Exhibit 10.25
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PURCHASE AND SALE AGREEMENT
DATED AS OF NOVEMBER 29, 2000
BETWEEN
PACKAGING CREDIT COMPANY, LLC
AND
PACKAGING RECEIVABLES COMPANY, LLC
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TABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE I AGREEMENT TO SELL......................................3
Section 1.1. Sales and Contributions................................3
Section 1.2. Timing of Purchases....................................4
Section 1.3. Consideration for Purchases............................5
Section 1.4. Sale Termination Date..................................5
ARTICLE II CALCULATION OF PURCHASE PRICE..........................5
Section 2.1. Calculation of Purchase Price..........................5
ARTICLE III PAYMENT OF PURCHASE PRICE..............................7
Section 3.1. Initial Purchase Price Payment.........................7
Section 3.2. Subsequent Purchase Price Payments.....................7
Section 3.3. Settlement as to Specific Receivables..................8
Section 3.4. Settlement as to Dilution..............................9
Section 3.5. Reconveyance of Receivables............................9
ARTICLE IV CONDITIONS OF PURCHASERS...............................9
Section 4.1. Conditions Precedent to Initial Purchase...............9
Section 4.2. Certification as to Representations and
Warranties............................................11
ARTICLE V REPRESENTATIONS AND WARRANTIES........................11
Section 5.1. Representations of Seller.............................11
ARTICLE VI COVENANTS OF SELLER...................................14
Section 6.1. Affirmative Covenants.................................14
Section 6.2. Reporting Requirements................................15
Section 6.3. Negative Covenants....................................16
ARTICLE VII ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE
RECEIVABLES...........................................16
Section 7.1. Rights of the Servicer................................16
Section 7.2. Responsibilities of Seller............................16
Section 7.3. Further Action Evidencing Purchases...................17
Section 7.4. Application of Collections............................17
ARTICLE VIII INDEMNIFICATION.......................................17
Section 8.1. Indemnities of Seller.................................17
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ARTICLE IX MISCELLANEOUS.........................................20
Section 9.1. Amendments, Etc.......................................20
Section 9.2. Notices, Etc..........................................20
Section 9.3. No Waiver; Cumulative Remedies........................20
Section 9.4. Binding Effect; Assignability.........................20
Section 9.5. Governing Law.........................................21
Section 9.6. Costs, Expenses and Taxes.............................21
Section 9.7. Submission to Jurisdiction............................21
Section 9.8. Waiver of Jury Trial..................................21
Section 9.9. Captions and Cross References;
Incorporation by Reference............................22
Section 9.10. Execution in Counterparts.............................22
Section 9.11. Acknowledgment and Agreement..........................22
Section 9.12. No Proceedings........................................22
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EXHIBITS
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EXHIBIT A FORM OF PURCHASE REPORT
EXHIBIT B FORM OF THE SELLER NOTE
EXHIBIT C OFFICE LOCATIONS
EXHIBIT A-1 FORM OF LOCKBOX AGREEMENT
SCHEDULES
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SCHEDULE 5.1(n) TRADE NAMES
SCHEDULE 9.2 NOTICE ADDRESS
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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, 2000, is between
Packaging Credit Company, LLC, a Delaware limited liability company ("SELLER"),
as seller, and Packaging Receivables 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 Appendix A to the Credit and Security
Agreement dated as of the date hereof (as amended, supplemented or otherwise
modified from time to time, (the "CREDIT AND SECURITY AGREEMENT"), among the
Company, Seller, as initial Servicer, Blue Ridge Asset Funding Corporation, as a
Lender, Wachovia Bank, N.A., individually as a Lender and as the agent for the
Lenders (the "AGENT"). The following terms have the respective meanings
indicated below:
AVAILABLE FUNDS: As defined in Section 3.2 hereof.
CONTRIBUTED RECEIVABLES: As defined in Section 1.2(b) hereof.
DEEMED COLLECTION: Amounts payable by Seller pursuant to Section 3.3 or
3.4.
INELIGIBLE RECEIVABLE: As defined in Section 3.3 hereof.
INITIAL CLOSING DATE: As defined in Section 1.2 hereof.
INITIAL CONTRIBUTED RECEIVABLES: As defined in Section 1.1(b).
INITIAL CUT-OFF DATE: The Business Day immediately preceding the Initial
Closing Date.
LOCKBOX ACCOUNTS: One or more lockbox accounts held in Lockbox Banks for
receiving Collections from Receivables.
MAXIMUM SELLER NOTE BALANCE: Means:
(a) zero as of the date of this Agreement and shall mean zero until
such time as Seller and the Company mutually agree that the meaning in
clause (b) below shall apply; and
(b) at such time as the Seller and the Company mutually agree, an
amount equal to the excess of (i) the Net Pool Balance over (ii) the sum of
(a) the outstanding principal balance of all Loans made to the Company
under the Credit and Security Agreement and (b) the Triple-B Loss Reserve
Amount, each as of such date.
PURCHASE PRICE: As defined in Section 2.1 hereof.
PURCHASE REPORT: As defined in Section 2.1 hereof.
RELATED RIGHTS: As defined in Section 1.1(a) hereof.
SALE INDEMNIFIED AMOUNTS: As defined in Section 8.1 hereof.
SALE INDEMNIFIED PARTY: As defined in Section 8.1 hereof.
SALE TERMINATION DATE: As defined in Section 1.4 hereof.
SELLER MATERIAL ADVERSE EFFECT: With respect to any event or circumstance:
(i) a Credit Event shall have occurred;
(ii) a material adverse effect on the ability of Seller to perform
its obligations under this Agreement or any other Transaction Document to
which Seller is a party;
(iii) a material adverse effect on the validity or enforceability
as against Seller of this Agreement or any other Transaction Document to
which Seller is a party;
(iv) a material adverse effect on the status, existence,
perfection, priority or enforceability of the Company's interest in the
Receivables and the Related Rights; or
(v) a material adverse effect on the validity, enforceability or
collectability of a material portion of the Receivables.
SELLER NOTE: As defined in Section 3.2 hereof.
TRIPLE-B LOSS RESERVE AMOUNT: As of any date means an amount equal to the
product of (i) the Net Pool Balance and (ii) the Loss Reserve as of the
immediately preceding Cut-Off Date (except that such Loss Reserve shall be
calculated with a multiple of 1.5 rather than 2.0).
BACKGROUND
1. The Company is a limited liability company, all of the membership
interests of which are wholly-owned by Seller.
2. Seller is concurrently with the initial sale hereunder transferring
certain Receivables and Related Rights to the Company as part of the
capitalization of the Company.
3. Seller wishes to sell Receivables and Related Rights to the Company, and
the Company is willing, on the terms and subject to the conditions set forth
herein, to purchase Receivables and Related Rights from Seller.
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4. The Company intends to pledge its interests in the Receivables and
Related Rights as collateral for loans under the Credit and Security Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
AGREEMENT TO SELL
SECTION 1.1. SALES AND CONTRIBUTIONS.
(a) AGREEMENT TO SELL. On the terms and subject to the conditions set forth
in this Agreement (including Article V), and in consideration of the Purchase
Price, from the Initial Closing Date until the Sale Termination Date, Seller
agrees to sell, assign and transfer, and does hereby sell, assign and transfer
to the Company, and the Company agrees to purchase, and does hereby purchase
from Seller, all of Seller's right, title and interest in and to:
(i) each Receivable (other than Initial Contributed Receivables) of
Seller that existed and was owing to Seller as of the close of Seller's
business on the Initial Cut-Off Date;
(ii) each Receivable (other than Contributed Receivables) transferred
to the Seller pursuant to the Sale Agreement from the close of Seller's
business on the Initial Cut-Off Date, to and including the Sale Termination
Date;
(iii) all rights to, but not the obligations under, all related
Contracts and all Related Security;
(iv) all monies due or to become due with respect to the foregoing;
(v) all books and records related to any of the foregoing;
(vi) all Lockbox Accounts, all amounts on deposit therein and all
related agreements between Seller and the Lockbox Banks, in each case to
the extent constituting or representing items described in paragraph (vii)
below; and
(vii) all Collections in respect of, and other proceeds of,
Receivables or any other of the foregoing (as defined in the UCC) received
on or after the Initial Cut-Off Date including, without limitation, all
funds which either are received by Seller, the Company, the Originator 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 the Seller, the Originator, the Company or the Servicer (if other
than Seller) applies in the ordinary course of its business to amounts owed
in respect of any Receivable and net proceeds of sale or other disposition
of repossessed goods or other collateral or property of the Obligors or any
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other party directly or indirectly liable for payment of such Receivable
and available to be applied thereon).
All purchases and capital contributions hereunder shall be made without
recourse, but shall be made pursuant to and in reliance upon the
representations, warranties and covenants of Seller, in its capacity as seller,
set forth in each Transaction Document. The proceeds and rights described in
subsections (iii) through (vii) of this Section 1.1(a) are herein collectively
called the "RELATED RIGHTS."
(b) AGREEMENT TO CONTRIBUTE. In consideration of the membership interests
of the Company issued to Seller, Seller agrees to contribute, and does hereby
contribute to the Company, and the Company agrees to accept, and does hereby
accept, from Seller, in each case, on the Initial Closing Date, all of Seller's
right, title and interest in and to (i) Receivables, and the Related Rights with
respect thereto, existing on the Initial Cut-Off Date, starting with the oldest
such Receivables such that the aggregate Unpaid Balance of all such Receivables
shall be as close as possible to, but not less than, $67,000,000 (the "INITIAL
CONTRIBUTED RECEIVABLES") and (ii) all other Contributed Receivables.
(c) ABSOLUTE TRANSFER. It is the intention of the parties hereto that the
conveyance of the Receivables and Related Rights by the Seller to the Company as
provided in this Section 1.1 be, and be construed as, an absolute sale or
contribution, without recourse, of such Receivables and Related Rights by the
Seller to the Company. Furthermore, it is not intended that such conveyance be
deemed a pledge of such Receivables and Related Rights by the Seller to the
Company to secure a debt or other obligation of the Seller. If, however,
notwithstanding the intention of the parties, the conveyance provided for in
this Section 1.1 is determined to be a transfer for security, then this
Agreement shall also be deemed to be a "security agreement" within the meaning
of Article 9 of the UCC and the Seller hereby grants to the Company a "security
interest" within the meaning of Article 9 of the UCC in all of the Seller's
right, title and interest in and to such Receivables and Related Rights, now
existing and hereafter created, to secure a loan in an amount equal to the
aggregate Purchase Price therefor and the Seller's other payment obligations
under this Agreement.
SECTION 1.2. TIMING OF PURCHASES.
(a) INITIAL CLOSING DATE PURCHASES. On the date of the first Loan under the
Credit and Security Agreement (the "INITIAL CLOSING DATE") Seller shall sell to
the Company, and the Company shall purchase, pursuant to Section 1.1, Seller's
entire right, title and interest in (i) each Receivable (other than the Initial
Contributed Receivables) that existed and was owing to Seller as of the close of
Seller's business on the Initial Cut-Off Date, and (ii) all Related Rights with
respect thereto.
(b) REGULAR PURCHASES AND CONTRIBUTIONS. After the Initial Closing Date,
and continuing until the Sale Termination Date, each Receivable described in
Section 1.1(a)(ii) hereof, and all the Related Rights with respect thereto,
transferred to the Seller pursuant to the Sale Agreement shall be sold or
contributed by Seller to the Company (without any further action) upon the
transfer of such Receivable. All such Receivables, other than those Receivables
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indicated on a Purchase Report as having been contributed by Seller to the
Company (such other Receivables, together with the Initial Contributed
Receivables, the "CONTRIBUTED RECEIVABLES"), shall be sold to the Company on
such date; all Contributed Receivables shall be contributed by the Seller to the
Company on such date.
SECTION 1.3. 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 Seller in accordance with Article III.
SECTION 1.4. SALE TERMINATION DATE. The "SALE TERMINATION DATE" shall be
the Termination Date under the Credit and Security Agreement.
ARTICLE II
CALCULATION OF PURCHASE PRICE
SECTION 2.1. CALCULATION OF PURCHASE PRICE. On each Reporting Date
(commencing with the first Reporting Date following the Initial Closing Date),
the Servicer shall deliver to the Company, the Agent and Seller (if the Servicer
is other than Seller) a report in substantially the form of Exhibit A (each such
report being herein called a "PURCHASE REPORT") with respect to the Company's
purchases of Receivables from Seller:
(a) that arose on or prior to the Initial Cut-Off Date (in the case of
the first Purchase Report to be delivered hereunder) and
(b) that arose during the Settlement Period immediately preceding such
Reporting Date (in the case of each successive Purchase Report).
Each Purchase Report shall designate the amount of such Receivables that were
Eligible Receivables on the date of origination (or, in the case of Receivables
transferred or contributed on the Initial Closing Date, on the Initial Closing
Date).
The "PURCHASE PRICE" (to be paid in accordance with the terms of
Article III) for the Receivables and the Related Rights shall be determined in
accordance with the following formula:
PP = AUB - (AUB x FMVD)
where:
PP = Purchase Price (to be paid to Seller in accordance with the
terms of Article III) as calculated on the relevant
Reporting Date.
AUB = (i) for purposes of calculating the Purchase Price on the
Initial Closing Date, the aggregate Unpaid Balance of all
Receivables that existed and were owing to Seller as
measured as at the Initial Cut-
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Off Date, less an amount equal to the sum of the aggregate
Unpaid Balance of all Initial Contributed Receivables, and
(ii) for purposes of calculating the Purchase Price for
Receivables on each Reporting Date thereafter, the
aggregate Unpaid Balance of the Receivables described in
Section 1.1(a)(ii) hereof that were generated by Seller
during the immediately preceding Settlement Period, less an
amount equal to the sum of the aggregate Unpaid Balance of
all Contributed Receivables, if any, indicated on the
related Purchase Report.
FMVD = Fair Market Value Discount Factor on the determination
date, which is the sum of the Loss Discount and the Cost
Discount, in each case as calculated on the most recent
Reporting Date as set forth in the definitions below.
"LOSS DISCOUNT" as measured on the Initial Closing Date or any Reporting
Date means the ratio, expressed as a percentage, of (i) the losses (i.e.
write-offs to the bad debt reserve or other write-offs consistent with the
Credit and Collection Policy, in each case, net of recoveries) recognized for
all Receivables during the period equal to twelve (12) successive months ending
on the Cut-Off Date immediately preceding the Initial Closing Date or such
Reporting Date, as the case may be, divided by (ii) the Collections on all
Receivables received during such period.
"COST DISCOUNT" as measured on the Initial Closing Date or any Reporting
Date means a percentage determined in accordance with the following formula:
CD = (DSO/360) x CR
where:
CD = the Cost Discount as measured on such Monthly Reporting
Date;
DSO = the Days Sales Outstanding, as set forth in the most recent
Purchase Report; and
CR = the Cost Rate as measured on such Reporting Date.
"COST RATE" as measured on the Initial Closing Date or any Reporting Date
means a per annum percentage rate equal to the sum of (i) the LIBO Rate for the
Initial Closing Date or the related Settlement Period, as the case may be, plus
(ii) 1.00%.
"LIBO RATE" for the Initial Closing Date or any Settlement Period means the
offered rate per annum (rounded upwards, if necessary, to the nearest 1/16th of
one percent) appearing in The Wall Street Journal for three month LIBOR loans on
the Initial Closing Date or the first Business Day of such Settlement Period, as
the case may be.
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ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION 3.1. INITIAL PURCHASE PRICE PAYMENT. On the terms and subject to
the conditions set forth in this Agreement, the Company agrees to pay to Seller
on the Initial Closing Date the Purchase Price for the purchase to be made from
Seller with respect to Receivables existing on or prior to the Initial Cut-Off
Date (other than the Initial Contributed Receivables) in cash in an amount equal
to the amount received by the Company in connection with the first Loan made
pursuant to the Credit and Security Agreement.
SECTION 3.2. SUBSEQUENT PURCHASE PRICE PAYMENTS. After the Initial Closing
Date and until the termination of this Agreement pursuant to Section 9.4 hereof,
the Purchase Price due pursuant to Section 2.1 for each Settlement Period shall
be due on the related Settlement Date. As an advance payment of such Purchase
Price, on each Business Day during a Settlement Period, the Company shall pay to
Seller a portion of the Purchase Price due pursuant to Section 2.1 by depositing
into such account, as Seller shall specify, immediately available funds from
monies then held by or on behalf of the Company solely to the extent that such
monies do not constitute Collections that are required to be set aside or
segregated and held by the Servicer pursuant to the Credit and Security
Agreement or to be distributed to the Agent or the Lenders pursuant to the
Credit and Security Agreement or required to be paid to the Servicer as the
Servicer's Fee on the next Settlement Date, or otherwise necessary to pay
current expenses of the Company (in its reasonable discretion) (such available
monies, the "AVAILABLE FUNDS") and provided that Seller has paid all amounts
then owing by it hereunder. On each Reporting Date, the Servicer shall calculate
the amount of the Purchase Price remaining to be paid by deducting from the
Purchase Price the Available Funds that have been paid during the corresponding
Settlement Period, and such amount due shall be identified in the Purchase
Report.
To the extent that the Available Funds were insufficient to pay the
Purchase Price then due in full (an "AVAILABLE FUNDS SHORTFALL"), the remaining
portion of such Purchase Price shall be paid by:
(i) if the Maximum Seller Note Balance is then zero, by a contribution
to the Company of an amount equal to the Available Funds Shortfall;
(ii) upon the first occurrence of an Available Funds Shortfall when
the Maximum Seller Note Balance is greater than zero, by issuing a
promissory note in the form of Exhibit B to Seller in the amount of such
Available Funds Shortfall (such promissory note, as it may be amended,
supplemented, endorsed or otherwise modified from time to time in
substitution therefor or renewal thereof in accordance with the Transaction
Documents, being herein called the "SELLER NOTE"); or
(iii) otherwise, by increasing the principal amount of the Seller
Note, effective as of the last day of the related Settlement Period in the
amount of such Available Funds Shortfall;
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PROVIDED, HOWEVER, that the aggregate of the principal amounts outstanding at
any time under the Seller Note may not exceed the Maximum Seller Note Balance
(which is zero as of the date hereof); and PROVIDED FURTHER, that the amount of
such increase in the principal amount of the Seller Note on any Settlement Date
may not account for more than 25% of the aggregate Purchase Price due with
respect to the related Settlement Period (the "SELLER NOTE MONTHLY MAXIMUM").
To the extent that the amount due with respect to the related Settlement
Period pursuant to Section 2.1 exceeds (x) the Available Funds plus (y) the
Seller Note Monthly Maximum (such excess amount, the "SHORTFALL"), the Seller
shall contribute to the Company cash in an amount equal to such Shortfall, and
the Company shall use such funds to repay the Shortfall. To the extent that (x)
the amount due pursuant to Section 2.1 with respect to all Receivables sold by
Seller that arose during the corresponding Settlement Period is exceeded by (y)
the amount paid for such Receivables to Seller during such Settlement Period
pursuant to the second sentence of this Section 3.2, such excess shall be
treated as a reduction in the principal amount of the Seller Note, effective as
of the last day of the related Settlement Period, and, if the principal amount
of the Seller Note is zero, such excess shall be refunded to the Company.
Seller shall make all appropriate record keeping entries with respect to
the Seller Note to reflect payments by the Company thereon and Seller's books
and records shall constitute rebuttable presumptive evidence of the principal
amount of and accrued interest on the Seller Note. Seller shall return the
Seller Note to the Company upon the final payment thereof after the termination
of this Agreement pursuant to Section 9.4 hereof.
SECTION 3.3. SETTLEMENT AS TO SPECIFIC RECEIVABLES. If an officer of Seller
obtains knowledge or receives notice from the Company or the Agent that (a) on
the day that any Receivable purchased or contributed hereunder was transferred
to the Seller pursuant to the Sale Agreement, (or, in the case of Receivables
transferred or contributed on the Initial Closing Date, on the Initial Closing
Date) any of the representations or warranties set forth in Section 5.1(k) were
not true with respect to such Receivable, or such Receivable was designated as
an Eligible Receivable on the related Purchase Report and was not an Eligible
Receivable or, (b) on any day any of the representations or warranties set forth
in Section 5.1(k) with respect to any Receivable is no longer true with respect
to a Receivable (each such Receivable, an "INELIGIBLE RECEIVABLE"), then the
Purchase Price with respect to Receivables that arose during the same Settlement
Period in which such knowledge is obtained or notification is received shall be
decreased by an amount equal to the Unpaid Balance of such Ineligible Receivable
as of the related Settlement Date; PROVIDED, HOWEVER, that if there have been no
purchases of Receivables (or insufficiently large purchases of Receivables to
create a Purchase Price large enough to so reduce by the amount of such Unpaid
Balances) from Seller during such Settlement Period, any amount owed by which
the Purchase Price payable to Seller would have been reduced pursuant to the
immediately preceding clause of this sentence shall be paid by either (at the
option of Seller, unless the Company will, absent such payment in cash, be
unable to meet its obligations under the Credit and Security Agreement on the
next occurring Settlement Date, in which case Seller shall make a cash payment
on or before such Settlement Date) a reduction in the principal amount of the
Seller Note (but not below zero) or by payment within two Business Days after
the related Reporting Date in cash by Seller to the Company by payment of same
day funds;
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PROVIDED, FURTHER, that if the Company receives payment on account of
Collections due with respect to such Ineligible Receivable after such Settlement
Date, the Company promptly shall deliver such funds to Seller. The enforcement
of the obligations of Seller set forth in this Section 3.3 shall be the sole
remedy of the Company with respect to Ineligible Receivables.
SECTION 3.4. SETTLEMENT AS TO DILUTION. Each Purchase Report shall include,
in respect of the Receivables previously contributed or sold by Seller
(including the Initial Contributed Receivables), a calculation of the aggregate
net reduction in the aggregate Unpaid Balance of such Receivables owed by
particular Obligors on account of any defective, rejected or returned
merchandise or services, any cash discount, any incorrect ▇▇▇▇▇▇▇▇ or other
adjustments, or setoffs in respect of any claims by the Obligor(s) thereof
(whether such claims arise out of the same or a related or unrelated
transaction), or any rebate or refund during the most recent Settlement Period.
The Purchase Price to be paid to Seller for the Receivables generated during the
Settlement Period for which such Purchase Report is delivered shall be decreased
by the amount of such net reduction; PROVIDED, HOWEVER, that if there have been
no purchases of Receivables (or insufficiently large purchases of Receivables to
create a Purchase Price large enough to so reduce by the amount of such net
reduction) from Seller during such Settlement Period, any amount owed by which
the Purchase Price payable to Seller would have been reduced pursuant to the
immediately preceding clause of this sentence shall be paid by either (at the
option of Seller, unless the Company will, absent such payment in cash, be
unable to meet its obligations under the Credit and Security Agreement on the
next occurring Settlement Date, in which case Seller shall make a cash payment
on or before such Settlement Date) a reduction in the principal amount of the
Seller Note (but not below zero) or by payment within two Business Days after
the related Reporting Date in cash by Seller to the Company by payment of same
day funds.
SECTION 3.5. RECONVEYANCE OF RECEIVABLES. In the event that Seller has paid
(by effecting a Purchase Price reduction or otherwise) to the Company the full
Unpaid Balance of any Receivable pursuant to Section 3.3 or 3.4, the Company
shall reconvey such Receivable and all Related Rights with respect thereto, to
Seller, without recourse, representation or warranty, but free and clear of all
liens created by the Company; such reconveyed Receivables and all Related Rights
shall no longer be subject to the terms of this Agreement (including any
obligation to turn over Collections with respect thereto).
ARTICLE IV
CONDITIONS OF PURCHASES
SECTION 4.1. CONDITIONS PRECEDENT TO INITIAL PURCHASE. The initial purchase
and contribution hereunder is subject to the condition precedent that the
Company shall have received, on or before the Initial Closing Date, the
following, each (unless otherwise indicated) dated the Initial Closing Date, and
each in form, substance and date reasonably satisfactory to the Company and the
Agent:
(a) A copy of the resolutions of the Board of Managers of Seller
approving the Transaction Documents to be delivered by it and the
transactions contemplated hereby and thereby, certified by the Secretary or
Assistant Secretary of Seller;
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(b) Certificate of Existence for Seller issued as of a recent date by
the Secretary of State of Delaware;
(c) A certificate of the Secretary or Assistant Secretary of Seller
certifying the names and true signatures of the officers authorized on
Seller's behalf to sign the Transaction Documents to be delivered by it (on
which certificate the Company and Servicer (if other than Seller) may
conclusively rely until such time as the Company and the Servicer shall
receive from Seller a revised certificate meeting the requirements of this
subsection (c);
(d) The Certificate of Limited Liability Company of Seller, duly
certified by the Secretary of State of Delaware as of a recent date,
together with a copy of the Operating Agreement of Seller, duly certified
by the Secretary or Assistant Secretary of Seller;
(e) Copies of the proper financing statements (Form UCC-1) that have
been duly executed and name Seller as the assignor and the Company as the
assignee (and Agent, on behalf of the Lenders, as assignee of the Company)
of the Receivables and the Related Rights or other, similar instruments or
documents, as may be necessary or, in Servicer's or the Agent'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 the ownership
interest may be assigned to it hereunder;
(f) A written search report from a Person satisfactory to Servicer and
the Agent listing all effective financing statements that name Seller 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
related to any Receivable) which is to be sold to the Company hereunder,
and tax and judgment lien search reports from a Person satisfactory to
Servicer and the Agent showing no evidence of such liens filed against
Seller;
(g) 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
(h) A certificate from an officer or other appropriate manager of
Seller to the effect that Servicer and Seller 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 BY PACKAGING CORPORATION OF
AMERICA TO PACKAGING CREDIT COMPANY, LLC AND THEN SOLD BY PACKAGING CREDIT
COMPANY, LLC TO PACKAGING RECEIVABLES COMPANY,
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LLC; AND A SECURITY INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN
GRANTED AND ASSIGNED BY PACKAGING RECEIVABLES COMPANY, LLC TO WACHOVIA
BANK, N.A., AS AGENT.
SECTION 4.2. CERTIFICATION AS TO REPRESENTATIONS AND WARRANTIES. Seller, by
accepting the Purchase Price related to each purchase of Receivables (and
Related Rights), shall be deemed to have certified that the representations and
warranties contained in Article V are true and correct on and as of the day of
such purchase, with the same effect as though made on and as of such day.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1. REPRESENTATIONS OF SELLER. In order to induce the Company to
enter into this Agreement and to make purchases hereunder, Seller, in its
capacity as seller under this Agreement, hereby makes the representations and
warranties set forth in this Section 5.1.
(a) ORGANIZATION AND GOOD STANDING. Seller has been duly organized and is
validly existing as a limited liability company in good standing under the laws
of the state of its organization, with power and authority to own its properties
and to conduct its business as such properties are presently owned and such
business is presently conducted.
(b) DUE QUALIFICATION. Seller is duly licensed or qualified to do business
in good standing, and has obtained all necessary approvals, in all jurisdictions
in which the ownership or lease of its property or the conduct of its business
requires such licensing, qualification or approvals, except where the failure to
be so qualified or have such licenses or approvals would not have a Seller
Material Adverse Effect.
(c) POWER AND AUTHORITY; DUE AUTHORIZATION. Seller has (a) all necessary
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
own, sell, contribute and assign Receivables on the terms and subject to the
conditions herein and therein provided; and (b) duly authorized such execution
and delivery and such sale, contribution and assignment and the performance of
such obligations by all necessary action.
(d) VALID SALE; BINDING OBLIGATIONS. Each sale or contribution of
Receivables and Related Rights made by Seller pursuant to this Agreement shall
constitute a valid sale (or contribution, as the case may be), transfer, and
assignment thereof to the Company, enforceable against creditors of, and
purchasers from, Seller; and this Agreement constitutes, and each other
Transaction Document to be signed by Seller, when duly executed and delivered,
will constitute, a legal, valid, and binding obligation of Seller, enforceable
in accordance with its terms, except 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 in law.
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(e) NO VIOLATION. The consummation of the transactions contemplated by this
Agreement and the other Transaction Documents to which Seller is a party 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) Seller's organizational
documents, or (ii) any material 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 Lien upon any of its
properties pursuant to the terms of any such material 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.
(f) PROCEEDINGS. There is no litigation, investigation or proceeding
pending, or to the best of Seller's knowledge, threatened, before any court,
regulatory body, arbitrator, administrative agency, or other tribunal or
governmental instrumentality (a) asserting the invalidity of any Transaction
Document to which Seller is a party, (b) seeking to prevent the sale or
contribution of Receivables and the Related Rights to the Company or the
consummation of any of the other transactions contemplated by any Transaction
Document to which Seller is a party, or (c) that would have a Seller Material
Adverse Effect.
(g) BULK SALES ACT. No transaction contemplated hereby requires compliance
with any bulk sales act or similar law.
(h) 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 Seller's due
execution, delivery and performance of any Transaction Document to which it is a
party.
(i) FINANCIAL CONDITION. On the date hereof Seller is, and on the date of
each transfer of a new Receivable hereunder (both before and after giving effect
to such transfer), Seller shall be solvent.
(j) MARGIN REGULATIONS. No use of any funds acquired by Seller 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.
(k) QUALITY OF TITLE.
(i) Each Receivable (together with the Related Rights with
respect to such Receivable) which is to be sold or contributed to the
Company hereunder is or shall be, at the time of such sale or contribution,
owned by Seller, free and clear of any Lien. Whenever the Company makes a
purchase or accepts a contribution of a Receivable hereunder, it shall have
acquired a valid and perfected ownership interest (free and clear of any
Lien, other than a Lien created by or arising through the Company, the
Lenders or
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the Agent) in such Receivable and all Collections related thereto, and in
Seller's entire right, title and interest in and to the Related Rights with
respect thereto.
(ii) No effective financing statement or other instrument similar
in effect covering any Receivable or any Related Right is on file in any
recording office except such as may be filed (1) in favor of Seller in
accordance with the Contracts, (2) in favor of the Company in accordance
with this Agreement, (3) in favor of the Seller in accordance with the Sale
Agreement, (4) in favor of the Lenders or the Agent in accordance with the
Credit and Security Agreement or in connection with any Lien arising solely
as the result of any action taken by the Lender (or any assignee thereof)
or by the Agent and (5) in favor of the agent pursuant to the Senior Credit
Agreement.
(l) ACCURACY OF INFORMATION. No information heretofore or contemporaneously
furnished in writing (and prepared) by Seller, as seller, to the Company, the
Lenders or the Agent for purposes of or in connection with any Transaction
Document or any transaction contemplated hereby or thereby is, and no other
written information hereafter furnished (and prepared) by Seller, as seller, to
the Company, the Lenders, or the Agent pursuant to or in connection with any
Transaction Document 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
contained or will contain any material misstatement of fact or omitted or will
omit to state any material fact necessary to make such information not
materially misleading.
(m) OFFICES. Seller's principal place of business and chief executive
office is located at the address set forth in Exhibit C, and the offices where
Seller 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 address specified in Exhibit C (or at such other locations,
notified to Servicer (if other than Seller), the Company and the Agent in
accordance with Section 6.1(f), in jurisdictions where all action required by
Section 7.3 has been taken and completed).
(n) TRADE NAMES. Except as disclosed on Schedule 5.1(n), Seller does not
use any trade name other than its actual legal name. From and after the date of
its organization, Seller has not been known by any legal name other than
Packaging Credit Company, LLC as of the date hereof, nor has Seller been the
subject of any merger or similar change in structure, except as disclosed on
Schedule 5.1(n).
(o) TAXES. Seller 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 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.
(p) COMPLIANCE WITH APPLICABLE LAWS. Seller is in compliance, in all
material respects, with the requirements of 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
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collection practices and privacy and all other consumer laws applicable to the
Receivables and related Contracts), except where such noncompliance,
individually or in the aggregate, would not have a Seller Material Adverse
Effect.
(q) RELIANCE ON SEPARATE LEGAL IDENTITY. Seller is aware that the Lenders
and the Agent are entering into the Transaction Documents to which they are
parties in reliance upon the Company's identity as a legal entity separate from
Seller and any of its other Affiliates.
ARTICLE VI
COVENANTS OF SELLER
SECTION 6.1. AFFIRMATIVE COVENANTS. From the date hereof until the Final
Payout Date, Seller will, unless the Company and the Agent shall otherwise
consent in writing:
(a) 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 Contracts and other agreements related
thereto, except where such noncompliance, individually or in the aggregate,
would not have a Seller Material Adverse Effect.
(b) PRESERVATION OF LEGAL EXISTENCE. Preserve and maintain its legal
existence, rights, franchises and privileges in the jurisdiction of its
organization, and qualify and remain qualified in good standing in each
jurisdiction where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification would have a Seller Material Adverse
Effect.
(c) RECEIVABLES REVIEW. (i) At any time and from time to time, upon not
less than ten (10) Business Days' notice (unless an Event of Default has
occurred and is continuing (or the Agent believes in good faith that an Event of
Default has occurred and is continuing), in which case no such notice shall be
required) permit the Company and the Agent 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 possession or under the control of Seller relating to the
Receivables, including, without limitation, the Contracts, and purchase orders
and other agreements related thereto, and (B) to visit Seller's offices and
properties for the purpose of examining such materials described in the
foregoing clause (A) and discussing matters relating to the Receivables
generated by Seller or Seller's performance hereunder with any of the officers
or employees of Seller having knowledge of such matters; (ii) to meet with the
independent auditors of Seller, to review such auditor's work papers and
otherwise to review with such auditors the books and records of Seller with
respect to the Receivables and the Related Rights; and (iii) without limiting
the provisions of clause (i) next above, from time to time, at Seller's expense,
permit certified public accountants or other auditors acceptable to the Agent to
conduct a review of its books and records with respect to the Receivables and
the Related Rights; provided that, so long as no Event of Default has occurred
and is continuing, (x) such reviews mentioned in clauses (i), (ii) and (iii) in
this Section 6.1(c) shall not be done more than two (2) times in any one
calendar year and (y) Seller shall only be responsible for the costs and
expenses of one such review mentioned in clauses (i), (ii) and (iii) in this
Section 6.1(c) in any one calendar year.
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(d) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain an ability to
recreate in all material respects records evidencing the Receivables generated
by it in the event of the destruction of the originals thereof.
(e) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS. At its
expense timely and fully perform and comply in all material respects with all
provisions, covenants and other promises required to be observed by it under the
Contracts and all purchase orders and other agreements related to the
Receivables.
(f) 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, at the address(es) referred to in Exhibit C or, upon 30
days' prior written notice to the Company and the Agent, at such other locations
in jurisdictions where all action required by Section 7.3 shall have been taken
and completed.
(g) CREDIT AND COLLECTION POLICIES. Comply in all material respects with
its Credit and Collection Policy in connection with the Receivables and all
Contracts related thereto.
(h) SEPARATE CORPORATE EXISTENCE OF THE COMPANY. Take such actions as shall
be required in order to maintain the separate identity of the Company separate
and apart from Seller and its other Affiliates, including those actions set
forth in Section 7.4 of the Credit and Security Agreement.
SECTION 6.2. REPORTING REQUIREMENTS. From the date hereof until the Final
Payout Date, Seller will, unless the Company and the Agent shall otherwise
consent in writing, furnish to the Company and the Agent:
(a) PROCEEDINGS. As soon as possible and in any event within ten
Business Days after any Responsible Officer of Seller has knowledge
thereof, written notice to the Company and the Agent of (i) all pending
proceedings and investigations of the type described in Section 5.1(f) not
previously disclosed to the Company and/or the Agent and (ii) all material
adverse developments that have occurred with respect to any previously
disclosed proceedings and investigations;
(b) CREDIT AND COLLECTION POLICY. Prior to its effective date, notice
of any material change in the character of Seller's business or in the
Credit and Collection Policy; and
(c) OTHER. Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables of Seller's
performance as seller hereunder that the Company or the Agent may from
time to time reasonably request in order to protect the interests of the
Company, the Lenders, the Agent, or any other Affected Party under or as
contemplated by the Transaction Documents.
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SECTION 6.3. NEGATIVE COVENANTS. From the date hereof until the Final
Payout Date, Seller agrees that, unless the Agent shall otherwise consent in
writing, it shall not:
(a) 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 Lien
upon or with respect to, any Receivable or related Contract or other
Related Right, or any interest therein, or any Collections thereon, or
assign any right to receive income in respect thereof.
(b) CHANGE IN CREDIT AND COLLECTION POLICY. Make any material change
in the Credit and Collection Policy that would impair the collectibility
of any significant portion of the Receivables or otherwise adversely
affect the interests or remedies of the Company hereunder or the Agent or
the Lenders under any Transaction Document.
(c) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES. Take any
action to cause or permit any Receivable generated by it to become
evidenced by any "instrument" (as defined in the applicable UCC), except
in connection with the collection of overdue Receivables, provided that
the original of such instrument is delivered to the Agent, duly endorsed.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE RECEIVABLES
SECTION 7.1. RIGHTS OF THE SERVICER. Seller hereby authorizes the Servicer
(if other than Seller) or its respective designees to take any and all steps in
Seller's name necessary or desirable, in its respective determination, to
collect all amounts due under any and all Receivables, including, without
limitation, endorsing Seller'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.
SECTION 7.2. RESPONSIBILITIES OF SELLER. Anything herein to the contrary
notwithstanding:
(a) COLLECTION PROCEDURES. Seller agrees to direct the Obligors, as
promptly as practicable after an Event of Default, to make payments of
Receivables directly to a Lock-Box Account that is the subject of a
Lock-Box Agreement at a Lock-Box Bank. Seller further agrees to transfer
any Collections (including any security deposits applied to the Unpaid
Balance of any Receivable) that it receives directly to the Servicer (if
other than Seller) within two Business Days of receipt thereof, and agrees
that all such Collections shall be deemed to be received in trust for the
Company; provided that, to the extent permitted pursuant to Section 3.2,
Seller may retain such Collections as a portion of the Purchase Price then
payable or apply such Collections to the reduction of the outstanding
balance of the Seller Note.
(b) PERFORMANCE UNDER CONTRACT. Seller shall remain responsible for
performing its obligations hereunder and under the Contracts, and the
exercise by the
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Company or its designee of its rights hereunder shall not relieve Seller
from such obligations.
(c) POWER OF ATTORNEY. Seller hereby grants to the Servicer (if other
than Seller) an irrevocable power of attorney, with full power of
substitution, coupled with an interest, to take in the name of Seller all
steps necessary or advisable to indorse, negotiate or otherwise realize on
any writing or other right of any kind held or transmitted by Seller or
transmitted or received by the Company (whether or not from Seller) in
connection with any Receivable.
SECTION 7.3. FURTHER ACTION EVIDENCING PURCHASES. Seller 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 may
reasonably request in order to perfect, protect or more fully evidence the
Company's ownership of 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, Seller will:
(a) 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
(b) ▇▇▇▇ the summary master control data processing records with the
legend set forth in Section 4.1(i).
Seller hereby authorizes the Company or its designee to file one or more
financing or continuation statements, and amendments thereto and assignment
thereof, relative to all or any of the Receivables (and the Related Rights) now
existing or hereafter contributed or sold by Seller. If Seller 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 Seller as provided
in Section 9.6.
SECTION 7.4. APPLICATION OF COLLECTIONS. Any payment by an Obligor in
respect of any indebtedness owed by it to Seller in respect of any Contract
shall, except as otherwise specified by such Obligor or otherwise required by
contract or law, be applied first, as a Collection of the 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.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. INDEMNITIES OF SELLER. Without limiting any other rights which
the Company may have hereunder or under applicable law, Seller hereby agrees to
indemnify the Company and each of its permitted assigns, officers, directors,
employees and agents (each of the foregoing Persons being individually called a
"SALE INDEMNIFIED PARTY"), on demand, from and against any
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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 "SALE INDEMNIFIED AMOUNTS") awarded against
or incurred by any of them arising out of or as a result of arising out of or
relating to this Agreement, the Receivables or the Related Rights, EXCLUDING,
HOWEVER, (i) Sale Indemnified Amounts to the extent determined by a court of
competent jurisdiction to have resulted from bad faith, gross negligence or
willful misconduct on the part of such Sale Indemnified Party, (ii) recourse for
Sale Indemnified Amounts to the extent the same includes losses in respect of
Receivables which are uncollectible on account of the insolvency, bankruptcy or
lack of creditworthiness of the related Obligor, (iii) Sale Indemnified Amounts
that represent taxes based upon, or measured by, net income, or changes in the
rate of tax or as determined by reference to the overall net income, of such
Sale Indemnified Party, or (iv) Sale Indemnified Amounts that represent
franchise taxes, taxes on, or in the nature of, doing business taxes or capital
taxes. Without limiting the foregoing, the Seller shall indemnify each Sale
Indemnified Party for Sale Indemnified Amounts arising out of or related to the
following:
(a) the transfer by Seller of an interest in any Receivable or Related
Right to any Person other than the Company;
(b) the breach of any representation or warranty made by Seller under
or in connection with this Agreement or any other Transaction Document, or
any information or report delivered by Seller pursuant hereto or thereto
which shall have been false or incorrect in any material respect when made
or deemed made;
(c) the failure by Seller 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;
(d) the failure to vest and maintain vested in the Company an
ownership interest in the Receivables and the Related Rights free and clear
of any Lien, other than a Lien arising solely as a result of an act of the
Company, the Lenders or the Agent, whether existing at the time of the
purchase of such Receivables or at any time thereafter;
(e) the failure of Seller to file with respect to itself, or any delay
in filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivables or purported Receivables generated by Seller,
whether at the time of any purchase or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in
bankruptcy) of the Obligor to the payment of any Receivable or purported
Receivable generated by Seller (including, without limitation, a defense
based on such Receivables or the related Contracts 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 services or
merchandise related to any such Receivable or the furnishing of or failure
to furnish such services or merchandise;
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(g) any failure of the Seller to perform its duties or obligations in
accordance with the terms of this Agreement;
(h) any product liability claim arising out of or in connection with
services or merchandise with respect to any Receivable;
(i) any tax or governmental fee or charge, 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 generated by Seller or any Related Right connected with any
such Receivables;
(j) the commingling of Collections of Receivables at any time with
other funds of the Seller;
(k) any investigation, litigation or proceeding related to or arising
from this Agreement or the transactions contemplated hereby or any other
investigation, litigation or proceeding relating to the Seller or any of
the Originators in which any Indemnified Party becomes involved as a result
of any of the transactions contemplated hereby (other than an
investigation, litigation or proceeding relating to a dispute solely
amongst the Lenders (or certain Lenders) and the Agent); or
(l) any inability to litigate any claim against any Obligor in respect
of any Receivable as a result of such Obligor being immune from civil and
commercial law and suit on the grounds of sovereignty or otherwise from any
legal action, suit or proceeding;
excluding, however, (i) Sale Indemnified Amounts to the extent resulting from
gross negligence or willful misconduct on the part of such Sale Indemnified
Party, (ii) any indemnification which has the effect of recourse to Seller for
non-payment of the Receivables due to credit problems of the Obligors,
(iii) Sale Indemnified Amounts that represent taxes based upon, or measured by,
net income or changes in the rate of tax or as determined by reference to the
overall net income of such Sale Indemnified Party and (iv) Sale Indemnified
Amounts that represent franchise taxes, taxes of, or in the nature of, doing
business taxes or capital taxes.
If for any reason the indemnification provided above in this Section 8.1 is
unavailable to a Sale Indemnified Party or is insufficient to hold such Sale
Indemnified Party harmless, then Seller shall contribute to the amount paid or
payable by such Sale Indemnified Party to the maximum extent permitted under
applicable law.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1. AMENDMENTS, ETC.
(a) 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 Seller, the Company, the Agent and the Servicer (if other than
Seller).
(b) No failure or delay on the part of the Company, the Servicer, Seller
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 Seller 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.
SECTION 9.2. 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 on
Schedule 9.2 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.
SECTION 9.3. NO WAIVER; CUMULATIVE REMEDIES. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 9.4. BINDING EFFECT; ASSIGNABILITY. This Agreement shall be binding
upon and inure to the benefit of the Company, Seller and their respective
successors and permitted assigns. Seller may not assign its rights hereunder or
any interest herein without the prior written consent of the Company and the
Agent; subject to Section 9.11, the Company may not assign its rights hereunder
or any interest herein without the prior written consent of Seller and the
Agent. The 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 Sale Termination Date on which Seller has
received payment in full for all Receivables and Related Rights conveyed
pursuant to Section 1.1 hereof and has paid and performed all of its obligations
hereunder in full. The rights and remedies with respect to any breach of any
representation and warranty made by Seller pursuant to Article V and the
indemnification and payment provisions of Article VIII and Section 9.6 shall be
continuing and shall survive any termination of this Agreement.
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SECTION 9.5. GOVERNING LAW. THIS AGREEMENT, INCLUDING THE RIGHTS AND DUTIES
OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW, EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE INTERESTS OF
THE COMPANY IN THE RECEIVABLES OR RELATED RIGHTS IS GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
SECTION 9.6. COSTS, EXPENSES AND TAXES. In addition to the obligations of
Seller under Article VIII, Seller agrees to pay on demand:
(a) all reasonable costs and expenses, including attorneys' fees, in
connection with the enforcement against Seller of this Agreement and the
other Transaction Documents executed by Seller; and
(b) 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 Sale Indemnified Party against any liabilities with
respect to or resulting from any delay in paying or omission to pay such
taxes and fees.
SECTION 9.7. SUBMISSION TO JURISDICTION. EACH PARTY HERETO HEREBY
IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE
OR UNITED STATES FEDERAL COURT SITTING IN THE STATE 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 9.2; AND (E) TO THE EXTENT ALLOWED BY LAW, AGREES THAT A 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 9.7 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 SELLER OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTIONS.
SECTION 9.8. 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.
-21-
SECTION 9.9. 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.
SECTION 9.10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be as effective as delivery of a manually executed counterpart
of a signature page to this Agreement.
SECTION 9.11. ACKNOWLEDGMENT AND AGREEMENT. By execution below, Seller
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 Agent and the Lenders pursuant to the Credit and Security Agreement (and the
Agent and the Lenders may further assign such rights in accordance with the
Credit and Security Agreement), and Seller consents to such assignment. Each of
the parties hereto acknowledges and agrees that the Agent and the Lenders are
third party beneficiaries of the rights of the Company arising hereunder and
under the other Transaction Documents to which Seller is a party as seller.
SECTION 9.12. NO PROCEEDINGS. Seller agrees that it shall not institute
against the Company, or join any other Person in instituting against the
Company, any insolvency proceeding (namely, any proceeding of the type referred
to in the definition of Event of Bankruptcy) as long as there shall not have
elapsed one year plus one day since the Final Payout Date. The foregoing shall
not limit Seller's right to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted by any Person other
than Seller.
-22-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duty authorized, as of the date first
above written.
PACKAGING CREDIT COMPANY, LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Assistant Secretary
& Tax Director
---------------------------------
PACKAGING RECEIVABLES COMPANY, LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Assistant Secretary
& Tax Director
---------------------------------
PSA Signature Page
EXHIBIT A
PURCHASE AND SALE AGREEMENT
PURCHASE REPORT
PACKAGING CREDIT COMPANY, LLC
PACKAGING RECEIVABLES COMPANY, LLC
as of (Date)
CUT-OFF DATE
Total Receivables $ Input
Initial Contributed Receivables $ Fixed
Aggregate Unpaid Balance of AUB $ Calculated
Receivables
LIBOR Input
Turnover Days Input
12 Month Losses $ Input
12 Month Collections $ Input
Purchaser's Total Investment PTI Fixed
Cost Rate (LIBOR + 1.00%) CR Calculated
Cost Discount (DSO/360)*CR CD Calculated
Loss Discount (12 Month LD Calculated
Losses/12 Month Collections)
Fair Market Value Discount FMVD Calculated
(CD + LD)
Purchase Price (AUB - PP Calculated
(AUB*FMVD))
Eligible Receivables $ Input
Ineligible Receivables $ Input
EXHIBIT B
PROMISSORY NOTE
(NON-NEGOTIABLE SELLER NOTE)
[Effective Date]
FOR VALUE RECEIVED, the undersigned, Packaging Receivables Company, LLC, a
Delaware limited liability company (the "COMPANY"), promises to pay to Packaging
Credit Company, LLC, a Delaware limited liability company ("SELLER"), on the
terms and subject to the conditions set forth herein and in the Purchase
Agreement referred to below, the principal sum of the aggregate unpaid Purchase
Price of all Receivables purchased from time to time by the Company from Seller
pursuant to such Purchase Agreement, as such unpaid Purchase Price is shown in
the records of Seller.
1. PURCHASE AGREEMENT. This promissory note (this "SELLER NOTE") is the
Seller Note described in, and is subject to the terms and conditions set forth
in, that certain
Purchase and Sale Agreement of even date herewith (as the same
may be amended or otherwise modified from time to time, the "PURCHASE
AGREEMENT"), between Seller and the Company. Reference is hereby made to the
Purchase Agreement for a statement of certain other rights and obligations of
Seller and the Company.
2. DEFINITIONS. Capitalized terms used (but not defined) herein have the
meanings assigned thereto in the Purchase Agreement and in Appendix A to the
Credit and Security Agreement dated as of even date herewith among Seller, as
initial Servicer, the Company, Blue Ridge Asset Funding Corporation and Wachovia
Bank, N.A., as Agent (as it may be amended or otherwise modified from time to
time, the "CREDIT AND SECURITY AGREEMENT"). In addition, as used herein, the
following terms have the following meanings:
BANKRUPTCY PROCEEDINGS: As defined in clause (b) of paragraph 9 hereof.
FINAL MATURITY DATE: The date that is one year and one day following the
Final Payout Date.
INTEREST PERIOD: The period from and including a Reporting Date (or, in the
case of the first Interest Period, the date hereof) to but excluding the next
Reporting Date.
SENIOR INTEREST: Collectively, (i) the obligation of the Company and the
Servicer to set aside, and to turn over, Collections and other proceeds of the
Receivables for the benefit of the Agent and Lenders pursuant to the Credit and
Security Agreement, (ii) any Indemnified Amounts and (iii) all other obligations
of the Company that are due and payable to any Affected Party, together with all
interest accruing on any such amounts after the commencement of any Bankruptcy
Proceedings, notwithstanding any provision or rule of law that might restrict
the rights of any Senior Interest Holder, as against the Company of anyone else,
to collect such interest.
SENIOR INTEREST HOLDERS: Collectively, the Lenders, the Agent, the other
Affected Parties and the Indemnified Parties.
3. INTEREST. Subject to the provisions set forth below, the Company
promises to pay interest on this Seller Note as follows:
(a) Prior to the Final Payout Date, the aggregate unpaid Purchase
Price from time to time outstanding during any Interest Period shall bear
interest at a rate per annum equal to the LIBO Rate as in effect from time
to time on the first Business Day of each Settlement Period, as determined
by Seller, plus 1.00%; and
(b) From (and including) the Final Payout Date to (but excluding) the
date on which the entire aggregate unpaid Purchase Price is fully paid, the
aggregate unpaid Purchase Price from time to time outstanding shall bear
interest at a rate per annum equal to the LIBO Rate as in effect from time
to time on the first Business Day of each Settlement Period, as determined
by Seller, plus 1.00%,
but in no event in excess of the maximum rate permitted by law. In the event
that, contrary to the intent of Seller and Company, Company pays interest
hereunder and it is determined that such interest rate was in excess of the then
legal maximum rate, then that portion of the interest payment representing an
amount in excess of the then legal maximum rate shall be deemed a payment of
principal and applied against the principal then due hereunder.
4. INTEREST PAYMENT DATES. Subject to the provisions set forth below, the
Company shall pay accrued interest on this Seller Note on each Settlement Date,
and shall pay accrued interest on the amount of each principal payment made in
cash on a date other than a Settlement Date at the time of such principal
payment.
5. BASIS OF COMPUTATION. Interest accrued hereunder shall be computed for
the actual number of days elapsed on the basis of a 360-day year.
6. PRINCIPAL PAYMENT DATES. Subject to the provisions set forth below,
payments of the principal amount of this Seller Note shall be made as follows:
(a) The principal amount of this Seller Note shall be reduced from
time to time pursuant to Sections 3.2, 3.3, 3.4 and 7.2 of the Purchase
Agreement;
(b) The entire remaining unpaid balance of this Seller Note shall be
paid on the Final Maturity Date.
Subject to the provisions set forth below, the principal amount of and accrued
interest on this Seller Note may be prepaid on any Business Day without premium
or penalty.
7. PAYMENTS. All payments of principal and interest hereunder are to be
made in lawful money of the United States of America.
B-2
8. ENFORCEMENT EXPENSES. In addition to and not in limitation of the
foregoing, but subject to the provisions set forth below and to any limitation
imposed by applicable law, the Company agrees to pay all expenses, including
reasonable attorneys' fees and legal expenses, incurred by Seller in seeking to
collect any amounts payable hereunder which are not paid when due.
9. PROVISIONS REGARDING RESTRICTIONS ON PAYMENT. The Company covenants and
agrees, and Seller, by its acceptance of this Seller Note, likewise covenants
and agrees on behalf of itself and any holder of this Seller Note, that the
payment of the principal amount of, and interest on, this Seller Note is hereby
expressly subject to certain restrictions set forth in the following clauses of
this paragraph 9:
(a) No payment or other distribution of the Company's assets of any
kind or character, whether in cash, securities, or other rights or
property, shall be made on account of this Seller Note except to the extent
such payment or other distribution is permitted under the Purchase
Agreement and the Credit and Security Agreement;
(b) In the event of any dissolution, winding up, liquidation,
readjustment, reorganization or other similar event relating to the
Company, whether voluntary or involuntary, partial or complete, and whether
in bankruptcy, insolvency or receivership proceedings, or upon an
assignment for the benefit of creditors, or any other marshaling of the
assets and liabilities of the Company or any sale of all or substantially
all of the assets of the Company (such proceedings being herein
collectively called "BANKRUPTCY PROCEEDINGS"), the Senior Interest shall
first be paid and performed in full and in cash before Seller shall be
entitled to receive and to retain any payment or distribution in respect to
this Seller Note. In order to implement the foregoing, Seller hereby
irrevocably agrees that the Agent, in the name of Seller or otherwise, may
demand, ▇▇▇ for, collect, receive and receipt for any and all such payments
or distributions, and the file, prove and vote or consent in any such
Bankruptcy Proceedings with respect to any and all claims of Seller
relating to this Seller Note, in each case until the Senior Interest shall
have been paid and performed in full and in cash;
(c) In the event that the Seller receives any payment or other
distribution of any kind or character from the Company or from other source
whatsoever, in respect of this Seller Note, other than as expressly
permitted by the terms of this Seller Note, such payment or other
distribution shall be received for the sole benefit of the Senior Interest
Holders and shall be turned over by Seller to the Agent (for the benefit of
the Senior Interest Holders) forthwith;
(d) Notwithstanding any payments or distributions received by the
Senior Interest Holders in respect of this Seller Note, Seller shall not be
subrogated to the rights of the Senior Interest Holders in respect of the
Senior Interest;
(e) The provisions set forth in this Section 9 are intended solely for
the purpose of defining the relative rights of Seller, on the one hand, and
the Senior Interest Holders on the other hand;
B-3
(f) Seller shall not, until Final Payout Date, transfer, pledge or
assign, or commence legal proceedings to enforce or collect this Seller
Note or any rights in respect hereof except as required by the Senior
Credit Agreement;
(g) Seller shall not, without the advance written consent of the
Agent, commence, take any action to cause any other Person to commence, or
join with any other Person in commencing, any Bankruptcy Proceedings with
respect to the Company until the Final Payout Date shall have occurred;
(h) If, at any time, any payment (in whole or in part) of any Senior
Interest is rescinded or must be restored or returned by a Senior Interest
Holder (whether in connection with Bankruptcy Proceedings or otherwise),
these provisions shall continue to be effective or shall be reinstated, as
the case may be, as though such payment had not been made;
(i) Seller hereby waives; (i) notice of acceptance of these provisions
by any of the Senior Interest Holders; (ii) notice of the existence,
creation, non-payment or non-performance of all or any of the Senior
Interest; and (iii) all diligence in enforcement, collection or protection
of, or realization upon, the Senior Interest, or any thereof, or any
security therefor;
(j) These provisions constitute a continuing offer from the holder of
this Seller Note to all Persons who become the holders of, or who continue
to hold, the Senior Interest; and these provisions are made for the benefit
of the Senior Interest Holders, and the Agent or the Lenders may proceed to
enforce such provisions on behalf of each of such Persons.
10. GENERAL. No failure or delay on the part of Seller in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power of right preclude any other or further
exercise thereof or the exercise of any other power or right. No amendment,
modification or waiver of, or consent with respect to, any provision of this
Seller Note shall in any event be effective unless (i) the same shall be in
writing and signed and delivered by the Company and Seller and (ii) all consent
required for such actions under the Transaction Documents shall have been
received by the appropriate Persons.
11. NO NEGOTIATION. This Seller Note is not negotiable.
12. GOVERNING LAW. THIS PROMISSORY NOTE SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
B-4
13. CAPTIONS. Paragraph captions used in this Seller Note are for
convenience only and shall not affect the meaning or interpretation of any
provision of this Seller Note.
PACKAGING RECEIVABLES COMPANY, LLC
By
----------------------------------------
Name Printed:
--------------------------
Title:
----------------------------------
B-5
EXHIBIT C
OFFICE LOCATION WHERE RECORDS ARE KEPT
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C-5
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C-7
SCHEDULE 5.1 (n)
TRADE NAMES
None
SCHEDULE 9.2
NOTICE ADDRESSES
Seller: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Company: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
EXHIBIT A-1
[FORM OF LOCK-BOX AGREEMENT]
[Letterhead of Account Owner]
_____________________, 200__
[LOCK-BOX BANK]
Ladies and Gentlemen:
Reference is made to our lockbox account no. __________________ maintained
with you (the "ACCOUNT") pursuant to a lockbox agreement between the undersigned
and you, the terms and conditions of which are incorporated herein by reference
(the "LOCKBOX AGREEMENT"). Pursuant to a Receivables Sale Agreement, dated as of
November 29, 2000, as amended, supplemented or otherwise modified from time to
time (the "SALE AGREEMENT"), between Packaging Corporation of America ("PCA" or
"WE") and Packaging Credit Company, LLC ("PCC"), as purchaser thereunder, PCC
has purchased and/or may hereafter purchase certain of the accounts chattel
paper, instruments or general intangibles (collectively "RECEIVABLES") with
respect to which payments are or may hereafter be made to the Account. Further,
pursuant to a
Purchase and Sale Agreement, dated as of November 29, 2000, as
amended, supplemented or otherwise modified from time to time, between PCC, as
seller, and Packaging Receivables Company, LLC ("PURCHASER"), as purchaser, PCC
has sold and/or may hereafter sell to Purchaser Receivables PCC purchased
pursuant to the Sale Agreement with respect to which payments are or may
hereafter be made to the Account. Pursuant to a Credit and Security Agreement,
dated as of November 29, 2000 (as amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among Purchaser, as borrower, PCC,
as initial servicer (Purchaser and the undersigned being referred to hereinafter
collectively as the "SELLER PARTIES"), Blue Ridge Asset Funding Corporation
("BLUE RIDGE"), as lender and Wachovia Bank, N.A., individually as a lender
(collectively with Blue Ridge and any other entity that becomes a lender under
the Credit Agreement, the "LENDERS") and as Agent (the "AGENT") for Blue Ridge
and itself, Purchaser has assigned and/or may hereafter assign to Agent, for the
benefit of lenders, interest in the Receivables as collateral for loans made by
the Lenders thereunder.
For purposes of this letter agreement, Wachovia Bank, N.A. is acting as
Agent for Lenders. We hereby transfer exclusive ownership and control of the
Account to the Agent, for the benefit of Lenders, subject only to the condition
subsequent that the Agent shall have given you notice of its election to assume
such ownership and control, which notice shall be substantially in the form
attached hereto as Annex A.
We hereby authorize and direct you to change the ownership of the Account
to the Purchaser. We hereby irrevocably instruct you, at all times from and
after the date of your
receipt of notice from the Agent of its assumption of control of the Account as
described above, (i) to make all payments to be made by you out of or in
connection with the Account directly to the Agent in accordance with the
instructions of the Agent, (ii) to hold all moneys and instruments delivered to
the Account or any lockbox administered by you for the order of the Agent (for
the benefit of Lenders), (iii) to refrain from initiating any transfer from the
Account to any Seller Party and (iv) to change the name of the Account to
"Wachovia Bank, N.A., as Agent". The Agent agrees to execute you standard wire
transfer documentation in effect from time to time, or other customary
documentation related to wire transfers, prior to the initiation of any wire
transfers.
We also hereby notify you that, at all times from and after the date of
your receipt of notice from the Agent as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Account, including, without limitation,
(a) the right to specify when payments are to be made out of or in connection
with the Account and (b) the right to require preparation of duplicate monthly
bank statements on the Account for the Agent's audit purposes and mailing of
such statements directly to the Agent at an address specified by the Agent.
Notices from the Agent and other notices or communications under this
letter agreement may be personally served or sent by facsimile or by certified
mail, return receipt requested, or by express mail or courier, to the address or
facsimile number set forth under the signature of the relevant party to this
letter agreement (or to such other address or facsimile number as the relevant
party shall have designated by written notice to the party giving the aforesaid
notice or other communication). Notwithstanding the foregoing, any notice
delivered by you may be delivered by regular mail. If notice is given by
facsimile, it will be deemed to have been received when the notice is sent and
receipt is confirmed by telephone or other electronic means. All other notices
will be deemed to have been received when actually received or, in the case of
personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of the
Agent's right to ownership and control of the Account and its ownership (on
behalf of Lenders and Purchaser as the parties having interests in such amounts)
of the amounts from time to time on deposit therein, and agree that from the
date hereof the Account shall be maintained by you for the benefit of, and
amounts from time to time therein held by you for, the Agent (on behalf of
Lenders and Purchaser) on the terms provided herein. Except as otherwise
provided in this letter agreement, payments to the Account are to be processed
in accordance with the standard procedures currently in effect. All service
charges and fees with respect to the Account shall continue to be payable by us
under the arrangements currently in effect.
By executing this letter agreement, you irrevocably waive and agree not to
assert, claim or endeavor to exercise, irrevocably bar and estop yourself from
asserting, claiming or exercising, and acknowledge that you have not heretofore
received a notice, writ, order or any form of legal process from any other party
asserting, claiming or exercising, any rights of set-off, banker's lien or other
purported form of claim with respect to the Account or any funds from time to
time therein. Except for your right to payment of your service charges and fees
and your right to make deductions for returned items, you shall have no rights
in the Account or funds
A-1-2
therein. To the extent you may ever have such rights, you hereby expressly
subordinate all such rights to all rights of the Agent.
You may terminate this letter agreement by canceling the Account maintained
with you, which cancellation and termination shall become effective only upon 90
days' prior written notice thereof from you to the Agent. Incoming mail
addressed to the Account received after such cancellation shall be forwarded in
accordance with the Agent's instructions. This letter agreement may also be
terminated upon written notice to you by the Agent stating that the Credit
Agreement is no longer in effect. Except as otherwise provided in this
paragraph, this letter agreement may not be terminated or amended without the
prior written consent of the Agent.
Notwithstanding any other provision of this letter agreement, it is agreed
by the parties hereto that you shall not be liable to Lenders or the Agent for
the any action taken by you or any of your directors, officer, agents or
employees in accordance with this letter agreement at the request of the Agent,
except for your or such person's own gross negligence or willful misconduct.
This letter agreement may be executed by the signatories hereto in several
counterparts, each of which shall be deemed to be an original and all of which
shall together constitute but one and the same letter agreement. This letter
agreement shall be governed by and interpreted under the laws of the State of
[_________].
A-1-3
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing the six copies of this letter agreement enclosed herewith
in the space provided below and returning each of such signed copies to the
Agent.
Very truly yours,
PACKAGING CORPORATION OF AMERICA
By:
--------------------------------
Title:
--------------------------
Address for notice:
-----------------------------------
-----------------------------------
-----------------------------------
Attention:
-------------------------
Facsimile No.:
---------------------
Accepted and confirmed as of
the date first written above:
WACHOVIA BANK, N.A.,
as Agent
By:
---------------------------------
Title:
---------------------------
Address for notice:
------------------------------------
------------------------------------
------------------------------------
Attention:
--------------------------
Facsimile No.:
----------------------
A-1-4
Acknowledged and agreed to as of
the date first written above:
PACKAGING RECEIVABLES COMPANY, LLC
By:
---------------------------------
Title:
---------------------------
Address for notice:
------------------------------------
------------------------------------
------------------------------------
Attention:
--------------------------
Facsimile No.:
----------------------
PACKAGING CREDIT COMPANY, LLC
By:
---------------------------------
Title:
---------------------------
Address for notice:
------------------------------------
------------------------------------
------------------------------------
Attention:
--------------------------
Facsimile No.:
----------------------
[LOCKBOX BANK]
By:
---------------------------------
Title:
---------------------------
Address for notice:
------------------------------------
------------------------------------
------------------------------------
Attention:
--------------------------
Facsimile No.:
----------------------
A-1-5
ANNEX A TO
LOCKBOX AGREEMENT
[Form of Notice of Assumption of Control of Account]
[Letterhead of Wachovia Bank, N.A.]
________________, _______
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Re: Seller
Lockbox Account No.
------------------------------
Ladies and Gentlemen:
Reference is made to the letter agreement dated _________________, ______
(as amended, supplemented or otherwise modified from time to time, the "LETTER
AGREEMENT") among Seller, Packaging Receivables Company, LLC, Packaging
Corporation of America, Packaging Credit Company, LLC, Blue Ridge Asset Funding
Corporation ("BLUE RIDGE"), Wachovia Bank, N.A., and you, concerning the above
described lockbox account (the "ACCOUNT").
We hereby give you notice of our assumption of ownership and control of the
Account as provided in the Letter Agreement.
We hereby instruct you to make all payments to be made by you out of or in
connection with the Account [DIRECTLY TO THE UNDERSIGNED, AT [OUR ADDRESS SET
FORTH ABOVE], for the account of the Lenders (account no. ________________ ).
[OTHER INSTRUCTIONS]
Very truly yours,
WACHOVIA BANK, N.A., as Agent
By
--------------------------------
Name:
---------------------------
Title:
--------------------------