction but excluding adjustments,
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reductions or cancellations in respect of such Obligor's bankruptcy), such
Seller shall be deemed to have received on such day a Collection of such
Purchased Receivable in the amount of such reduction or adjustment. If such
Seller is not the Servicer, such Seller shall pay to the Servicer on or prior to
the next Settlement Date all amounts deemed to have been received pursuant to
this subsection.
(b) Upon discovery by a Seller or the Purchaser of a breach of any of
the representations and warranties made by such Seller in Section 4.01(j) with
respect to any Transferred Receivable, such party shall give prompt written
notice thereof to the other party, as soon as practicable and in any event
within three Business Days following such discovery. Such Seller shall, upon
not less than two Business Days' notice from the Purchaser or its assignee or
designee, repurchase such Transferred Receivable on the next succeeding
Settlement Date for a repurchase price equal to the Outstanding Balance of such
Transferred Receivable. Each repurchase of a Transferred Receivable shall
include the Related Security with respect to such Transferred Receivable. The
proceeds of any such repurchase shall be deemed to be a Collection
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[Purchase and Contribution Agreement]
in respect of such Transferred Receivable. If the applicable Seller is not the
Servicer, such Seller shall pay to the Servicer on or prior to the next
Settlement Date the repurchase price required to be paid pursuant to this
subsection.
(c) Except as stated in subsection (a) or (b) of this Section 2.04 or
as otherwise required by law or the underlying Contract, all Collections from an
Obligor of any Transferred Receivable shall be applied to the Receivables of
such Obligor in the order of the age of such Receivables, starting with the
oldest such Receivable, unless such Obligor designates its payment for
application to specific Receivables.
SECTION 2.05. Payments and Computations, Etc. (a) All amounts to be
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paid or deposited by any Seller or the Servicer hereunder shall be paid or
deposited no later than 11:00 A.M. (New York City time) on the day when due in
same day funds to an account specified by the Purchaser.
(b) Each Seller shall, to the extent permitted by law, pay to the
Purchaser interest on any amount not paid or deposited by such Seller (whether
as Servicer or otherwise) when due hereunder at an interest rate per annum equal
to 2% per annum above the Alternate Base Rate, payable on demand.
(c) All computations of interest and all computations of fees
hereunder shall be made on the basis of a year of 360 days for the actual number
of days (including the first but excluding the last day) elapsed. Whenever any
payment or deposit to be made hereunder shall be due on a day other than a
Business Day, such payment or deposit shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
such payment or deposit.
SECTION 2.06. Contributions. The Parent may from time to time at its
-------------
option, by notice to the Purchaser, identify Receivables which it proposes to
contribute to the Purchaser as a capital contribution. Such Receivables shall
be identified by reference to the Parent's General Trial Balance. On the date
of each such contribution and after giving effect thereto, the Purchaser shall
own the Receivables so identified and contributed (collectively, the
"Contributed Receivables") and all Related Security with respect thereto.
------------------------
SECTION 2.07. Addition of Sellers. Any Affiliate of the Parent which
-------------------
is wholly owned by and consolidated with the Parent for federal income tax
purposes may become a Seller hereunder with the consent of the Purchaser with
respect to such addition. The Parent and such Affiliate that is proposed to be
added as a Seller shall give to the Purchaser and its assigns prior written
notice of its desire to add such Affiliate as a Seller. Once the notice has
been given, any addition of such Affiliate of the Parent as a Seller pursuant to
this Section 2.07 shall become effective on the first Business Day following the
date on which (i) such Affiliate and the parties
11
[Purchase and Contribution Agreement]
hereto shall have executed and delivered the agreements, instruments and other
documents and the amendments or other modifications to the Related Documents, in
form and substance reasonably satisfactory to the Purchaser, the Series
Representative and the Liquidity Agent, that the Purchaser, the Series
Representative and the Liquidity Agent reasonably determine are necessary or
appropriate to effect the addition and (ii) the Series Representative and the
Liquidity Agent shall have given written notice of their approval of such
addition. Upon such effectiveness, any reference to "Sellers" in this Agreement
shall refer to the Sellers and the Affiliate of the Parent added as a Seller
pursuant to this Section collectively or individually as the context shall
require.
SECTION 2.08. Termination of Status as a Seller. (a) At any time
---------------------------------
when more than one Person is a Seller, a Seller may terminate its obligations as
a Seller hereunder if:
(i) such Seller (a "Terminating Seller") shall have given the
------------------
Purchaser and its assigns not less than 30 days' prior written notice of
its intention to terminate,
(ii) an authorized officer of the Terminating Seller shall have
certified that the termination by the Terminating Seller of its status as a
Seller will not have a material adverse effect on the business, financial
condition, operations or assets of the Purchaser, and
(iii) both immediately before and after giving effect to the
termination by the Terminating Seller, no Event of Termination shall have
occurred and be continuing or shall reasonably be expected to occur as a
result of such termination.
Any termination by a Seller shall become effective on the first
Business Day that follows the day on which the requirements of clauses (i)
through (iii) shall have been satisfied (or such later date specified in the
notice or certificate referred to in the clauses). Upon such effectiveness, any
reference to "Sellers" in this Agreement shall refer to the Sellers excluding
the Terminating Seller. Any termination by a Seller shall terminate its rights
and obligations hereunder; provided, however, that the termination shall not
-------- -------
relieve the Terminating Seller of obligations which relate to Transferred
Receivables originated by or obligations of the Terminating Seller prior to the
effective date of the termination.
(b) A Seller's right and obligation to sell its Receivables to the
Purchaser shall terminate immediately if the Seller ceases to be the Parent or
an Affiliate of the Parent; provided, however, that the termination shall not
-------- -------
relieve the Seller of obligations which relate to Transferred Receivables
originated by or obligations of the Seller prior to the effective date of the
termination.
12
[Purchase and Contribution Agreement]
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01. Conditions Precedent to Initial Purchase from the
-------------------------------------------------
Sellers. (a) The initial Purchase of Receivables from the Sellers hereunder
-------
is subject to the conditions precedent that the Purchaser shall have received on
or before the date of such Purchase the following, each (unless otherwise
indicated) dated such date, in form and substance satisfactory to the Purchaser:
(i) Certified copies of the resolutions of the Board of Directors of
each Seller approving this Agreement and certified copies of all documents
evidencing other necessary corporate action and governmental approvals, if
any, with respect to this Agreement.
(ii) A certificate of the Secretary or Assistant Secretary of each
Seller certifying the names and true signatures of the officers of such
Seller authorized to sign this Agreement and the other documents to be
delivered by it hereunder.
(iii) Acknowledgment copies or time stamped receipt copies of proper
financing statements, duly filed on or before the date of the initial
Purchase with respect to each Seller, naming such Seller as the debtor and
the Purchaser as the secured party, or other similar instruments or
documents, as the Purchaser may deem necessary or desirable under the UCC
of all appropriate jurisdictions or other applicable law to perfect the
Purchaser's ownership of and security interest in the Transferred
Receivables and Related Security and Collections with respect thereto.
(iv) 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 Transferred Receivables, Contracts or
Related Security previously granted by each Seller.
(v) Completed requests for information, dated on or before the date of
such initial Purchase, listing the financing statements referred to in
subsection (c) above and all other effective financing statements filed in
the jurisdictions referred to in subsection (c) above that name the Seller
as debtor, together with copies of such other financing statements (none of
which shall cover any Transferred Receivables, Contracts or Related
Security).
13
[Purchase and Contribution Agreement]
(vi) Lock-Box Agreements in respect of each Lock-Box Account and each
Seller, duly executed by the applicable Seller, the Lock-Box Bank holding
such Lock-Box Account and any other parties thereto.
(b) Notwithstanding any other provision hereof, the initial Purchase
of Receivables from the Canadian Sellers hereunder is subject to the additional
conditions precedent that the Purchaser and its assigns shall have (i) consented
in writing to such Purchase on or before the date of such Purchase, (ii)
received blocked account agreements or other cash management agreements, in form
and substance satisfactory to the Purchaser and its assigns (naming the
Purchaser or Trustee on its behalf as the beneficiary of such Collections), with
respect to all bank accounts of the Canadian Sellers into which Collections with
respect to such Receivables shall be deposited, (iii) received opinions of
counsel, in form and substance satisfactory to the Purchaser and its assigns,
with respect to the transfer of such Receivables, the Collections related
thereto and such accounts and (iv) established hedging arrangements satisfactory
to the Purchaser and its assigns.
SECTION 3.02. Conditions Precedent to All Purchases. Each Purchase
-------------------------------------
(including the initial Purchase) hereunder shall be subject to the further
conditions precedent that:
(a) with respect to any such Purchase, on or prior to the date of such
Purchase, each Seller shall have delivered to the Purchaser, (i) if
requested by the Purchaser, such Seller's General Trial Balance (which if
in magnetic tape or diskette format shall be compatible with the
Purchaser's computer equipment) as of a date not more than 31 days prior to
the date of such Purchase, and (ii) a written report identifying, among
other things, the Receivables to be included in such Purchase and the then
outstanding Purchased Receivables and the aged balance thereof, in each
case correlated to Purchases;
(b) with respect to any such Purchase, on or prior to the date of such
Purchase, the Servicer shall have delivered to the Purchaser, in form and
substance satisfactory to the Purchaser, a completed Seller Report for the
most recently ended reporting period for which information is required
pursuant to Section 6.02(b) and containing such additional information as
may reasonably be requested by the Purchaser;
(c) each Seller shall have marked its records and, at the request of
the Purchaser, each Contract giving rise to Purchased Receivables and all
other relevant records evidencing the Receivables which are the subject of
such Purchase with a legend, acceptable to the Purchaser, stating that such
Receivables, the Related Security and Collections with respect thereto,
have been sold in accordance with this Agreement; and
14
[Purchase and Contribution Agreement]
(d) on the date of such Purchase the following statements shall be
true (and the related Seller, by accepting the amount of such Purchase,
shall be deemed to have certified that):
(i) the representations and warranties contained in Section 4.01
are correct in all material respects on and as of the date of such
Purchase as though made on and as of such date,
(ii) no event has occurred and is continuing, or would result
from such Purchase, that constitutes an Event of Termination or would
constitute an Incipient Event of Termination and
(iii) the Purchaser shall not have delivered to the Parent a
notice that the Purchaser shall not make any further Purchases
hereunder; and
(e) the Purchaser shall have received such other approvals, opinions
or documents as the Purchaser may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Sellers. Each
---------------------------------------------
Seller represents and warrants as follows:
(a) Such Seller is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, and is duly qualified to do business, and is in good
standing, in every jurisdiction where the nature of its business requires
it to be so qualified, except where the failure to be so qualified could
reasonably be expected to have a material adverse effect on such Seller's
ability to perform its obligations under this Agreement.
(b) The execution, delivery and performance by such Seller of this
Agreement and the other documents to be delivered by it hereunder,
including such Seller's sale and, in the case of the Parent, the
contribution of Receivables hereunder and such Seller's use of the proceeds
of Purchases, (i) are within such Seller's corporate powers, (ii) have been
duly authorized by all necessary corporate action, (iii) do not contravene
(1) such Seller's charter or by-laws, (2) any law, rule or regulation
applicable to such Seller, (3) any contractual restriction binding on or
affecting such Seller or its property or (4) any order, writ, judgment,
award, injunction or decree binding on or affecting such Seller or its
15
[Purchase and Contribution Agreement]
property, and (iv) do not result in or require the creation of any lien,
security interest or other charge or encumbrance upon or with respect to
any of its properties (except for the transfer of such Seller's interest in
Transferred Receivables pursuant to this Agreement). This Agreement has
been duly executed and delivered by such Seller.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by such Seller of this
Agreement or any other document to be delivered thereunder.
(d) This Agreement constitutes the legal, valid and binding obligation
of such Seller enforceable against the Seller in accordance with its terms,
except as such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, or similar law affecting creditors'
rights generally and by general principles of equity.
(e) Sales and contributions made pursuant to this Agreement will
constitute a valid sale, transfer, and assignment of the Transferred
Receivables to Purchaser, enforceable against creditors of, and purchasers
from, such Seller. Such Seller shall have no remaining property interest
in any Transferred Receivable.
(f) In the case of the Parent, the consolidated balance sheet of the
Parent and its subsidiaries as at December 31, 1995, and the related
consolidated statements of income and retained earnings of the Parent and
its subsidiaries for the fiscal year then ended, copies of which have been
furnished to the Purchaser, fairly present the consolidated financial
condition of the Parent and its subsidiaries as at such date and the
consolidated results of the operations of the Parent and its subsidiaries
for the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied, and since December 31,
1995 there has been no material adverse change in the business, operations,
property or financial or other condition of the Parent.
(g) There is no pending or threatened action or proceeding affecting
such Seller or any of its subsidiaries before any court, governmental
agency or arbitrator which may materially adversely affect the financial
condition or operations of such Seller or any of its subsidiaries or the
ability of such Seller to perform its obligations under this Agreement, or
which purports to affect the legality, validity or enforceability of this
Agreement.
(h) No proceeds of any Purchase will be used to acquire any equity
security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934.
16
[Purchase and Contribution Agreement]
(i) No transaction contemplated hereby requires compliance with any
bulk sales act or similar law.
(j) Each Transferred Receivable, together with the Related Security,
is owned (prior to its sale or contribution hereunder) by such Seller free
and clear of any Lien (other than any Lien arising under the Financing
Agreements or solely as the result of any action taken by the Purchaser).
When Purchaser makes a Purchase it shall acquire valid and perfected first
priority ownership of each Purchased Receivable and the Related Security
and Collections with respect thereto free and clear of any Lien (other than
any Lien arising solely as the result of any action taken by the
Purchaser), and no effective financing statement or other instrument
similar in effect covering any Transferred Receivable, any interest
therein, the Related Security or Collections with respect thereto is on
file in any recording office except such as may be filed in favor of
Purchaser in accordance with this Agreement or in connection with any Lien
arising solely as the result of any action taken by the Purchaser.
(k) With respect to the Parent, each Seller Report (if prepared by the
Parent, or to the extent that information contained therein is supplied by
the Parent), and with respect to each Seller, all information, exhibits,
financial statements, documents, books, records or reports furnished or to
be furnished at any time by such Seller to the Purchaser in connection with
this Agreement is or will, when taken as a whole, be accurate in all
material respects as of its date or (except as otherwise disclosed to the
Purchaser at such time) as of the date so furnished, and no such document
contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary in order to make the
statements contained therein, in the light of the circumstances under which
they were made, when taken as a whole, not misleading.
(l) The principal place of business and chief executive office of such
Seller and the office where such Seller keeps its records concerning the
Transferred Receivables are located at the address or addresses referred to
in Section 5.01(b) or such other address specified to the Purchaser at such
time as such Seller becomes a Seller hereunder.
(m) The names and addresses of all the Lock-Box Banks, together with
the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are
specified in Exhibit C (as the same may be updated from time to time
pursuant to Section 5.01(h)).
(n) Except as otherwise specified in Schedule 1 hereto (as amended
from time to time upon notice from the Seller), such Seller is not known by
and does not use any tradename or doing-business-as name.
17
[Purchase and Contribution Agreement]
(o) With respect to any programs used by such Seller in the servicing
of the Receivables, no sublicensing agreements are necessary in connection
with the designation of a new Servicer pursuant to Section 6.01(b) so that
such new Servicer shall have the benefit of such programs (it being
-- -----
understood that, however, the Servicer, if other than
---------- ----
such Seller, shall be required to be bound by a confidentiality agreement
reasonably acceptable to such Seller).
(p) The transfers of Transferred Receivables by such Seller to the
Purchaser pursuant to this Agreement, and all other transactions between
such Seller and the Purchaser, have been and will be made in good faith and
without intent to hinder, delay or defraud creditors of such Seller.
(q) All of the Receivables of such Seller have been transferred to the
Purchaser pursuant to this Agreement.
ARTICLE V
COVENANTS
SECTION 5.01. Covenants of the Sellers. From the date hereof until
------------------------
the first day following the Facility Termination Date on which all of the
Transferred Receivables are either collected in full or become Defaulted
Receivables:
(a) Compliance with Laws, Etc. Such Seller will comply in all
-------------------------
material respects with all applicable laws, rules, regulations and orders
and preserve and maintain its corporate existence, rights, franchises,
qualifications and privileges except to the extent that the failure so to
comply with such laws, rules and regulations or the failure so to preserve
and maintain such existence, rights, franchises, qualifications, and
privileges would not materially adversely affect the collectibility of the
Transferred Receivables or the ability of such Seller to perform its
obligations under this Agreement.
(b) Offices, Records and Books of Account. Such Seller will keep its
-------------------------------------
principal place of business and chief executive office and the office where
it keeps its records concerning the Transferred Receivables at the address
of such Seller set forth under its name on the signature page to this
Agreement or, upon 30 days' prior written notice to the Purchaser, at any
other locations in jurisdictions where all actions required by Section
5.01(j) shall have been taken and completed. Such Seller also will
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Transferred
Receivables and related Contracts in the event of the destruction of the
originals thereof), and keep and maintain all documents,
18
[Purchase and Contribution Agreement]
books, records and other information reasonably necessary or advisable for
the collection of all Transferred Receivables (including, without
limitation, records adequate to permit the daily identification of each new
Transferred Receivable and all Collections of and adjustments to each
existing Transferred Receivable). Such Seller shall make a notation in its
books and records, including its computer files, to indicate which
Receivables have been sold or contributed to the Purchaser hereunder.
(c) Performance and Compliance with Contracts and Credit and
--------------------------------------------------------
Collection Policy. Such Seller will, at its expense, timely and fully
-----------------
perform and comply with all material provisions, covenants and other
promises required to be observed by it under the Contracts related to the
Transferred Receivables, and timely and fully comply in all material
respects with the Credit and Collection Policy in regard to each
Transferred Receivable and the related Contract.
(d) Sales, Liens, Etc. Except for the sales and contributions of
-----------------
Receivables contemplated herein, such Seller will not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer
to exist any Lien upon or with respect to, any Transferred Receivable,
Related Security, related Contract or Collections, or upon or with respect
to any account to which any Collections of any Transferred Receivable are
sent, or assign any right to receive income in respect thereof.
(e) Extension or Amendment of Transferred Receivables. Except as
-------------------------------------------------
provided in Section 6.02(c), such Seller will not extend, amend or
otherwise modify the terms of any Transferred Receivable, or amend, modify
or waive any term or condition of any Contract related thereto.
(f) Change in Business or Credit and Collection Policy. Such Seller
--------------------------------------------------
will not make any change in the character of its business or in the Credit
and Collection Policy that would, in either case, materially adversely
affect the collectibility of the Transferred Receivables of such Seller or
the ability of such Seller to perform its obligations under this Agreement.
(g) Audits. Such Seller will, from time to time during regular
------
business hours as requested by the Purchaser or its assigns, permit the
Purchaser, or its agents, represen tatives or assigns (including
independent public accountants, which may be the Seller's independent
public accountants), (i) to conduct periodic audits of the Receivables, the
Related Security and the related books and records and collections systems
of the Seller, (ii) to examine and make copies of and abstracts from all
books, records and documents (including, without limitation, computer tapes
and disks) in the possession or under the control of the Seller relating to
the Receivables and the Related Security, including, without limitation,
the Contracts, and (iii) to visit the offices and properties of the Seller
19
[Purchase and Contribution Agreement]
for the purpose of examining such materials described in clause (ii) above,
and to discuss matters relating to the Receivables, the Related Security,
or Seller's performance hereunder or under the Contracts with any of the
officers or employees of the Seller having knowledge of such matters.
(h) Change in Payment Instructions to Obligors. Such Seller will not
------------------------------------------
add or terminate any bank or bank account as a Lock-Box Bank or Lock-Box
Account from those listed in Exhibit C to this Agreement, or make any
change in its instructions to Obligors regarding payments to be made to any
Lock-Box Bank, unless the Purchaser shall have received notice of such
addition, termination or change (including an updated Exhibit C) and
executed copies of Lock-Box Agreements with each new Lock-Box Bank or with
respect to each new Lock-Box Account.
(i) Deposits to Lock-Box Accounts. Such Seller will deposit, or
-----------------------------
cause to be deposited, all Collections of Transferred Receivables into
Lock-Box Accounts, and such Seller will not deposit or otherwise credit, or
cause or permit to be so deposited or credited, to any Lock-Box Account
cash or cash proceeds other than Collections of Transferred Receivables.
(j) Further Assurances. (i) Such Seller agrees from time to time, at
------------------
its expense, promptly to execute and deliver all further instruments and
documents, and to take all further actions, that may be necessary or
desirable, or that the Purchaser or its assignee may reasonably request, to
perfect, protect or more fully evidence the sale and contribution of
Receivables under this Agreement, or to enable the Purchaser or its
assignee to exercise and enforce its respective rights and remedies under
this Agreement. Without limiting the foregoing, such Seller will, upon the
request of the Purchaser or its assignee, (A) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments and documents, that may be necessary or desirable to perfect,
protect or evidence such Transferred Receivables; and (B) deliver to the
Purchaser copies of all Contracts relating to the Transferred Receivables
and all records relating to such Contracts and the Transferred Receivables,
whether in hard copy or in magnetic tape or diskette format (which if in
magnetic tape or diskette format shall be compatible with the Purchaser's
computer equipment).
(ii) Such Seller authorizes the Purchaser or its assignee to file
financing or continuation statements, and amendments thereto and
assignments thereof, relating to the Transferred Receivables and the
Related Security, the related Contracts and the Collections with respect
thereto without the signature of such Seller where permitted by law. A
photocopy or other reproduction of this Agreement shall be sufficient as a
financing statement where permitted by law.
20
[Purchase and Contribution Agreement]
(iii) Such Seller shall perform its obligations under the
Contracts related to the Transferred Receivables to the same extent as if
the Transferred Receivables had not been sold or transferred.
(k) Reporting Requirements. Such Seller will provide to the Purchaser
----------------------
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 such Seller, balance
sheets of such Seller and its subsidiaries as of the end of such quarter
and statements of income and retained earnings of such Seller and its
subsidiaries for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, certified by the chief
financial officer of such Seller;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of such Seller, a copy of the annual report for
such year for such Seller and its subsidiaries, containing financial
statements for such year audited by Deloitte & Touche or other nationally
recognized independent public accountants;
(iii) as soon as possible and in any event within five days
after the occurrence of each Event of Termination or Incipient Event of
Termination, a statement of the chief financial officer of such Seller
setting forth details of such Event of Termination or Incipient Event of
Termination and the action that such Seller has taken and proposes to take
with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports that such Seller sends to any of its securityholders, and copies of
all reports and registration statements that such Seller or any subsidiary
files with the Securities and Exchange Commission or any national
securities exchange;
(v) promptly after the filing or receiving thereof, copies of all
reports and notices that such Seller or any Affiliate files under ERISA
with the Internal Revenue Service or the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or that such 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 such Seller or
any Affiliate is or was, within the preceding five years, a contributing
employer, in each case in respect of the assessment of withdrawal liability
or an event or condition which could, in the aggregate, result in the
imposition of liability on the Seller and/or any such Affiliate in excess
of $5,000,000;
21
[Purchase and Contribution Agreement}
(vi) at least ten Business Days prior to any change in such
Seller's name, a notice setting forth the new name and the effective date
thereof;
(vii) concurrently with the delivery of each Seller Report by
the Servicer, a statement that all of the Receivables of such Seller under
all Contracts arising during the immediately preceding month have been
transferred by such Seller to the Purchaser; and
(viii) such other information respecting the Transferred
Receivables or the condition or operations, financial or otherwise, of such
Seller as the Purchaser may from time to time reasonably request.
(l) Separate Conduct of Business. Each Seller will: (i) maintain
----------------------------
separate corporate records and books of account from those of the
Purchaser; (ii) conduct its business from an office separate from that of
the Purchaser; (iii) ensure that all oral and written communications,
including without limitation, letters, invoices, purchase orders,
Contracts, statements and applications, will be made solely in its own
name; (iv) have stationery and other business forms and a mailing address
and a telephone number separate from those of the Purchaser; (v) not hold
itself out as having agreed to pay, or as being liable for, the obligations
of the Purchaser; (vi) not engage in any transaction with the Purchaser
except as contemplated by this Agreement or as permitted by the Pooling and
Servicing Agreement; (vii) continuously maintain as official records the
resolutions, agreements and other instruments underlying the transactions
contemplated by this Agreement; and (viii) disclose on its annual financial
statements (A) the effects of the transactions contemplated by this
Agreement in accordance with generally accepted accounting principles and
(B) that the assets of the Purchaser are not available to pay its
creditors.
SECTION 5.02. Grant of Security Interest. To secure all obligations of
--------------------------
the Sellers arising in connection with this Agreement, and each other agreement
entered into in connection with this Agreement, whether now or hereafter
existing, due or to become due, direct or indirect, or absolute or contingent,
including, without limitation, Indemnified Amounts, payments on account of
Collections received or deemed to be received, and any other amounts due the
Purchaser hereunder, each Seller hereby assigns and grants to Purchaser, a
security interest in all of such Seller's right, title and interest now or
hereafter existing in, to and under all Receivables of such Seller which do not
constitute Transferred Receivables, the Related Security and all Collections
with regard thereto.
SECTION 5.03. Covenant of the Sellers and the Purchaser. The Sellers
-----------------------------------------
and the Purchaser have structured this Agreement with the intention that each
Purchase of Receivables hereunder be treated as a sale of such Receivables by
the Sellers to the Purchaser for all
22
[Purchase and Contribution Agreement]
purposes. Each Seller and the Purchaser shall record each Purchase as a sale or
purchase, as the case may be, on its books and records, and reflect each
Purchase in its financial statements and tax returns as a sale or purchase, as
the case may be. In the event that, contrary to the mutual intent of such
Sellers and the Purchaser, any Purchase of Receivables hereunder is not
characterized as a sale, each Seller shall, effective as of the date hereof, be
deemed to have granted (and such Seller hereby does grant) to the Purchaser a
first priority security interest in and to any and all Receivables conveyed by
it hereunder and the proceeds thereof (together with Related Security and
Collections with respect thereto) to secure the repayment of all amounts
advanced to such Seller hereunder with accrued interest thereon, and this
Agreement shall be deemed to be a security agreement.
SECTION 5.04. Repurchase. Upon notice from Purchaser, each Seller
----------
shall purchase any and all Receivables transferred hereunder by such Seller from
time to time which thereafter become subject to Dilution or contribute in
respect thereof a Receivable (a "Substituted Receivable"). The purchase price
for such purchased Receivables or Outstanding Balance of any Substituted
Receivable shall be equal to the Outstanding Balance of such Receivables at the
time of such purchase by the Seller.
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Servicer. The servicing, administration
-----------------------
and collection of the Transferred Receivables shall be conducted by such Person
(the "Servicer") so designated hereunder from time to time. Until the Purchaser
--------
or its assignee gives notice to the Parent of the designation of a new Servicer,
the Parent is hereby designated as, and hereby agrees to perform the duties and
obligations of, the Servicer pursuant to the terms hereof. The Parent agrees
that such notice may be given at any time in the Purchaser's or assignee's
discretion. Upon the Parent's receipt of such notice, the Parent agrees that it
will terminate its activities as Servicer hereunder in a manner which the
Purchaser (or its designee) believes will facilitate the transition of the
performance of such activities to the new Servicer, and the Parent shall use its
best efforts to assist the Purchaser (or its designee) to take over the
servicing, administration and collection of the Transferred Receivables,
including, without limitation, providing access to and copies of all computer
tapes or disks and other documents or instruments that evidence or relate to
Transferred Receivables maintained in its capacity as Servicer and access to all
employees and officers of the Parent responsible with respect thereto. The
Purchaser at any time after giving such notice may designate as Servicer any
Person (including itself) to succeed the Parent or any successor Servicer, if
such Person shall consent and agree to the terms hereof. The Servicer may, with
the prior consent of the Purchaser, subcontract with any other Person for the
servicing,
23
[Purchase and Contribution Agreement]
administration or collection of Transferred Receivables. Any such subcontract
shall not affect the Servicer's liability for performance of its duties and
obligations pursuant to the terms hereof.
SECTION 6.02. Duties of Servicer. (a) The Servicer shall take or cause
------------------
to be taken all such actions as may be necessary or advisable to collect each
Transferred Receivable from time to time, all in accordance with applicable
laws, rules and regulations, with reasonable care and diligence, and in
accordance with the Credit and Collection Policy. The Purchaser hereby appoints
the Servicer, from time to time designated pursuant to Section 6.01, as agent to
enforce its ownership and other rights in the Transferred Receivables, the
Related Security and the Collections with respect thereto. In performing its
duties as Servicer, the Servicer shall exercise the same care and apply the same
policies as it would exercise and apply if it owned the Transferred Receivables
and shall act in the best interests of the Purchaser and its assignees.
(b) Prior to the 15th day of each fiscal month, the Servicer shall
prepare and forward to the Purchaser (i) if requested by the Purchaser, a
Seller Report, relating to all then outstanding Transferred Receivables,
and the Related Security and Collections with respect thereto, in each
case, as of the close of business of the Servicer on the last day of the
immediately preceding month, and (ii) if requested by the Purchaser, a
listing by Obligor of all Transferred Receivables correlating Purchased
Receivables and Purchases, together with an aging report of such
Transferred Receivables.
(c) If no Event of Termination or Incipient Event of Termination shall
have occurred and be continuing, the Parent, while it is the Servicer, may,
in accordance with the Credit and Collection Policy, extend the maturity or
adjust the Outstanding Balance of any Transferred Receivable as the Parent
deems appropriate to maximize Collections thereof.
(d) Each Seller shall deliver to the Servicer, and the Servicer shall
hold in trust for such Seller and the Purchaser in accordance with their
respective interests, all documents, instruments and records (including,
without limitation, computer tapes or disks) which evidence or relate to
Transferred Receivables.
(e) The Servicer shall as soon as practicable following receipt turn
over to the applicable Seller any cash collections or other cash proceeds
received with respect to Receivables not constituting Transferred
Receivables, less, in the event the Parent is not the Servicer, all
reasonable and appropriate out-of-pocket costs and expenses of the Servicer
of servicing, collecting and administering the Receivables to the extent
not covered by the Servicer Fee received by it.
(f) The Servicer also shall perform the other obligations of the
"Servicer" set forth in this Agreement with respect to the Transferred
Receivables.
24
[Purchase and Contribution Agreement]
SECTION 6.03. Servicer Fee. The Purchaser shall pay to the Servicer, so
------------
long as it is acting as the Servicer hereunder, a periodic collection fee (the
"Servicer Fee") of 0.50% per annum (or, in the case of a Servicer other than
-------------
Parent or any Affiliate thereof, such higher amount, if any, not to exceed 1.00%
per annum) on the average daily outstanding Purchaser Invested Amount with
respect to the Purchased Receivables, payable on the tenth day of each month
(or, if such day is not a Business Day, the immediately succeeding Business Day)
or such other day during each fiscal month as the Purchaser and the Servicer
shall agree.
SECTION 6.04. Certain Rights of the Purchaser. (a) The Purchaser may, at
-------------------------------
any time, give notice of ownership and/or direct the Obligors of Transferred
Receivables and any Person obligated on any Related Security, or any of them,
that payment of all amounts payable under any Transferred Receivable shall be
made directly to the Purchaser or its designee. Each Seller hereby transfers to
the Purchaser (and its assigns and designees) the exclusive ownership and
control of the Lock-Box Accounts maintained by such Seller for the purpose of
receiving Collections.
(b) Each Seller shall, at any time upon the Purchaser's request and at
such Seller's expense, give notice of such ownership to each Obligor of
Transferred Receivables of such Seller and direct that payments of all
amounts payable under such Transferred Receivables be made directly to the
Purchaser or its designee.
(c) At the Purchaser's request and at the Sellers' expense, the
Sellers and the Servicer shall (A) assemble all of the documents,
instruments and other records (including, without limitation, computer
tapes and disks) that evidence or relate to the Transferred Receivables,
and the related Contracts and Related Security, or that are otherwise
necessary or desirable to collect the Transferred Receivables, and shall
make the same available to the Purchaser at a place selected by the
Purchaser or its designee, and (B) segregate all cash, checks and other
instruments received by it from time to time constituting Collections of
Transferred Receivables in a manner acceptable to the Purchaser and,
promptly upon receipt, remit all such cash, checks and instruments, duly
indorsed or with duly executed instruments of transfer, to the Purchaser or
its designee. The Purchaser shall also have the right to make copies of
all such documents, instruments and other records at any time.
(d) Each Seller authorizes the Purchaser to take any and all steps in
such Seller's name and on behalf of such Seller that are necessary or
desirable, in the determination of the Purchaser, to collect amounts due
under the Transferred Receivables, including, without limitation, endorsing
such Seller's name on checks and other instruments representing Collections
of Transferred Receivables and enforcing the Transferred Receivables and
the Related Security and related Contracts.
25
[Purchase and Contribution Agreement]
SECTION 6.05. Rights and Remedies. (a) If a Seller or the Servicer fails
-------------------
to perform any of its obligations under this Agreement, the Purchaser may (but
shall not be required to) itself perform, or cause performance of, such
obligation, and, if such Seller (as Servicer or otherwise) fails to so perform,
the costs and expenses of the Purchaser incurred in connection therewith shall
be payable by the Sellers as provided in Section 8.01 or Section 9.04 as
applicable.
(b) Each Seller shall perform all of its obligations under the
Contracts related to the Transferred Receivables of such Seller to the same
extent as if the Seller had not sold or contributed Receivables hereunder
and the exercise by the Purchaser of its rights hereunder shall not relieve
the Seller from such obligations or its obligations with respect
to the Transferred Receivables. The Purchaser shall not have any
obligation or liability with respect to any Transferred Receivables or
related Contracts, nor shall the Purchaser be obligated to perform any of
the obligations of such Seller thereunder.
(c) Each Seller shall cooperate with the Servicer in collecting
amounts due from Obligors in respect of the Transferred Receivables.
(d) Each Seller hereby grants to Servicer an irrevocable power of
attorney, with full power of substitution, coupled with an interest, to
take in the name of such Seller all steps necessary or advisable to
endorse, negotiate or otherwise realize on any writing or other right of
any kind held or transmitted by such Seller or transmitted or received by
Purchaser (whether or not from such Seller) in connection with any
Transferred Receivable.
SECTION 6.06. Transfer of Records to Purchaser. Each Purchase and
--------------------------------
contribution of Receivables hereunder shall include the transfer to the
Purchaser of all of the applicable Seller's right and title to and interest in
the records relating to such Receivables and shall include an irrevocable non-
exclusive license to the use of such Seller's computer software system to access
and create such records. Such license shall be without royalty or payment of
any kind, is coupled with an interest, and shall be irrevocable until all of the
Transferred Receivables are either collected in full or become Defaulted
Receivables.
Each Seller shall take such action requested by the Purchaser, from time to
time hereafter, that may be necessary or appropriate to ensure that the
Purchaser has an enforceable ownership interest in the records relating to the
Transferred Receivables and rights (whether by ownership, license or sublicense)
to the use of such Seller's computer software system to access and create such
records.
In recognition of each Seller's need to have access to the records
transferred to the Purchaser hereunder, the Purchaser hereby grants to each
Seller an irrevocable license to access
26
[Purchase and Contribution Agreement]
such records in connection with any activity arising in the ordinary course of
such Seller's business or in performance of its duties as Servicer, provided
that (i) such Seller shall not disrupt or otherwise interfere with the
Purchaser's use of and access to such records during such license period and
(ii) such Seller consents to the assignment and delivery of the records
(including any information contained therein relating to such Seller or its
operations) to any assignees or transferees of the Purchaser provided they agree
to hold such records confidential.
ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01. Events of Termination. If any of the following events
---------------------
("Events of Termination") shall occur and be continuing:
-----------------------
(a) The Servicer (if the Parent or any of its Affiliates) (i) shall
fail to perform or observe any term, covenant or agreement under this
Agreement (other than as referred to in clause (ii) of this subsection (a))
and such failure shall remain unremedied for ten Business Days or (ii)
shall fail to make when due any payment or deposit to be made by it under
this Agreement and such failure shall remain unremedied for five Business
Days; or
(b) Any Seller shall fail (i) to transfer to the Purchaser when
requested any rights, pursuant to this Agreement, which the Seller then has
as Servicer, or (ii) to make any payment required under Section 2.04(a) or
2.04(b) and such failure shall remain unremedied for five Business Days; or
(c) Any representation or warranty made or deemed made by a Seller (or
any of its officers) under or in connection with this Agreement or any
information or report delivered by such Seller pursuant to this Agreement
shall prove to have been incorrect or untrue in any material respect when
made or deemed made or delivered; or
(d) Any Seller shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed and any such failure shall remain unremedied for 10
days after written notice thereof shall have been given to such Seller by
the Purchaser; or
(e) Any Seller or any of its subsidiaries shall fail to pay any
principal of or premium or interest on any of its Indebtedness which is
outstanding in a principal amount of at least $5,000,000 in the aggregate
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and
27
[Purchase and Contribution Agreement]
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Indebtedness; or
any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness and shall continue after the
applicable grace period, if any, specified in such agreement or instrument,
if the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or any such
Indebtedness 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 or
defease such Indebtedness shall be required to be made, in each case prior
to the stated maturity thereof; or
(f) Any Purchase or contribution of Receivables hereunder, the Related
Security and the Collections with respect thereto shall for any reason
cease to constitute valid and perfected ownership of such Receivables,
Related Security and Collections free and clear of any Lien; or
(g) Any Seller or any of its subsidiaries shall generally not pay its
Indebtedness as such Indebtedness become due, or shall admit in writing its
inability to pay its Indebtedness generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against such Seller or any of its subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its Indebtedness 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, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or the Seller or any of its subsidiaries/*/ shall take any corporate action
to authorize any of the actions set forth above in this subsection (g); or
(h) A Pay-Out Event or Series 1996-1 Pay-Out Event shall have occurred
under the Pooling and Servicing Agreement;
(i) As of the last day of any calendar week, the aggregate Purchase
Price paid by the Purchaser for such week shall be less than the Minimum
Return.
then, and in any such event, the Purchaser may, by notice to the Parent, take
either or both of the following actions: (x) declare the Facility Termination
Date to have occurred (in which case the
28
[Purchase and Contribution Agreement]
Facility Termination Date shall be deemed to have occurred) and (y) without
limiting any right under this Agreement to replace the Servicer, designate
another Person to succeed the Parent as Servicer; provided, that, automatically
--------
upon the occurrence of any event (without any requirement for the passage of
time or the giving of notice) described in paragraph (g) of this Section 7.01,
the Facility Termination Date shall occur, the Parent (if it is then serving as
the Servicer) shall cease to be the Servicer, and the Purchaser (or its assigns
or designees) shall become the Servicer. Upon any such declaration or
designation or upon such automatic termination, the Purchaser shall have, in
addition to the rights and remedies under this Agreement, all other rights and
remedies with respect to the Receivables provided after default under the UCC
and under other applicable law, which rights and remedies shall be cumulative.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Indemnities by the Sellers. Without limiting any other
--------------------------
rights which the Purchaser may have hereunder or under applicable law, the
Sellers, jointly and severally, hereby agree to indemnify the Purchaser and its
assigns and transferees (each, an "Indemnified Party") from and against any and
-----------------
all damages, claims, losses, liabilities and related costs and expenses,
including reasonable attorneys' fees and disbursements (all of the foregoing
being collectively referred to as "Indemnified Amounts"), awarded against or
-------------------
incurred by any Indemnified Party arising out of or as a result of:
(i) any representation or warranty or statement made or deemed
made by a Seller (or any of its officers) under or in connection with this
Agreement, which shall have been incorrect in any material respect when
made;
(ii) the failure by a Seller to comply with any applicable law,
rule or regulation with respect to any Transferred Receivable or the
related Contract; or the failure of any Transferred Receivable or the
related Contract to conform to any such applicable law, rule or regulation;
(iii) the failure to vest in the Purchaser absolute ownership of
the Receivables that are, or that purport to be, the subject of a Purchase
or contribution under this Agreement and the Related Security and
Collections in respect thereof, free and clear of any Lien;
(iv) the failure of a Seller to have filed, or any delay in
filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivables that are, or that
29
[Purchase and Contribution Agreement]
purport to be, the subject of a Purchase or contribution under this
Agreement and the Related Security and Collections in respect thereof,
whether at the time of any Purchase or contribution or at any subsequent
time;
(v) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment of
any Receivable that is, or that purports to be, the subject of a Purchase
or contribution under this Agreement (including, without limitation, a
defense based on such Receivable or the related Contract not being a legal,
valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the sale of
the merchandise or services related to such Receivable or the furnishing or
failure to furnish such merchandise or services or relating to collection
activities with respect to such Receivable (if such collection activities
were performed by the Seller acting as Servicer) except to the extent that
such dispute, claim, offset or defense results solely from actions or
failures to act of the Purchaser or its assigns;
(vi) any failure of a Seller or the Servicer to perform its
duties or obligations in accordance with the provisions hereof or to
perform its duties or obligations under any Contract related to a
Transferred Receivable;
(vii) any products liability or other claim arising out of or
in connection with merchandise, insurance or services which are the subject
of any Contract;
(viii) the commingling of Collections of Transferred Receivables
by a Seller or a designee of such Seller at any time with other funds of
such Seller or an Affiliate of such Seller;
(ix) any investigation, litigation or proceeding related to
this Agreement or the use of proceeds of Purchases or the ownership of
Receivables, the Related Security, or Collections with respect thereto or
in respect of any Receivable, Related Security or Contract, except to the
extent any such investigation, litigation or proceeding relates to a
possible matter involving an Indemnified Party for which neither the Seller
nor any of its Affiliates is at fault;
(x) any failure of any Seller to comply with its covenants
contained in Section 5.01;
(xi) any Servicer Fees or other costs and expenses payable
to any replacement Servicer, to the extent in excess of the Servicer Fees
payable to the Seller hereunder;
30
[Puchase and Contribution Agreement]
(xii) any claim brought by any Person other than an Indemnified
Party arising from any activity by the Sellers or any Affiliate of any
Seller in servicing, administering or collecting any Transferred
Receivable; or
(xiii) any Dilution with respect to any Transferred Receivable.
It is expressly agreed and understood by the parties hereto (i) that the
foregoing indemnification is not intended to, and shall not, constitute a
guarantee of the collectibility or payment of the Transferred Receivables and
(ii) that nothing in this Section 8.01 shall require a Seller to indemnify any
Person (A) for Receivables which are not collected, not paid or uncollectible on
account of the insolvency, bankruptcy, or financial inability to pay of the
applicable Obligor, (B) for damages, losses, claims or liabilities or related
costs or expenses resulting from such Person's gross negligence or willful
misconduct, or (C) for any income taxes or franchise taxes incurred by such
Person arising out of or as a result of this Agreement or in respect of any
Transferred Receivable or any Contract.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of
----------------
this Agreement or consent to any departure by a Seller therefrom shall be
effective unless in a writing signed by the Purchaser and consented to by its
assignees and, in the case of any amendment, also signed by such Seller, and
then such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No failure on the part
of the Purchaser to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right.
SECTION 9.02. Notices, Etc. All notices and other communications
-------------
hereunder shall, unless otherwise stated herein, be in writing (which shall
include facsimile communication) and be faxed or delivered, to each party
hereto, at its address set forth under its name on the signature pages hereof or
at such other address as shall be designated by such party in a written notice
to the other parties hereto. Notices and communications by facsimile shall be
effective when sent (and shall be followed by hard copy sent by regular mail),
and notices and communications sent by other means shall be effective when
received.
SECTION 9.03. Binding Effect; Assignability. (a) This Agreement shall be
-----------------------------
binding upon and inure to the benefit of the Sellers, the Purchaser and their
respective successors and assigns; provided, however, that no Seller may assign
-------- -------
its rights or obligations hereunder or
31
[Purchase and Contribution Agreement]
any interest herein without the prior written consent of the Purchaser. In
connection with any sale or assignment by the Purchaser of all or a portion of
the Transferred Receivables, the buyer or assignee, as the case may be, shall,
to the extent of its purchase or assignment, have all rights of the Purchaser
under this Agreement (as if such buyer or assignee, as the case may be, were the
Purchaser hereunder) except to the extent specifically provided in the agreement
between the Purchaser and such buyer or assignee, as the case may be.
(b) This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall
remain in full force and effect until such time, after the Facility
Termination Date, when all of the Transferred Receivables are either
collected in full or become Defaulted Receivables; provided,
--------
however, that rights and remedies with respect to any breach of any
-------
representation and warranty made by a Seller pursuant to Article IV and the
provisions of Article VIII and Sections 9.04, 9.05 and 9.06 shall be
continuing and shall survive any termination of this Agreement.
SECTION 9.04. Costs, Expenses and Taxes. (a) In addition to the
-------------------------
rights of indemnification granted to the Purchaser pursuant to Article VIII
hereof, the Parent agrees to pay on demand all costs and expenses in connection
with the preparation, execution and delivery of this Agreement and the other
documents and agreements to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Purchaser with respect thereto and with respect to advising the Purchaser as to
its rights and remedies under this Agreement, and the Sellers agree, jointly and
severally, to pay all costs and expenses, if any (including reasonable counsel
fees and expenses), in connection with the enforcement of this Agreement and the
other documents to be delivered hereunder excluding, however, any costs of
--------- -------
enforcement or collection of Transferred Receivables.
(b) In addition, the Sellers agree to pay any and all stamp and other
taxes and fees payable in connection with the execution, delivery, filing
and recording of this Agreement or the other documents or agreements to be
delivered hereunder, and the Sellers, jointly and severally, agree to save
each Indemnified Party harmless from and against any liabilities with
respect to or resulting from any delay in paying or omission to pay such
taxes and fees.
SECTION 9.05. No Proceedings. Each Seller hereby agrees that it will
--------------
not institute against the Purchaser any proceeding of the type referred to in
Section 7.01(g) so long as there shall not have elapsed one year plus one day
since the later of (i) the Facility Termination Date and (ii) the date on which
all of the Transferred Receivables are either collected in full or become
Defaulted Receivables.
32
[Purchase and Contribution Agreement]
SECTION 9.06. Confidentiality. Unless otherwise required by applicable
---------------
law, each party hereto agrees to maintain the confidentiality of this Agreement
in communications with third parties and otherwise; provided that this Agreement
may be disclosed to (i) third parties to the extent such disclosure is made
pursuant to a written agreement of confidentiality in form and substance
reasonably satisfactory to the other party hereto, and (ii) such party's legal
counsel and auditors and the Purchaser's assignees, if they agree in each case
to hold it confidential.
SECTION 9.07. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF), EXCEPT TO THE EXTENT THAT
THE PERFECTION OF THE PURCHASER'S OWNERSHIP OF OR SECURITY INTEREST IN THE
RECEIVABLES OR REMEDIES HEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS
OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 9.08. Third Party Beneficiary. Each of the parties hereto hereby
-----------------------
acknowledges that the Purchaser may assign all or any portion of its rights
under this Agreement and that such assignees may (except as otherwise agreed to
by such assignees) further assign their rights under this Agreement, and the
Sellers hereby consent to any such assignments. All such assignees, including
parties to the Pooling and Servicing Agreement in the case of assignment to such
parties, shall be third party beneficiaries of, and shall be entitled to enforce
the Purchaser's rights and remedies under, this Agreement to the same extent as
if they were parties thereto, except to the extent specifically limited under
the terms of their assignment.
SECTION 9.09. Execution in Counterparts. This Agreement may be executed
-------------------------
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and the
same agreement.
[SIGNATURE PAGES TO FOLLOW]
33
[Purchase and Contribution Agreement]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
SELLERS: MAIL-WELL I CORPORATION
By:________________________________________________
Title:_________________________________________
Address:
00 Xxxxxxxxx Xxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (___) ___-____
WISCO ENVELOPE CORP.
By:________________________________________________
Title:_________________________________________
Address:
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (___) ___-____
34
[Purchase and Contribution Agreement]
XXXXX ENVELOPE AND TAG CORP.
By:________________________________________________
Title:_________________________________________
Address:
00 Xxxxxx Xxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (___) ___-____
MAIL-WELL WEST, INC.
By:________________________________________________
Title:_________________________________________
Address:
000 Xxxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (___) ___-____
WISCO II, L.L.C.
By:________________________________________________
Title:_________________________________________
Address:
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (___) ___-____
35
[Purchase and Contribution Agreement]
MAIL-WELL CANADA HOLDINGS, INC.
By:________________________________________________
Title:_________________________________________
Address:
00 Xxxxxxxxx Xxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (___) ___-____
GRAPHIC ARTS CENTER, INC.
By:________________________________________________
Title:_________________________________________
Address:
0000 Xxxxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (___) ___-____
WISCO III, L.L.C.
By:________________________________________________
Title:_________________________________________
Address:
00 Xxxxxxxxx Xxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (___) ___-____
36
[Purchase and Contribution Agreement]
SUPREMEX INC.
By:________________________________________________
Title:_________________________________________
Address:
Innova Montreal
345 Xxxxxx xx Xxxxxx - St. Laurent, Quebec H4T IP7
Attention: Xxxx X. Xxxxxx
Facsimile No.: (___) ___-____
INNOVA ENVELOPE INC.
By:________________________________________________
Title:_________________________________________
Address:
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx X. Xxxxxx
Facsimile No.: (___) ___-____
PURCHASER: MAIL-WELL TRADE RECEIVABLES
CORPORATION
By:________________________________________________
Title:_________________________________________
Address:
00 Xxxxxxxxx Xxx Xxxx
Xxxxxxxxx, XX 00000, Suite 160
Attention:
Facsimile No.: (000) 000-0000
37
[Purchase and Contribution Agreement]
EXHIBIT A
[Intentionally Omitted.]
A-1
[Purchase and Contribution Agreement]
EXHIBIT B
CREDIT AND COLLECTION POLICY
B-1
[Purchase and Contribution Agreement]
EXHIBIT C
LOCK-BOX BANKS
C-1
[Purchase and Contribution Agreement]
SCHEDULE 1
TRADENAMES
1. American Mail-Well Envelope
2. Mail-Well Envelope
3. Graphic Arts Center
4. Supermex
5. Unique Envelope
6. Xxxxxx Xxxxxxxx
0. Classic Envelope
8. Quality Park Products
9. Xxxxx
10. Wisco
11. Wisco Xxxxxxxx
00. Mail-Well West
13. Buffalo Envelope
14. Envelopes West
15. Xxxxxxxxx Xxxxxxxx
X-0
