PURCHASE AND SALE AGREEMENT
Dated as of November 29, 1999
among
THE ORIGINATORS NAMED HEREIN,
IMO INDUSTRIES INC.
and
IMO FUNDING COMPANY, LLC
TABLE OF CONTENTS
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PAGE
ARTICLE IAGREEMENT TO PURCHASE AND SELL
1.1. Agreement to Purchase and Sell 2
1.2. Timing of Purchases 2
1.3. Consideration for Purchases 3
1.4. Purchase and Sale Termination Date 3
1.5. Intention of the Parties 3
ARTICLE IICALCULATION OF PURCHASE PRICE
2.1. Calculation of Purchase Price 3
ARTICLE IIIPAYMENT OF PURCHASE PRICE
3.1. Initial Purchase Price Payment 4
3.2. Subsequent Purchase Price Payments 4
3.3. Settlement as to Specific Receivables 5
3.4. Reconveyance of Receivables 6
ARTICLE IVCONDITIONS OF PURCHASES
4.1. Conditions Precedent to Initial Purchase 6
4.2. Certification as to Representations and Warranties 8
4.3. Addition of Originators. 8
ARTICLE VREPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
5.1. Organization and Good Standing 9
5.2. Due Qualification 9
5.3. Power and Authority; Due Authorization 9
5.4. Valid Sale; Binding Obligations 9
5.5. No Violation 9
5.6. Proceedings 9
5.7. Bulk Sales Act 10
5.8. Government Approvals 10
5.9. Financial Condition 10
5.10. Margin Regulations 10
5.11. Quality of Title 10
5.12. Accuracy of Information 11
5.13. Offices 11
5.14. Trade Names 11
5.15. Taxes 11
5.16. Licenses and Labor Controversies 11
5.17. Compliance with Applicable Laws 12
5.18. Reliance on Separate Legal Identity 12
5.19. Purchase Price 12
5.20. Certain Definitions 12
ARTICLE VICOVENANTS OF THE ORIGINATORS
6.1. Affirmative Covenants 14
6.2. Reporting Requirements 16
6.3. Negative Covenants 16
ARTICLE VIIADDITIONAL RIGHTS AND OBLIGATIONS INRESPECT OF THE RECEIVABLES
7.1. Rights of the Company 17
7.2. Responsibilities of The Originator 17
7.3. Further Action Evidencing Purchases 18
7.4. Application of Collections 18
ARTICLE VIIIPURCHASE AND SALE TERMINATION EVENTS
8.1. Purchase and Sale Termination Events 19
8.2. Remedies 20
ARTICLE IXINDEMNIFICATION
9.1. Indemnities by the Originator 20
ARTICLE XMISCELLANEOUS
10.1. Amendments, etc 22
10.2. Notices, etc 22
10.3. No Waiver; Cumulative Remedies 22
10.4. Binding Effect; Assignability 22
10.5. Governing Law 23
10.6. Costs, Expenses and Taxes 23
10.7. Submission to Jurisdiction 23
10.8. Waiver of Jury Trial 24
10.9. Captions and Cross References; Incorporation by Reference 24
10.10. Execution in Counterparts 24
10.11. Acknowledgment and Agreement 24
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SCHEDULES
SCHEDULE 5.13 Office Locations
SCHEDULE 5.14 Trade Names
EXHIBITS
EXHIBIT A Form of Purchase Report
EXHIBIT B Form of Company Note
EXHIBIT C Form of Opinion of Originators' Counsel
EXHIBIT D Form of Joinder Agreement
EXHIBIT E Form of Originator Assignment Certificate
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (as amended, supplemented or modified
from time to time, this "Agreement"), dated as of November 29, 1999, is among
IMO INDUSTRIES INC., a Delaware corporation ("IMO"), individually and as the
initial Servicer, ▇▇▇▇▇▇ PUMPS INC. ("▇▇▇▇▇▇"), a Delaware corporation, (IMO and
▇▇▇▇▇▇ collectively referred to herein as the "Originators" and each
individually as an "Originator"), and IMO FUNDING COMPANY, LLC, a Delaware
limited liability company (the "Company"), as purchaser.
Definitions
Unless otherwise indicated, certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I to the Receivables Purchase
Agreement of even date herewith (as amended, supplemented or otherwise modified
from time to time, the "Receivables Purchase Agreement"), among the Company, as
Seller, IMO, as Servicer, LIBERTY STREET FUNDING CORP. (the "Issuer"), and THE
BANK OF NOVA SCOTIA, as Administrator (together with its successors and assigns,
the "Administrator").
Background
1. The Company is a special purpose limited liability company, all
of the membership interests of which are owned by IMO.
2. In order to finance their respective businesses, the Originators wish
to sell certain Receivables and Related Rights from time to time to the Company,
and the Company is willing, on the terms and subject to the conditions set forth
herein, to purchase such Receivables and Related Rights from such Originators.
3. The Company intends to sell, assign and transfer to Issuer, all of its
right, title and interest in and to all of the Receivables and Related Rights
pursuant to the Receivables Purchase Agreement in order to finance its purchases
of certain Receivables and Related Rights hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
I. ARTICLE
AGREEMENT TO PURCHASE AND SELL
A. Agreement to Purchase and Sell. On the terms and subject to the conditions
set forth in this Agreement (including Article IV), and in consideration of the
Purchase Price, each Originator agrees to sell to the Company, and does hereby
sell to the Company, and the Company agrees to purchase from such Originator,
and does hereby purchase from such Originator, without recourse and without
regard to collectibility, all of such Originator's right, title and interest in
and to:
1. each Receivable of such Originator that existed and was
owing to such Originator as of the close of such Originator's business on
November 30, 1999 (the "Closing Date");
1. each Receivable created or originated by such Originator
from the close of such Originator's business on the Closing Date to and
including the Purchase and Sale Termination Date;
1. all rights to, but not the obligations under, all Related
Security;
1. all monies due or to become due with respect to any of the
foregoing;
1. all books and records related to any of the foregoing; and
1. all proceeds thereof (as defined in the applicable UCC) received on or after
the date hereof including, without limitation, all funds which either are
received by such Originator, the Company or the Servicer from or on behalf of
the Obligors in payment of any amounts owed (including, without limitation,
finance charges, interest and all other charges) in respect of Receivables, or
are applied to such amounts owed by the Obligors (including, without limitation,
insurance payments, if any, that such Originator or the Servicer (if other than
such Originator) applies in the ordinary course of its business to amounts owed
in respect of any Receivable).
All purchases hereunder shall be made without recourse, but shall be made
pursuant to and in reliance upon the representations, warranties and covenants
of each Originator set forth in this Agreement and each other Transaction
Document. The Company's foregoing commitment to purchase such Receivables and
the proceeds and rights described in subsections (c) through (f) of this Section
1.1 (collectively, the "Related Rights") is herein called the "Purchase
Facility."
A. Timing of Purchases.
1. Closing Date Purchases. Each Originator's entire right, title and interest in
(i) each Receivable that existed and was owing to such Originator as of the
close of such Originator's business on the Closing Date, and (ii) all Related
Rights with respect thereto shall be deemed to have been sold to the Company on
the Closing Date.
1. Regular Purchases. After the Closing Date, each Receivable
created or originated by each Originator and described in Section 1.1(b)
hereof and all Related Rights shall be purchased and owned by the Company
(without any further action) upon the creation or origination of such
Receivable.
A. Consideration for Purchases. On the terms and subject to
the conditions set forth in this Agreement, the Company agrees to make all
Purchase Price payments to the respective Originators, in accordance with
Article III.
A. Purchase and Sale Termination Date. The "Purchase and Sale Termination Date"
shall be the earlier to occur of (a) the date of the termination of this
Agreement pursuant to Section 8.2 and (b) the Payment Date immediately following
the day on which IMO shall have given notice to the Company that the Originators
desire to terminate this Agreement.
As used herein, "Payment Date" means (i) the Closing Date and (ii) each
Business Day thereafter that the Originators are open for business.
A. Intention of the Parties. It is the express intent of the parties hereto that
the transfers of the Receivables and Related Rights by each Originator to the
Company, as contemplated by this Agreement be, and be treated as, sales and not
as loans secured by the Receivables and Related Rights. If, however,
notwithstanding the intent of the parties, such transfers are deemed to be
loans, such Originator hereby grants (effective as of the date hereof) to the
Company a first priority security interest in all of such Originator's right,
title and interest in and to the Receivables and the Related Rights now existing
and hereafter created, all monies due or to become due and all amounts received
with respect thereto, and all proceeds thereof, to secure all of such
Originator's obligations hereunder.
I. ARTICLE
CALCULATION OF PURCHASE PRICE
A. Calculation of Purchase Price. Not later than ten days after the last day of
each Reporting Period (the "Servicer Report Date"), the Servicer shall deliver
to the Company, the Administrator and each Originator a report in substantially
the form of Exhibit A (each such report being herein called a "Purchase Report")
with respect to the matters set forth therein and the Company's purchases of
Receivables from each Originator
1. that are to be made on the Closing Date (in the case of the
Purchase Report to be delivered on the Closing Date), or
1. that were made during the period commencing on the Servicer Report Date
immediately preceding such Servicer Report Date to (but not including) such
Servicer Report Date (in the case of each subsequent Purchase Report).
The "Purchase Price" (to be paid to each Originator in accordance with the terms
of Article III) for the Receivables and the Related Rights that are purchased
hereunder shall be determined in accordance with the following formula:
PP = OB X FMVD
where:
PP = Purchase Price for each Receivable as calculated on the
relevant Payment Date.
OB = the Outstanding Balance of such Receivable.
FMVD = Fair Market Value Discount, as measured on such
Payment Date, which is equal to the quotient (expressed
as percentage) of (a) one divided by (b) the sum of (i)
one, plus (ii) the product of (A) LIBOR plus 1.5% on
such Payment Date, and (B) a fraction, the numerator of
which is the Days' Sales Outstanding (calculated as of
the last day of the calendar month next preceding such
Payment Date) and the denominator of which is 365.
I. ARTICLE
PAYMENT OF PURCHASE PRICE
A. Initial Purchase Price Payment. On the terms and subject
to the conditions set forth in this Agreement, the Company agrees to pay to
each Originator the Purchase Price for the purchase of Receivables to be made
on the Closing Date, partially in cash in an amount agreed to by the Company
and such Originator, in the case of IMO partially in consideration of all of
the membership interest of the Company, and partially by issuing a promissory
note in the form of Exhibit B to such Originator with an initial principal
balance equal to the remaining Purchase Price (as such promissory note may be
amended, supplemented, indorsed or otherwise modified from time to time,
together with all promissory notes issued from time to time in substitution
therefor or renewal thereof in accordance with the Transaction Documents,
each a "Company Note").
A. Subsequent Purchase Price Payments. On each Business Day
falling after the Closing Date and on or prior to the Purchase and Sale
Termination Date, on the terms and subject to the conditions set forth in
this Agreement, the Company shall pay to each Originator the Purchase Price
for the Receivables sold by such Originator to the Company on such Business
Day, in cash, to the extent the Company has received funds pursuant to the
Receivables Purchase Agreement or otherwise has available cash (to the extent
such other available cash may, in accordance with the Receivables Purchase
Agreement, be used to purchase Receivables), and to the extent any of such
Purchase Price remains unpaid, such remaining portion of such Purchase Price
shall be paid by means of an automatic increase to the outstanding principal
amount of the Company Note issued to such Originator.
Servicer shall make all appropriate record keeping entries with respect to
the Company Notes or otherwise to reflect the foregoing payments and to reflect
adjustments pursuant to Section 3.3, and Servicer's books and records shall
constitute rebuttable presumptive evidence of the principal amount of and
accrued interest on any Company Note at any time. Furthermore, Servicer shall
hold the Company Notes for the benefit of the Originators, and all payments
under the Company Notes shall be made to the Servicer for the account of the
applicable payee thereof. Each Originator hereby irrevocably authorizes Servicer
to ▇▇▇▇ the Company Notes "CANCELLED" and to return such Company Notes to the
Company upon the final payment thereof after the occurrence of the Purchase and
Sale Termination Date.
A. Settlement as to Specific Receivables and Dilution.
1. If on the day of purchase of any Receivable from any Originator hereunder,
any of the representations or warranties of such Originator set forth in Section
5.4 or 5.11 is not true with respect to such Receivable or as a result of any
action or inaction of such Originator, on any day any of such representations or
warranties set forth in Section 5.4 or 5.11 is no longer true with respect to
such Receivable (other than a representation or warranty set forth in Section
5.11(c) which is no longer true as a result of an Obligor's payment obligation
being stayed or discharged in bankruptcy), then the Purchase Price with respect
to such Receivable shall be reduced by an amount equal to the Outstanding
Balance of such Receivable and shall be accounted to such Originator as provided
in subsection (c) below; provided, that if the Company thereafter receives
payment on account of Collections due with respect to such Receivable, the
Company promptly shall deliver such funds to such Originator.
1. If, on any day, the Outstanding Balance of any Receivable purchased hereunder
is reduced or adjusted as a result of any defective, rejected, returned goods or
services, or any discount or other adjustment made by any Originator, the
Company or the Servicer or any offset, setoff or dispute between such Originator
or the Servicer and an Obligor as indicated on the books of the Company (or, for
periods prior to the Closing Date, the books of such Originator), then the
Purchase Price with respect to such Receivable shall be reduced by the amount of
such net reduction and shall be accounted to such Originator as provided in
subsection (c) below.
1. Any reduction in the Purchase Price of any Receivable pursuant to subsection
(a) or (b) above shall be applied as a credit for the account of the Company
against the Purchase Price of Receivables subsequently purchased by the Company
from such Originator hereunder; provided, however if there are no purchases of
Receivables from such Originator (or insufficiently large purchases of
Receivables) to create a Purchase Price sufficient to so apply such credit
against, the amount of such credit
a) shall be paid in cash to the Company by the Originator in the manner and for
application as described in the following proviso, or b) shall be deemed to be a
payment under, and shall be deducted from the principal amount outstanding
under, the Company Note payable to such Originator to the extent permitted under
Section 1(m) of Exhibit IV of the Receivables Purchase Agreement;
provided, further, that at any time (y) when a Termination Event or Unmatured
Termination Event exists under the Receivables Purchase Agreement or (z) on or
after the Purchase and Sale Termination Date, the amount of any such credit
shall be paid by such Originator to the Company by deposit in immediately
available funds into the Collection Account for application by Servicer to the
same extent as if Collections of the applicable Receivable in such amount had
actually been received on such date.
1. Each Purchase Report (other than the Purchase Report delivered on the Closing
Date) shall include, in respect of the Receivables previously generated by each
Originator, a calculation of the aggregate reductions described in subsection
(a) or (b) relating to such Receivables since the last Purchase Report delivered
hereunder, as indicated on the books of the Company (or, for such periods prior
to the Closing Date, the books of the Originator).
A. Reconveyance of Receivables. In the event that an Originator has paid or
credited to the Company the full Outstanding Balance of any Receivable pursuant
to Section 3.3, the Company shall reconvey such Receivable to such Originator,
without recourse and without representation or warranty, but free and clear of
all liens created by the Company.
I. ARTICLE
CONDITIONS OF PURCHASES
A. Conditions Precedent to Initial Purchase. The initial purchase hereunder is
subject to the condition precedent that the Company shall have received, on or
before the Closing Date, the following, each (unless otherwise indicated) dated
the Closing Date, and each in form, substance and date satisfactory to the
Company:
1. A copy of the resolutions of the Board of Directors of each
Originator approving the Transaction Documents to be delivered by it and the
transactions contemplated hereby and thereby, certified by the Secretary or
Assistant Secretary of such Originator;
1. Good standing certificates for each Originator issued as of a recent date
acceptable to Servicer by the Secretary of State of the jurisdiction of such
Originator's incorporation and the jurisdiction where such Originator's chief
executive office is located;
1. A certificate of the Secretary or Assistant Secretary of each Originator
certifying the names and true signatures of the officers authorized on such
Originator's behalf to sign the Transaction Documents to be delivered by it (on
which certificate the Company and Servicer (if other than an Originator) may
conclusively rely until such time as the Company and the Servicer shall receive
from such Originator a revised certificate meeting the requirements of this
subsection (c));
1. The articles of incorporation of each Originator, duly certified by the
Secretary of State of the jurisdiction of such Originator's incorporation as of
a recent date acceptable to Servicer, together with a copy of the by-laws of
such Originator, each duly certified by the Secretary or an Assistant Secretary
of such Originator;
1. Copies of the proper financing statements (Form UCC-1) that have been duly
executed and name each Originator as the seller/debtor and the Company as the
purchaser/secured party (and Issuer as assignee of the Company) of the
Receivables generated by such Originator and Related Rights or other, similar
instruments or documents, as may be necessary or, in Servicer's or the
Administrator's opinion, desirable under the UCC of all appropriate
jurisdictions or any comparable law of all appropriate jurisdictions to perfect
the Company's ownership interest in all Receivables and Related Rights in which
an ownership interest may be assigned to it hereunder;
1. A written search report from a Person satisfactory to Servicer and the
Administrator listing all effective financing statements that name any
Originator as debtor or assignor and that are filed in the jurisdictions in
which filings were made pursuant to the foregoing subsection (e), together with
copies of such financing statements (none of which, except for those described
in the foregoing subsection (e), shall cover any Receivable or any Related
Right), and tax and judgment lien search reports from a Person satisfactory to
Servicer and the Administrator showing no evidence of such liens filed against
any Originator;
1. Favorable opinions of counsel to the Originators, in the
forms of Exhibit C;
1. Evidence (i) of the execution and delivery by each of the parties thereto of
each of the other Transaction Documents to be executed and delivered in
connection herewith and (ii) that each of the conditions precedent to the
execution, delivery and effectiveness of such other Transaction Documents has
been satisfied to the Company's satisfaction; and
1. A certificate from an officer of each Originator to the effect that Servicer
and Originator have placed on the most recent, and have taken all steps
reasonably necessary to ensure that there shall be placed on subsequent, summary
master control data processing reports the following legend (or the substantive
equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO IMO
FUNDING COMPANY, LLC, PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF
NOVEMBER 29, 1999, AMONG IMO INDUSTRIES INC., THE ORIGINATORS NAMED THEREIN AND
IMO FUNDING COMPANY, LLC; AND AN INTEREST IN THE RECEIVABLES DESCRIBED HEREIN
HAS BEEN GRANTED TO LIBERTY STREET FUNDING CORP., PURSUANT TO A RECEIVABLES
PURCHASE AGREEMENT, DATED AS OF NOVEMBER 29, 1999, AMONG IMO INDUSTRIES INC.,
IMO FUNDING COMPANY, LLC, LIBERTY STREET FUNDING CORP., AND THE BANK OF NOVA
SCOTIA, AS ADMINISTRATOR."
A. Certification as to Representations and Warranties. Each Originator, by
accepting the Purchase Price related to each purchase of Receivables (and
Related Rights) generated by such Originator, shall be deemed to have certified
that the representations and warranties contained in Article V are true and
correct on and as of such day, with the same effect as though made on and as of
such day.
A. Addition of Originators. Additional Persons may be added as
Originators hereunder, with the consent of the Company and the Administrator,
in its reasonable discretion, provided that the following conditions are
satisfied on or before the date of such addition:
a) IMO shall have given the Administrator and the Company at least thirty days
prior written notice of such proposed addition and the identity of the proposed
additional Originator and shall have provided such information with respect to
the receivables of such additional Originator as the Administrator shall have
reasonably requested;
a) such proposed additional Originator has executed and delivered to the Company
and the Administrator an agreement substantially in the form attached hereto as
Exhibit D (each, a "Joinder Agreement");
a) such proposed additional Originator has delivered to the
Company and the Administrator each of the documents with respect to such
Originator described in Section 4.1;
a) unless the Receivables intended to be sold by such Originator to the Company
hereunder are Receivables, the related underlying goods of which, are and will
continue to be generated by an already existing Originator, the Administrator
shall have received a written statement from each of ▇▇▇▇▇'▇ and Standard &
Poors confirming that the addition of such Originator will not result in a
downgrade or withdrawal of the current ratings of the Notes; and
a) the Purchase and Sale Termination Date shall not have
occurred.
I. ARTICLE
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
In order to induce the Company to enter into this Agreement and to make
purchases hereunder, each Originator, hereby makes with respect to itself the
representations and warranties set forth in this Article V.
A. Organization and Good Standing. Such Originator has been duly organized and
is validly existing as a corporation in good standing under the laws of the
state of its incorporation, with corporate power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted.
A. Due Qualification. Such Originator is duly licensed or
qualified to do business as a foreign corporation in good standing in the
jurisdiction where its chief executive office and principal place of business
are located and in all other jurisdictions in which the ownership or lease of
its property or the conduct of its business requires such licensing or
qualification, in either case, except where the failure to be so licensed or
qualified could not reasonably be expected to have a Material Adverse Effect.
A. Power and Authority; Due Authorization. Such Originator has (a) all necessary
corporate power, authority and legal right (i) to execute and deliver, and
perform its obligations under, each Transaction Document to which it is a party,
and (ii) to generate, own, sell, contribute and assign Receivables and Related
Rights on the terms and subject to the conditions herein and therein provided;
and (b) duly authorized such execution and delivery and such sale and assignment
and the performance of such obligations by all necessary corporate action.
A. Valid Sale; Binding Obligations. Each sale, of Receivables
and Related Rights made by such Originator pursuant to this Agreement shall
constitute a valid sale, transfer, and assignment thereof to the Company,
enforceable against creditors of, and purchasers from, such Originator; and
this Agreement constitutes, and each other Transaction Document to be signed
by such Originator, when duly executed and delivered, will constitute, a
legal, valid, and binding obligation of such Originator, enforceable against
such Originator in accordance with its terms; except in each case as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
A. No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents and the
fulfillment of the terms hereof or thereof will not (a) conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under (i) such
Originator's certificate of incorporation or by-laws, or (ii) any indenture,
loan agreement, mortgage, deed of trust, or other agreement or instrument to
which it is a party or by which it is bound, (b) result in the creation or
imposition of any Adverse Claim upon any of its properties pursuant to the
terms of any such indenture, loan agreement, mortgage, deed of trust, or
other agreement or instrument, other than the Transaction Documents, or (c)
violate any law or any order, rule, or regulation applicable to it of any
court or of any federal, state or foreign regulatory body, administrative
agency, or other governmental instrumentality having jurisdiction over it or
any of its properties.
A. Proceedings. There is no litigation or, to such
Originator's knowledge, any proceeding or investigation, pending before any
court, regulatory body, arbitrator, administrative agency, or other tribunal
or governmental instrumentality (a) asserting the invalidity of any
Transaction Document, (b) seeking to prevent the sale of Receivables and
Related Rights to the Company or the consummation of any of the other
transactions contemplated by any Transaction Document, or (c) seeking any
determination or ruling that could reasonably be expected to have a Material
Adverse Effect.
A. Bulk Sales Act. No transaction contemplated hereby
requires compliance with any bulk sales act or similar law.
A. Government Approvals. Except for the filing of the UCC
financing statements referred to in Article IV, all of which, at the time
required in Article IV, shall have been duly made and shall be in full force
and effect, no authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
such Originator's due execution, delivery and performance of any Transaction
Document to which it is a party, as seller.
B. Financial Condition.
1. On the date hereof, and on the date of each sale of Receivables by each
Originator to the Company (both before and after giving effect to such sale),
such Originator is and shall be Solvent.
1. The consolidated balance sheets of IMO and its consolidated subsidiaries as
of December 31, 1998 and the related statements of income and shareholders'
equity of IMO and its consolidated subsidiaries for the fiscal year then ended
certified by IMO's independent accountants, copies of which have been furnished
to the Company, present fairly the consolidated financial position of IMO and
its consolidated subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied;
and since such date no event has occurred that has had, or is reasonably likely
to have, a Material Adverse Effect.
A. Margin Regulations. No use of any funds acquired by such
Originator under this Agreement will conflict with or contravene any of
Regulations T, U and X promulgated by the Board of Governors of the Federal
Reserve System from time to time.
A. Quality of Title.
1. Each Receivable (together with the Related Rights) which is to be sold to the
Company hereunder is or shall be owned by such Originator, free and clear of any
Adverse Claim. Whenever the Company makes a purchase, hereunder, it shall have
acquired a valid and perfected ownership interest (free and clear of any Adverse
Claim) in all Receivables generated by such Originator and all Collections
related thereto, and in such Originator's entire right, title and interest in
and to the other Related Rights with respect thereto.
1. No effective financing statement or other instrument similar in effect
covering any Receivable generated by such Originator or any right related to any
such Receivable is on file in any recording office except such as may be filed
in favor of the Company or the Originators, as the case may be, in accordance
with this Agreement or in favor of the Issuer in accordance with the Receivables
Purchase Agreement.
2. Unless otherwise identified to the Company in the related
Purchase Report, each Receivable purchased hereunder is on the date of
purchase an Eligible Receivable.
A. Accuracy of Information. No factual written information furnished or to be
furnished in writing by such Originator, to the Company, the Issuer or the
Administrator for purposes of or in connection with any Transaction Document or
any transaction contemplated hereby or thereby is, and no other such factual
written information hereafter furnished (and prepared) by such Originator, to
the Company, the Issuer, or the Administrator pursuant to or in connection with
any Transaction Document, taken as a whole, will be inaccurate in any material
respect as of the date it was furnished or (except as otherwise disclosed to the
Company at or prior to such time) as of the date as of which such information is
dated or certified, or shall contain any material misstatement of fact or
omitted or will omit to state any material fact necessary to make such
information, in the light of the circumstances under which any statement therein
was made, not materially misleading on the date as of which such information is
dated or certified.
A. Offices. Such Originator's principal place of business and
chief executive office is located at the address set forth under such
Originator's signature hereto, and the offices where such Originator keeps
all its books, records and documents evidencing the Receivables, the related
Contracts and all other agreements related to such Receivables are located at
the addresses specified on Schedule 5.13 (or at such other locations,
notified to the Servicer and the Administrator in accordance with Section
6.1(f), in jurisdictions where all action required by Section 7.3 has been
taken and completed).
A. Trade Names.
1. Except as disclosed on Schedule 5.14(a), such Originator
does not use any trade name other than its actual corporate name.
1. From and after the date that fell five (5) years before the date hereof, such
Originator has not been known by any legal name other than its corporate name as
of the date hereof, nor has such Originator been the subject of any merger or
other corporate reorganization, except in each case as disclosed on Schedule
5.14(b).
A. Taxes. Such Originator has filed all material tax returns
and reports required by law to have been filed by it and has paid all taxes
and governmental charges thereby shown to be owing, except any such taxes and
charges which are not yet delinquent or are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with generally accepted accounting principles shall have been set
aside on its books.
A. Licenses and Labor Controversies.
1. Such Originator has not failed to obtain any licenses, permits, franchises or
other governmental authorizations necessary to the ownership of its properties
or to the conduct of its business, which violation or failure to obtain would be
reasonably likely to have a Material Adverse Effect; and
1. There are no labor controversies pending against such
Originator that have had (or are reasonably likely to have) a Material
Adverse Effect.
A. Compliance with Applicable Laws. Such Originator is in compliance, in all
material respects, with the requirements of (i) all applicable laws, rules,
regulations, and orders of all governmental authorities (including, without
limitation, Regulation Z, laws, rules and regulations relating to usury, truth
in lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy and all other consumer
laws applicable to the Receivables and related Contracts) (excluding with
respect to environmental matters which are covered by clause (ii)), and (ii) to
the best of its knowledge, all applicable environmental laws, rules, regulations
and orders of all governmental authorities.
A. Reliance on Separate Legal Identity. Such Originator is
aware that the Issuer and the Administrator are entering into the Transaction
Documents to which they are parties in reliance upon the Company's identity
as a legal entity separate from such Originator.
A. Purchase Price. The purchase price payable by the Company
to such Originator hereunder is intended by such Originator (and such
Originator understands that it is intended by the Company) to be consistent
with the terms that would be obtained in an arm's length sale.
A. Certain Definitions. With respect to this Agreement, the
terms "Material Adverse Effect" and "Solvent" are defined as follows:
"Material Adverse Effect" means, with respect to any event or
circumstance, a material adverse effect on:
(i) the business, assets, or financial condition of any
Originator and its subsidiaries, taken as a whole;
(ii) the ability of any Originator or the Servicer (if it is an
Originator) to perform its respective obligations under the Receivables
Purchase Agreement or any other Transaction Document to which it is a
party or the performance of any such obligations;
(iii) the validity or enforceability of the Receivables Purchase
Agreement or any other Transaction Document;
(iv) with respect to this Agreement, the status, existence,
perfection, priority or enforceability of Company's interest in the
Receivables or Related Rights; or
(v) the validity or enforceability of the Receivables.
"Solvent" means, with respect to any Person at any time, a condition
under which:
(i) the fair value and present fair saleable value of such Person's
total assets is, on the date of determination, greater than such Person's
total liabilities (including contingent and unliquidated liabilities) at
such time;
(ii) such Person is and shall continue to be able to pay all of
its liabilities as such liabilities mature; and
(iii) such Person does not have unreasonably small capital with
which to engage in its current and in its anticipated business.
For purposes of this definition:
(A) the amount of a Person's contingent or unliquidated liabilities
at any time shall be that amount which, in light of all the facts and
circumstances then existing, represents the amount which can reasonably be
expected to become an actual or matured liability;
(B) the "fair value" of an asset shall be the amount which may be
realized within a reasonable time either through collection or sale of
such asset at its regular market value;
(C) the "regular market value" of an asset shall be the amount which
a capable and diligent business person could obtain for such asset from an
interested buyer who is willing to purchase such asset under ordinary
selling conditions; and
(D) the "present fair saleable value" of an asset means the amount
which can be obtained if such asset is sold with reasonable promptness in
an arm's length transaction in an existing and not theoretical market.
5.21. Year 2000 Problem. Such Originator reasonably believes that all
internal computer operations that are material to its and each of its
Subsidiaries business operations will be able to perform properly date sensitive
functions for all dates before, on and after January 1, 2000, except to the
extent that a failure to do so could not reasonably be expected to have a
Material Adverse Effect.
I. ARTICLE
COVENANTS OF THE ORIGINATORS
A. Affirmative Covenants. From the date hereof until the
first day following the Purchase and Sale Termination Date, each Originator
(and IMO as to clause (h)) will, unless the Company and the Administrator
shall otherwise consent in writing:
1. Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders, including those with
respect to the Receivables generated by it and the related Contracts and
other agreements related thereto.
1. Preservation of Corporate Existence. Preserve and maintain its corporate
existence, rights, franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified in good standing as a foreign
corporation in each jurisdiction where the failure to preserve and maintain such
existence, rights, franchises, privileges and qualification could reasonably be
expected to have a Material Adverse Effect.
1. Receivables Review. At any time and from time to time during regular business
hours, upon reasonable prior notice (unless a Purchase and Sale Termination
Event or Unmatured Purchase and Sale Termination Event shall exist), (i) permit
the Company and/or the Administrator, or their respective agents or
representatives, (A) to examine, to audit and make copies of and abstracts from
all books, records and documents (including, without limitation, computer tapes
and disks) in the power, possession or under the control of such Originator
relating to the Receivables and Related Rights, including, without limitation,
the Contracts and other agreements related thereto, and (B) to visit such
Originator's offices and properties for the purpose of examining such materials
described in the foregoing clause (A) and discussing matters relating to the
Receivables and Related Rights or such Originator's performance hereunder with
any of the officers or employees of such Originator having knowledge of such
matters; and (ii) without limiting the provisions of clause (i) next above, from
time to time on request of the Administrator, permit certified public
accountants or other auditors acceptable to the Administrator to conduct a
review of its books and records with respect to the Receivables and Related
Rights. Unless a Purchase and Sale Termination Event or Unmatured Purchase and
Sale Termination Event shall exist, each Originator shall only be responsible
for the cost of one examination described in clause (i) or clause (ii) above in
any twelve-month period.
1. Keeping of Records and Books of Account. Maintain an
ability to recreate records evidencing the Receivables in the event of the
destruction of the originals thereof.
1. Performance and Compliance with Receivables and Contracts. At its expense
timely and fully perform and comply with all provisions, covenants and other
promises required to be observed by it under the related Contracts and all other
agreements related to the Receivables and Related Rights.
1. Location of Records. Keep its principal place of business and chief executive
office, and the offices where it keeps its records concerning or related to
Receivables and Related Rights, at the address(es) referred to in Section 5.13
or, upon 30 days' prior written notice to the Company and the Administrator, at
such other locations in jurisdictions where all action required by Section 7.3
shall have been taken and completed.
1. Credit and Collection Policies. Comply in all material
respects with its Credit and Collection Policy in connection with the
Receivables and the related Contracts.
2. Separate Corporate Existence of the Company. Take such
actions as shall be required in order that:
a) the Company's operating expenses (other than certain organization expenses
and expenses incurred in connection with the preparation, negotiation and
delivery of the Transaction Documents) will not be paid by IMO and such
Originator;
a) the Company's books and records will be maintained
separately from those of IMO and such Originator;
a) all financial statements of IMO and such Originator that are consolidated to
include the Company will contain detailed notes clearly stating that (A) all of
the Company's assets are owned by the Company, and (B) the Company is a separate
entity with creditors who have received interests in the Company's assets;
a) IMO and such Originator will strictly observe corporate
formalities in its dealing with the Company;
a) Except as otherwise provided in the Receivables Purchase Agreement in
connection with the servicing of Receivables, IMO and such Originator shall not
commingle its funds with any funds of the Company;
a) IMO and such Originator will maintain arm's length relationships with the
Company, and IMO and such Originator will be compensated at market rates for any
services it renders or otherwise furnishes to the Company; and
a) IMO and such Originator will not be, and will not hold itself out to be,
responsible for the debts of the Company or the decisions or actions in respect
of the daily business and affairs of the Company.
1. Post Office Boxes. Within 30 days after the date hereof, deliver to the
Administrator a certificate from an authorized officer of such Originator to the
effect that (i) the name of the renter of all post office boxes into which
Collections may from time to time be mailed have been changed to the name of the
Company (unless such post office boxes are in the name of the relevant Lock-Box
Banks) and (ii) all relevant postmasters have been notified that each of the
Servicer and the Administrator are authorized to collect mail delivered to such
post office boxes (unless such post office boxes are in the name of the relevant
Lock-Box Bank).
A. Reporting Requirements. From the date hereof until the
first day following the Purchase and Sale Termination Date, each Originator
shall, unless the Administrator and the Company shall otherwise consent in
writing, furnish to the Company and the Administrator:
1. Proceedings. Promptly after such Originator has knowledge thereof, written
notice to the Company and the Administrator of (i) all pending proceedings and
investigations of the type described in Section 5.6 not previously disclosed to
the Company and/or the Administrator and (ii) all material adverse developments
that have occurred with respect to any previously disclosed proceedings and
investigations.
1. Other. Promptly, from time to time, such other information, documents,
records or reports respecting the Receivables, the Related Rights or such
Originator's performance hereunder that the Company or the Administrator may
from time to time reasonably request in order to protect the interests of the
Company, the Issuer, the Administrator or any other Affected Person under or as
contemplated by the Transaction Documents.
A. Negative Covenants. From the date hereof until the date
following the Purchase and Sale Termination Date, each Originator agrees
that, unless the Administrator and the Company shall otherwise consent in
writing (which consent shall not be unreasonably withheld), it shall not:
1. Sales, Liens, Etc. Except as otherwise provided herein or in any other
Transaction Document, sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Adverse Claim upon or
with respect to, any Receivable or related Contract, Collections or Related
Security, or any interest therein, or assign any right to receive income in
respect thereof.
1. Extension or Amendment of Receivables. Except as otherwise permitted in
Section 4.2(a) of the Receivables Purchase Agreement or in accordance with the
Credit and Collection Policy, extend, amend or otherwise modify the terms of any
Receivable in any material respect, or amend, modify or waive, in any material
respect, any term or condition of any Contract related thereto (which term or
condition relates to payments under, or the enforcement of, such Contract).
1. Change in Business or Credit and Collection Policy. Make any change in the
character of its business or materially alter its Credit and Collection Policy,
which change would, in either case, materially change the credit standing
required of particular Obligors or potential Obligors or impair, in any material
respect, the collectibility of the Receivables generated by it.
1. Receivables Not to be Evidenced by Promissory Notes or Chattel Paper. Take
any action to cause or permit any Receivable generated by it to become evidenced
by any "instrument" or "chattel paper" (as defined in the applicable UCC) unless
such "instrument" or "chattel paper" shall be delivered to the Company (which in
turn shall deliver the same to the Issuer (or the Administrator on its behalf)).
1. Mergers, Acquisitions, Sales, etc. Merge or consolidate with another Person
(except pursuant to a merger or consolidation involving such Originator where
such Originator is the surviving corporation), or convey, transfer, lease or
otherwise dispose of (whether in one or in a series of transactions), all or
substantially all of its assets (whether now owned or hereafter acquired), other
than pursuant to this Agreement.
1. Lock-Box Banks. Make any changes in its instructions to any Obligor regarding
Collections or add or terminate any Lock-Box Bank unless the requirements of
Section 1(i) of Exhibit IV to the Receivables Purchase Agreement have been met.
1. Accounting for Purchases. Account for or treat (whether in
financial statements or otherwise) the transactions contemplated hereby in
any manner other than as sales of the Receivables and Related Security by
such Originator to the Company.
1. Transaction Documents. Enter into, execute, deliver or otherwise become bound
by any agreement, instrument, document or other arrangement (other than the
Credit Agreement) that restricts the right of such Originator to amend,
supplement, amend and restate or otherwise modify, or to extend or renew, or to
waive any right under, this Agreement or any other Transaction Documents.
I. ARTICLE
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
A. Rights of the Company. Each Originator hereby authorizes the Company, the
Servicer and the Administrator or their respective designees to take any and all
steps in such Originator's name necessary or desirable, in their respective
determination, to collect all amounts due under any and all Receivables and
Related Rights, including, without limitation, endorsing such Originator's name
on checks and other instruments representing Collections and enforcing such
Receivables and the provisions of the related Contracts that concern payment
and/or enforcement of rights to payment.
A. Responsibilities of The Originator. Anything herein to the
contrary notwithstanding:
1. Each Originator agrees to (A) direct, and hereby grants to each of the
Company and the Administrator the authority to direct, all Obligors of
Receivables originated by such Originator to make payments of such Receivables
directly to a Lock-Box Account at a Lock-Box Bank, and (B) to transfer any
Collections that it receives directly, to the Servicer (for deposit to such a
Lock-Box Account) within one Business Day of receipt thereof, and agrees that
all such Collections shall be deemed to be received in trust for the Company.
1. Each Originator shall perform its obligations hereunder, and the exercise by
the Company or its designee of its rights hereunder shall not relieve such
Originator from such obligations.
1. None of the Company, the Servicer, the Issuer or the Administrator shall have
any obligation or liability to any Obligor or any other third Person with
respect to any Receivables, Contracts related thereto or any other related
agreements, nor shall the Company, the Servicer, the Issuer or the Administrator
be obligated to perform any of the obligations of any Originator thereunder.
1. Each Originator hereby grants to Administrator an irrevocable power of
attorney, with full power of substitution, coupled with an interest, to take in
the name of such Originator all steps necessary or advisable to indorse,
negotiate or otherwise realize on any writing or other right of any kind held or
transmitted by such Originator or transmitted or received by the Company
(whether or not from such Originator) in connection with any Receivable or
Related Right.
A. Further Action Evidencing Purchases. Each Originator agrees that from time to
time, at its expense, it will promptly execute and deliver all further
instruments and documents, and take all further action that the Company or the
Servicer may reasonably request in order to perfect, protect or more fully
evidence the Receivables (and the Related Rights) purchased by, the Company
hereunder, or to enable the Company to exercise or enforce any of its rights
hereunder or under any other Transaction Document. Without limiting the
generality of the foregoing, upon the request of the Company, each Originator
will:
1. execute and file such financing or continuation statements,
or amendments thereto or assignments thereof, and such other instruments or
notices, as may be necessary or appropriate; and
1. ▇▇▇▇ the summary master control data processing records
with the legend set forth in Section 4.1(i).
Each Originator hereby authorizes the Company or its designee to file one or
more financing or continuation statements, and amendments thereto and
assignments thereof, relative to all or any of the Receivables (and the Related
Rights) now existing or hereafter generated by such Originator. If such
Originator fails to perform any of its agreements or obligations under this
Agreement, the Company or its designee may (but shall not be required to) itself
perform, or cause performance of, such agreement or obligation, and the expenses
of the Company or its designee incurred in connection therewith shall be payable
by such non-performing Originator as provided in Section 9.1.
A. Application of Collections. Any payment by an Obligor in respect of any
indebtedness owed by it to any Originator shall, except as otherwise specified
by such Obligor or otherwise required by contract or law and unless otherwise
instructed by the Company or the Administrator, be applied first, as a
Collection of any Receivables of such Obligor, in the order of the age of such
Receivables, starting with the oldest of such Receivables, and second, to any
other indebtedness of such Obligor.
I. ARTICLE
PURCHASE AND SALE TERMINATION EVENTS
A. Purchase and Sale Termination Events. Each of the
following events or occurrences described in this Section 8.1 shall
constitute a "Purchase and Sale Termination Event":
1. The Facility Termination Date shall have occurred; or
1. Any Originator shall fail to make any payment or deposit to
be made by it hereunder when due and such failure shall remain unremedied for
two Business Days after written notice; or
1. Any representation or warranty made or deemed to be made by any Originator
(or any of its officers) under or in connection with this Agreement, any other
Transaction Document or any other information or report delivered pursuant
hereto or thereto shall prove to have been false or incorrect in any material
respect when made or deemed made (other than with respect to any Receivable for
which the Purchase Price has been reduced and accounted for pursuant to Section
3.3); or
1. Any Originator shall fail to perform or observe in any
material respect any material agreement contained in any of Sections 6.1(h)
or 6.3; or
1. Any Originator shall fail to perform or observe in any material respect any
other term, covenant or agreement contained in this Agreement on its part to be
performed or observed and such failure shall remain unremedied for thirty (30)
days after written notice thereof shall have been given by the Servicer, the
Administrator or the Company to such Originator; or
a) Any Originator or any of its subsidiaries shall generally not pay its debts
as such debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against such Originator
or any of its subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for all or any substantial part of its property and,
in the case of any such proceeding instituted against it (but not instituted by
it), such proceeding shall remain undismissed or unstayed for a period of 60
days; or any Originator or any of its subsidiaries shall take any corporate
action to authorize any of the actions set forth in clause (i) above in this
Section 8.1(f); or
1. The Internal Revenue Service shall, or shall indicate its intention in
writing to any Originator to, file notice of a lien asserting a claim or claims
pursuant to the Code with regard to any of the assets of any Originator, or the
Pension Benefit Guaranty Corporation shall, or shall indicate its intention in
writing to such Originator or an ERISA Affiliate to, either file notice of a
lien asserting a claim pursuant to ERISA with regard to any assets of such
Originator or an ERISA Affiliate or terminate any benefit plan that has unfunded
benefit liabilities.
A. Remedies.
a) Optional Termination. Upon the occurrence of a Purchase and Sale Termination
Event, the Company shall have the option by notice to the Originators (with a
copy to the Administrator) to declare the Purchase and Sale Termination Date to
have occurred.
a) Remedies Cumulative. Upon any termination of the Purchase Facility pursuant
to this Section 8.2, the Company shall have, in addition to all other rights and
remedies under this Agreement or otherwise, all other rights and remedies
provided under the UCC of each applicable jurisdiction and other applicable
laws, which rights shall be cumulative.
I. ARTICLE
INDEMNIFICATION
A. Indemnities by the Originators. Without limiting any other rights which the
Company may have hereunder or under applicable law, each Originator, severally
and itself alone, and IMO jointly and severally with each Originator hereby
agrees to indemnify the Company and each of its assigns, officers, directors,
employees and agents (each of the foregoing Persons being individually called a
"Purchase and Sale Indemnified Party"), forthwith on demand, from and against
any and all damages, losses, claims, judgments, liabilities and related costs
and expenses, including reasonable attorneys' fees and disbursements (all of the
foregoing being collectively called "Purchase and Sale Indemnified Amounts")
awarded against or incurred by any of them arising out of or as a result of the
following:
1. the transfer by such Originator of an interest in any
Receivable or Related Right to any Person other than the Company;
1. the breach of any representation or warranty made by such Originator under or
in connection with this Agreement or any other Transaction Document, or any
information or report delivered by such Originator pursuant hereto or thereto
which shall have been false or incorrect in any respect when made or deemed
made;
1. the failure by such Originator to comply with any
applicable law, rule or regulation with respect to any Receivable or the
related Contract, or the nonconformity of any Receivable or the related
Contract with any such applicable law, rule or regulation;
1. the failure to vest and maintain vested in the Company an
ownership interest in the Receivables generated by such Originator and the
Related Rights free and clear of any Adverse Claim;
1. the failure of such Originator to file with respect to itself, or any delay
by such Originator in filing, financing statements or other similar instruments
or documents under the UCC of any applicable jurisdiction or other applicable
laws with respect to any Receivables or purported Receivables generated by such
Originator or any Related Rights, whether at the time of any purchase or at any
subsequent time;
1. any dispute, claim, offset or defense (other than discharge or stay in
bankruptcy) of the Obligor to the payment of any Receivable or purported
Receivable generated by such Originator (including, without limitation, a
defense based on such Receivable or the related Contract not being a legal,
valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the goods or
services related to any such Receivable or the furnishing of or failure to
furnish such goods or services;
1. any product liability claim arising out of or in connection
with goods or services that are the subject of any Receivable;
1. any litigation, proceeding or investigation against such
Originator;
1. any tax or governmental fee or charge (other than any tax excluded pursuant
to the proviso below), all interest and penalties thereon or with respect
thereto, and all out-of-pocket costs and expenses, including the reasonable fees
and expenses of counsel in defending against the same, which may arise by reason
of the purchase or ownership of the Receivables or any Related Right connected
with any such Receivables; and
1. any failure of such Originator to perform its duties or
obligations in accordance with the provisions of this Agreement or any other
Transaction Document;
excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of a Purchase
and Sale Indemnified Party, (ii) any indemnification which has the effect of
recourse for non-payment or late payment of the Receivables to any indemnitor
due to credit reasons, (iii) any tax based upon or measured by net income or
gross receipts, and (iv) any withholding taxes imposed as a result of amounts
paid or payable to such Purchase and Sale Indemnified Party pursuant to this
Agreement.
If for any reason the indemnification provided above in this Section 9.1
is unavailable to a Purchase and Sale Indemnified Party or is insufficient to
hold such Purchase and Sale Indemnified Party harmless, then each of the
Originators, severally and for itself alone, and IMO, jointly and severally with
each Originator, shall contribute (subject to the provisions in this Section
9.1) to the amount paid or payable by such Purchase and Sale Indemnified Party
as a result of such loss, claim, damage or liability to the maximum extent
permitted under applicable law.
I. ARTICLE
MISCELLANEOUS
A. Amendments, etc.
1. The provisions of this Agreement may from time to time be amended, modified
or waived, if such amendment, modification or waiver is in writing and consented
to by the Company, IMO the Administrator and the Originators (with respect to an
amendment) or by the Company (with respect to a waiver or consent by it).
1. No failure or delay on the part of the Company, Servicer, any Originator or
any third party beneficiary in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on the Company, the
Servicer, or any Originator in any case shall entitle it to any notice or demand
in similar or other circumstances. No waiver or approval by the Company or the
Servicer under this Agreement shall, except as may otherwise be stated in such
waiver or approval, be applicable to subsequent transactions. No waiver or
approval under this Agreement shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
A. Notices, etc. All notices and other communications provided for hereunder
shall, unless otherwise stated herein, be in writing (including facsimile
communication) and shall be personally delivered or sent by express mail or
courier or by certified mail, postage-prepaid, or by facsimile, to the intended
party at the address or facsimile number of such party set forth under its name
on the signature pages hereof or at such other address or facsimile number as
shall be designated by such party in a written notice to the other parties
hereto. All such notices and communications shall be effective, (i) if
personally delivered or sent by express mail or courier or if sent by certified
mail, when received, and (ii) if transmitted by facsimile, when sent, receipt
confirmed by telephone or electronic means.
A. No Waiver; Cumulative Remedies. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
A. Binding Effect; Assignability. This Agreement shall be binding upon and inure
to the benefit of the Company and each Originator and their respective
successors and permitted assigns; provided, however, that no Originator may
assign its rights hereunder or any interest herein or delegate its duties
hereunder without the prior written consent of the Company and the
Administrator. 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 date after the Purchase and Sale Termination
Date on which the Originators have received payment in full for all Receivables
and Related Rights purchased pursuant to Section 1.1 hereof. The rights and
remedies with respect to any breach of any representation and warranty made by
any Originator pursuant to Article V and the indemnification and payment
provisions of Article IX and Section 10.6 shall be continuing and shall survive
any termination of this Agreement.
A. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS, AND NOT THE CONFLICT OF LAW
PRINCIPLES, OF THE STATE OF NEW YORK EXCEPT TO THE EXTENT THAT THE VALIDITY
OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE STATE OF NEW YORK.
A. Costs, Expenses and Taxes. In addition to the obligations
of the Originators under Article IX, each Originator agrees to pay on demand:
1. all reasonable costs and expenses in connection with the
enforcement of this Agreement and the other Transaction Documents; and
1. all stamp and other similar taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of this
Agreement or the other Transaction Documents, and agrees to indemnify each
Purchase and Sale Indemnified Party against any liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and fees.
A. Submission to Jurisdiction. EACH PARTY HERETO HEREBY IRREVOCABLY (a) SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK OR OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c) WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d) CONSENTS
TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN
SECTION 10.2; AND (e) TO THE EXTENT ALLOWED BY LAW, AGREES THAT A NONAPPEALABLE
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS SECTION 10.7 SHALL AFFECT THE COMPANY'S RIGHT
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY
ACTION OR PROCEEDING AGAINST THE ORIGINATOR OR ITS RESPECTIVE PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTIONS.
A. Waiver of Jury Trial. EACH PARTY HERETO EXPRESSLY WAIVES ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR UNDER ANY AMENDMENT, INSTRUMENT OR
DOCUMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
A. Captions and Cross References; Incorporation by Reference. The various
captions (including, without limitation, the table of contents) in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to any underscored Section or Exhibit are to such Section or Exhibit of this
Agreement, as the case may be. The Exhibits hereto are hereby incorporated by
reference into and made a part of this Agreement.
A. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same Agreement.
A. Acknowledgment and Agreement. By execution below, each Originator expressly
acknowledges and agrees that all of the Company's rights, title, and interests
in, to, and under this Agreement shall be assigned by the Company to the Issuer
pursuant to the Receivables Purchase Agreement, and such Originator consents to
all such assignments. Each of the parties hereto acknowledges and agrees that
the Administrator and the Issuer are third party beneficiaries of the rights of
the Company arising hereunder and under the other Transaction Documents to which
such Originator is a party.
Purchase and Sale Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly
authorized, as of the date first above written.
IMO FUNDING COMPANY, LLC
By: ___________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IMO INDUSTRIES INC., as initial Servicer
By: ____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ORIGINATORS:
IMO INDUSTRIES INC., as an Originator
By: ___________________________________
Name: _________________________________
Title: __________________________________
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ PUMPS INC., as an Originator
By: ___________________________________
Name: _________________________________
Title: __________________________________
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ (x200)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 5.13
OFFICE LOCATIONS
Imo Industries Inc.
Principal Place of Business and Chief Executive Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Additional Offices:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇.▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Summit County
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Pumps Inc.
Principal Place of Business and Chief Executive Office:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Additional Offices:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE 5.14(a)
TRADE NAMES
Imo Industries Inc.
Boston Gear
▇▇▇▇▇ Controls
Imo Pump
Fincor
Colfax Pump Group
Colfax Power Transmission
▇▇▇▇▇▇ Pumps Inc.
▇▇▇▇▇▇
▇▇▇▇▇▇ Pump Group
SCHEDULE 5.14(b)
PREVIOUS NAMES, MERGERS OR CORPORATE REORGANIZATION
Imo Industries Inc.
None
▇▇▇▇▇▇ Pumps Inc.
None
EXHIBIT A
FORM OF PURCHASE REPORT
EXHIBIT B
FORM OF COMPANY NOTE
EXHIBIT C
FORM OF OPINION OF ORIGINATOR'S COUNSEL
EXHIBIT D
FORM OF JOINDER AGREEMENT
EXHIBIT E
FORM OF ORIGINATOR ASSIGNMENT CERTIFICATE