RECEIVABLES SALE AND CONTRIBUTION AGREEMENT among ACCO BRANDS USA LLC as Originator and ACCO BRANDS RECEIVABLES FUNDING LLC as Buyer Dated as of January 9, 2008
EXHIBIT
10.1
among
ACCO
BRANDS USA LLC
as
Originator
and
ACCO
BRANDS RECEIVABLES FUNDING LLC
as
Buyer
Dated
as of January 9, 2008
TABLE
OF
CONTENTS
Page
ARTICLE
ONE
DEFINITIONS
AND INTERPRETATION
|
Section
1.01. Definitions
|
1
|
|
Section
1.02. Rules of Construction
|
1
|
|
Section
1.03. Times
|
1
|
ARTICLE
TWO
TRANSFERS
OF RECEIVABLES
|
Section
2.01. Agreement to Transfer
|
2
|
|
Section
2.02. Grant of Security Interest
|
3
|
|
Section
2.03. License for Use of Software and Other Intellectual
Property
|
3
|
ARTICLE
THREE
CONDITIONS
PRECEDENT
|
Section
3.01. Conditions to Initial Transfer
|
4
|
|
Section
3.02. Conditions to all Transfers
|
4
|
ARTICLE
FOUR
REPRESENTATIONS,
WARRANTIES AND COVENANTS
|
Section
4.01. Representations and Warranties of
Originators
|
5
|
|
Section
4.02. Affirmative Covenants of Originators
|
10
|
|
Section
4.03. Negative Covenants of Originators
|
14
|
|
Section
4.04. Breach of Eligibility Criteria
|
16
|
ARTICLE
FIVE
INDEMNIFICATION
|
Section
5.01. Indemnification
|
16
|
ARTICLE
SIX
MISCELLANEOUS
|
Section
6.01. Notices
|
18
|
|
Section
6.02. No Waiver; Remedies
|
19
|
i
|
Section
6.03. Successors and Assigns
|
19
|
|
Section
6.04. Termination; Survival of Obligations
|
20
|
|
Section
6.05. Complete Agreement; Modification of
Agreement
|
20
|
|
Section
6.06. Amendments and Waivers
|
20
|
|
Section
6.07. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL
|
20
|
|
Section
6.08. Counterparts
|
22
|
|
Section
6.09. Severability
|
22
|
|
Section
6.10. Section Titles
|
22
|
|
Section
6.11. No Setoff
|
22
|
|
Section
6.12. Confidentiality
|
22
|
|
Section
6.13. Further Assurances
|
22
|
|
Section
6.14. Fees and Expenses
|
23
|
INDEX
OF
APPENDICES
|
Schedule 4.01(a)
|
Jurisdictions
of Incorporation/Organization
|
|
Schedule 4.01(b)
|
Executive
Offices; Collateral Locations; Corporate Names; Organizational
ID
|
|
Schedule 4.01(f)
|
Litigation
|
|
Schedule 4.01(l)
|
Tax
Matters
|
|
Schedule 4.01(n)
|
ERISA
Exceptions
|
|
Schedule 4.02(i)
|
Trade
Names
|
|
Schedule 4.03(b)
|
Existing
Liens
|
|
Annex
4.03(l)
|
Financial
Covenants
|
|
Annex
I
|
Definitions
and Rules of Construction
|
|
Annex
Y
|
Schedule
of Documents
|
ii
This
RECEIVABLES SALE AND CONTRIBUTION AGREEMENT (this “Agreement”) dated
as
of January 9, 2008, among ACCO BRANDS USA LLC (“ACCO Brands”), a
Delaware limited liability company (the “Originator”), and
ACCO BRANDS RECEIVABLES FUNDING LLC, a Delaware limited liability company
(the
“Buyer”).
RECITALS
A.
The Originator owns all of the outstanding limited liability company interests
of the Buyer.
B.
The Buyer was formed for the sole purpose of purchasing, or otherwise acquiring
by capital contribution, all Receivables (as defined in Annex I) originated
by the Originator.
C.
The Buyer intends to sell undivided percentage interests in such Receivables
to
the Purchasers (as defined in Annex I) from time to time.
D.
The Originator intends to sell, and the Buyer intends to purchase, such
Receivables, from time to time, as described herein.
D.
In addition, the Originator may, from time to time, contribute capital
to the
Buyer in the form of Contributed Receivables (as defined below) or
cash.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual covenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
ONE
DEFINITIONS
AND INTERPRETATION
Section
1.01. Definitions. Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed
to
them in Annex
I.
Section
1.02. Rules of
Construction. For purposes of this Agreement, the rules of
construction set forth in Annex I shall
govern.
All Appendices hereto, or expressly identified to this Agreement, are
incorporated herein by reference and, taken together with this Agreement,
shall
constitute but a single agreement.
Section
1.03. Times. Unless
otherwise indicated herein, each reference to time herein shall refer to
the
time in Chicago, Illinois.
ARTICLE
TWO
TRANSFERS
OF RECEIVABLES
Section
2.01. Agreement to
Transfer.
(a)
Receivables
Transfers. Subject to the terms and conditions hereof, the
Originator agrees to sell (without recourse except to the extent specifically
provided herein) or contribute to the Buyer on the Closing Date and on
each
Business Day thereafter (each such date, a “Transfer Date”, and
each such sale or contribution, a “Transfer”) all
Receivables owned by it on each such Transfer Date, and the Buyer agrees
to
purchase or acquire as a capital contribution all such Receivables on each
such
Transfer Date. Each such Transfer shall, upon the request of the
Buyer (or its assignees), be recorded in a certificate of assignment in
form and
substance reasonably satisfactory to the Buyer and its assignees (any such
certificate, a “Receivables
Assignment”, and collectively, the “Receivables
Assignments”); provided, however, that the validity of each Transfer
hereunder shall not be affected by the delivery or non-delivery of any
Receivables Assignment. If the Originator elects not to contribute
Receivables to the Buyer on any Transfer Date, or if any Receivables eligible
for sale and owned by the Originator are not sold on any Transfer Date,
the
Originator shall deliver to the Buyer not later than 5:00 p.m. on such
Transfer Date a notice of election thereof (each such notice, an “Election
Notice”).
(b)
Timing of
Contribution, Purchases. Each Receivable shall be deemed to
have been sold to the Buyer immediately (and without further action by
any
Person) upon the creation of such Receivable (the “Sold Receivables”),
except if Originator shall have contributed any such Receivables to the
Buyer as
capital immediately upon their creation (the “Contributed
Receivables”). The proceeds with respect to each Transferred
Receivable (including all Collections with respect thereto) shall be sold
at the
same time as such Transferred Receivable, whether such proceeds (or Collections
with respect thereto) exist at such time or arise or are acquired
thereafter.
(c)
Payment of Purchase
Price. In consideration for each Sale of Sold Receivables
hereunder, the Buyer shall pay to the Originator on the related Transfer
Date
the Sale Price for such Sold Receivables; provided, that, to the extent
the
Buyer does not have Available Funds to pay the entire Sale Price, the remainder
shall be deemed a capital contribution. All cash payments by the
Buyer under this Section 2.01(c)
shall be effected by means of a wire transfer on the day when due to such
account or accounts as the Originator may designate.
(d)
Ownership of
Transferred Receivables. On and after each Transfer Date and
after giving effect to the Transfers to be made on each such date, the
Buyer
shall own the Transferred Receivables and the Originator shall not take
any
action inconsistent with such ownership nor shall the Originator claim
any
ownership interest in such Transferred Receivables.
(e)
Reconstruction
of
Schedule to Receivables Assignment. Upon the request of the
Buyer (or its assignees), the Originator shall generate a schedule to the
Receivables Assignment identifying all Receivables transferred since the
prior
schedule. If at any time the Originator fails to generate a requested
schedule to the Receivables Assignment showing the Transferred Receivables,
the
Buyer shall have the right to reconstruct such schedule so that a determination
of the Transferred Receivables can be made pursuant to Section 2.01(b). The
Originator agrees to cooperate with such reconstruction, including by delivery
to the Buyer, upon the Buyer’s request, of copies of all Contracts and Records
with respect to the Transferred Receivables.
2
Section
2.02. Grant of
Security Interest. If, notwithstanding the intention of the
parties expressed in Section 2.01(a), the conveyance by the Originator
to the
Buyer of Receivables hereunder shall be characterized as a secured loan
and not
a sale, this Agreement shall nonetheless constitute a security agreement
under
applicable law. For this purpose, the Originator hereby grants to the Buyer
a
duly perfected security interest in all of the Originator’s right, title and
interest, whether now owned or hereafter acquired, in, to and under all
(i)
Receivables purported to be sold hereunder, (ii) all Related Security with
respect to such Receivables (it being understood that nothing contained
in this
Agreement shall constitute a delegation of the Originator’s duties under the
Contracts related to such Receivables), (iii) all Records, (iv) all of
the
Originator’s right, title and interest in each Lock-Box Account to which
Collections are sent, all amounts on deposit therein, all certificates
and
instruments, if any, from time to time evidencing such Lock-Box Accounts
and
amounts on deposit therein, and all related agreements between the Originator
and the Lock-Box Banks, (v) all Collections with respect to the foregoing,
(vi)
all payments on or with respect to such Receivables and all other rights
relating to such Receivables, and (vii) all proceeds of any of the foregoing
(collectively, the “Originator
Collateral”). After any Event of Termination, the Purchaser and its
assignees shall have, in addition to the rights and remedies which they
may have
under this Agreement, all other rights and remedies provided to a secured
creditor after default under the UCC and other applicable law, which rights
and
remedies shall be cumulative. In that regard, the Buyer is hereby granted
a
license or other right to use, without charge, the Originator’s copyrights,
rights of use of any name, trade names, trademarks, service marks and
advertising matter, or any property of a similar nature, as it may pertain
to
Related Security comprising repossessed or returned inventory the sale
or lease
of which shall have given rise to a Transferred Receivable and in order
to
facilitate the disposition by the Buyer of such inventory. In connection
with
the grant of the transfer of ownership or security interest in the Receivables,
by signing this Agreement in the space provided, the Originator hereby
authorizes the filing of all applicable UCC financing statements in all
necessary jurisdictions.
Section
2.03. License for
Use
of Software and Other Intellectual Property.
(a)
Unless expressly prohibited by the licensor thereof or any provision of
applicable law, if any, the Originator hereby grants to the Buyer, solely
for
the purposes of collection of the Receivables and enforcement of its rights
under the Facility Documents, at such time as the Buyer shall be entitled
to do
so, a non-exclusive, transferable license to use, without charge to the
Buyer
(but subject to the payment of royalties to any third party licensor under
the
terms of such license agreement based on use by the Buyer of any licensed
terms):
(i)
the Originator’s computer programs, software, printouts and other computer
materials, technical knowledge or processes, data bases, materials, and
licenses
thereto, and
(ii)
the Originator’s owned or licensed trademarks, registered trademarks, trademark
applications, service marks, registered service marks, service xxxx
applications, trade names, rights of use of any name, fictitious names
(including the goodwill connected with the use of and symbolized by any
such
trademarks, service marks and trade names), patents, patent applications,
inventions, designs, trade secrets,
3
copyrights,
copyright applications, including customer lists, credit files, correspondence,
and advertising materials or any property of a similar nature;
in
each
case, to the extent that the items in subsections (i) and (ii) (the “Intellectual
Property”) pertain to the use of such items in connection with the
advertising for sale, selling any of the Transferred Receivables and solely
after an Event of Termination collection of the Receivables and enforcement
of
the Buyer’s rights under the Facility Documents,
(b)
The Originator agrees that the Originator’s rights under such licenses and
franchise agreements as are granted under this Section 2.03 shall
inure to the Buyer’s benefit. To the extent the grant of the aforesaid license
described is expressly prohibited by the licensor thereof, the Originator
shall
exercise its commercially reasonable efforts to obtain the consent of such
licensor to the Originator’s grant to the Buyer of such license. Even
where use is permitted, the Buyer agrees not to use any such license without
giving the Originator prior notice and unless an Event of Termination has
occurred and is continuing. The Originator confirms that, as of the
Closing Date, it owns or has rights to use all Intellectual Property without
infringement of or interference with any intellectual property of any other
Person.
(c)
The foregoing license is subject to the following conditions and limitations:
(i) the Buyer agrees that any Intellectual Property which is a trade secret
of
Originator or otherwise maintained in confidence by the Originator, shall
be
maintained in confidence by Buyer and shall not be disclosed to any person
or
entity other than employees and contractors of Buyer (or its assignees)
who have
a “need to know” such information and who have been apprised on this
restriction, and Buyer shall agree with any assignee of such information
that it
shall be liable for any breach of this undertaking by its employees
or contractors, (ii) with respect to Intellectual Property which is licensed
to
Originator, Buyer agrees to abide by any applicable restrictions on use
in the
applicable license agreement which would be binding upon the Originator,
were it
using the licensed Intellectual Property in a similar manner and (iii)
with
respect to any trademarks, service marks or trade names subject to the
license
granted hereunder, Buyer agrees that the license shall be subject to sufficient
rights of quality control and inspection in favor of Originator to avoid
the
risk of invalidation of such trademarks. The license shall run for as
long as this Agreement is in effect.
ARTICLE
THREE
CONDITIONS
PRECEDENT
Section
3.01. Conditions to
Closing. The Closing shall be subject to the due execution by,
and delivery to, the Originator and the Buyer of this Agreement, and the
Buyer
shall have received each item listed in the Schedule of Documents, each
in form
and substance satisfactory to the Buyer of this Agreement.
Section
3.02. Conditions to
all Transfers. Each Transfer hereunder (including the initial
Transfer) shall be subject to satisfaction of the following further conditions
precedent as of the Transfer Date therefor:
(a)
the representations and warranties of the Originator contained herein or
in any
other Facility Document as of such Transfer Date shall be true and correct
both
4
before
and after giving effect to such Transfer and to the application of the
Sale
Price therefor, except to the extent that any such representation or warranty
expressly relates to an earlier date and except for changes therein expressly
permitted by this Agreement;
(b)
no Event of Termination or Incipient Termination Event shall have occurred
and
be continuing or would result after giving effect to such Transfer or the
application of the Sale Price therefor; and
(c)
the Originator shall be in compliance with each of its covenants and other
agreements set forth in each Facility Document.
The
acceptance by the Originator of the Sale Price for any Sold Receivables
on any
Transfer Date shall be deemed to constitute, as of any such Transfer Date,
a
representation and warranty by the Originator that the conditions in this
Section 3.02
have been satisfied. Upon any such acceptance, title to the
Transferred Receivables sold or contributed on such Transfer Date shall
be
vested absolutely in the Buyer, whether or not such conditions were in
fact so
satisfied.
ARTICLE
FOUR
REPRESENTATIONS,
WARRANTIES AND COVENANTS
Section
4.01. Representations
and Warranties of Originators. To induce the Buyer to purchase
the Sold Receivables and to acquire the Contributed Receivables, the Originator
makes the following representations and warranties, on each Transfer Date,
to
the Buyer, each and all of which shall survive the execution and delivery
of
this Agreement.
(a)
Corporate Existence;
Compliance with Law. The Originator (i) is a limited
liability company duly organized, validly existing and in good standing
under
the laws of its jurisdiction of formation as set forth on Schedule 4.01(a)
attached hereto (which is the Originator’s only state of organization);
(ii) is duly qualified to conduct business and is in good standing in each
other jurisdiction in which the nature of its business requires it to be
so
qualified except where the failure to be so qualified is not reasonably
likely
to result in a Material Adverse Effect; (iii) has the requisite power and
authority and the legal right to own, pledge, mortgage or otherwise encumber
and
operate its properties, to lease the property it operates under lease,
and to
conduct its business, in each case, as now, heretofore and proposed to
be
conducted; (iv) has all licenses, permits, consents or approvals from or
by, and has made all filings with, and has given all notices to, all
Governmental Authorities having jurisdiction, to the extent required for
such
ownership, operation and conduct, except where the failure to obtain such
licenses, permits, consents or approvals is not reasonably likely to result
in a
Material Adverse Effect; (v) is in compliance with its Charter Documents;
and (vi) subject to specific representations set forth herein regarding
ERISA, tax laws and other laws, is in compliance with all applicable provisions
of law, except where the failure to comply, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(b)
Executive Offices;
Collateral Locations; Corporate or Other Names; FEIN. As of
the Closing Date, the current location of the Originator’s chief executive
offices, jurisdiction of organization, principal places of business, other
offices, the warehouses and premises within which any Transferred Receivables,
the Related Security or other Originator Collateral is stored
5
or
located, and the locations of all records of the Originator concerning
any
Transferred Receivables, the Related Security or other Originator Collateral
are
set forth in Schedule
4.01(b). During the prior five years, except as set forth in Schedule
4.01(b), the
Originator has been known as or used any corporate, fictitious or trade
name. In addition, Schedule 4.01(b)
lists the organizational
identification number issued by the Originator’s state of organization or states
that no such number has been issued and lists the federal employer
identification number of the Originator.
(c)
Corporate Power,
Authorization, Enforceable Obligations. The execution,
delivery and performance by the Originator of this Agreement and the other
Facility Documents to which it is a party and the creation and perfection
of all
Transfers and Liens provided for herein and therein: (i) are within such
Person’s power; (ii) have been duly authorized by all necessary or proper
action; (iii) do not contravene any provision of such Person’s Charter
Documents; (iv) do not violate any law or regulation applicable to it;
(v) do not conflict with any material contractual restriction binding on
its property; (vi) do not contravene any order, verdict, judgment, award,
injunction or decree binding on it or its property, and do not result in
or
require the creation of any Adverse Claim on or with respect to any of
its
properties.
(d)
Governmental
Consent. No authorization or approval or other action by, and
no notice to or filing with, any Governmental Authority or other Person
is
required for the due execution, delivery and performance by the Originator
of
this Agreement or any other Facility Document to which it is a party except
for
the filing of UCC financing statements in connection therewith.
(e)
Enforceability
of
Facility Documents. Each of this Agreement and the other
Facility Documents to which it is a party constitutes the legal, valid
and
binding obligation of the Originator enforceable against it in accordance
with
its terms except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights and by
general principles of equity.
(f)
No
Litigation. Except as set forth in Schedule 4.01(f), there are
no actions, suits or proceedings pending against the Originator, or to
its
knowledge threatened in writing against it, or its property, in any court,
or
before any arbitrator of any kind, or before or by any Governmental Authority,
which, if adversely determined, would reasonably be expected to have a
Material
Adverse Effect or would materially adversely affect the collectibility
of the
Transferred Receivables, or which affects or purports to affect the legality,
validity or enforceability of this Agreement or the other Facility Documents
to
which it is a party. The Originator is not in default with respect to
any order of any court, arbitrator or Governmental Authority.
(g)
Accuracy of
Information. No certificate, report or other written
information (including any schedule hereto) furnished or to be furnished
by the
Originator to the Seller in connection with this Agreement or any Facility
Document is or shall be inaccurate in any material respect as of the date
it is
or shall be dated or (except as otherwise disclosed to the Seller at such
time)
as of the date so furnished.
6
(h)
Account
Information. The names and addresses of all the Lock-Box Banks
with respect to the Transferred Receivables, together with the account
numbers
of the related Lock-Box Accounts, are specified in Schedule 4.01(h) to
the
Purchase Agreement (or at such other Lock-Box Banks and/or with such other
Lock-Box Accounts as have been notified to the Agent in accordance with
Sections
5.03(e) and 5.04(d) of the Purchase Agreement) and with respect to
which all action required by Sections 5.03(e) and 5.04(d) of the Purchase
Agreement has been taken and completed. The Originator has caused its Obligors
to make payment to a Lock-Box Account. The Lock-Box Accounts are the
only accounts to which Collections of Transferred Receivables are remitted
by
Obligors.
(i)
Perfection of
Interest
in Transferred Receivables and Receivables
Assets. Eligibility. The Originator owns the
Transferred Receivables free and clear of any Adverse Claim, and the Buyer
has
acquired a valid and perfected 100% ownership interest in each Transferred
Receivable, in each case free and clear of any Adverse Claim and the Originator
has caused such financing statements to be filed against it as are necessary
to
effect the foregoing; and no effective financing statement or other instrument
similar in effect, is filed in any recording office listing the Originator
as
debtor, covering any Transferred Receivable except as such as may be filed
in
favor of the Agent (or in favor of the Originator and assigned to the Buyer
and
then the Agent).
(j)
Solvency. Both
before and after giving effect to (i) the transactions contemplated by this
Agreement and the other Facility Documents and (ii) the payment and accrual
of all transaction costs in connection with the foregoing, the Originator
is and
will be Solvent. No event of the type described in
Section 7.01(g) of the Purchase Agreement has been commenced or threatened
against the Originator.
(k)
Material Adverse
Effect. Between September 30, 2007, and the Closing Date,
(i) the Originator has not incurred any obligations, contingent or
non-contingent liabilities, liabilities for charges, long-term leases or
unusual
forward or long-term commitments that, alone or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, (ii) no contract,
lease or other agreement or instrument has been entered into by the Originator
or has become binding upon the Originator’s assets and no law or regulation
applicable to the Originator has been adopted that has had or could reasonably
be expected to have a Material Adverse Effect, (iii) the Originator is not
in default under any material contract, lease or other agreement or instrument
to which the Originator is a party that alone or in the aggregate could
reasonably be expected to have a Material Adverse Effect, and (iv) no event
has occurred that alone or together with other events could reasonably
be
expected to have a Material Adverse Effect with respect to the Originator,
in
each case other than (x) disclosed in the Parent’s financial statements as
of December 31, 2006, and (y) disclosed prior to the date hereof in press
releases or in writing to the Agent.
(l)
Taxes. All
material tax returns, reports and statements, including information returns,
required by any Governmental Authority to be filed by the Parent and its
Subsidiaries have been filed with the appropriate Governmental Authority
and all
material taxes have been paid prior to the date on which any fine, penalty,
interest or late charge may be added thereto for nonpayment thereof (or
any such
fine, penalty, interest, late charge or loss has been paid), excluding
charges
or other amounts being contested in good faith. Schedule 4.01(l) sets
forth as
7
of
the
Closing Date (i) those taxable years for which the Originator’s tax returns
are currently being audited by the IRS and (ii) any assessments or
threatened assessments in connection with such audit or otherwise currently
outstanding. As to all audits of the Originator currently being conducted
by any
taxing authority, the Originator believes that it has fully reserved for
any
liability that might result from such audits. Except as described on
Schedule
4.01(l), the Originator has not executed or filed with the IRS any
agreement or other document extending, or having the effect of extending,
the
period for assessment or collection of any charges. The Originator is not
liable
for any charges relating to taxes: (y) under any agreement (including any
tax sharing agreements other than with the Parent and its Subsidiaries)
or
(z) to the best of the Originator’s knowledge, as a transferee. As of the
Closing Date, the Originator has not agreed or been requested to make any
adjustment under IRC Section 481(a), by reason of a change in accounting
method or otherwise, that would have a Material Adverse Effect.
(m)
[Reserved]
(n)
ERISA.
(i)
Each Qualified Plan, if any, has been determined by the IRS to qualify
under
Section 401 of the IRC, the trusts created thereunder have been determined
to be exempt from tax under the provisions of Section 501 of the IRC, and
nothing has occurred that would reasonably be expected to cause the loss
of such
qualification or tax-exempt status. With respect to the Plans, (x) each
Plan is
materially in compliance with the applicable provisions of ERISA and the
IRC,
including the timely filing of all reports required under the IRC or ERISA,
(y) neither the Originator nor any of its ERISA Affiliates has knowingly
failed to make any contribution or pay any amount due as required by either
Section 412 of the IRC or Section 302 of ERISA or the terms of any
such Plan and (z) neither the Originator nor any of its ERISA Affiliates
has engaged in a “prohibited transaction”, as defined in Section 4975 of
the IRC, in connection with any Plan that would subject the Originator
to a
material tax on prohibited transactions imposed by Section 4975 of the
IRC.
(ii)
Except as set forth in Schedule 4.01(n),
(A) no Title IV Plan has any Unfunded Pension Liability; (B) no ERISA
Event or event described in Section 4062(e) of ERISA with respect to any
Title IV Plan has occurred or is reasonably expected to occur; (C) there
are no pending or, to the knowledge of the Originator, threatened material
claims (other than claims for benefits in the normal course), sanctions,
actions
or lawsuits, asserted or instituted against any Plan or any Person as fiduciary
or sponsor of any Plan; (D) neither the Originator nor any of its ERISA
Affiliates has incurred or reasonably expects to incur any material liability
as
a result of a complete or partial withdrawal from a Multiemployer Plan
under
Section 4204 of ERISA; (E) within the last five years no Title IV Plan with
material Unfunded Pension Liabilities has been transferred outside of the
“controlled group” (within the meaning of Section 4001(a)(14) of ERISA) of
the Originator or any of its ERISA Affiliates; (F) Stock of the Originator
and its ERISA Affiliates make up, in the aggregate, no more than 10% of
the
assets of any Plan, measured on the basis of fair market value as of the
last
valuation date of any Plan; and (G) no liability under any Title IV Plan
has been satisfied with the purchase of
8
a
contract from an insurance company that is not rated AAA by S&P or an
equivalent rating by another nationally recognized rating agency.
(o)
Margin
Regulations. The Originator is not engaged, nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of “purchasing” or “carrying” any “margin security” as
such terms are defined in Regulations G or U of the Federal Reserve Board
as now
and from time to time hereafter in effect (such securities being referred
to
herein as “Margin
Stock”). The Originator does not own any Margin Stock, and no portion
of
the Sale Price for any Sale hereunder will be used, directly or indirectly,
for
the purpose of purchasing or carrying any Margin Stock, for the purpose
of
reducing or retiring any Indebtedness that was originally incurred to purchase
or carry any Margin Stock or for any other purpose that might cause any
portion
of such proceeds to be considered a “purpose credit” within the meaning of
Regulations T, U or X of the Federal Reserve Board.
(p)
Nonapplicability
of
Bulk Sales Laws. No transaction contemplated by this Agreement
or any of the other Facility Documents requires compliance with any bulk
sales
act or similar law.
(q)
Investment Company
Act. The Originator is not required to register as an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.
(r)
Books and Records;
Minutes. The Charter Documents of the Originator require it to
maintain (i) books and records of account and (ii) minutes of the
meetings and other proceedings of its Stockholders and board of
directors.
(s)
Representations
and
Warranties in Other Facility Documents. Each of the
representations and warranties of the Originator contained in the other
Facility
Documents is true and correct in all material respects and the Originator
hereby
makes each such representation and warranty to, and for the benefit of,
the
Buyer as if the same were set forth in full herein, and the Originator
consents
to the assignment of the Buyer’s rights to the Purchasers and the Agent (and
their successors and assigns) as contemplated in Section 4.02(g).
(t)
Use
of
Proceeds. No
proceeds of any Purchase will be used by the Buyer to acquire any security
in
any transaction which is subject to Section 12 of the Securities Exchange
Act of 1934, as amended.
(u)
Transferred
Receivables. With respect to each Transferred Receivable
originated by the Originator and Transferred hereunder:
(i)
such Receivable satisfies the criteria for an Eligible Receivable;
(ii)
prior to its Transfer to the Buyer the Originator had the full right, power
and
authority to sell, contribute, assign, transfer and pledge its interest
therein
as contemplated under this Agreement and the other Facility Documents and,
following such Transfer, such Receivable will not be subject to any Adverse
Claim as a result of any action or inaction on the part of the Originator;
and
9
(iii)
the Transfer of each such Receivable pursuant to this Agreement constitutes
a
valid sale, contribution, transfer, assignment, setover and conveyance
to the
Buyer of all right, title and interest of the Originator in and to such
Receivable.
The
representations and warranties described in this Section 4.01
shall survive the Transfer of the Transferred Receivables to the Buyer,
any
subsequent assignment of the Transferred Receivables by the Buyer, and
the
termination of this Agreement and the other Facility Documents and shall
continue until the indefeasible payment in full of all Transferred
Receivables.
Section
4.02. Affirmative
Covenants of Originators. The Originator covenants and agrees
that, unless otherwise consented to by the Buyer, from and after the Closing
Date and until the Termination Date as follows, each of which shall survive
the
execution and delivery of this Sale Agreement:
(a)
Compliance with
Laws.
Etc. The Originator will comply in all material respects with
all applicable laws, rules, regulations and orders with respect to all
Receivables and the other Facility Documents.
(b)
Preservation
of
Corporate Existence. The Originator will observe all
procedures required by its certificate of formation and limited liability
company agreement and preserve and maintain its existence, rights, franchises
and privileges in the jurisdiction of its formation, except to the extent
that
the failure to do so could not reasonably be expected to result in a Material
Adverse Effect, and qualify and remain qualified in good standing as a
foreign
corporation in each jurisdiction where the failure to preserve and maintain
such
rights, franchises, privileges and qualifications would have a Material
Adverse
Effect.
(c)
Performance
and
Compliance with Receivables and Credit and Collection
Policy. The Originator will at its expense timely and fully
perform and comply, in all material respects, with (i) all provisions,
covenants and other promises required to be observed by it under
the Transferred Receivables, the Related Security and Contracts and
(ii) the Credit and Collection Policy in regard to each Transferred
Receivable.
(d)
Collections;
Lock-Box
Agreements. The Originator will (i) instruct all Obligors
of Transferred Receivables to cause all Collections to be deposited directly
to
one of the Lock-Box Accounts and, if it shall receive any Collections,
remit
such Collections to a Lock-Box Account, and (ii) deposit, or cause to be
deposited, any Collections in respect of Transferred Receivables received
by it
into any of the Lock-Box Accounts not later than one Business Day after
receipt
thereof.
(e)
Offices, Records
and
Books of Account; Etc. The Originator (i) shall keep its
principal place of business and chief executive office (as such terms are
used
in the UCC) and the office where it keeps its Records concerning the Transferred
Receivables at its address set forth in Section 6.01 and keep its State of
organization at the State set forth in Section 4.01(b)
or, upon at least 30 days’ prior written notice of a proposed change to the
Buyer, at any other locations in jurisdictions where all actions reasonably
requested by the Buyer to protect and
10
perfect
the interest of the Buyer and its assignees in the Receivables and related
items
have been taken and completed and (ii) shall provide the Buyer with at
least 30 days’ written notice prior to making any change in its name or making
any other change in its identity or corporate structure (including by merger)
which could render any UCC financing statement filed in connection with
this
Agreement “seriously misleading” as such term is used in the UCC; each notice
pursuant to this sentence shall set forth the applicable change and the
effective date thereof. The Originator also will maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing the Transferred
Receivables and related Contracts in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records,
computer tapes and disks and other information reasonably necessary or
advisable
for the collection of all Transferred Receivables (including, without
limitation, records adequate to permit the daily identification of each
Transferred Receivable and all Collections of and adjustments to each existing
Transferred Receivable).
(f)
Access. The
Originator shall, during normal business hours, upon five Business Day’s prior
notice, permit the Agent, or the Agent’s agents or representatives, (A) to have
access to all records, files, books of account, data bases and information
pertaining to all Transferred Receivables and any other Related Security,
including the Records, (B) to discuss matters relating to the Transferred
Receivables or the Originator’s performance hereunder with any of its officers
or employees having knowledge of such matters, and (C) to inspect, audit
and to
make extracts therefrom at the Originator’s expense; provided, however, that
prior to an Event of Termination not more than one such audit or inspection
per
year shall be at the expense of the Originator, and provided, further that
no
such prior notice shall be required if an Event of Termination has occurred
and
is continuing.
(g)
Assignment. The
Originator agrees that, to the extent permitted under the Purchase Agreement,
the Buyer may assign all of its right, title and interest in, to and under
the
Transferred Receivables, the license granted pursuant to Section 2.03 and
this Agreement, including its right to exercise the remedies set forth
in Section 4.04.
The Originator agrees that, upon any such assignment, the assignee thereof
may,
upon the occurrence of an Event of Termination, enforce directly, without
joinder of the Buyer, all of the obligations of the Originator hereunder,
including any obligations of the Originator set forth in Sections 4.02(m),
4.04,
5.01
and 6.14.
(h)
Compliance with
Agreements and Applicable Laws. The Originator shall perform
each of its obligations under this Agreement and the other Facility Documents
and comply with all federal, state and local laws and regulations applicable
to
it and the Transferred Receivables, except to the extent that the failure
to so
comply, individually or in the aggregate, could not reasonably be expected
to
have a Material Adverse Effect.
(i)
Maintenance
of
Existence and Conduct of Business. The Originator shall:
(i) do or cause to be done all things necessary to preserve and keep in
full force and effect its existence and its rights and franchises;
(ii) continue to conduct its business substantially as now conducted or as
otherwise permitted hereunder and in accordance with the terms of its Charter
Documents; and (iii) transact business only in such corporate and trade
names as are set forth in Schedule 4.02(i) or,
upon 30 days’ prior written notice to the Buyer and the Agent, in such other
corporate
11
or
trade
names with respect to which all action requested by Buyer, any Purchaser
or the
Agent pursuant to Section 6.13
shall have been taken with respect to the Transferred Receivables.
(j)
Reporting
Requirements. The Originator will provide to the Buyer the
following:
(i)
as soon as practicable and in any event within five (5) Business Days after
becoming aware of the occurrence of each Event of Termination or an Incipient
Termination Event, a statement from the Originator setting forth details
of such
Event of Termination or Incipient Termination Event and the action that
the
Originator has taken and proposes to take with respect thereto;
(ii)
such other information respecting the Transferred Receivables, the Related
Security, the Originator Collateral or the condition or operations, financial
or
otherwise, of the Originator as the Buyer may from time to time reasonably
request;
(iii)
as soon as practicable and in any event within five (5) Business Days after
the
Originator obtains knowledge thereof, notice of any (a) litigation,
investigation or proceeding which may exist at any time between the Originator
and any Governmental Authority which, if not cured or if adversely determined,
as the case may be, is reasonably likely to have a Material Adverse Effect;
or
(b) other litigation or proceeding which is reasonably likely to have a
Material
Adverse Effect or (c) other litigation or proceeding relating to any Facility
Document;
(iv)
as soon as practicable and in any event within five (5) Business Days after
the
occurrence thereof, notice of any event which is reasonably likely to have
a
Material Adverse Effect; and
(v)
within 10 Business Days of the end of each fiscal quarter, an Officer’s
Certificate of the Originator certifying that the Originator is in compliance
with Section 4.02(e).
(k)
Use of
Proceeds. The Originator shall utilize the proceeds of the
Sale Price obtained by it for each Sale made by it hereunder solely for
general
corporate purposes (including the retirement or repayment of third party
debt
and loans made to Affiliates) and to pay any related expenses payable by
the
Originator under this Agreement and the other Facility Documents in connection
with the transactions contemplated hereby and thereby and for no other
purpose.
(l)
Separate
Identity.
(i)
The Originator shall maintain corporate records and books of account separate
from those of the Buyer.
(ii)
The financial statements of the Originator shall disclose the effects of
the
Originator’s transactions in accordance with GAAP and, in addition, disclose
that (A) the Buyer’s sole business consists of the purchase or acceptance
through capital contribution
12
of
the
Transferred Receivables from the Originators and the subsequent resale
of
interests in the Transferred Receivables to the Purchasers, (B) the Buyer
is a
legal entity separate from the Originator with its own separate creditors
who
will be entitled, upon its liquidation, to be satisfied out of the Buyer’s
assets, prior to any value in the Buyer becoming available to such entities’
equity holders and (C) the assets of the Buyer are not available to pay
creditors of the Originator or any of its Affiliates. The
resolutions, agreements and other instruments underlying the transactions
described in this Agreement shall be continuously maintained by the Originator
as official records.
(iii)
The Originator shall keep its assets and its liabilities wholly separate
from
those of the Buyer except as permitted or contemplated by this Agreement
and the
related Facility Documents.
(iv)
The Originator shall conduct its business solely in its own name through
its
duly authorized officers or agents and in a manner designed not to mislead
third
parties as to the separate identity of the Buyer.
(v)
The Originator shall maintain an arm’s-length relationship with the Buyer and
shall not mislead third parties by conducting or appearing to conduct business
on behalf of the Buyer or expressly or implicitly representing or suggesting
that the Originator is liable or responsible for the indebtedness of the
Buyer
or that the assets of the Originator are available to pay the creditors
of the
Buyer.
(vi)
The Originator shall cause operating expenses and liabilities of the Buyer
to be
paid from the Buyer’s own funds other than as provided in Section 6.14
hereof.
(vii)
The Originator shall at all times have stationery and other business forms
and a
mailing address separate from those of the Buyer.
(viii)
The Originator shall at all times limit its transactions with the Buyer
only to
those expressly contemplated or permitted hereunder or under any other
Facility
Document.
(ix)
The Originator shall comply with (and cause to be true and correct) each
of the
facts and assumptions contained in the bankruptcy opinions of Skadden,
Arps,
Xxxxxxx & Xxxx LLP delivered pursuant to the Schedule of
Documents.
(m)
Adjustments
to Sale
Price. If on any day the Billed Amount of any Transferred
Receivable is reduced as a result of any Dilution Factors, the Originator
thereof shall make a cash payment to the Buyer in the amount of such excess
by
remitting such amount to a Lock-Box Account in accordance with the terms
of the
Purchase Agreement.
(n)
Reports and
Records
Regarding Transferred Receivables and Reconveyed
Receivables. The Originator shall prepare and deliver all
reports, statements and records required to be delivered by it hereunder
or
under any other Facility Documents so as to clearly distinguish Receivables
that
are subsequently reconveyed to the Originator pursuant to Section 4.04
hereof from Transferred Receivables that are not so reconveyed.
13
(o)
Marking of
Records. At its expense, within thirty (30) days after the Closing Date,
the Originator shall xxxx the master data processing records relating to
Transferred Receivables originated by it and related Contracts, if any,
with the
Sale Legend, evidencing that such Transferred Receivables and related Contracts,
if any, have been sold in accordance with this Agreement.
(p)
Lock-Box
Agreements. Each Lock-Box Account shall at all times be
subject to an Account Control Agreement.
(q)
Bulk
Sales. The Originator will comply with the provisions of any
applicable bulk sales law (including any applicable bulk transfer provisions),
if any, and will pay all applicable bulk sales fees and taxes, if any,
incurred
in connection with the transactions contemplated by the Facility
Documents.
Section
4.03. Negative
Covenants of Originators. The Originator covenants and agrees
that, without the prior written consent of the Buyer and the Agent, from
and
after the Closing Date and until the Termination Date:
(a)
Sale of
Assets. The Originator shall not sell, transfer, convey,
lease, assign (by operation of law or otherwise) or otherwise dispose of,
or
assign any right to receive income in respect of, (i) other than to the
Buyer pursuant to this Agreement, any Transferred Receivable or Contract
therefor, any of its rights with respect to any Lock-Box Account or any
other
Originator Collateral, or (ii) without prior notice to the Buyer, all or
substantially all of the Originator’s business, other properties or other
assets.
(b)
Sales;
Liens. The Originator shall not sell, assign (by operation of
law or otherwise) or otherwise dispose of, or create, incur, assume or
permit to
exist any Adverse Claim on or with respect to its Transferred Receivables,
the
Related Security or any other Originator Collateral (whether now owned
or
hereafter acquired) except for the Liens set forth in Schedule 4.03(b) and
other Permitted Originator Encumbrances. The Originator will not
grant, create, incur or suffer to exist any Adverse Claims upon or with
respect
to any inventory the sale of which may give rise to a Receivable unless
it
obtains express agreements from the holders of such Adverse Claims that
no such
Adverse Claims extend to any of the Transferred Receivables, the other
Related
Security or the Lock-Box Accounts.
(c)
Modifications
of
Receivables or Contracts. The Originator, in its capacity as
Originator, shall not extend, amend, forgive, discharge, compromise, cancel
or
otherwise modify the terms of any Transferred Receivable originated by
it, or
amend, modify or waive any term or condition of any Contract
therefor.
(d)
Sale
Characterization. The Originator shall not make statements or
disclosures or prepare any financial statements for any purpose, including
for
federal income tax, reporting or accounting purposes, that shall account
for the
transactions contemplated by this Agreement in any manner other than
(i) with respect to the Sale of each Transferred Receivable originated by
it, as a true sale or absolute assignment of its full right, title and
ownership
interest in such Transferred Receivable and (ii) with respect to the
Transfer of each Contributed Receivable under this Agreement, as a contribution
to the capital of the Buyer.
14
(e)
Capital Structure
and
Business. The Originator shall not, nor shall the Originator
permit its Subsidiaries to (i) make any changes in any of its business
objectives, purposes or operations that could have or result in a Material
Adverse Effect or (ii) amend, supplement or otherwise modify its
certificate or Charter Documents in a manner that could have or result
in a
Material Adverse Effect.
(f)
Actions Affecting
Rights. The Originator shall not (i) take any action, or
fail to take any action, if such action or failure to take action may interfere
with the enforcement of any rights hereunder or under the other Facility
Documents, including rights with respect to the Transferred Receivables;
(ii) waive or alter any rights with respect to such Transferred Receivables
(or any agreement or instrument relating thereto); or (iii) fail to pay any
tax, assessment, charge, fee or other obligation of the Originator with
respect
to such Transferred Receivables, or fail to defend any action, if such
failure
to pay or defend may adversely affect the priority or enforceability of
the
perfected title of the Buyer to and beneficial ownership interest of the
Buyer
in such Transferred Receivables or, prior to their Transfer hereunder,
the
Originator’s right, title or interest therein.
(g)
ERISA. The
Originator shall not, nor shall it cause or permit any ERISA Affiliate
to, (x)
cause or permit to occur an event that could result in the imposition of
a Lien
under Section 412 of the IRC or Section 302 or 4068 of ERISA or (y)
cause or permit to occur an ERISA Event.
(h)
Change to Credit
and
Collection Policies. The Originator shall comply with the
Credit and Collection Policies, and no change shall be made to, the Credit
and
Collection Policies without the prior written consent of the Buyer.
(i)
Adverse Tax
Consequences. The Originator shall not fail or neglect to
perform, keep or observe any of its obligations hereunder or under the
other
Facility Documents, that would have the effect directly or indirectly of
subjecting any payment to the Buyer to withholding taxation.
(j)
No
Proceedings. From and after the Closing Date and until the
date one year plus one day following the Termination Date, the Originator
shall
not directly or indirectly, institute or cause to be instituted against
the
Buyer any involuntary proceeding of the type referred to in Section 7.01(g)
of
the Purchase Agreement.
(k)
Commingling. The
Originator shall not deposit or permit the deposit of any funds that do
not
constitute Collections of Transferred Receivables into any Lock-Box Account,
and
the Originator shall ensure that no Collections or other proceeds with
respect
to a Transferred Receivable reconveyed to it pursuant to Section 4.04
hereof are paid or deposited into any Lock-Box Account. If such funds
are nonetheless deposited into a Lock-Box Account the Originator shall
notify
the Servicer to promptly remit any such amounts as directed by the
Originator.
(l)
Financial
Covenants. The Originator shall provide notice to the Buyer of
the substance of any changes to the financial covenants set forth in Annex 4.03(l) and
such changes shall be incorporated into Annex
4.03(l). The Originator shall not breach or fail to comply
with any of the financial covenants set forth in Annex 4.03(l), nor
permit the Parent to do so.
15
Section
4.04. Breach of
Eligibility Criteria. Upon discovery by (a) the Originator or
the Buyer that a Transferred Receivable was not an Eligible Receivable
on the
date sold hereunder, the party discovering the same shall give prompt written
notice thereof to the other parties hereto. The Originator shall, if
requested by notice from the Buyer, as soon as practicable, but no later
than
the Settlement Date for the Monthly Period in which such notice was received,
either (a) repurchase such Transferred Receivable from the Buyer for cash,
(b) transfer ownership of one or more new Eligible Receivables to the Buyer
on such Business Day, or (c) make a capital contribution in cash to the
Buyer by remitting the amount (the “Rejected Amount”) of
such capital contribution to a Lock-Box Account in accordance with the
terms of
the Purchase Agreement, in each case in an amount equal to the Outstanding
Balance of such Transferred Receivable.
ARTICLE
FIVE
INDEMNIFICATION
Section
5.01. Indemnification. Without
limiting any other rights that the Buyer or any of its Stockholders, officers,
directors, employees, agents or representatives (each, an “Buyer Indemnified
Party”) may have hereunder or under applicable law, the Originator hereby
agrees to indemnify and hold harmless, each Buyer Indemnified Party from
and
against any and all Indemnified Amounts that may be claimed or asserted
against
or incurred by any such Buyer Indemnified Party in connection with or arising
out of the transactions contemplated under this Agreement or under any
other
Facility Document (whether directly or indirectly), including any and all
legal
costs and expenses, or in respect of any Transferred Receivable conveyed
by the
Originator or any Contract therefor or any Originator Collateral or the
use by
the Originator of the Sale Price therefor; provided, that
the
Originator shall not be liable for any indemnification to a Buyer Indemnified
Party to the extent that any such Indemnified Amounts result solely from
(a) such Buyer Indemnified Party’s gross negligence or willful misconduct,
as finally determined by a court of competent jurisdiction, (b) recourse
for uncollectible or uncollected Transferred Receivables, or (c) any income
tax or franchise tax incurred by any Buyer Indemnified Party, except to
the
extent that the incurrence of any such tax results from a breach of or
default
by the Originator under this Agreement or any other Facility
Document. Subject to the exceptions set forth in clauses (a),
(b)
and (c) of the
immediately preceding sentence but otherwise without limiting the generality
of
the foregoing, the Originator shall pay on demand to each Buyer Indemnified
Party any and all Indemnified Amounts to the extent relating to or resulting
from:
(i)
reliance on any representation or warranty made or deemed made by the Originator
(or any of its officers) under or in connection with this Agreement or
any other
Facility Document or on any written information delivered by the Originator
pursuant hereto or thereto that shall have been incorrect in any material
respect when made or deemed made or delivered;
(ii)
the failure by the Originator to comply with any term, provision or covenant
contained in this Agreement, any other Facility Document or any agreement
executed in connection herewith or therewith, any applicable law, rule
or
regulation with respect to any Transferred Receivable or Contract therefor,
the
Related Security or any other Originator Collateral, or the nonconformity
of any
Transferred Receivable or the
16
Contract
therefor, the Related Security or any Originator Collateral with any such
applicable law, rule or regulation;
(iii)
the failure to vest and maintain vested in the Buyer valid and properly
perfected title to and beneficial ownership of the Receivables that constitute
Transferred Receivables, together with all Collections in respect thereof,
free
and clear of any Adverse Claim;
(iv)
any dispute, claim, offset or defense of any Obligor (other than its discharge
in bankruptcy) to the payment of any Transferred Receivable that is the
subject
of a Transfer hereunder (including a defense based on such Transferred
Receivable or the Contract therefor 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
giving
rise to such Transferred Receivable or the furnishing or failure to furnish
such
merchandise or services or relating to collection activities with respect
to
such Transferred Receivable (if such collection activities were performed
by any
Affiliate acting as a Servicer), except to the extent that such dispute,
claim,
offset or defense results solely from any action or inaction on the part
of the
Buyer;
(v)
any products liability claim or other claim arising out of or in connection
with
merchandise, insurance or services that is the subject of any Contract
with
respect to the Transferred Receivables;
(vi)
the commingling of Collections with respect to Transferred Receivables
by the
Originator at any time with its other funds or the funds of any other Person
;
(vii)
any failure by the Originator to cause the filing of, or any delay in filing,
financing statements or other similar instruments or documents under the
UCC of
any applicable jurisdiction or any other applicable laws with respect to
any
Transferred Receivable that is the subject of a Sale by the Originator
hereunder, whether at the time of any such Transfer or at any subsequent
time;
(viii)
any failure by the Originator or the Servicer to perform, keep or observe
any of
their respective duties or obligations hereunder, under any other Facility
Document or under any Contract related to a Transferred Receivable, the
Related
Security or the other Originator Collateral;
(ix)
any failure of a Lock-Box Bank to comply with the terms of the applicable
Lock-Box Agreement;
(x)
any investigation, litigation or proceeding related to this Agreement or
the use
of the Sale Price obtained in connection with any Sale or the ownership
of
Transferred Receivables, the Related Security or Collections with respect
thereto or in respect of any Transferred Receivable, the Related Security
or
Contract, except to the extent any such investigation, litigation or proceeding
relates to a matter involving a Buyer Indemnified Party for which the Originator
and any of its Affiliates is not at fault, as finally determined by a court
of
competent jurisdiction;
17
(xi)
any claim brought by any Person other than a Buyer Indemnified Party arising
from any activity by the Originator or any of its Affiliates in servicing,
administering or collecting any Transferred Receivables or Originator
Collateral; or
(xii)
the failure of any Transferred Receivable to satisfy, as of the date of
transfer
hereunder, the requirements of eligibility contained in the definition
of
“Eligible Receivable”.
NO
BUYER INDEMNIFIED PARTY SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY
TO
THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR
THIRD
PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS
DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION
CONTEMPLATED HEREUNDER OR THEREUNDER.
ARTICLE
SIX
MISCELLANEOUS
Section
6.01. Notices. Except
as otherwise provided herein, whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication
shall or
may be given to or served upon any of the parties by any other parties,
or
whenever any of the parties desires to give or serve upon any other parties
any
communication with respect to this Agreement, each such notice, demand,
request,
consent, approval, declaration or other communication shall be in writing
and
shall be deemed to have been validly served, given or delivered (a) upon
the earlier of actual receipt and three Business Days after deposit in
the
United States Mail, registered or certified mail, return receipt requested,
with
proper postage prepaid, (b) one Business Day after deposit with a reputable
overnight courier with all charges prepaid or (c) when delivered, if
hand-delivered by messenger, all of which shall be addressed to the party
to be
notified and sent to the address or facsimile number set forth below in
this
Section 6.01 or
to such other address (or facsimile number) as may be substituted by notice
given as herein provided:
|
|
ACCO:
|
ACCO
Brands USA LLC
|
|
|
c/o
ACCO Brands Corporation
|
|
|
000
Xxxxx Xxxxxxx
|
|
|
Xxxxxxxxxxxx,
XX 00000
|
|
|
Attention:
Xxxxx Xxxxx, Senior Vice President, Secretary and
General
Counsel
|
|
|
Buyer:
|
ACCO
Brands Receivables Funding LLC
|
|
|
c/o
ACCO Brands Corporation
|
|
|
000
Xxxxx Xxxxxxx
|
|
|
Xxxxxxxxxxxx,
XX 00000
|
|
|
Attention:
Xxxxx Xxxxx, Senior Vice President, Secretary and
General
Counsel
|
18
provided,
that each
such declaration or other communication shall be deemed to have been validly
delivered to the Agent under this Agreement upon delivery to the Agent
or any
Purchaser in accordance with the terms of the Purchase Agreement. The giving
of
any notice required hereunder may be waived in writing by the party entitled
to
receive such notice. Failure or delay in delivering copies of any notice,
demand, request, consent, approval, declaration or other communication
to any
Person (other than the Buyer) designated in any written communication provided
hereunder to receive copies shall in no way adversely affect the effectiveness
of such notice, demand, request, consent, approval, declaration or other
communication. Notwithstanding the foregoing, whenever it is provided herein
that a notice is to be given to any other party hereto by a specific time,
such
notice shall only be effective if actually received by such party prior
to such
time, and if such notice is received after such time or on a day other
than a
Business Day, such notice shall only be effective on the immediately succeeding
Business Day.
Section
6.02. No Waiver;
Remedies. The Buyer’s failure, at any time or times, to
require strict performance by the Originator of any provision of this Agreement
shall not waive, affect or diminish any right of the Buyer thereafter to
demand
strict compliance and performance herewith or therewith. Any
suspension or waiver of any breach or default hereunder shall not suspend,
waive
or affect any other breach or default whether the same is prior or subsequent
thereto and whether the same or of a different type. None of the
undertakings, agreements, warranties, covenants and representations of
the
Originator contained in this Agreement, and no breach or default by the
Originator hereunder or thereunder, shall be deemed to have been suspended
or
waived by the Buyer unless such waiver or suspension is by an instrument
in
writing signed by an officer of or other duly authorized signatory of the
Buyer
and directed to the Originator specifying such suspension or
waiver. The Buyer’s rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that the Buyer
may
have under any other agreement, including the other Facility Documents,
by
operation of law or otherwise.
Section
6.03. Successors and
Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the Originator and the Buyer and their respective successors
and permitted assigns, except as otherwise provided herein. The
Originator may not assign, transfer, hypothecate or otherwise convey its
rights,
benefits, obligations or duties hereunder without the prior express written
consent of the Buyer. Any such purported assignment, transfer,
hypothecation or other conveyance by the Originator without the prior express
written consent of the Buyer shall be null and void. The Originator
acknowledges that, to the extent permitted under the Purchase Agreement,
the
Buyer may assign its rights granted hereunder, including the benefit of
any of
its rights in Originator Collateral granted under Article II and
any indemnities under Article V, and
upon such assignment, such assignee shall have, to the extent of such
assignment, all rights of the Buyer hereunder and, to the extent permitted
under
the Purchase Agreement, may in turn assign such rights. The
Originator agrees that, upon any such assignment, such assignee may, following
the occurrence of an Event of Termination, enforce directly, without joinder
of
the Buyer, the rights set forth in this Agreement. All such
assignees, including parties to the Purchase Agreement in the case of any
assignment to such parties, shall be third party beneficiaries of, and
shall be
entitled to enforce the Buyer’s rights and remedies under, this Agreement to the
same extent as if they were parties hereto. Without limiting the
generality of the foregoing, all notices to be provided to the Buyer hereunder
shall be given to both the Buyer and the Agent under the Purchase Agreement,
and
shall be effective only upon
19
delivery
or dispatch, as applicable, to the Agent. The terms and provisions of
this Agreement are for the purpose of defining the relative rights and
obligations of the Originators and the Buyer with respect to the transactions
contemplated hereby and, except for the Purchasers and the Agent, no Person
shall be a third party beneficiary of any of the terms and provisions of
this
Agreement.
Section
6.04. Termination;
Survival of Obligations.
(a)
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 the Termination Date.
(b)
Except as otherwise expressly provided herein or in any other Facility
Document,
no termination or cancellation (regardless of cause or procedure) of any
commitment made by the Buyer under this Agreement shall in any way affect
or
impair the obligations, duties and liabilities of the Originator or the
rights
of the Buyer relating to any unpaid portion of any and all recourse and
indemnity obligations of the Originator to the Buyer, including those set
forth
in Sections 4.04, 5.01
and 6.14, due
or not due,
liquidated, contingent or unliquidated or any transaction or event occurring
prior to such termination, or any transaction or event, the performance
of which
is required after the Termination Date. Except as otherwise expressly
provided herein or in any other Facility Document, all undertakings, agreements,
covenants, warranties and representations of or binding upon the Originator,
and
all rights of the Buyer hereunder, all as contained in the Facility Documents,
shall not terminate or expire, but rather shall survive any such termination
or
cancellation and shall continue in full force and effect until the Termination
Date; provided,
that the rights and remedies pursuant to Section 4.04, the
indemnification and payment provisions of Article V, and
the provisions of Sections 4.03(j),
6.03,
6.12
and 6.14 shall
be
continuing and shall survive any termination of this Agreement.
Section
6.05. Complete
Agreement; Modification of Agreement. This Agreement and the
other Facility Documents constitute the complete agreement between the
parties
with respect to the subject matter hereof and thereof, supersede all prior
agreements and understandings relating to the subject matter hereof and
thereof,
and may not be modified, altered or amended except as set forth in Section
6.07.
Section
6.06. Amendments and
Waivers. No amendment, modification, termination or waiver of
any provision of this Agreement or any of the other Facility Documents,
or any
consent to any departure by the Originator therefrom, shall in any event
be
effective unless the same shall be in writing and signed by each of the
parties
hereto. No consent or demand in any case shall, in itself, entitle
any party to any other consent or further notice or demand in similar or
other
circumstances.
Section
6.07. GOVERNING LAW;
CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a)
THIS AGREEMENT AND EACH
RELATED
DOCUMENT (EXCEPT TO THE EXTENT THAT ANY RELATED DOCUMENT EXPRESSLY PROVIDES
TO
THE CONTRARY) AND THE OBLIGATIONS ARISING HEREUNDER AND
20
THEREUNDER
SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND
PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE
LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES),
EXCEPT TO THE EXTENT THAT THE PERFECTION, EFFECT OF PERFECTION OR PRIORITY
OF
THE INTERESTS OF THE BUYER IN THE TRANSFERRED RECEIVABLES OR REMEDIES HEREUNDER
OR THEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK, AND ANY APPLICABLE LAWS OF THE UNITED
STATES
OF AMERICA.
(b)
EACH PARTY HERETO HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH
OF
MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT
OR TO
ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED
DOCUMENT;
PROVIDED,
THAT EACH PARTY HERETO ACKNOWLEDGES
THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER,
THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE THE BUYER FROM BRINGING SUIT OR
TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON ORIGINATOR COLLATERAL
OR ANY OTHER SECURITY FOR THE OBLIGATIONS OF THE ORIGINATOR ARISING HEREUNDER,
OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE BUYER. EACH
PARTY
HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION
OR
SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY
OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENSAND
HEREBY CONSENTS TO THE GRANTING
OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
EACH
PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND
OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH PARTY AT THE ADDRESS
SET FORTH
IN SECTION 6.01 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF SUCH PARTY’S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN
THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
(c)
THE PARTIES HERETO WAIVE
ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE
ANY
DISPUTE,
21
WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED
TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION
WITH
THIS AGREEMENT OR ANY RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY
OR THEREBY.
Section
6.08. Counterparts. This
Agreement may be executed in any number of separate counterparts, each
of which
shall collectively and separately constitute one agreement.
Section
6.09. Severability. Wherever
possible, each provision of this Agreement shall be interpreted in such
a manner
as to be effective and valid under applicable law, but if any provision
of this
Agreement shall be prohibited by or invalid under applicable law, such
provision
shall be ineffective only to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
Section
6.10. Section Titles. The
section titles and table of contents contained in this Agreement are provided
for ease of reference only and shall be without substantive meaning or
content
of any kind whatsoever and are not a part of the agreement between the
parties
hereto.
Section
6.11. No
Setoff. The Originator’s obligations under this Agreement
shall not be affected by any right of setoff, counterclaim, recoupment,
defense
or other right the Originator might have against the Buyer, all of which
rights
are hereby expressly waived by the Originator.
Section
6.12. Confidentiality.
(a)
Except to the extent otherwise required by applicable law, as required
to be
filed publicly with the Securities and Exchange Commission, or unless each
Affected Party shall otherwise consent in writing, the Originators and
the Buyer
agree to maintain the confidentiality of this Agreement in its communications
with third parties other than any Affected Party or any Buyer Indemnified
Party
and otherwise and not to disclose, deliver or otherwise make available
to any
third party (other than its directors, officers, employees, accountants,
advisors or counsel) the original or any copy of all or any part of this
Agreement except to an Affected Party or a Buyer Indemnified Party; provided
that this Agreement may be disclosed to (a) third parties to the extent
such
disclosure is made pursuant to a written agreement of confidentiality and
(b)
the Buyer’s or the Originator’s legal counsel and auditors if they agree to hold
it confidential.
(b)
The Originator agrees that it shall not (and shall not permit any of its
Subsidiaries to) issue any news release or make any public announcement
pertaining to the transactions contemplated by this Agreement and the Facility
Documents without the prior written consent of the Buyer (which consent
shall
not be unreasonably withheld) unless such news release or public announcement
is
required by law, in which case the Originator shall consult with the Buyer
prior
to the issuance of such news release or public announcement.
Section
6.13. Further
Assurances.
(a)
The Originator shall at its sole cost and expense, upon request of the
Buyer,
promptly and duly execute and deliver any and all further instruments and
documents and take such further actions that may be necessary or desirable
or
that the Buyer may request to carry out
22
more
effectively the provisions and purposes of this Agreement or any other
Facility
Document or to obtain the full benefits of this Agreement and of the rights
and
powers herein granted, including (i) using its best efforts to secure all
consents and approvals necessary or appropriate for the assignment to or
for the
benefit of the Buyer of any Transferred Receivable or Originator Collateral
held
by the Originator or in which the Originator has any rights not heretofore
assigned and (ii) filing any financing or continuation statements under the
UCC with respect to the ownership interests or Liens granted hereunder
or under
any other Facility Document. The Originator hereby authorizes the
Buyer to file any such financing or continuation statements without the
signature of the Originator to the extent permitted by applicable law.
A carbon,
photographic or other reproduction of this Agreement or of any notice or
financing statement covering the Transferred Receivables, Originator Collateral
or any part thereof shall be sufficient as a notice or financing statement
where
permitted by law. If any amount payable under or in connection with any
Originator Collateral is or shall become evidenced by any instrument, such
instrument, other than checks and notes received in the ordinary course
of
business, shall be duly endorsed in a manner satisfactory to the Buyer
immediately upon the Originator’s receipt thereof and promptly delivered to the
Buyer.
(b)
If the Originator fails to perform any agreement or obligation under this
Section 6.13,
the Buyer may (but shall not be required to) itself perform, or cause
performance of, such agreement or obligation, and the reasonable expenses
of the
Buyer incurred in connection therewith shall be payable by the Originator
upon
demand of the Buyer.
Section
6.14. Fees and
Expenses. In addition to its indemnification obligations
pursuant to Article V, the
Originator agrees to pay on demand all costs and expenses incurred by the
Buyer
in connection with the negotiation, preparation, execution and delivery
of this
Agreement and the other Facility Documents, including the fees and out-of-pocket
expenses of the Buyer’s counsel, advisors, consultants and auditors retained in
connection with the transactions contemplated thereby and advice in connection
therewith, and the Originator agrees to pay all costs and expenses, if
any
(including attorneys’ fees and expenses but excluding any costs of enforcement
or collection of the Transferred Receivables), incurred by the Buyer or
its
assigns in connection with the enforcement of this Agreement and the other
Facility Documents.
[Signature
Pages Follow]
23
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their
respective duly authorized representatives, as of the date first above
written.
|
ACCO
BRANDS USA LLC,
as Originator
|
|||
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|
By:
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/s/Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | |||
| Title: Vice President | |||
|
ACCO
BRANDS RECEIVABLES FUNDING
LLC, as Buyer or
|
|||
|
|
By:
|
/s/Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | |||
| Title: Manager and Vice President | |||
24
ANNEX
I
DEFINITIONS
AND RULES OF CONSTRUCTION
Section
1. Certain Defined
Terms. The following terms shall have the following meanings
(equally applicable to both singular and plural forms):
“ACCO”
has
the meaning
given to such term in the preamble of the Purchase Agreement.
“Additional
Amounts”
means amounts owed by the Seller hereunder pursuant to Sections
2.06, 2.07,
2.08,
8.01
and 9.06 of the
Purchase
Agreement.
“Adjusted
DSO” means,
for any Monthly Period, the product of (i) DSO multiplied by (ii)
1.20.
“Adjusted
LIBO Rate”
for any Tranche Period means an interest rate per annum obtained
by dividing
(i) the LIBO Rate for such Tranche Period by (ii) a percentage equal
to 100% minus the Eurodollar Reserve Percentage for such Tranche
Period.
“Adverse
Claim” means
any claim of ownership or any Lien, other than any ownership interest or
Lien
created under the Sale Agreement or the Purchase Agreement or any other
Facility
Document.
“Affected
Party” means
the Purchaser, the Agent, any Liquidity Provider and any parent company
controlling any of the foregoing.
“Affiliate”
means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with such specified
Person and, without limiting the generality of the foregoing, shall be
presumed
to include (a) any Person which beneficially owns or holds 20% or more of
any class of voting securities of such specified Person or 20% or more
of the
equity interest in such specified Person and (b) any Person of which such
specified Person beneficially owns or holds 20% or more of any class of
voting
securities or in which such specified Person beneficially owns or holds
20% or
more of the equity interest. For the purposes of this definition, (i)
“voting securities” of a Person means any securities which confer upon the
holder thereof a right to vote with respect to the election of members
of the
board of directors or any analogous governing body of such Person (excluding
voting power arising only upon the occurrence of a contingency), (ii) “control”
when used with respect to any specified Person means the power to direct
the
management and policies of such specified Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and (iii) the terms “controlling” and “controlled” have meanings
correlative to the foregoing clause (ii).
“Affiliated
Obligor”
means, with respect to any Obligor, any Obligor directly or indirectly
controlling, controlled by or under direct or indirect common control with
such
Obligor and, without limiting the generality of the foregoing, shall be
presumed
to include
(a) any
Obligor which beneficially owns or holds 50% or more of any class of voting
securities of such specified Obligor or 50% or more of the equity interest
in
such specified Obligor and (b) any Obligor of which such specified Obligor
beneficially owns or holds 50% or more of any class of voting securities
or in
which such specified Obligor beneficially owns or holds 50% or more of
the
equity interest. For the purposes of this definition,
(i) ”voting securities” of an Obligor means any securities which confer
upon the holder thereof a right to vote with respect to the election of
members
of the board of directors or any analogous governing body of such Obligor
(excluding voting power arising only upon the occurrence of a contingency),
(ii) ”control” when used with respect to any specified Obligor means the
power to direct the management and policies of such specified Obligor,
directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise, and (iii) the terms “controlling” and “controlled” have
meanings correlative to the foregoing clause (ii).
“Agent”
means
BTMU, in
its capacity as agent for the Purchaser together with its successors and
permitted assigns.
“Aggregate
Reserves”
means, at the time of calculation, the sum of the Loss Reserve,
the Dilution
Reserve, the Yield Reserve and the Servicer Fee Reserve in effect at such
time
based on then outstanding Capital.
“Arrangement
Fee” has
the meaning given to such term in the Fee Letter.
“Assignee
Rate” for
any Tranche Period means a rate per annum equal to the sum of (i) the Adjusted
LIBO Rate plus
(ii) 1.50%; provided, however,
that the
“Assignee Rate”
shall be equal to the Base Rate in effect from time to time (x) for any
Tranche Period not equal to a month, (y) at any time when it is unlawful
for the Purchaser or any Liquidity Provider to obtain funds in, or BTMU
is not
offering deposits in dollars in, the London interbank market and (z) for
any
Tranche Period as to which the Agent has not received notice, by no later
than
12:00 noon (New York City time) on the third Business Day prior to the
first day of such Tranche Period, that the related Tranche shall not be
funded
by Commercial Paper Notes.
“Available
Funds”
shall mean monies then held by or on behalf of Buyer, solely to
the extent that
such monies do not constitute Collections of Transferred Receivables that
are
required to be identified or are deemed to be held by the Servicer pursuant
to
the Purchase Agreement for the benefit of, or required to be distributed
to, the
Agent or the Purchaser pursuant to the Purchase Agreement or required to
be paid
to the Servicer as the Servicer Fee, or otherwise necessary to pay current
expenses of Buyer (in its reasonable discretion).
“Bankruptcy
Code”
means the provisions of title 11 of the United States Code, 11 U.S.C.
§ § 101 et seq.
“Base Rate”
means
a fluctuating interest rate per annum equal to the higher of (i) the rate
of interest most recently announced by BTMU or its affiliate, BTM Trust
Company,
in New York, New York, as its “Prime Rate” and (ii) the Federal Funds Rate
most recently determined by the Agent plus
0.50%.
“Billed
Amount” means,
with respect to any Receivable, the amount billed on the Billing Date to
the
Obligor thereunder, or if the Billing Date therefor has not yet occurred,
the
amount
estimated
to be billed (based on services performed or merchandise sold) on the Billing
Date to the Obligor thereunder.
“Billing
Date” means,
with respect to any Receivable, the date on which the invoice with respect
thereto was generated.
“Breakage
Amount”
means, for any Tranche Period during which Capital is prepaid pursuant
to Section 2.02(f), the
amount, if any, by which (i) the additional Yield (calculated without taking
into account any Breakage Amount) which would have accrued on the amount
of the
Capital so prepaid during such Tranche Period had such prepayment not occurred,
exceeds (ii) the amount identified by written notice from the Agent to
the
Seller and Servicer as the income which the Purchaser or applicable Liquidity
Providers will receive from the investment by such Person of the proceeds
of
such prepayment of Capital through the end of the relevant Tranche
Period.
“BTMU”
has
the meaning
given to such term in the preamble of the Purchase Agreement.
“Business
Day” means
any day other than a Saturday, Sunday or public holiday or the equivalent
for
banks in New York City, New York or Chicago, Illinois and, if the term
“Business
Day” is used in connection with the LIBO Rate, which day is a day on which
dealings are carried on in the London interbank market.
“Buyer”
means
ACCO
Brands Receivables Funding LLC, a Delaware limited liability company, in
its
capacity as purchaser under the Sale Agreement.
“Buyer
Indemnified
Party” has the meaning assigned to that term in Section 5.01
of
the Sale Agreement.
“Call
Price” has the
meaning assigned to that term in Section 2.10(a) of
the Purchase Agreement.
“Capital”
means,
at
any time, the sum of amounts paid to the Seller pursuant to Section 2.02(b),
reduced from time to time by Collections received and distributed on account
of
such Capital pursuant to Section 2.04 of
the Purchase Agreement.
“Capital
Purchase” has
the meaning assigned to that term in Section 2.02(a)
of the Purchase Agreement.
“Capital
Purchase
Request” has the meaning assigned to that term in Section 2.02(b)
of the Purchase Agreement.
“Cash
Management Services
Agreement” has the meaning assigned to it in Section 4.01(v)
of the Sale Agreement.
“Change
of Control”
means (i) the acquisition by any Person, or two or more Persons acting in
concert, of beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934) of
35% or more of the
outstanding
shares of capital Stock of ACCO or Parent having the right to vote for
the
election of directors under ordinary circumstances; (ii) ACCO or Parent has
sold, transferred, conveyed, assigned or otherwise disposed of all or
substantially all of its assets; or (iii) ACCO shall cease to own, free and
clear of any Lien, directly or indirectly, all of the outstanding shares
of
voting stock of the Seller.
“Charter
Documents”
means, with respect to any corporation or limited liability company,
such
Person’s articles or certificate of incorporation or formation, as such may be
amended or restated from time to time, and such Person’s bylaws or operating
agreement, as such may be amended or restated from time to time.
“Closing
Date” means
January 9, 2008.
“Collection
Account”
means the account maintained in the name of the Agent on behalf
of the Purchaser
as designated by the Agent from time to time.
“Collections”
means,
with respect to any Transferred Receivable, any and all related cash collections
and proceeds, all amounts due as fees or charges for late payments, and
any
Collections deemed to have been received pursuant to Section 2.04(a)
of the Purchase Agreement.
“Commercial
Paper
Note” means any commercial paper note issued by the
Purchaser.
“Commitment
Fees” has
the meaning given to such term in the Fee Letter.
“Commitment
Termination
Date” means January 9, 2011, unless,
prior to such
date (or the date so extended pursuant to this clause), upon the Seller’s
request, made not more than 90 nor less than 45 days prior to the then
Commitment Termination Date, the Purchaser shall in its sole discretion
consent,
which consent shall be given not more than 30 days prior to the then Commitment
Termination Date, to the extension of the Commitment Termination Date to
the
date occurring 364 calendar days after the then Commitment Termination
Date;
provided, however,
that any
failure of the Purchaser to respond to the Seller’s request for such extension
shall be deemed a denial of such request by the Purchaser.
“Concentration
Limit”
means, at any time, for (a) Obligors (other than those described in
clause (b), (c), (d) or (e) below) which either do not have corporate
debt ratings by S&P or Xxxxx’x, or have ratings below BBB- by S&P or
Baa3 by Xxxxx’x, 4% of the aggregate Outstanding Balance of Receivables at such
time; (b) Obligors (other than those described in clause (c), (d) or
(e) below) with corporate debt ratings of at least BBB- by S&P or Baa3
by Xxxxx’x, 6% of the aggregate Outstanding Balance of Receivables at such time;
(c) Obligors (other than those described in clause (d) or (e) below)
with corporate debt ratings of at least BBB+ or higher by S&P or Baa1 or
higher by Xxxxx’x, 8% of the aggregate Outstanding Balance of Receivables at
such time; (d) Obligors (other than those described in clause (e)
below) with corporate debt ratings of at least A or higher by S&P or A2 or
higher by Xxxxx’x, 10% of the aggregate Outstanding Balance of Receivables at
such time or (e) such greater percentage (“Special Limit”) for
any Obligor designated by the Agent in a writing from time to time multiplied
by
Capital at such time; provided, however,
that in the
case of an Obligor with any Affiliated Obligors, the Concentration Limit
and the
Receivables related thereto shall be
calculated
as if such Obligor and such one or more Affiliated Obligors were one
Obligor. The Special Limits in effect on the Closing Date are set
forth on Exhibit
G. The Agent will have the right, in its reasonable credit
judgment, at any time upon five (5) Business Days’ written notice to reduce
or cancel a Special Concentration Limit established for any
Obligor.
“Contract”
means
any
agreement (including any invoice) pursuant to, or under which, an Obligor
shall
be obligated to make payments with respect to any Receivable.
“Contributed
Receivables” has the meaning assigned to it in Section 2.01(b)
of the Sale Agreement.
“CP
Rate” means, for
any Tranche Period for any Tranche, (i) unless the Agent has determined
that the Pooled CP Rate shall be applicable, the rate per annum calculated
by
the Agent to reflect the Purchaser’s cost of funding Capital during such Tranche
Period, taking into account the weighted daily average interest rate payable
in
respect to such Commercial Paper Notes during such period (determined in
the
case of discount Commercial Paper Notes by converting the discount to an
interest bearing equivalent per annum), and applicable placement fees and
commissions; and (ii) to the extent the Agent has determined that the
Pooled CP Rate shall be applicable, the Pooled CP Rate.
“Credit
Agreement”
means that certain Credit Agreement dated as of August 17, 2005
(as amended,
restated, supplemented or otherwise modified from time to time) by and
among,
inter alia, ACCO Brands
Corporation, the other Borrowers, Lenders and Issuers from time to time
party
thereto and Citicorp North America, Inc., as Administrative Agent.
“Credit
and Collection
Policy” means those credit and collection policies and practices relating
to the Receivables and Obligors described in Exhibit A to the
Purchase Agreement.
“Default
Ratio” means,
for any Monthly Period, the ratio (expressed as a percentage) of the aggregate
Outstanding Balance of all Defaulted Receivables as of the last day of
such
Monthly Period divided by the aggregate Receivables as of the last day
of such
Monthly Period.
“Defaulted Receivable”
means a Receivable at any time (i) as to which payment, or part thereof,
remains unpaid for more than 60 days from the original due date for such
payment, (ii) as to which the Obligor thereof has taken any action, or
suffered any event to occur, of the type described in Section 7.01(g),
or (iii) which, consistent with the Credit and Collection Policy, has
been or should be written off as uncollectible.
“Delinquency
Ratio”
means, for any Monthly Period, the ratio (expressed as a percentage)
of the
aggregate Outstanding Balance of all Delinquent Receivables as of the last
day
of such Monthly Period divided by the aggregate Receivables as of the last
day
of such Monthly Period.
“Delinquent Receivable”
means a Receivable that is not a Defaulted Receivable and (i) as to which
any payment, or part thereof, remains unpaid for more than 30 days but
less than
61 days from the original due date for such payment or (ii) which,
consistent with the Credit and Collection Policy, has been or should be
classified as delinquent.
“Diluted
Receivable”
means a Receivable which is either (a) reduced or canceled as a result of a
Dilution Factor or (b) subject to any dispute, offset, counterclaim or
defense whatsoever, (except the discharge in bankruptcy, insolvency or
inability
to pay of the Obligor thereof).
“Dilution
Factor”
means any of the following factors giving rise to dilution: (i) any
defective, rejected or returned merchandise or services, any cash discount,
or
any failure by the applicable Originator to deliver any merchandise or
services
or otherwise perform under the underlying contract or invoice, (ii) any
change or cancellation of any terms of such contract or invoice or any
other
adjustment by the Servicer or the applicable Originator which reduces the
amount
payable by the Obligor on the related Receivable, (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) (iv) any
chargeback, inventory transfer, early payment allowance, warranty allowance
or
similar allowance, in each case, made for any reason other than discharge
in
bankruptcy of the Obligor thereof or such Obligor’s insolvency or inability to
pay or (v) any Regulatory Change which has the effect of reducing the amount
receivable with respect to any Receivable.
“Dilution
Horizon
Factor” means, for any Monthly Period, the ratio determined as of the
last day of such Monthly Period by dividing (i) the aggregate Outstanding
Balance of all Receivables generated during such Monthly Period and the
immediately preceding Monthly Period by (ii) the Net Receivable Balance as
of such day.
“Dilution
Ratio”
means, for any Monthly Period, the ratio (expressed as a percentage)
determined
as of the last day of such Monthly Period by dividing (i) the aggregate
Outstanding Balance of all Receivables that became Diluted Receivables
during
such Monthly Period by (ii) the aggregate Outstanding Balance of all
Receivables generated during the immediately preceding Monthly
Period.
“Dilution
Reserve”
means, at any time of calculation hereunder, an amount equal to
the Dilution
Reserve Percentage multiplied by Capital.
“Dilution
Reserve
Percentage” means, for any Monthly Period, the greater of (i) 5.0% and
(ii) an amount calculated in accordance with the following formula:
DRP
=
[(1.50 x ADR) + [(HDR-ADR) x (HDR/ADR)]] x DHF
where:
|
|
DRP
|
=
|
the
Dilution Reserve Percentage;
|
|
|
ADR
|
=
|
the
average of the Dilution Ratios for the past twelve Monthly Periods;
|
|
|
HDR
=
|
the
highest average of the Dilution Ratios for any two consecutive
Monthly
Periods during the past twelve months; and
|
|
|
DHF
|
=
|
the
Dilution Horizon Factor.
|
“DSO”
means
an amount,
expressed in days, calculated for each Monthly Period, equal to the product
of
(a) average for such Monthly Period and the two preceding Monthly Periods
of the ratio (expressed as a percentage) of (i) the aggregate Outstanding
Balance of all Receivables as of the last day of such Monthly Period divided
by
(ii) the aggregate Outstanding Balance of all receivables generated during
such
Monthly Period multiplied by (b) 30.
“Dynamic
Loss Reserve
Percentage” means, at any time of calculation hereunder, the product of
(i) 1.50, (ii) the highest Loss Ratio to have been determined during
the immediately preceding twelve (12) Monthly Periods, and (iii) the Loss
Horizon Factor calculated as of the most recently ended Monthly
Period.
“Effective
Date” means
the first Business Day on which all of the conditions precedent to the
initial
Purchase, as described in Section 3.01 of
the Purchase Agreement, have been satisfied.
“Election
Notice” has
the meaning assigned to it in Section 2.01(a)
of the Sale Agreement.
“Eligible Receivable”
means a Receivable:
(a)
the Obligor of which (x) maintains its principal place of business inside
the
United States of America or a Permitted Foreign Jurisdiction, (y) is not
an
Inter-Company Receivable and (z) is not a Governmental Receivable;
(b)
Foreign Receivables the Outstanding Balance of which, when added to the
aggregate Outstanding Balance of all other Foreign Receivables at such
time,
does not exceed ten percent (10%) of the Outstanding Balance of all Eligible
Receivables at such time;
(c)
which is not a Defaulted Receivable or a Diluted Receivable;
(d)
the Obligor of which is not the Obligor of any Defaulted Receivables, the
aggregate Outstanding Balance of which equals 25% or more of the aggregate
Outstanding Balance of all Receivables of such Obligor;
(e)
which is denominated and payable only in United States dollars within the
United
States;
(f)
which does not contravene in any material respect any laws, rules or regulations
applicable thereto and with respect to which neither the Originator nor
the
Seller is in violation of any such law, rule or regulation applicable to
such
Receivable the effect of which would have a material adverse effect on
the
Seller’s or the Purchaser’s interests therein or the collectibility
thereof;
(g)
which is freely assignable and does not require the consent, authorization,
approval or notice to the Obligor thereof or any Governmental Authority
(except
for such consents, authorizations, approvals or notices which have already
been
obtained or are not required under applicable law) in connection with the
conveyance of such
Receivable,
the Related Security and the Collections from the Originator to the Seller
and
from the Seller to the Purchaser;
(h)
which was originated (i) in the ordinary course of the applicable Originator’s
business and (ii) in accordance with and satisfies all applicable requirements
of the Credit and Collection Policy;
(i)
which is required to be paid in full within 90 days after the original
billing
date thereof;
(j)
which (1) is an “account” within the meaning of the UCC of the jurisdiction
in which the Originators and the Seller are organized, (2) is in full force
and effect, (3) constitutes the legal, valid and binding obligation of the
Obligor thereof enforceable against such Obligor in accordance with its
terms,
(4) has not been released, canceled, subordinated or rescinded, nor has any
instrument been executed by the Originator or the Seller which would effect
any
such release, cancellation, subordination or rescission, and (5) is not
subject to any existing dispute, right of rescission, setoff, recoupment,
counterclaim or defense, whether arising out of transactions concerning
such
Receivable or otherwise;
(k)
that has not been satisfied, compromised, adjusted or modified (including
by
extension of time for payment or the granting of any discounts, allowances
or
credits) other than a satisfaction, compromise, adjustment or modification
which
is (a) made after the Transfer Date thereof in accordance with the Credit
and Collection Policy and (b) concurrently reflected on the books and
records of the Seller.
(l)
good and marketable title to which (including a 100% first priority ownership
interest in all Related Security and Collections with respect thereto)
has been
conveyed by the applicable Originator to the Seller free of any Lien (other
than
Liens created under the Facility Documents);
(m)
which has been invoiced by the applicable Originator or the Servicer and
is not
a “xxxx and hold” or “billed but not yet shipped” or progress billing
Receivable, and with respect to which all obligations on the part of the
Originator or the Seller with respect thereto have been performed in
full;
(n)
as to which the representations and warranties of Section 4.01(i)
of the Sale Agreement are true and correct in all material respects as
of the
Transfer Date therefor and has been transferred to the Seller pursuant
to the
Sale Agreement in a transaction constituting a true sale or other outright
conveyance and contribution;
(o)
no portion of which is payable on account of sales taxes;
(p)
the Obligor of which has been directed to make payment into a Lockbox
Account;
(q)
was documented with the applicable Originator pursuant to a Contract (including
a purchase order or invoice) which is in form and substance reasonably
satisfactory to the Agent;
(r)
which represents all or part of the sales price of merchandise, insurance
and
services within the meaning of the Investment Company Act of 1940, Section
3(c)(5), as amended;
(s)
the purchase of which is a “current transaction” within the meaning of Section
3(a)(3) of the Securities Act of 1933, as amended; and
(t)
which has not, pursuant to the Agent’s reasonable credit judgment, been
designated as an excluded receivable in a written notice delivered by the
Agent.
“ERISA”
means
the
Employee Retirement Income Security Act of 1974, as the same may be amended
from
time to time and any final regulations promulgated and the rulings issued
thereunder.
“ERISA
Affiliate”
means any trade or business (whether or not incorporated) that,
together with
the Seller or any Originator, is treated as a single employer within the
meaning
of Sections 414(b), (c), (m) or (o) of the IRC.
“ERISA
Event” means,
with respect any Originator or any ERISA Affiliate, (a) any event described
in Section 4043(c) of ERISA with respect to a Title IV Plan;
(b) the withdrawal of any Originator or ERISA Affiliate from a
Title IV Plan subject to Section 4063 of ERISA during a plan year in
which it was a “substantial employer,” as defined in Section 4001(a)(2) of
ERISA; (c) the complete or partial withdrawal of any Originator or any
ERISA Affiliate from any Multiemployer Plan; (d) the filing of a notice of
intent to terminate a Title IV Plan or the treatment of a plan amendment as
a termination under Section 4041 of ERISA; (e) the institution of
proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC;
(f) the failure by any Originator or ERISA Affiliate to make when due
required contributions to a Multiemployer Plan or Title IV Plan unless such
failure is cured within 30 days; (g) any other event or condition that
might reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer,
any
Title IV Plan or Multiemployer Plan or for the imposition of liability
under Section 4069 or 4212(c) of ERISA; (h) the termination of a
Multiemployer Plan under Section 4041A of ERISA or the reorganization or
insolvency of a Multiemployer Plan under Section 4241 of ERISA;
(i) the loss of a Qualified Plan’s qualification or tax exempt status; or
(j) the termination of a Plan described in Section 4064 of ERISA;
provided, however, that each such event shall be an ERISA Event only if
it can
reasonably be expected to have a Material Adverse Effect or to result in
creation of a Lien under Section 412 of the IRC or Section 4068 of
ERISA.
“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time
to
time.
“Eurodollar
Reserve
Percentage” means, for any Settlement Period in respect of which Interest
is computed by reference to the LIBO Rate, the reserve percentage applicable
two
Business Days before the first day of such Settlement Period under regulations
issued from time
to
time
by the Board of Governors of the Federal Reserve System (or any successor)
(or
if more than one such percentage shall be applicable, the daily average
of such
percentages for those days in such Settlement Period during which any such
percentage shall be so applicable) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental
or other
marginal reserve requirement) with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any other
category
of liabilities that includes deposits by reference to which the interest
rate on
Eurocurrency Liabilities is determined) having a term equal to such Settlement
Period.
“Event of Termination”
has the meaning assigned to that term in Section 7.01 of
the Purchase Agreement.
“Facility
Documents”
means collectively, the Purchase Agreement, the Sale Agreement,
the Performance
Guaranty, the Lock-Box Agreements, the Fee Letter, the Subordinated Notes
and
all other agreements, documents and instruments delivered pursuant thereto
or in
connection therewith.
“Federal
Funds Rate”
means, for any period, a fluctuating interest rate per annum equal
(for each day
during such period) to:
(a)
the weighted average of the rates on overnight federal funds transactions
with
members of the Federal Reserve System arranged by federal funds brokers,
as
published for such day (or, if such day is not a Business Day, for the
next
preceding Business Day) by the Federal Reserve Bank of New York; or
(b)
if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
the
Agent in good faith from three federal funds brokers of recognized standing
selected by it.
“Fee
Letter” means
that certain Fee Letter dated as of the date of this Purchase Agreement,
among
the Agent, the Seller and the Originators.
“Final
Collection
Date” means the date following the Termination Date on which the
aggregate outstanding Capital has been reduced to zero and the Affected
Parties
have received all amounts due and payable to the Affected Parties (including
Yield) pursuant to the Purchase Agreement or any other agreement executed
pursuant thereto.
“Financial
Covenant
Default” means:
(a)
a default by any Originator, Parent or ACCO in the observance or performance
of
Sections 5.1 or
5.2
of the
Credit Agreement as in effect on the date hereof; or
(b)
a default in the due observance or performance by any Originator, Parent
or ACCO
of any New Financial Covenant;
provided,
however
that, in the case of clause (a) above, at any time the Agent is a party
to the
Credit Agreement, if any of the aforementioned financial covenants contained
in
the Credit
Agreement
is amended or modified on a prospective basis, then such financial covenant
shall, for all purposes of the Purchase Agreement, automatically and without
further action on the part of any Person, be deemed to be so amended or
modified
for purposes of determining whether a Financial Covenant Default has occurred
subsequent to the date of such amendment or modification.
“Foreign
Receivable”
means a Receivable, the Obligor of which is located in a country
outside of the
United States.
“GAAP”
shall
mean
generally accepted accounting principles in the United States of America
as in
effect on the Closing Date, consistently applied as such term is further
defined
in Section 2(a) of this Annex I.
“Governmental
Authority” means any federal, state, local or foreign government, any
political subdivision of any of the foregoing and any agency or instrumentality
of any of the foregoing.
“Governmental
Receivable” means a Receivable, the Obligor of which is a Governmental
Authority.
“Incipient
Termination
Event” means any event that, with the passage of time or notice or both,
would, unless cured or waived, become an Event of Termination.
“Indemnified
Amounts”
has the meaning set forth in Section 8.01
of
the Purchase Agreement.
“Indemnified
Party”
has the meaning set forth in Section 8.01
of
the Purchase Agreement.
“Indemnified
Taxes”
has the meaning set forth in Section 2.08(a)
of the Purchase Agreement.
“Initial
Purchase
Date” means the date the first Purchase is made pursuant to the Purchase
Agreement.
“Intellectual
Property” has the meaning set forth in Section
5.01(h)(i)(B)
of the Purchase Agreement.
“Inter-Company
Receivable” means a Receivable the Obligor of which is a Receivables
Affiliate of Parent, ACCO, any Originator or the Seller.
“Investment
Certificate” means a certificate, in substantially the form of Exhibit D,
furnished by the Servicer to the Agent pursuant to Section 5.02(c)
of the Purchase Agreement.
“IRC”
means
the
Internal Revenue Code of 1986, as the same may be amended from time to
time and
any final regulations promulgated and the rulings issued
thereunder.
“Investor
Report”
means a report, in substantially the form of Exhibit C,
furnished by the Servicer to the Agent pursuant to Section 5.02(c)
of the Purchase Agreement.
“LIBO
Rate” for any
Settlement Period or Tranche Period, as applicable, means a rate of interest
determined by the Agent equal to the offered rate for deposits in United
States
Dollars for such Settlement Period or Tranche Period, as applicable, which
appears on Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, on
the second full Business Day next preceding the first day of such Settlement
Period (unless such date is not a Business Day, in which event the next
succeeding Business Day will be used). If such interest rates shall
cease to be available from Reuters, the LIBO Rate shall be determined from
such
financial reporting service or other information as shall be mutually acceptable
to the Agent and the Seller.
“Lien”
means
any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or otherwise), or preference, priority, or other security
agreement or of any kind or nature whatsoever.
“Liquidity
Fee” has
the meaning given such term in the Fee Letter.
“Liquidity
Advance”
means a loan, advance, purchase or other similar action made by
a Liquidity
Provider.
“Liquidity
Agent”
means BTMU in its capacity as liquidity agent.
“Liquidity
Provider”
means BTMU or any other commercial lending institution that agrees
to make loans
or advances to, or purchases from the Purchaser in order to provide liquidity
for the Commercial Paper Notes.
“Lock-Box
Account”
means an account maintained at a Lock-Box Bank for the purpose of
receiving
Collections from Transferred Receivables.
“Lock-Box
Agreement”
means an agreement with respect to a Lock-Box Account at a Lock-Box
Bank, in
substantially the form of Exhibit E to the
Purchase Agreement, among the Seller, the Servicer, any applicable Originator,
the Agent and such Lock-Box Bank to transfer control of such Lock-Box Account
to
the Agent.
“Lock-Box
Bank” means
any of the banks holding one or more lock-box accounts for receiving Collections
from Transferred Receivables.
“Loss
Horizon Factor”
means, for any Monthly Period, the ratio (expressed as a percentage)
determined
as of the last day of such Monthly Period by dividing (i) the aggregate
Outstanding Balance of all Receivables originated during the four most
recently
ended Monthly Periods (including such Monthly Period) divided by (ii) the
Net Receivables Balance as of such day.
“Loss
Ratio” means,
for any Monthly Period, the ratio equal to the average of the ratios (each
expressed as a percentage) for each of the three (3) immediately preceding
Monthly Periods determined as of the last day of each such Monthly Period
by
dividing (i) the aggregate Outstanding Balance of all Receivables which
became Defaulted Receivables during the
applicable
Monthly Period, by (ii) the aggregate Outstanding Balance of Receivables
that were generated during the Monthly Period which ended three (3) Monthly
Periods prior to such last day (not including the most recent Monthly
Period).
“Loss
Reserve” means,
at any time of calculation hereunder, an amount equal to the product
of Capital times the Loss Reserve Percentage.
“Loss
Reserve
Percentage” means, at any time of calculation hereunder, the greater of
(i) the Minimum Loss Reserve Percentage and (ii) the Dynamic Loss
Reserve Percentage, in each case, at such time.
“Loss-to-Liquidation
Ratio” means, for any Monthly Period, the ratio (expressed as a
percentage) determined as of the last day of such Monthly Period by dividing
(i) the aggregate Outstanding Balance of all Receivables written off as
uncollectible, or which should have been written off as uncollectible in
accordance with the Credit and Collection Policy during such Monthly Period,
by
(ii) the aggregate amount of Collections received by the Servicer during
such Monthly Period described in clause (i) above.
“Margin
Stock” has the
meaning set forth in Section 4.01(o)
of the Sale Agreement.
“Material
Adverse
Effect” means any event or condition which would have a material adverse
effect on (i) the collectibility of the Transferred Receivables,
(ii) the condition (financial or otherwise) of the Seller, the Servicer,
the Originator or the Performance Guarantor, (iii) the ability of the
Seller, the Servicer, the Originator or the Performance Guarantor to perform
their respective obligations under the Facility Documents to which it is
a party
or (iv) the legality, validity or enforceability of any Facility Document
or of the Purchaser Interests.
“Minimum
Loss Reserve
Percentage” means, at any time of calculation hereunder, the product of
(i) 4.0 multiplied by (ii) the Concentration Limit applicable to an unrated
Obligor at such time (without giving effect to any Special Limits in place
at
such time).
“Monthly
Period” means
each calendar month.
“Moody’s”
means
Xxxxx’x Investors Service, Inc. or any successor thereto.
“Multiemployer
Plan”
means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA with
respect to which any Originator or any ERISA Affiliate is making, is obligated
to make, or has made or been obligated to make, contributions on behalf
of
participants who are or were employed by any of them.
“New
Financial
Covenant” means any financial covenant (a) added to Article V of the
Credit Agreement after the date of this Purchase Agreement or (b) contained
in
any successor or replacement revolving credit facility that replaces the
Credit
Agreement to which Parent, ACCO or any Originator becomes a party after
the date
of this Purchase Agreement.
“Net
Receivables
Balance” means at any time of calculation hereunder, the sum of the
Outstanding Balances of all Eligible Receivables minus the
aggregate
Overconcentration Amounts for each Obligor.
“Obligor”
means
a
Person obligated to make payments on a Receivable.
“OFAC”
means
the
United States Department of the Treasury’s Office of Foreign Assets
Control.
“OFAC
SDN List” means
the List of Specially Designated Nationals administered by the United States
Office of Foreign Asset Control.
“Originator”
means
(i)
ACCO Brands USA LLC, a Delaware limited liability company, in its capacity
as,
and so long as it is, a seller of Receivables under the Sale Agreement,
and (ii)
each Affiliate of ACCO who from time to time becomes party to the Sale
Agreement
as a seller of Receivables thereunder, each in such capacity and for so
long as
such Affiliate shall be a seller of Receivables under the Sale
Agreement.
“Originator
Collateral” has the meaning assigned to it in Section 2.02
of
the Sale Agreement.
“Outstanding
Balance”
means, with respect to a Receivable as of any date of determination,
the amount
(which amount shall not be less than zero) equal to (a) the Billed Amount
thereof, minus (b) all Collections received from the Obligor thereunder,
minus (c) all discounts to or any other modifications that reduce such
Billed Amount (including any such reductions due to Dilution Factors and
any
amounts written-off as uncollectible by the Servicer in accordance with
the
Credit and Collection Policy.)
“Overconcentration
Amount” means, at any time, for each Obligor, the amount by which the
Outstanding Balance of all Eligible Receivables of such Obligor exceeds
the
applicable Concentration Limit for such Obligor.
“Parent”
means
ACCO
Brands Corporation, a Delaware corporation.
“Patriot
Act” means
the USA Patriot Act of 2001 (P.L. 107-56).
“PBGC”
means
the
Pension Benefit Guaranty Corporation referred to and defined in
ERISA.
“Pension
Plan” means a
Plan described in Section 3(2) of ERISA.
“Performance
Guaranty”
means that certain Performance Guaranty dated as of January 9, 2008
made by the
Parent, as the Performance Guarantor in favor of the Agent, as agent for
the
Purchaser and other Indemnified Parties.
“Permitted
Investments” means any of the following:
(a)
obligations of, or guaranteed as to the full and timely payment of principal
and
interest by, the federal government of the United States or obligations
of any
agency or instrumentality thereof if such obligations are backed by the
full
faith and credit of the
federal
government of the United States, in each case with maturities of not more
than
90 days from the date acquired;
(b)
repurchase agreements on obligations of the type specified in clause (a) of
this definition; provided, that
the
short-term debt obligations of the party agreeing to repurchase are rated
at
least A-1+ or the equivalent by S&P and P-1 or the equivalent by
Moody’s;
(c)
federal funds, certificates of deposit, time deposits and bankers’ acceptances
of any depository institution or trust company incorporated under the federal
laws of the United States or any state, in each case with original maturities
of
not more than 90 days or, in the case of bankers’ acceptances, original
maturities of not more than 365 days; provided, that
the
short-term obligations of such depository institution or trust company
are rated
at least A-1+ or the equivalent by S&P and P-1 or the equivalent by
Moody’s;
(d)
commercial paper of any corporation incorporated under the laws of the
United
States of America or any state thereof with original maturities of not
more than
30 days that on the date of acquisition are rated at least A-1+ or the
equivalent by S&P and P-1 or the equivalent by Moody’s; and
(e)
securities of money market funds rated at least Aam or the equivalent by
S&P
and P-1 or the equivalent by Moody’s.
“Permitted
Foreign
Jurisdiction” means a jurisdiction other than the United States of
America designated by the Agent in a writing from time to time.
“Permitted
Originator
Encumbrances” shall mean the following encumbrances: (a) Liens for
taxes or assessments or other governmental charges not yet due and payable
(other than with respect to environmental matters); (b) pledges or deposits
securing obligations under workmen’s compensation, unemployment insurance,
social security or public liability laws or similar legislation (excluding
Liens
under ERISA); (c) pledges or deposits securing bids, tenders, contracts
(other than contracts for the payment of money) or leases to which any
Originator, the Seller or the Servicer is a party as lessee made in the
ordinary
course of business; (d) deposits securing statutory obligations of any
Originator, the Seller or the Servicer; (e) inchoate and unperfected
workers’, mechanics’, suppliers’ or similar Liens arising in the ordinary course
of business; (f) carriers’, warehousemen’s or other similar possessory
Liens arising in the ordinary course of business and securing liabilities
in an
outstanding aggregate amount not in excess of $1,000,000 at any one time;
(g) deposits securing, or in lieu of, surety, appeal or customs bonds in
proceedings to which any Originator, the Seller or the Servicer is a party;
(h) any attachment or judgment Lien not constituting an Event of
Termination under Section 7.01(n)
of the Purchase Agreement; (i) Liens existing on the Closing Date and
listed on Schedule 4.03(b)
of the Sale Agreement; (j) Liens expressly permitted under Section 4.03(b)
of the Sale Agreement, and (k) presently existing or hereinafter created
Liens in favor of the Buyer, the Seller, the Purchasers, or the
Agent.
“Person”
means
an
individual, partnership, corporation (including a business trust), joint
stock
company, limited liability company, trust, unincorporated association,
joint
venture, Governmental Authority or other entity.
“Plan”
means,
at any
time, an “employee benefit plan,” as defined in Section 3(3) of ERISA, that
Parent, ACCO, any Originator or any ERISA Affiliate maintains, contributes
to or
has an obligation to contribute to on behalf of participants who are or
were
employed by Parent, ACCO, any Originator or ERISA Affiliate.
“Pooled
Commercial
Paper” means Commercial Paper Notes of the Purchaser which are subject
to
any particular pooling arrangement, as determined by the Agent (it being
recognized that there may be more than one distinct group of Pooled Commercial
Paper at any time).
“Pooled
CP Rate”
means, for each day with respect to the Capital as to which the
Pooled CP Rate
is applicable, the sum of (i) discount or yield accrued (including, without
limitation, any associated with financing the discount or interest component
on
the roll over of any Pooled Commercial Paper) on the Purchaser’s Pooled
Commercial Paper on such day, plus (ii) any
and all accrued commissions in respect of its placement agents and commercial
paper dealers, and issuing and paying agent fees incurred, in respect of
such
Pooled Commercial Paper for such day, plus (iii) other
costs (including without limitation those associated with funding small
or odd
lot amounts) with respect to all receivable purchase, credit and other
investment facilities which are funded by the applicable Pooled Commercial
Paper
for such day. The Pooled CP Rate shall be determined for the
Purchaser by the Agent, whose determination shall be conclusive absent
manifest
error.
“Program
Fee” has the
meaning given such term in the Fee Letter.
“Purchase”
means
a
purchase by the Purchaser of an undivided percentage ownership interest
in the
Receivables Assets from the Seller pursuant to Section 2.01 and
Section 2.02 of
the Purchase Agreement.
“Purchase
Agreement”
means the Receivables Purchase Agreement dated as of January 9,
2008 among the
Seller, the Servicer, the Purchaser and the Agent, as the same may be amended
from time to time.
“Purchase
Excess”
means the excess, if any, of (i) outstanding Capital over (ii) the Net
Receivables Balance minus the Aggregate Reserves.
“Purchase
Limit” means
at any time $75,000,000, as such amount may be increased or reduced pursuant
to
Section 2.01(b);
provided,
however,
that at all
times on and after the Termination Date, the “Purchase Limit”
shall
mean the aggregate outstanding Capital.
“Purchase
Price” has
the meaning given such term in Section 2.02(d)
of the Purchase Agreement.
“Purchaser”
means
Gotham Funding Corporation, together with its successors and permitted
assigns.
“Purchaser
Interest”
means, at any time of calculation hereunder, the undivided percentage
ownership
interest of the Purchaser in the Receivables Assets, including the Receivables
and the Related Security and Collections related thereto. The
Purchaser Interest is expressed as a fraction of the total Receivables
Assets,
and shall at any time be equal to the Purchaser’s ratable share (in accordance
with the Purchaser’s Capital) of an amount computed as follows:
C + AR
NRB
where:
|
|
C
|
=
|
The
outstanding amount of Capital at such time
|
|
|
AR
|
=
|
The
Aggregate Reserves at such time
|
|
|
NRB
|
=
|
The
Net Receivables Balance at such time
|
provided,
that from
and after the Termination Date, the Purchaser Interest shall equal 100%
until
the Final Collection Date.
“Purchaser
Rate” means
(a) in the case of a Tranche funded by Commercial Paper Notes, the
applicable CP Rate; and (b) in the case of a Tranche funded by a Liquidity
Advance or by a funding by the Liquidity Provider, the applicable Assignee
Rate;
provided,
however,
that on any day when any Event of Termination shall have
occurred and be continuing, the Purchaser Rate for each Tranche means a
rate per
annum equal to the sum of (2.0%) plus the
higher of
(A) the Base Rate and (B) the rate otherwise applicable to such
Tranche during the current Tranche Period or Settlement Period.
“Qualified
Plan” means
a Pension Plan that is intended to be tax-qualified under Section 401(a) of
the IRC.
“Receivable”
means
all
indebtedness of an Obligor arising from the sale of merchandise or services
by
an Originator, including interest, fees and finance charges, if
any.
“Receivables
Affiliate” means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under direct or indirect common
control with such specified Person and, without limiting the generality
of the
foregoing, shall be presumed to include (a) any Person which beneficially
owns or holds 40% or more of any class of voting securities of such specified
Person or 40% or more of the equity interest in such specified Person and
(b) any Person of which such specified Person beneficially owns or holds
40% or more of any class of voting securities or in which such specified
Person
beneficially owns or holds 40% or more of the equity interest. For
the purposes of this definition, (i) “voting securities” of a Person means any
securities which confer upon the holder thereof a right to vote with respect
to
the election of members of the board of directors or any analogous governing
body of such Person (excluding voting power arising only upon the occurrence
of
a contingency), (ii) “control” when used with respect to any specified Person
means the power to direct the management and policies of such specified
Person,
directly or indirectly, whether through the
ownership
of voting securities, by contract or otherwise, and (iii) the terms
“controlling” and “controlled” have meanings correlative to the foregoing clause (ii).
“Receivables
Assets”
means, at any time, all then outstanding Transferred Receivables,
Related
Security with respect to such Transferred Receivables, the Lock-Box Accounts,
all right, title and interest of the Seller in, to and under the Sale Agreement
and all other proceeds of the foregoing, including, without limitation,
all
Collections of Transferred Receivables.
“Receivables
Assignment” has the meaning assigned to such term in Section 2.01(a)
of the Sale Agreement.
“Records”
means
all
(i) Contracts or other documents or instruments evidencing the Receivables
and (ii) all other agreements, documents, instruments, books, records and
other information maintained by or on behalf of the Seller with respect
to the
Receivables, the related Obligors and the Related Security necessary to
identify, service and collect the Receivables.
“Regulatory
Change”
means, with respect to any Affected Party: (i) the introduction of or any
change in or in the interpretation by any Governmental Authority of any
law or
regulation after the Closing Date; (ii) compliance by such
Affected Party with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) after the
date
hereof; (iii) the introduction of or change in or change in implementation
of any fiscal, monetary or other accounting board or authority (whether
or not
part of government) which is responsible for the establishment or interpretation
of national or international account principles or having jurisdiction
over such
Affected Party, in each case, whether foreign or domestic after the Closing
Date; or (iv) the introduction of or change in GAAP or regulatory
accounting principles applicable to such Affected Party and affecting the
application to such Affected Party after the Closing Date of any law,
regulation, interpretation, directive, requirement or request referred
to in
clause (a)(i), (ii) or (iii) above.
“Reinvestment
Purchase” has the meaning assigned to that term in Section 2.02(a)
of the Purchase Agreement.
“Rejected
Amount” has
the meaning assigned to it in Section 4.04 of
the Sale Agreement.
“Related Security”
means, with respect to any Transferred Receivable, (i) all rights (but not
any obligations) under the Contracts relating to such Receivable, (ii) all
security interests or liens in the merchandise or goods the sale of which
gave
rise to such Receivable, whether such security interest or lien purports
to
secure payment of such Receivable, (iii) the assignment to the Agent, for
the benefit of the Purchaser, of all UCC financing statements or other
filings
covering any collateral securing payment of such Receivable, (iv) all
guarantees, prepayment penalties, indemnities, warranties, letters of credit,
insurance policies and proceeds and premium refunds thereof and other agreements
or arrangements of whatever character from time to time supporting or securing
payment of such Receivable, (v) all Records related to such Receivable, and
(vi) all proceeds of the foregoing.
“Responsible
Officer”
means “Responsible Officer” means, with respect to any Person, any of the
principal executive officers, managing members or general partners of such
Person
but,
in
any event, with respect to financial matters, the chief financial officer,
vice
president (finance and accounting), treasurer or controller of such
Person.
“Revolving
Loan” has
the meaning assigned to it in Section 2.01(c)
of the Sale Agreement.
“S&P”
means
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor thereto.
“Sale”
means
a sale of
Receivables by an Originator to the Buyer in accordance with the terms
of the
Sale Agreement.
“Sale
Agreement” means
that certain Receivables Sale and Contribution Agreement dated as of January
9,
2008 between the Originators and the Seller, as such agreement may be amended,
supplemented or modified from time to time.
“Sale
Legend” means
the following legend, mutatis
mutandis: “All receivables owned by ACCO Brands USA LLC and each other
Originator from time to time party to the Sale Agreement have been sold
and
assigned to ACCO Brands Receivables Funding LLC.”
“Sale
Price” means,
with respect to any Sale of Sold Receivables, the price calculated by the
Seller
and approved from time to time by the Agent equal to:
(a)
the Outstanding Balance of such Sold Receivables, minus
(b)
an amount reflecting a reasonable profit for the Seller, minus
(c)
an amount reflecting the reasonable value of receiving current payment
in
respect of future collections, minus
(d)
the portion of such Sold Receivables that are reasonably expected by such
Originator to be written off as uncollectible;
provided,
that the
calculations required in each of clause (d) above shall be determined on
or
prior to the Transfer Date based on the historical experience of such Originator
and the Sale Price in effect for any Receivable as of any such Transfer
Date
shall not be retroactively adjusted.
“Schedule
of
Documents” shall mean the schedule, including all appendices, exhibits or
schedules thereto, listing certain documents and information to be delivered
in
connection with the Sale Agreement, the Purchase Agreement and the other
Facility Documents and the transactions contemplated thereunder, substantially
in the form attached as Annex Y to the
Sale Agreement.
“Seller”
has
the
meaning given to such term in the preamble to the Purchase
Agreement.
“Seller
Interest”
means, at any time of calculation hereunder, (i) 100%, minus (ii) the
aggregate of the outstanding Purchaser Interests at such time.
“Seller’s
Account”
means account number 0000000 at Northern Trust Company, Chicago,
IL, ABA No.
000-000-000.
“Servicer”
initially
has the meaning given to such term in the preamble to the Purchase Agreement
and, at any time following the Closing Date, shall mean the Person(s) then
authorized pursuant to Section 6.01 of
the Purchase Agreement to service, administer, xxxx and collect
Receivables.
“Servicer
Default”
means any of the following events:
(a)
there shall have occurred any event which materially adversely affects
the
ability of the Servicer to collect the Receivables or the ability of the
Servicer to perform under the Purchase Agreement; or
(b)
the occurrence and continuance of any Event of Termination (other than
an Event
of Termination set forth in Section
7.01(r)).
“Servicer
Fee” means a
fee with respect to each Settlement Period, payable in arrears for the
account
of the Servicer, in an amount equal to the product of (i) the average daily
Outstanding Balance of Receivables during such Settlement Period and
(ii) the per annum rate of (x) one-half percent (0.50%) if ACCO or an
Affiliate thereof is the Servicer and (y) a rate mutually agreed on by the
Servicer and the Agent if a Person other than ACCO or an Affiliate of ACCO
is
the Servicer.
“Servicing
Fee
Reserve” means, for any Monthly Period, the product of (i) the Servicer
Fee for such period multiplied by (ii) the Adjusted DSO, multiplied by
(iii) the
Variance Factor, multiplied by (iv) the aggregate Outstanding Balance of
Receivables multiplied by (v) 1/360.
“Servicing
Software”
shall mean the data processing software used by the Originators,
the Servicer
and/or Seller for the purpose of servicing, monitoring, and retaining data
regarding the Transferred Receivables and the Obligors thereunder.
“Settlement
Date”
means, with respect to any Settlement Period in which the Purchaser
Rate is the
CP Rate, the date which is the twelfth Business Day following the end of
such
Settlement Period and with respect to any Settlement Period in which the
Purchaser Rate is the Assignee Rate, the next succeeding Business Day after
the
end of such Settlement Period; provided, that
the
Agent may, in its discretion following the occurrence of an Event of
Termination, by notice to the Seller, require that Settlement Dates occur
more
frequently than monthly.
“Settlement
Period”
means, initially, the period commencing on the Initial Purchase
Date and ending
on the last day of the then current calendar month, and thereafter, each
calendar month, unless a shorter period is designated by the Agent following
the
occurrence of an Event of Termination.
“Sold
Receivable” has
the meaning assigned to it in Section 2.01(b)
of the Sale Agreement.
“Solvent”
means,
with
respect to any Person on a particular date, that on such date (a) the fair
value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person; (b) the
present fair salable value of the assets of such Person is not less than
the
amount that will be required to pay the probable liability of such Person
on its
Indebtedness as they become absolute and matured; (c) such Person does not
intend to, and does not believe that it will, incur Indebtedness or liabilities
beyond such Person’s ability to pay as such Indebtedness and liabilities mature;
(d) such Person is not engaged in a business or transaction, and is not
about to engage in a business or transaction, for which such Person’s property
would constitute an unreasonably small capital; and (e) such Person
generally is paying its Indebtedness or liabilities as such Indebtedness
or
liabilities become due. The amount of contingent liabilities (such as
litigation, guaranties and pension plan liabilities) at any time shall
be
computed as the amount that, in light of all the facts and circumstances
existing at the time, represents the amount that can reasonably be expected
to
become an actual or matured liability.
“Special
Limit” means
as shall be agreed to in writing by the Agent (with the consent of the
Purchaser) for certain Obligors from time to time.
“Stock”
means
all
shares, options, warrants, membership interests, general or limited partnership
interests or other equivalents (regardless of how designated) of or in
a
corporation, limited liability company, partnership or equivalent entity
whether
voting or nonvoting, including common stock, preferred stock or any other
“equity security” (as such term is defined in Rule 3a11-1 of the General
Rules and Regulations promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934).
“Stockholder”
means,
with respect to any Person, each holder of Stock of such Person.
“Subsidiary”
means,
with respect to any Person, any corporation or other entity (a) of which
securities or other ownership interests having ordinary voting power to
elect a
majority of the board of directors or other Persons performing similar
functions
are at the time directly or indirectly owned by such Person or (b) that is
directly or indirectly controlled by such Person within the meaning of
control
under Section 15 of the Securities Act.
“Termination Date”
means the earliest to occur of (i) the Commitment Termination Date,
(ii) the declaration or automatic occurrence of the Termination Date
pursuant to Section 7.01,
and (iii) that Business Day which the Seller designates as the Termination
Date by notice to the Agent at least 60 calendar days prior to such Business
Day.
“Tranche”
means
at any
time a portion of the Capital selected by the Agent and allocated to a
particular Tranche Period pursuant to Section 2.03 of
the Purchase Agreement.
“Tranche
Period”
means:
(a)
with respect to any Tranche funded through Commercial Paper Notes, initially
the
period commencing on the date of funding of such Commercial Paper Notes
or the
creation of such Tranche (whichever is later) and ending on the last day
of the
current Settlement Period or such other number of days thereafter as the
Agent
shall select in consultation with the Seller;
(b)
with respect to any Tranche funded through Liquidity Advances or otherwise
by
the Liquidity Provider, initially the period commencing on the date of
the
making of such Liquidity Advance or funding under the related agreement
or the
creation of such Tranche (whichever is latest) and ending on the last day
of the
current Settlement Period or such other number of days thereafter as the
Agent
shall select in consultation with the Seller; and
(c)
thereafter, the period commencing on the last day of the immediately preceding
Tranche Period for the related Tranche and ending on the last day of the
current
Settlement Period or such other number of days thereafter as the Agent
shall
select in consultation with the Seller; provided, however, that:
(i)
any such Tranche Period (other than a Tranche Period consisting of one
day)
which would otherwise end on a day that is not a Business Day shall be
extended
to the next succeeding Business Day provided that
if such
Tranche accrues Yield based on the LIBO Rate and the next succeeding Business
Day is in a subsequent calendar month, such Tranche Period shall instead
end on
the immediately preceding Business Day;
(ii)
any Tranche Periods of one day shall, if the immediately preceding Tranche
Period is more than one day, be the last day of such immediately preceding
Tranche Period, and if the immediately preceding Tranche Period is one
day,
shall be the next day following such immediately preceding Tranche Period;
and
(iii)
any Tranche Period which commences before the Termination Date and would
otherwise end on a date occurring after such Termination Date, shall end
on such
Termination Date and the duration of each such Tranche Period which commences
on
or after the Termination Date for such Tranche shall be of such duration
as
shall be selected by the Agent.
“Transfer”
has
the
meaning assigned to it in Section 2.01(a)
of the Sale Agreement.
“Transfer
Date” has
the meaning assigned to it in Section 2.01(a)
of the Sale Agreement.
“Transferred
Receivable” means any Sold Receivable or Contributed Receivable; provided,
that any
Receivable repurchased by the Originator thereof pursuant to Section 4.04 of
the Sale Agreement or by the Servicer pursuant to Section 6.02(c)
of the Purchase Agreement shall not be deemed to be a Transferred Receivable
from and after the date of such repurchase unless such Receivable has
subsequently been repurchased by or contributed to the Seller.
“UCC”
means
the
Uniform Commercial Code as from time to time in effect in the specified
jurisdiction.
“Variance
Factor”
means 1.5.
“Yield”
means,
for any
Settlement Period, the product of:
PR
x C x
ED
360
where:
|
|
C
|
=
|
the
average daily outstanding Capital during such Settlement Period
|
|
|
PR
|
=
|
the
weighted average daily (calculated as a function of not only
the interest
rate but also the amount of Capital allocated to such interest
rate)
Purchaser Rate for such Settlement Period
|
|
|
ED
|
=
|
the
actual number of days elapsed during such Settlement Period
|
“Yield
Reserve” means,
at any time of calculation hereunder, an amount equal to the sum of (A) the
Yield which is accrued and unpaid as of such date, plus (B) the
product of (i) the sum of the Adjusted LIBO Rate plus 2.0%,
multiplied
by (ii) the outstanding Capital at such time, multiplied by (iii) the
Adjusted DSO, multiplied by (iv) the Variance Factor, multiplied by (v)
1/360.
Section
2. Other Terms
and Rules of
Construction.
(a)
Accounting
Terms. Rules of construction with respect to accounting terms
used in any Facility Document shall be as set forth in this Annex I. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determination hereunder shall be made, and
all
financial statements required to be delivered hereunder shall be prepared
in
accordance with GAAP.
(b)
Rules of
Construction. Unless otherwise specified, references in any
Facility Document or any of the Appendices thereto to a Section, subsection
or
clause refer to such Section, subsection or clause as contained in such
Facility
Document. The words “herein,” “hereof” and “hereunder” and other words of
similar import used in any Facility Document refer to such Facility Document
as
a whole, including all annexes, exhibits and schedules, as the same may
from
time to time be amended, restated, modified or supplemented, and not to
any
particular section, subsection or clause contained in such Facility Document
or
any such annex, exhibit or schedule. Any reference to or definition
of any document, instrument or agreement shall, unless expressly noted
otherwise, include the same as amended, restated, supplemented or otherwise
modified from time to time. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include
the
singular and the plural, and pronouns stated in the masculine, feminine
or
neuter gender shall include the masculine, feminine and neuter
genders. The words “including,” “includes” and “include” shall be
deemed to be followed by the words “without limitation”; the word “or” is not
exclusive; references to Persons include their respective successors and
assigns
(to the extent and only to the extent permitted by the Facility Documents)
or,
in the case of Governmental Authorities, Persons succeeding to the relevant
functions of such Persons; and all references to statutes and related
regulations shall include any amendments of the same and any successor
statutes
and regulations.
(c)
Rules of Construction
for Determination of Ratios. The reserve ratios and other
rolling calculations requiring some period of historical data (the “Ratios”) which
are to
be made
as
of the
last day of the Settlement Period immediately preceding the initial Purchase
or
for the three Settlement Periods following the Closing Date shall be established
by the Agent on or prior to the initial Purchase and the underlying calculations
for periods immediately preceding the initial Purchase to be used in future
calculations of the Ratios shall be established by the Agent on or prior
to the
initial Purchase. For purposes of calculating the Ratios,
(i) averages shall be computed by rounding to the second decimal place and
(ii) the Settlement Period in which the date of determination thereof
occurs shall not be included in the computation thereof and the first Settlement
Period immediately preceding such date of determination shall be deemed
to be
the Settlement Period immediately preceding the Settlement Period in which
such
date of determination occurs.
(d)
Other Terms. All
accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles. All terms
used in Article 9 of the UCC in the State of New York, and not specifically
defined herein, are used herein as defined in such Article 9.
