Exhibit 4.6
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RECEIVABLES PURCHASE AGREEMENT
dated as of December 21, 2001
among
YORK RECEIVABLES FUNDING LLC,
YORK INTERNATIONAL CORPORATION,
as Servicer
THE MEMBERS OF VARIOUS PURCHASER GROUPS
FROM TIME TO TIME PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
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This RECEIVABLES PURCHASE AGREEMENT (as amended, supplemented or
otherwise modified from time to time, this "Agreement") is entered into as of
December 21, 2001, among YORK RECEIVABLES FUNDING LLC, a Delaware limited
liability company, as seller (the "Seller"), YORK INTERNATIONAL CORPORATION, a
Delaware corporation ("York"), as initial servicer (in such capacity, together
with its successors and permitted assigns in such capacity, the "Servicer"),
MARKET STREET FUNDING CORPORATION ("Market Street"), a Delaware corporation, as
a Conduit Purchaser, PNC BANK, NATIONAL ASSOCIATION, a national banking
association ("PNC"), as agent for the Market Street Purchaser Group, LIBERTY
STREET FUNDING CORP. ("Liberty Street"), a Delaware corporation, as a Conduit
Purchaser, THE BANK OF NOVA SCOTIA ("BNS"), a Canadian chartered bank acting
through its New York Agency as agent for the Liberty Street Purchaser Group,
each of the other members of each Purchaser Group that become parties hereto by
executing an Assumption Agreement or a Transfer Supplement and PNC as
administrator for each Purchaser Group a party hereto or that become parties
hereto (in such capacity, the "Administrator").
PRELIMINARY STATEMENTS. Certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I. References in the Exhibits
hereto to the "Agreement" refer to this Agreement, as amended, supplemented or
otherwise modified from time to time.
The Seller desires to sell, transfer and assign an undivided variable
percentage interest in a pool of receivables, and the Purchasers desire to
acquire such undivided variable percentage interest, as such percentage interest
shall be adjusted from time to time based upon, in part, reinvestment payments
that are made by such Purchasers.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1 Purchase Facility.
(a) On the terms and subject to the conditions hereof, the
Seller may, from time to time before the Facility Termination Date,
request that the Conduit Purchasers, or, only if a Conduit Purchaser
denies such request or is unable to fund (and provides notice of such
denial or inability to the Seller, the Administrator and its Purchaser
Agent), ratably request that the Related Committed Purchasers, make
purchases of and reinvestments in undivided percentage ownership
interests with regard to the Purchased Interest from the Seller from
time to time from the date hereof to the Facility Termination Date.
Subject to Section 1.4(b), concerning reinvestments, at no time will a
Conduit Purchaser have any obligation to make a purchase. Each Related
Committed Purchaser severally hereby agrees, on the terms and subject
to the conditions hereof, to make Purchases before the Facility
Termination Date, based on the applicable Purchaser Group's Ratable
Share of each purchase requested pursuant to Section 1.2(a) (each a
"Purchase") (and, in the case of each Related Committed Purchaser, its
Commitment Percentage of its Purchaser Group's Ratable Share of such
Purchase) to the extent its
Investment would not thereby exceed its Commitment and the Aggregate
Investment would not (after giving effect to all Purchases on such
date) exceed the Purchase Limit.
(b) The Seller may, upon at least 60 days' written notice to
the Administrator and each Purchaser Agent terminate the purchase
facility provided for in this Section in whole or, upon 30 days'
written notice to the Administrator and each Purchaser Agent, from time
to time, irrevocably reduce in part the unfunded portion of the
Purchase Limit (but not below the amount which would cause the Group
Investment of any Purchaser Group to exceed its Group Commitment (after
giving effect to such reduction)); provided that each partial reduction
shall be in the amount of at least $5,000,000, or an integral multiple
of $1,000,000 in excess thereof and unless terminated in whole, the
Purchase Limit shall in no event be reduced below $50,000,000. Such
reduction shall at the option of the Seller be applied either (i)
ratably to reduce the Group Commitment of each Purchaser Group or (ii)
to terminate the Group Commitment of any one Purchaser Group.
Section 1.2 Making Purchases.
(a) Each purchase (but not reinvestment) of undivided
percentage ownership interests with regard to the Purchased Interest
hereunder shall be made upon the Seller's irrevocable written notice in
the form of Annex B delivered to the Administrator and each Purchaser
Agent in accordance with Section 6.2 (which notice must be received by
the Administrator and each Purchaser Agent before 11:00 a.m., New York
City time) at least three Business Days before the requested Purchase
Date, which notice shall specify: (A) the amount requested to be paid
to the Seller (such amount, which shall not be less than $1,000,000,
with respect to each Purchaser Group, being the aggregate of the
Investments of each Purchaser within such Purchaser Group, relating to
the undivided percentage ownership interest then being purchased), (B)
the date of such purchase (which shall be a Business Day), and (C) a
pro forma calculation of the Purchased Interest after giving effect to
the increase in the Aggregate Investment. If the Purchase is requested
from a Conduit Purchaser and such Conduit Purchaser determines, in its
sole discretion, to make the requested Purchase, such Conduit Purchaser
shall transfer to the account of the Seller described in Section
1.2(b), below (the "Disbursement Account"), an amount equal to such
Conduit Purchaser's Purchaser Group Ratable Share of such Purchase on
the requested Purchase Date. If the Purchase is requested from the
Related Committed Purchasers for a Purchaser Group (in the case where
the related Conduit Purchaser determined not to or was unable to make
such Purchase), subject to the terms and conditions hereof, such
Related Committed Purchasers for a Purchaser Group shall transfer the
applicable Purchaser Group's Ratable Share of each Purchase (and, in
the case of each Related Committed Purchaser, its Commitment Percentage
of its Purchaser Group's Ratable Share of such Purchase) into the
Disbursement Account on the Purchase Date and shall use its reasonable
best efforts to make such transfer by no later than 4:00 p.m. (New York
time) on such Purchase Date.
(b) On the date of each Purchase, each Purchaser (or the
related Purchaser Agent on its behalf), shall make available to the
Seller in same day funds, at, Wilmington Trust, account number, ABA
▇▇▇▇▇-▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, an amount equal to the proceeds of such
Purchase.
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(c) Effective on the date of each Purchase pursuant to this
Section 1.2 and each reinvestment pursuant to Section 1.4, the Seller
hereby sells and assigns to the Administrator for the benefit of the
Purchasers (ratably, according to each such Purchaser's Investment) an
undivided percentage ownership interest in: (i) each Pool Receivable
then existing, (ii) all Related Security with respect to such Pool
Receivables, and (iii) all Collections with respect to, and other
proceeds of, such Pool Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary or
otherwise) under this Agreement and the other Transaction Documents to
which it is a party, whether now or hereafter existing or arising, due
or to become due, direct or indirect, absolute or contingent, the
Seller hereby grants to the Administrator, for the benefit of the
Purchasers, a security interest in all of the Seller's right, title and
interest (including any undivided interest of the Seller) in, to and
under all of the following, whether now or hereafter owned, existing or
arising: (i) all Pool Receivables, (ii) all Related Security with
respect to such Pool Receivables, (iii) all Collections with respect to
such Pool Receivables, (iv) the Lock-Box Accounts (and the related
lock-boxes) and all amounts on deposit therein, and all certificates
and instruments, if any, from time to time evidencing such Lock-Box
Accounts (and such related lock-boxes) and amounts on deposit therein,
(v) all books and records of each Receivable, all rights, remedies,
powers and privileges of the Seller in any accounts into which
Collections are or may be received and all rights (but none of the
obligations) of the Seller under the Purchase and Sale Agreement and
(vi) all proceeds and products of, and all amounts received or
receivable under any or all of, the foregoing (collectively, the "Pool
Assets"). The Administrator, for the benefit of the Purchasers, shall
have, with respect to the Pool Assets, and in addition to all the other
rights and remedies available to the Administrator and the Purchasers,
all the rights and remedies of a secured party under any applicable
UCC.
(e) The Seller may, with the written consent of the
Administrator and each Purchaser, add additional Persons as Purchasers
(either to an existing Purchaser Group or by creating new Purchaser
Groups) or cause an existing Purchaser to increase its Commitment in
connection with a corresponding increase in the Purchase Limit;
provided, however, that the Commitment of any Purchaser may only be
increased with the consent of such Purchaser. Each new Purchaser (or
Purchaser Group) and each Purchaser increasing its Commitment shall
become a party hereto or increase its Commitment, as the case may be,
by executing and delivering to the Administrator and the Seller an
Assumption Agreement in the form of Annex C hereto (which Assumption
Agreement shall, in the case of any new Purchaser or Purchasers be
executed by each Person in such new Purchaser's Purchaser Group).
(f) Each Related Committed Purchaser's obligation hereunder
shall be several, such that the failure of any Related Committed
Purchaser to make a payment in connection with any purchase hereunder
shall not relieve any other Related Committed Purchaser of its
obligation hereunder to make payment for any Purchase. Further, in the
event any Related Committed Purchaser fails to satisfy its obligation
to make a purchase as required hereunder, upon receipt of notice of
such failure from the Administrator (or any relevant Purchaser Agent),
subject to the limitations set forth herein, the
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non-defaulting Related Committed Purchasers in such defaulting Related
Committed Purchaser's Purchaser Group shall purchase the defaulting
Related Committed Purchaser's Commitment Percentage of the related
Purchase pro rata in proportion to their relative Commitment
Percentages (determined without regard to the Commitment Percentage of
the defaulting Related Committed Purchaser; it being understood that a
defaulting Related Committed Purchaser's Commitment Percentage of any
Purchase shall be first put to the Related Committed Purchasers in such
defaulting Related Committed Purchaser's Purchaser Group and thereafter
if there are no other Related Committed Purchasers in such Purchaser
Group or if such other Related Committed Purchasers are also defaulting
Related Committed Purchasers, then such defaulting Related Committed
Purchaser's Commitment Percentage of such Purchase shall be put to each
other Purchaser Group ratably and applied in accordance with this
paragraph (f)). Notwithstanding anything in this paragraph (f) to the
contrary, no Related Committed Purchaser shall be required to make a
Purchase pursuant to this paragraph for an amount which would cause (i)
the aggregate Investment of such Related Committed Purchaser (after
giving effect to such Purchase) to exceed its Commitment or (ii) the
sum of the aggregate Investments of all Purchasers in the Purchaser
Group of such Related Committed Purchaser (after giving effect to such
Purchase) to exceed the sum of the Commitments of all of the Purchasers
in such Purchaser Group.
Section 1.3 Purchased Interest Computation. The Purchased Interest
shall be initially computed on the date of the initial Purchase hereunder.
Thereafter, until the Facility Termination Date, such Purchased Interest shall
be automatically recomputed (or deemed to be recomputed) on each Business Day
other than a Termination Day. From and after the occurrence of any Termination
Day, the Purchased Interest shall (until the event(s) giving rise to such
Termination Day are satisfied or are waived by the Administrator and a Simple
Majority of the Purchasers) be deemed to be 100%. The Purchased Interest shall
become zero when the Aggregate Investment thereof and Aggregate Discount thereon
shall have been paid in full, all the amounts owed by the Seller and the
Servicer hereunder to each Purchaser, the Administrator and any other
Indemnified Party or Affected Person are paid in full, and the Servicer shall
have received the accrued Servicing Fee thereon.
Section 1.4 Settlement Procedures.
(a) The collection of the Pool Receivables shall be
administered by the Servicer in accordance with this Agreement. The
Seller shall provide to the Servicer on a timely basis all information
needed for such administration, including notice of the occurrence of
any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of
Pool Receivables are received (or deemed received) by the Seller or the
Servicer:
(i) set aside and hold in trust (and shall, at the
request of the Administrator (with the consent or at the
direction of the Majority Purchasers), segregate in a separate
account approved by the Administrator if, at the time of such
request, there exists an Unmatured Termination Event or a
Termination Event or if the failure to so segregate reasonably
could be expected to cause a
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Material Adverse Effect) for the benefit of each Purchaser
Group, out of the Purchasers' Share of such Collections,
first, an amount equal to the Aggregate Discount accrued
through such day for each Portion of Investment and not
previously set aside, second, an amount equal to the fees set
forth in each Purchaser Group Fee Letter accrued and unpaid
through such day, and third, to the extent funds are available
therefor, an amount equal to the aggregate of each Purchaser
Group's Ratable Share of the Purchasers' Share of the
Servicing Fee accrued through such day and not previously set
aside,
(ii) subject to Section 1.4(f), if such day is not a
Termination Day, remit to the Seller, ratably, on behalf of
each Purchaser Group, the remainder of the Purchasers' Share
of such Collections. Such remainder shall, to the extent
representing a return on the Aggregate Investment, ratably,
according to each Purchaser's Investment, be automatically
reinvested in Pool Receivables, and in the Related Security,
Collections and other proceeds with respect thereto; provided,
however, that if the Purchased Interest would exceed 100%,
then the Servicer shall not reinvest, but shall set aside and
hold in trust for the benefit of the Purchasers (and shall, at
the request of the Administrator (with the consent or at the
direction of the Majority Purchasers), segregate in a separate
account approved by the Administrator if, at the time of such
request, there exists an Unmatured Termination Event or a
Termination Event or if the failure to so segregate reasonably
could be expected to cause a Material Adverse Effect) a
portion of such Collections that, together with the other
Collections set aside pursuant to this paragraph, shall equal
the amount necessary to reduce the Purchased Interest to 100%;
provided, further, that in the case of any Purchaser that has
provided notice (an "Exiting Notice") to its Purchaser Agent
of its refusal, pursuant to Section 1.10, to extend its
Commitment hereunder (an "Exiting Purchaser"), then such
Purchaser's ratable share of such Collections based on its
Investment shall not be reinvested and shall instead be held
in trust for the benefit of such Purchaser and applied in
accordance with clause (iii) below,
(iii) if such day is a Termination Day (or any day
following the provision of an Exiting Notice), set aside,
segregate and hold in trust (and shall, at the request of the
Administrator (with the consent or at the direction of a
Simple Majority of the Purchasers), segregate in a separate
account approved by the Administrator) for the benefit of each
Purchaser Group the entire remainder of the Purchasers' Share
of the Collections (or in the case of an Exiting Purchaser an
amount equal to such Exiting Purchaser's ratable share of such
Collections based on its Investment; provided, that solely for
the purpose of determining such Exiting Purchaser's ratable
share of such Collections applicable to its Investment (and
not for purposes of calculating any Fees or Discount payable
to such Exiting Purchaser hereunder), such Exiting Purchaser's
Investment shall be deemed to remain constant from the date of
the provision of an Exiting Notice until the date such Exiting
Purchaser's Investment has been paid in full; it being
understood that if such day is also a Termination Day, such
Exiting Purchaser's Investment shall be recalculated taking
into account amounts received by such Purchaser in respect
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of this parenthetical and thereafter Collections shall be set
aside for such Exiting Purchaser ratably in respect of its
Investment (as recalculated)); provided, that if amounts are
set aside and held in trust on any Termination Day of the type
described in clause (a) of the definition of "Termination Day"
(or any day following the provision of an Exiting Notice) and,
thereafter, the conditions set forth in Section 2 of Exhibit
II are satisfied or waived by the Administrator and a Simple
Majority of the Purchasers (or in the case of an Exiting
Notice, such Exiting Notice has been revoked by the related
Exiting Purchaser, and written notice thereof has been
provided to the Administrator, the related Purchaser Agent and
the Servicer), such previously set-aside amounts shall, to the
extent representing a return on Aggregate Investment (or the
Investment of the Exiting Purchaser) and ratably in accordance
with each Purchaser's Investment, be reinvested in accordance
with clause (ii) on the day of such subsequent satisfaction or
waiver of conditions or revocation of Exiting Notice, and
(iv) release to the Seller (subject to Section
1.4(f)) for its own account any Collections in excess of: (x)
amounts required to be reinvested in accordance with clause
(ii) or the proviso to clause (iii) plus (y) the amounts that
are required to be set aside pursuant to clause (i), the
proviso to clause (ii) and clause (iii) plus (z) the Seller's
Share of the Servicing Fee accrued and unpaid through such day
and all reasonable and appropriate out-of-pocket costs and
expenses of the Servicer for servicing, collecting and
administering the Pool Receivables.
(c) The Servicer shall, in accordance with the priorities set
forth in Section 1.4(d), below, deposit into each applicable
Purchaser's account (or such other account designated by such
applicable Purchaser or its Purchaser Agent), on each Settlement Date
(or solely with respect to Collections held for the Purchasers pursuant
to clause (f)(iii) of Section 1.4 such other date approved by the
Administrator with at least (5) Business Days prior written notice to
the Administrator of such payment), Collections held for each Purchaser
with respect to such Purchaser's Portion(s) of Investment pursuant to
clause (b)(i) or (f) plus the amount of Collections then held for such
Purchaser pursuant to clauses (b)(ii) and (iii) of Section 1.4;
provided, York may retain the portion of the Collections set aside
pursuant to clause (b)(i) that represents the aggregate of each
Purchaser Group's Ratable Share of the Purchasers' Share of the
Servicing Fee. On or before the last day of each Yield Period with
respect to any Portion of Investment, the applicable Purchaser Agent
will notify the Servicer by facsimile of the amount of the Discount
accrued with respect to each such Portion of Investment during the
related Yield Period then ending.
(d) The Servicer shall distribute the amounts described (and
at the times set forth) in Section 1.4(c), as follows:
(i) if such distribution occurs on a day that is not
a Termination Day and the Purchased Interest does not exceed
100%, first to each Purchaser Agent ratably according to the
Discount accrued during such Yield Period (for the benefit of
the relevant Purchasers within such Purchaser Agent's
Purchaser Group) in payment in full of all accrued Discount
and fees (other than Servicing
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Fees) with respect to each Portion of Investment maintained by
such Purchasers; it being understood that each Purchaser Agent
shall distribute such amounts to the Purchasers within its
Purchaser Group ratably according to Discount, and second, if
the Servicer has set aside amounts in respect of the Servicing
Fee pursuant to clause (b)(i) and has not retained such
amounts pursuant to clause (c), to the Servicer's own account
(payable in arrears on each Settlement Date) in payment in
full of the aggregate of each Purchaser Group's Ratable Share
of the Purchasers' Share of accrued Servicing Fees so set
aside, and
(ii) if such distribution occurs on a Termination Day
or on a day when the Purchased Interest exceeds 100%, first to
the Servicer's own account in payment in full of all accrued
Servicing Fees, second to each Purchaser Agent ratably
according to Discount (for the benefit of the relevant
Purchasers within such Purchaser Agent's Purchaser Group) in
payment in full of all accrued Discount with respect to each
Portion of Investment funded or maintained by the Purchasers
within such Purchaser Agent's Purchaser Group, third to each
Purchaser Agent ratably according to the Group Investment of
such Purchaser Agent's Purchaser Group (for the benefit of the
relevant Purchasers within such Purchaser Agent's Purchaser
Group) in payment in full of each Purchaser's Investment (or,
if such day is not a Termination Day, the amount necessary to
reduce the Purchased Interest to 100%); it being understood
that each Purchaser Agent shall distribute the amounts
described in the first and second clauses of this Section
1.4(d)(ii) to the Purchasers within its Purchaser Group
ratably according to Discount and Investment, respectively and
fourth, if the Aggregate Investment and accrued Aggregate
Discount with respect to each Portion of Investment for all
Purchaser Groups have been reduced to zero, and all accrued
Servicing Fees payable to the Servicer have been paid in full,
to each Purchaser Group ratably (for the benefit of the
Purchasers within such Purchaser Group) in accordance with its
Ratable Share, the Administrator and any other Indemnified
Party or Affected Person in payment in full of any other
amounts owed thereto by the Seller or Servicer hereunder.
After the Aggregate Investment, Aggregate Discount, fees payable pursuant to
each Purchaser Group Fee Letter and Servicing Fees with respect to the Purchased
Interest, and any other amounts payable by the Seller and the Servicer to each
Purchaser Group, the Administrator or any other Indemnified Party or Affected
Person hereunder, have been paid in full, all additional Collections with
respect to the Purchased Interest shall be paid to the Seller for its own
account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool
Receivable is reduced or adjusted as a result of any
defective, rejected, returned, repossessed or foreclosed goods
or services, or any revision, cancellation, allowance,
discount or other adjustment made by the Seller or any
Affiliate of the Seller, or the Servicer or any Affiliate of
the Servicer, or any setoff or dispute between the Seller or
any Affiliate of the Seller, or the Servicer or any Affiliate
of the Servicer and an
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Obligor, the Seller shall be deemed to have received on such
day a Collection of such Pool Receivable in the amount of such
reduction or adjustment;
(ii) if on any day any of the representations or
warranties in Section 1(g) or (n) of Exhibit III is not true
with respect to any Pool Receivable, the Seller shall be
deemed to have received on such day a Collection of such Pool
Receivable in full;
(iii) except as provided in clause (i) or (ii), or as
otherwise required by applicable law or the relevant Contract,
all Collections received from an Obligor of any Receivable
shall be applied to the Receivables of such Obligor in the
order of the age of such Receivables, starting with the oldest
such Receivable, unless such Obligor designates in writing its
payment for application to specific Receivables; and
(iv) if and to the extent the Administrator, any
Purchaser Agent or any Purchaser shall be required for any
reason to pay over to an Obligor (or any trustee, receiver,
custodian or similar official in any Insolvency Proceeding)
any amount received by it hereunder, such amount shall be
deemed not to have been so received by such Person but rather
to have been retained by the Seller and, accordingly, such
Person shall have a claim against the Seller for such amount,
payable when and to the extent that any distribution from or
on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the
reduction of Aggregate Investment (but not to commence the liquidation,
or reduction to zero, of the entire Aggregate Investment), the Seller
may do so as follows:
(i) the Seller shall give the Administrator, each
Purchaser Agent and the Servicer written notice in the Form of
Annex E (A) at least two Business Days' prior written notice
thereof for any reduction of Aggregate Investment less than or
equal to $10,000,000 and (B) at least ten Business Days' prior
written notice thereof for any reduction of Aggregate
Investment greater than $10,000,000 (in each case such notice
shall include the amount of such proposed reduction and the
proposed date on which such reduction will commence);
(ii) on the proposed date of commencement of such
reduction and on each day thereafter, the Servicer shall cause
Collections not to be reinvested until the amount thereof not
so reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in
trust for the benefit of each Purchaser ratably according to
its Investment, for payment to each such Purchaser (or its
related Purchaser Agent for the benefit of such Purchaser) on
the (i) next Settlement Date with respect to any Portions of
Investment maintained by such Purchaser immediately following
the related current Yield Period or (ii) such other date
approved by the Administrator with at least five Business Days
prior
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written notice to the Administrator of such payment, and the
Aggregate Investment (together with the Investment of any
related Purchaser) shall be deemed reduced in the amount to be
paid to such Purchaser (or its related Purchaser Agent for the
benefit of such Purchaser) only when in fact finally so paid;
provided, that:
(A) the amount of any such reduction shall be not less than
$1,000,000 for each Purchaser Group and shall be an integral multiple
of $100,000, and the entire Aggregate Investment after giving effect to
such reduction shall be not less than $50,000,000 and shall be in an
integral multiple of $100,000 (unless the Aggregate Investment shall
have been reduced to zero); and
(B) with respect to any Portion of Investment, the Seller
shall choose a reduction amount, and the date of commencement thereof,
so that to the extent practicable such reduction shall commence and
conclude in the same Yield Period.
Section 1.5 Fees. The Seller shall pay to each Purchaser Agent for the
benefit of the related Purchasers certain fees in the amounts and on the dates
set forth in letters, dated the date hereof, each such letter (as amended,
supplemented, or otherwise modified from time to time, a "Purchaser Group Fee
Letter") in each case among the Seller, the Servicer, the Purchasers and the
related Purchaser Agent.
Section 1.6 Payments and Computations, Etc.
(a) All amounts to be paid or deposited by the Seller or the
Servicer hereunder shall be made without reduction for offset or
counterclaim and shall be paid or deposited no later than 2:00 p.m.
(New York City time) on the day when due in same day funds to the
applicable Purchaser's account (as such account is identified in the
related Purchaser Group Fee Letter). All amounts received after 2:00
p.m. (New York City time) will be deemed to have been received on the
next Business Day.
(b) The Seller or the Servicer, as the case may be, shall, to
the extent permitted by law, pay interest on any amount not paid or
deposited by the Seller or the Servicer, as the case may be, when due
hereunder, at an interest rate equal to the Base Rate, payable on
demand.
(c) All computations of interest under clause (b) and all
computations of Discount, fees and other amounts hereunder shall be
made on the basis of a year of 360 (or 365 or 366, as applicable, with
respect to Discount or other amounts calculated by reference to the
Base Rate) days for the actual number of days elapsed. Whenever any
payment or deposit to be made hereunder shall be due on a day other
than a Business Day, such payment or deposit shall be made on the next
Business Day and such extension of time shall be included in the
computation of such payment or deposit.
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Section 1.7 Increased Costs.
(a) If any Purchaser Agent, Purchaser, Liquidity Provider, the
Administrator or any other Program Support Provider or any of their
respective Affiliates (each an "Affected Person") reasonably determines
that the existence of or compliance with: (i) any law or regulation or
any change therein or in the interpretation or application thereof, in
each case adopted, issued or occurring after the date hereof, or (ii)
any request, guideline or directive from any central bank or other
Governmental Authority (whether or not having the force of law) issued
or occurring after the date of this Agreement, affects or would affect
the amount of capital required or expected to be maintained by such
Affected Person, and such Affected Person determines that the amount of
such capital is increased by or based upon the existence of any
commitment to make purchases of (or otherwise to maintain the
investment in) Pool Receivables related to this Agreement or any
related liquidity facility, credit enhancement facility or other
commitments of the same type, then, upon demand by such Affected Person
(with a copy to the Administrator), the Seller shall promptly pay to
the Administrator, for the account of such Affected Person, from time
to time as specified by such Affected Person, additional amounts
sufficient to compensate such Affected Person in the light of such
circumstances, to the extent that such Affected Person reasonably
determines such increase in capital to be allocable to the existence of
any of such commitments. A certificate as to such amounts submitted to
the Seller and the Administrator by such Affected Person shall be
conclusive and binding for all purposes, absent manifest error.
(b) If, due to either: (i) the introduction of or any change
in or in the interpretation of any law or regulation or (ii) compliance
with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to any Affected Person of agreeing to
purchase or purchasing, or maintaining the ownership of, the Purchased
Interest or any portion thereof in respect of which Discount is
computed by reference to the Euro-Rate, then, upon demand by such
Affected Person, the Seller shall promptly pay to such Affected Person,
from time to time as specified by such Affected Person, additional
amounts sufficient to compensate such Affected Person for such
increased costs. A certificate as to such amounts submitted to the
Seller and the Administrator by such Affected Person shall be
conclusive and binding for all purposes, absent manifest error.
(c) If such increased costs affect the related Affected
Person's portfolio of financing transactions, such Affected Person
shall use reasonable averaging and attribution methods to allocate such
increased costs to the transactions contemplated by this Agreement.
(d) Each Affected Person will notify Seller and the applicable
Purchaser Agent promptly after it has received official notice of any
event which will entitle such Affected Person to such additional
amounts as compensation pursuant to this Section 1.7. Such additional
amounts shall accrue from the date as to which such Affected Person
becomes subject to such additional costs as a result of such event (or
if such notice of such event is not given to Seller by such Affected
Person within 90 days after such
10
Affected Person received such official notice of such event, from the
date which is 90 days prior to the date such notice is given to Seller
by such Affected Person).
Section 1.8 Requirements of Law.
If any Affected Person reasonably determines that the
existence of or compliance with: (a) any law or regulation or any
change therein or in the interpretation or application thereof, in each
case adopted, issued or occurring after the date hereof, or (b) any
request, guideline or directive from any central bank or other
Governmental Authority (whether or not having the force of law) issued
or occurring after the date of this Agreement:
(i) does or shall subject such Affected Person to any
tax of any kind whatsoever with respect to this Agreement, any
increase in the Purchased Interest or any portion thereof or
in the amount of such Person's Investment relating thereto, or
does or shall change the basis of taxation of payments to such
Affected Person on account of Collections, Discount or any
other amounts payable hereunder (excluding taxes imposed on
the overall pre-tax net income of such Affected Person, and
franchise taxes imposed on such Affected Person, by the
jurisdiction under the laws of which such Affected Person is
organized or a political subdivision thereof),
(ii) does or shall impose, modify or hold applicable
any reserve, special deposit, compulsory loan or similar
requirement against assets held by, or deposits or other
liabilities in or for the account of, purchases, advances or
loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Affected Person
that are not otherwise included in the determination of the
Euro-Rate or the Base Rate hereunder, or
(iii) does or shall impose on such Affected Person
any other condition,
and the result of any of the foregoing is: (A) to increase the cost to such
Affected Person of acting as Administrator or as a Purchaser Agent, or of
agreeing to purchase or purchasing or maintaining the ownership of undivided
percentage ownership interests with regard to the Purchased Interest (or
interests therein) or any Portion of Investment, or (B) to reduce any amount
receivable hereunder (whether directly or indirectly), then, in any such case,
upon demand by such Affected Person, the Seller shall promptly pay to such
Affected Person additional amounts necessary to compensate such Affected Person
for such additional cost or reduced amount receivable. All such amounts shall be
payable as incurred. A certificate from such Affected Person to the Seller and
the Administrator certifying, in reasonably specific detail, the basis for,
calculation of, and amount of such additional costs or reduced amount receivable
shall be conclusive and binding for all purposes, absent manifest error;
provided, however, that no Affected Person shall be required to disclose any
confidential or tax planning information in any such certificate.
Each Affected Person will notify Seller and the applicable
Purchaser Agent promptly after it has received official notice of any event
which will entitle such Affected Person
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to such additional amounts as compensation pursuant to this Section 1.8. Such
additional amounts shall accrue from the date as to which such Affected Person
becomes subject to such additional costs as a result of such event (or if such
notice of such event is not given to Seller by such Affected Person within 90
days after such Affected Person received such official notice of such event,
from the date which is 90 days prior to the date such notice is given to Seller
by such Affected Person).
Section 1.9 Inability to Determine Euro-Rate. (a) If the Administrator
(or any Purchaser Agent) determines before the first day of any Yield Period
(which determination shall be final and conclusive) that, by reason of
circumstances affecting the interbank eurodollar market generally, deposits in
dollars (in the relevant amounts for such Yield Period) are not being offered to
banks in the interbank eurodollar market for such Yield Period, or adequate
means do not exist for ascertaining the Euro-Rate for such Yield Period, then
the Administrator shall give notice thereof to the Seller. Thereafter, until the
Administrator or such Purchaser Agent notifies the Seller that the circumstances
giving rise to such suspension no longer exist, (A) no Portion of Investment
shall be funded at the Yield Rate determined by reference to the Euro-Rate and
(B) the Discount for any outstanding Portions of Investment then funded at the
Yield Rate determined by reference to the Euro-Rate shall, on the last day of
the then current Yield Period, be converted to the Yield Rate determined by
reference to the Base Rate.
(b) If, on or before the first day of any Yield Period, the
Administrator shall have been notified by any Purchaser, Purchaser
Agent or Liquidity Provider that, such Person has determined (which
determination shall be final and conclusive) that, any enactment,
promulgation or adoption of or any change in any applicable law, rule
or regulation, or any change in the interpretation or administration
thereof by a governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by such Person with any guideline, request or directive
(whether or not having the force of law) of any such authority, central
bank or comparable agency shall make it unlawful or impossible for such
Person to fund or maintain any Portion of Investment at the Yield Rate
and based upon the Euro-Rate, the Administrator shall notify the Seller
thereof. Upon receipt of such notice, until the Administrator notifies
the Seller that the circumstances giving rise to such determination no
longer apply, (A) no Portion of Investment funded by the affected
Person shall be funded at the Yield Rate determined by reference to the
Euro-Rate and (B) the Discount for any outstanding Portions of
Investment then funded at the Yield Rate determined by reference to the
Euro-Rate shall be converted to the Yield Rate determined by reference
to the Base Rate either (i) on the last day of the then current Yield
Period if such Person may lawfully continue to maintain such Portion of
Investment at the Yield Rate determined by reference to the Euro-Rate
to such day, or (ii) immediately, if such Person may not lawfully
continue to maintain such Portion of Investment at the Yield Rate
determined by reference to the Euro-Rate to such day.
Section 1.10 Extension of Termination Date. The Seller may advise the
Administrator and each Purchaser Agent in writing of its desire to extend the
Facility Termination Date for an additional 364 days, provided such request is
made not more than 90 days prior to, and not less than 60 days prior to, the
then current Facility Termination Date. In the event that the Purchaser Agents
are all agreeable to such extension, the Administrator shall so notify the
Seller in writing
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(it being understood that the Purchaser Agents may accept or decline such a
request in their sole discretion and on such terms as they may elect) not less
than 30 days prior to the then current Facility Termination Date and the Seller,
the Administrator, the Purchaser Agents and the Purchasers shall enter into such
documents as the Purchasers may deem necessary or appropriate to reflect such
extension, and all reasonable costs and expenses incurred by the Purchasers, the
Administrator and the Purchaser Agents in connection therewith (including
reasonable Attorneys' Costs) shall be paid by the Seller. In the event the
Purchaser Agents decline the request for such extension, the Administrator shall
so notify the Seller of such determination; provided, however, that the failure
of the Administrator to notify the Seller of the determination to decline such
extension shall not affect the understanding and agreement that the Purchaser
Agents shall be deemed to have refused to grant the requested extension in the
event the Administrator fails to affirmatively notify the Seller, in writing, of
their agreement to accept the requested extension.
ARTICLE II
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section 2.1 Representations and Warranties; Covenants. Each of the
Seller and the Servicer hereby makes the representations and warranties, and
hereby agrees to perform and observe the covenants, applicable to it set forth
in Exhibits III, IV and VI, respectively.
Section 2.2 Termination Events. If any of the Termination Events set
forth in Exhibit V shall occur, the Administrator may (with the consent of a
Simple Majority of the Purchasers) or shall (at the direction of a Simple
Majority of the Purchasers), by notice to the Seller, declare the Facility
Termination Date to have occurred (in which case the Facility Termination Date
shall be deemed to have occurred); provided, that automatically upon the
occurrence of any event (without any requirement for the passage of time or the
giving of notice) described in paragraph (f) of Exhibit V, the Facility
Termination Date shall occur. Upon any such declaration, occurrence or deemed
occurrence of the Facility Termination Date, the Administrator, each Purchaser
Agent and each Purchaser shall have, in addition to the rights and remedies that
they may have under this Agreement, all other rights and remedies provided after
default under the New York UCC and under other applicable law, which rights and
remedies shall be cumulative.
ARTICLE III
INDEMNIFICATION
Section 3.1 Indemnities by the Seller. Without limiting any other
rights that any Purchaser Agent, Purchaser, Liquidity Provider, the
Administrator or any Program Support Provider or any of their respective
Affiliates, employees, officers, directors, agents, counsel, successors,
transferees or assigns (each, an "Indemnified Party") may have hereunder or
under applicable law, the Seller hereby agrees to indemnify each Indemnified
Party from and against any and all claims, damages, expenses, costs, losses and
liabilities (including Attorney Costs) (all of the foregoing being collectively
referred to as "Indemnified Amounts") arising out of or resulting from this
Agreement (whether directly or indirectly), the use of proceeds of purchases or
reinvestments, the ownership of the Purchased Interest, or any interest therein,
or in respect of
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any Receivable, Related Security or Contract, excluding, however: (a)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnified Party or its officers, directors,
agents or counsel, (b) recourse with respect to any Receivable to the extent
that such Receivable is uncollectible on account of the insolvency, bankruptcy
or lack of credit worthiness of the related Obligor, or (c) any overall net
income taxes or franchise taxes imposed on such Indemnified Party by the
jurisdiction under the laws of which such Indemnified Party is organized or any
political subdivision thereof. Without limiting or being limited by the
foregoing, and subject to the exclusions set forth in the preceding sentence,
the Seller shall pay on demand (which demand shall be accompanied by
documentation of the Indemnified Amounts, in reasonable detail) to each
Indemnified Party any and all amounts necessary to indemnify such Indemnified
Party from and against any and all Indemnified Amounts relating to or resulting
from any of the following:
(i) the failure of any Receivable included in the
calculation of the Net Receivables Pool Balance as an Eligible
Receivable to be an Eligible Receivable, the failure of any
information contained in an Information Package to be true and
correct as of the date such information was provided (except
to extent that such in formation relates expressly to an
earlier date, and in which case such information shall be true
and correct as of such earlier date), or the failure of any
other information provided to such Indemnified Party by the
Seller or Servicer with respect to Receivables or this
Agreement to be true and correct as of the date such
information was provided (except to extent that such in
formation relates expressly to an earlier date, and in which
case such information shall be true and correct as of such
earlier date),
(ii) the failure of any representation, warranty or
statement made or deemed made by the Seller (or any of its
officers) under or in connection with this Agreement to have
been true and correct as of the date made or deemed made in
all respects when made,
(iii) the failure by the Seller to comply with any
applicable law, rule or regulation with respect to any Pool
Receivable or the related Contract, or the failure of any Pool
Receivable or the related Contract to conform to any such
applicable law, rule or regulation,
(iv) the failure to vest in the Administrator (for
the benefit of the Purchasers) a valid and enforceable: (A)
perfected undivided percentage ownership interest, to the
extent of the Purchased Interest, in the Receivables in, or
purporting to be in, the Receivables Pool and the other Pool
Assets, or (B) first priority perfected security interest in
the Pool Assets, in each case, free and clear of any Adverse
Claim,
(v) the failure to have filed, or any delay in
filing, financing statements or other similar instruments or
documents under the UCC of any applicable jurisdiction or
other applicable laws with respect to any Receivables in, or
purporting to be in, the Receivables Pool and the other Pool
Assets, whether at the time of any purchase or reinvestment or
at any subsequent time,
14
(vi) any dispute, claim, offset or defense (other
than discharge in bankruptcy of the Obligor) of the Obligor to
the payment of any Receivable in, or purporting to be in, the
Receivables Pool (including a defense based on such Receivable
or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from
the sale of the goods or services related to such Receivable
or the furnishing or failure to furnish such goods or services
or relating to collection activities with respect to such
Receivable,
(vii) any failure of the Seller, any Affiliate of the
Seller or the Servicer to perform its duties or obligations in
accordance with the provisions hereof or under the Contracts,
(viii) any products liability or other claim,
investigation, litigation or proceeding arising out of or in
connection with merchandise, insurance or services that are
the subject of any Contract,
(ix) the commingling of Collections at any time with
other funds,
(x) the use of proceeds of purchases or
reinvestments, or
(xi) any reduction in the Aggregate Investment as a
result of the distribution of Collections pursuant to Section
1.4(d), if all or a portion of such distributions shall
thereafter be rescinded or otherwise must be returned for any
reason.
Section 3.2 Indemnities by the Servicer. Without limiting any other
rights that any Indemnified Party may have hereunder or under applicable law,
the Servicer hereby agrees to indemnify each Indemnified Party from and against
any and all Indemnified Amounts arising out of or resulting from (whether
directly or indirectly): (a) the failure of any information contained in an
Information Package to be true and correct as of the date such information was
provided (except to extent that such in formation relates expressly to an
earlier date, and in which case such information shall be true and correct as of
such earlier date), or the failure of any other information provided to such
Indemnified Party by, or on behalf of, the Servicer to be true and correct as of
the date such information was provided (except to extent that such in formation
relates expressly to an earlier date, and in which case such information shall
be true and correct as of such earlier date), (b) the failure of any
representation, warranty or statement made or deemed made by the Servicer (or
any of its officers) under or in connection with this Agreement or any other
Transaction Document to which it is a party to have been true and correct as of
the date made or deemed made in all respects when made, (c) the failure by the
Servicer to comply with any applicable law, rule or regulation with respect to
any Pool Receivable or the related Contract, (d) any dispute, claim, offset or
defense of the Obligor to the payment of any Receivable in, or purporting to be
in, the Receivables Pool resulting from or related to the collection activities
with respect to such Receivable, (e) any failure of the Servicer to perform its
duties or obligations in accordance with the provisions hereof or any other
Transaction Document to which it is a party, (f) the failure of the Servicer to
have filed, or any delay in filing, financing statements or other similar
instruments or documents under the UCC of any
15
applicable jurisdiction or other applicable laws with respect to any Receivables
in, or purporting to be in, the Receivables Pool and the other Pool Assets,
whether at the time of any purchase or reinvestment or at any subsequent time,
or (g) any commingling by the Servicer of Collections at any time with other
funds.
ARTICLE IV
ADMINISTRATION AND COLLECTIONS
Section 4.1 Appointment of the Servicer.
(a) The servicing, administering and collection of the Pool
Receivables shall be conducted by the Person so designated from time to
time as the Servicer in accordance with this Section. Until the
Administrator gives notice to York (in accordance with this Section
4.1) of the designation of a new Servicer, York is hereby designated
as, and hereby agrees to perform the duties and obligations of, the
Servicer pursuant to the terms hereof. Upon the occurrence of a
Termination Event, the Administrator may (with the consent of the
Majority Purchasers) or shall (at the direction of the Majority
Purchasers) designate as Servicer any Person (including itself) to
succeed York or any successor Servicer, on the condition in each case
that any such Person so designated shall agree to perform the duties
and obligations of the Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Servicer as set forth
in clause (a), York agrees that it will terminate its activities as
Servicer hereunder in a manner that the Administrator reasonably
determines will facilitate the transition of the performance of such
activities to the new Servicer, and York shall cooperate with and
assist such new Servicer. Such cooperation shall include access to and
transfer of related records (including all Contracts) and, subject to
restrictions in applicable contracts and agreements use by the new
Servicer of all licenses, hardware or software necessary or desirable
to collect the Pool Receivables and the Related Security.
(c) York acknowledges that, in making their decision to
execute and deliver this Agreement, the Administrator and each
Purchaser Group have relied on York's agreement to act as Servicer
hereunder. Accordingly, York agrees that it will not voluntarily resign
as Servicer.
(d) The Servicer may delegate its duties and obligations
hereunder to any subservicer (each a "Sub-Servicer"); provided, that,
in each such delegation: (i) such Sub-Servicer shall agree in writing
to perform the duties and obligations of the Servicer pursuant to the
terms hereof, (ii) the Servicer shall remain primarily liable for the
performance of the duties and obligations so delegated, (iii) the
Seller, the Administrator and each Purchaser Group shall have the right
to look solely to the Servicer for performance, and (iv) the terms of
any agreement with any Sub-Servicer shall provide that the
Administrator may terminate such agreement upon the termination of the
Servicer hereunder by giving notice of its desire to terminate such
agreement to the Servicer (and the Servicer shall provide appropriate
notice to each such Sub-Servicer); provided, however, that if any such
delegation is to any Person other than an Originator
16
or an Affiliate thereof, the Administrator and the Majority Purchasers
shall have consented in writing in advance to such delegation.
Section 4.2 Duties of the Servicer.
(a) The Servicer shall take or cause to be taken all such
action as may be necessary or advisable to administer and collect each
Pool Receivable from time to time, all in accordance with this
Agreement and all applicable laws, rules and regulations, with
reasonable care and diligence, and in accordance with the Credit and
Collection Policies. The Servicer shall set aside, for the account of
each Purchaser Group, the amount of the Collections to which each such
Purchaser Group is entitled in accordance with Article I. The Servicer
may, in accordance with the applicable Credit and Collection Policy,
take such action as the Servicer may determine to be appropriate to
maximize Collections thereof or reflect adjustments required under the
applicable Contract; provided, however, that: (i) such action shall not
change the number of days such Pool Receivable has remained unpaid from
the date of the original due date related to such Pool Receivable, (ii)
such action shall not alter the status of such Pool Receivable as a
Delinquent Receivable or a Defaulted Receivable or limit the rights of
the Administrator or any Purchaser Group under this Agreement and (iii)
if a Termination Event has occurred and York or an Affiliate thereof is
serving as the Servicer, York or such Affiliate may take such action
only upon the prior approval of the Administrator (with the consent of
the Majority Purchasers). The Seller shall deliver to the Servicer and
the Servicer shall hold for the benefit of the Seller and the
Administrator (individually and for the benefit of each Purchaser
Group), in accordance with their respective interests, all records and
documents (including computer tapes or disks) with respect to each Pool
Receivable. Notwithstanding anything to the contrary contained herein,
the Administrator may direct the Servicer (whether the Servicer is York
or any other Person) to commence or settle any legal action to enforce
collection of any Pool Receivable or to foreclose upon or repossess any
Related Security; provided, however, that no such direction may be
given unless either: (A) a Termination Event has occurred or (B) the
Administrator believes in good faith that failure to commence, settle
or effect such legal action, foreclosure or repossession could
adversely affect Receivables constituting a material portion of the
Pool Receivables.
(b) The Servicer shall, as soon as practicable following
actual receipt of collected funds, turn over to the Seller the
collections of any indebtedness that is not a Pool Receivable, less, if
York or an Affiliate thereof is not the Servicer, all reasonable and
appropriate out-of-pocket costs and expenses of such Servicer of
servicing, collecting and administering such collections. The Servicer,
if other than York or an Affiliate thereof, shall, as soon as
practicable upon demand, deliver to the Seller all records in its
possession that evidence or relate to any indebtedness that is not a
Pool Receivable, and copies of records in its possession that evidence
or relate to any indebtedness that is a Pool Receivable.
(c) The Servicer's obligations hereunder shall terminate on
the later of: (i) the Facility Termination Date and (ii) the date on
which all amounts required to be paid to
17
the Purchaser Agents, each Purchaser, the Administrator and any other
Indemnified Party or Affected Person hereunder shall have been paid in
full.
After such termination, if York or an Affiliate thereof was not the
Servicer on the date of such termination, the Servicer shall promptly deliver to
the Seller all books, records and related materials that the Seller previously
provided to the Servicer, or that have been obtained by the Servicer, in
connection with this Agreement.
Section 4.3 Lock-Box Account Arrangements. Upon the occurrence of a
Termination Event, the Administrator may (with the consent of a Simple Majority
of the Purchasers) or shall (upon the direction of a Simple Majority of the
Purchasers) at any time thereafter give notice to each Lock-Box Bank that the
Administrator is exercising its rights under the Lock-Box Agreements to do any
or all of the following: (a) to have the exclusive ownership and control of the
Lock-Box Accounts (and the related lock-boxes) transferred to the Administrator
(for the benefit of the Purchasers) and to exercise exclusive dominion and
control over the funds deposited therein, (b) to have the proceeds that are sent
to the respective Lock-Box Accounts (and the respective related lock-boxes)
redirected pursuant to the Administrator's instructions rather than deposited in
the applicable Lock-Box Account (or sent to the applicable related lock-box),
and (c) to take any or all other actions permitted under the applicable Lock-Box
Agreement. The Seller hereby agrees that if the Administrator at any time takes
any action set forth in the preceding sentence, the Administrator shall have
exclusive control (for the benefit of the Purchasers) of the proceeds (including
Collections) of all Pool Receivables and the Seller hereby further agrees to
take any other action that the Administrator or any Purchaser Agent may
reasonably request to transfer such control. Any proceeds of Pool Receivables
received by the Seller or the Servicer thereafter shall be sent immediately to
the Administrator. The parties hereto hereby acknowledge that if at any time the
Administrator takes control of any Lock-Box Account (and any such related
lock-box), the Administrator shall not have any rights to the funds therein in
excess of the unpaid amounts due to the Administrator, the Purchaser Groups, any
Indemnified Party or any other Person hereunder, and the Administrator shall
distribute or cause to be distributed such funds in accordance with Section
4.2(b) and Article I (in each case as if such funds were held by the Servicer
thereunder).
Section 4.4 Enforcement Rights.
(a) At any time following the occurrence of a Termination
Event:
(i) the Administrator may (with the consent or at the
direction of the Majority Purchasers) direct the Obligors that
payment of all amounts payable under any Pool Receivable is to
be made directly to the Administrator or its designee,
(ii) the Administrator may (with the consent or at
the direction of the Majority Purchasers) instruct the Seller
or the Servicer to give notice of the Purchaser Groups'
interest in Pool Receivables to each Obligor, which notice
shall direct that payments be made directly to the
Administrator or its designee (on behalf of such Purchaser
Groups), and the Seller or the Servicer, as the case may be,
shall give such notice at the expense of the Seller or the
Servicer, as the
18
case may be; provided, that if the Seller or the Servicer, as
the case may be, fails to so notify each Obligor, the
Administrator (at the Seller's or the Servicer's, as the case
may be, expense) may so notify the Obligors, and
(iii) the Administrator may (with the consent or at
the direction of the Majority Purchasers) request the Servicer
to, and upon such request the Servicer shall: (A) assemble all
of the records necessary or desirable to collect the Pool
Receivables and the Related Security, and transfer or license
to a successor Servicer the use of all software necessary or
desirable to collect the Pool Receivables and the Related
Security, and make the same available to the Administrator or
its designee (for the benefit of the Purchasers) at a place
selected by the Administrator, and (B) segregate all cash,
checks and other instruments received by it from time to time
constituting Collections in a manner acceptable to the
Administrator and, promptly upon receipt, remit all such cash,
checks and instruments, duly endorsed or with duly executed
instruments of transfer, to the Administrator or its designee.
(b) The Seller hereby authorizes the Administrator (on behalf
of each Purchaser Group), and irrevocably appoints the Administrator as
its attorney-in-fact with full power of substitution and with full
authority in the place and stead of the Seller, which appointment is
coupled with an interest, to take any and all steps in the name of the
Seller and on behalf of the Seller necessary or desirable, in the
determination of the Administrator, after the occurrence of a
Termination Event, to collect any and all amounts or portions thereof
due under any and all Pool Assets, including endorsing the name of the
Seller on checks and other instruments representing Collections and
enforcing such Pool Assets. Notwithstanding anything to the contrary
contained in this subsection, none of the powers conferred upon such
attorney-in-fact pursuant to the preceding sentence shall subject such
attorney-in-fact to any liability if any action taken by it shall prove
to be inadequate or invalid, nor shall they confer any obligations upon
such attorney-in-fact in any manner whatsoever.
(c) The parties hereto hereby acknowledge that if at any time
the Administrator takes steps in the name of Seller and on behalf of
the Seller pursuant to the powers granted in Section 4.4(b) to collect
any and all amounts or portions thereof due under any Pool Assets, the
Administrator shall not have any rights to collect amounts or portions
thereof in excess of the unpaid amounts due to the Administrator, the
Purchaser Groups, any Indemnified Party or any other Persons hereunder,
and the Administrator shall distribute or cause to be distributed such
amounts in accordance with Section 4.2(b) and Article I (in each case
as if such amounts were hold by the Servicer thereunder).
Section 4.5 Responsibilities of the Seller.
(a) Anything herein to the contrary notwithstanding, the
Seller shall: (i) perform all of its obligations, if any, under the
Contracts related to the Pool Receivables to the same extent as if
interests in such Pool Receivables had not been transferred hereunder,
and the exercise by the Administrator, the Purchaser Agents or the
Purchasers of their respective rights hereunder shall not relieve the
Seller from such obligations, and
19
(ii) pay when due any taxes, including any sales taxes payable in
connection with the Pool Receivables and their creation and
satisfaction. The Administrator, the Purchaser Agents or any of the
Purchasers shall not have any obligation or liability with respect to
any Pool Asset, nor shall any of them be obligated to perform any of
the obligations of the Seller, Servicer, York or the Originators
thereunder.
(b) York hereby irrevocably agrees that if at any time it
shall cease to be the Servicer hereunder, it shall act (if the
then-current Servicer so requests) as the data-processing agent of the
Servicer and, in such capacity, York shall conduct the data-processing
functions of the administration of the Receivables and the Collections
thereon in substantially the same way that York conducted such
data-processing functions while it acted as the Servicer and shall be
entitled to recover from the Servicing Fee its reasonable costs and
expenses incurred while acting as such data-processing agent of the
Servicer.
Section 4.6 Servicing Fee. (a) Subject to clause (b), the Servicer
shall be paid a fee (the "Servicing Fee") equal to 1.00% per annum of the daily
average aggregate Outstanding Balance of the Pool Receivables. The Aggregate of
each Purchaser Group's Ratable Share of such fee shall be paid through the
distributions contemplated by Section 1.4(d), and the Seller's Share of such fee
shall be paid by the Seller.
(b) If the Servicer ceases to be York or an Affiliate thereof,
the servicing fee shall be the greater of: (i) the amount calculated
pursuant to clause (a), and (ii) an alternative amount specified by the
successor Servicer not to exceed 110% of the aggregate reasonable costs
and expenses incurred by such successor Servicer in connection with the
performance of its obligations as Servicer.
ARTICLE V
THE AGENTS
Section 5.1 Appointment and Authorization. (a) Each Purchaser and
Purchaser Agent hereby irrevocably designates and appoints PNC as the
"Administrator" hereunder and authorizes the Administrator to take such actions
and to exercise such powers as are delegated to the Administrator hereby and to
exercise such other powers as are reasonably incidental thereto. The
Administrator shall hold, in its name, for the benefit of each Purchaser,
ratably, the Purchased Interest. The Administrator shall not have any duties
other than those expressly set forth herein or any fiduciary relationship with
any Purchaser or Purchaser Agent, and no implied obligations or liabilities
shall be read into this Agreement, or otherwise exist, against the
Administrator. The Administrator does not assume, nor shall it be deemed to have
assumed, any obligation to, or relationship of trust or agency with, the Seller
or Servicer. Notwithstanding any provision of this Agreement or any other
Transaction Document to the contrary, in no event shall the Administrator ever
be required to take any action which exposes the Administrator to personal
liability or which is contrary to the provision of any Transaction Document or
applicable law.
(b) Each Purchaser hereby irrevocably designates and appoints
the respective institution identified as the Purchaser Agent for such
Purchaser's Purchaser Group on the
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signature pages hereto or in the Assumption Agreement or Transfer
Supplement pursuant to which such Purchaser becomes a party hereto, and
each authorizes such Purchaser Agent to take such action on its behalf
under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to such Purchaser Agent
by the terms of this Agreement, if any, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, no Purchaser Agent shall have
any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Purchaser or other
Purchaser Agent or the Administrator, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities on the
part of such Purchaser Agent shall be read into this Agreement or
otherwise exist against such Purchaser Agent.
(c) Except as otherwise specifically provided in this
Agreement, the provisions of this Article V are solely for the benefit
of the Purchaser Agents, the Administrator and the Purchasers, and none
of the Seller or Servicer shall have any rights as a third-party
beneficiary or otherwise under any of the provisions of this Article V,
except that this Article V shall not affect any obligations which any
Purchaser Agent, the Administrator or any Purchaser may have to the
Seller or the Servicer under the other provisions of this Agreement.
Furthermore, no Purchaser shall have any rights as a third-party
beneficiary or otherwise under any of the provisions hereof in respect
of a Purchaser Agent which is not the Purchaser Agent for such
Purchaser.
(d) In performing its functions and duties hereunder, the
Administrator shall act solely as the agent of the Purchasers and the
Purchaser Agents and does not assume nor shall be deemed to have
assumed any obligation or relationship of trust or agency with or for
the Seller or Servicer or any of their successors and assigns. In
performing its functions and duties hereunder, each Purchaser Agent
shall act solely as the agent of its respective Purchaser and does not
assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Seller, the Servicer,
any other Purchaser, any other Purchaser Agent or the Administrator, or
any of their respective successors and assigns.
Section 5.2 Delegation of Duties. The Administrator may execute any of
its duties through agents or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. The Administrator
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
Section 5.3 Exculpatory Provisions. None of the Purchaser Agents, the
Administrator or any of their directors, officers, agents or employees shall be
liable for any action taken or omitted (i) with the consent or at the direction
of the Majority Purchasers (or in the case of any Purchaser Agent, the
Purchasers within its Purchaser Group that have a majority of the aggregate
Commitment of such Purchaser Group) or (ii) in the absence of such Person's
gross negligence or willful misconduct. The Administrator shall not be
responsible to any Purchaser, Purchaser Agent or other Person for (i) any
recitals, representations, warranties or other statements made by the Seller,
Servicer, or any of their Affiliates, (ii) the value, validity, effectiveness,
genuineness, enforceability or sufficiency of any Transaction Document, (iii)
any failure of the Seller, any Originator or any of their Affiliates to perform
any obligation or (iv) the satisfaction of any
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condition specified in Exhibit II. The Administrator shall not have any
obligation to any Purchaser or Purchaser Agent to ascertain or inquire about the
observance or performance of any agreement contained in any Transaction Document
or to inspect the properties, books or records of the Seller, Servicer,
Originator or any of their Affiliates.
Section 5.4 Reliance by Agents. Each Purchaser Agent and the
Administrator shall in all cases be entitled to rely, and shall be fully
protected in relying, upon any document or other writing or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person and upon advice and statements of legal counsel (including
counsel to the Seller), independent accountants and other experts selected by
the Administrator. Each Purchaser Agent and the Administrator shall in all cases
be fully justified in failing or refusing to take any action under any
Transaction Document unless it shall first receive such advice or concurrence of
the Majority Purchasers (or in the case of any Purchaser Agent, the Purchasers
within its Purchaser Group that have a majority of the aggregate Commitment of
such Purchaser Group), and assurance of its indemnification, as it deems
appropriate.
(a) The Administrator shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in
accordance with a request of the Majority Purchasers or the Purchaser
Agents, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all Purchasers, the
Administrator and Purchaser Agents.
(b) The Purchasers within each Purchaser Group with a majority
of the Commitment of such Purchaser Group shall be entitled to request
or direct the related Purchaser Agent to take action, or refrain from
taking action, under this Agreement on behalf of such Purchasers. Such
Purchaser Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a
request of such majority Purchasers, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of
such Purchaser Agent's Purchasers.
(c) Unless otherwise advised in writing by a Purchaser Agent
or by any Purchaser on whose behalf such Purchaser Agent is purportedly
acting, each party to this Agreement may assume that (i) such Purchaser
Agent is acting for the benefit of each of the Purchasers in respect of
which such Purchaser Agent is identified as being the "Purchaser Agent"
in the definition of "Purchaser Agent" hereto, as well as for the
benefit of each assignee or other transferee from any such Person, and
(ii) each action taken by such Purchaser Agent has been duly authorized
and approved by all necessary action on the part of the Purchasers on
whose behalf it is purportedly acting. Each Purchaser Agent and its
Purchaser(s) shall agree amongst themselves as to the circumstances and
procedures for removal, resignation and replacement of such Purchaser
Agent.
Section 5.5 Notice of Termination Events. Neither any Purchaser Agent
nor the Administrator shall be deemed to have knowledge or notice of the
occurrence of any Termination Event or Unmatured Termination Event unless such
Administrator has received notice from any Purchaser, Purchaser Agent, the
Servicer or the Seller stating that a Termination Event or Unmatured Termination
Event has occurred hereunder and describing such Termination
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Event or Unmatured Termination Event. In the event that the Administrator
receives such a notice, it shall promptly give notice thereof to each Purchaser
Agent whereupon each such Purchaser Agent shall promptly give notice thereof to
its Purchasers. In the event that a Purchaser Agent receives such a notice
(other than from the Administrator), it shall promptly give notice thereof to
the Administrator. The Administrator shall take such action concerning a
Termination Event or Unmatured Termination Event as may be directed by the
Majority Purchasers (unless such action otherwise requires the consent of all
Purchasers), but until the Administrator receives such directions, the
Administrator may (but shall not be obligated to) take such action, or refrain
from taking such action, as the Administrator deems advisable and in the best
interests of the Purchasers and Purchaser Agents.
Section 5.6 Non-Reliance on Administrator, Purchaser Agents and Other
Purchasers. Each Purchaser expressly acknowledges that none of the
Administrator, the Purchaser Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrator, or any
Purchaser Agent hereafter taken, including any review of the affairs of the
Seller, York, Servicer or any Originator, shall be deemed to constitute any
representation or warranty by the Administrator or such Purchaser Agent, as
applicable. Each Purchaser represents and warrants to the Administrator and the
Purchaser Agents that, independently and without reliance upon the
Administrator, Purchaser Agents or any other Purchaser and based on such
documents and information as it has deemed appropriate, it has made and will
continue to make its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of the Seller, York, Servicer or the Originators, and the
Receivables and its own decision to enter into this Agreement and to take, or
omit, action under any Transaction Document. Except for items specifically
required to be delivered hereunder, the Administrator shall not have any duty or
responsibility to provide any Purchaser Agent with any information concerning
the Seller, York, Servicer or the Originators or any of their Affiliates that
comes into the possession of the Administrator or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
Section 5.7 Administrators and Affiliates. Each of the Purchasers and
the Administrator and their Affiliates may extend credit to, accept deposits
from and generally engage in any kind of banking, trust, debt, equity or other
business with the Seller, York, Servicer or any Originator or any of their
Affiliates and PNC may exercise or refrain from exercising its rights and powers
as if it were not the Administrator. With respect to the acquisition of the
Eligible Receivables pursuant to this Agreement, each of the Purchaser Agents
and the Administrator shall have the same rights and powers under this Agreement
as any Purchaser and may exercise the same as though it were not such an agent,
and the terms "Purchaser" and "Purchasers" shall include each of the Purchaser
Agents and the Administrator in their individual capacities.
Section 5.8 Indemnification. Each Purchaser Group shall indemnify and
hold harmless the Administrator (but solely in its capacity as Administrator)
and its officers, directors, employees, representatives and agents (to the
extent not reimbursed by the Seller, York or Servicer and without limiting the
obligation of the Seller, York or Servicer to do so), ratably in accordance with
its Ratable Share from and against any and all liabilities, obligations, losses,
damages, penalties, judgments, settlements, costs, expenses and disbursements of
any kind
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whatsoever (including in connection with any investigative or threatened
proceeding, whether or not the Administrator or such Person shall be designated
a party thereto) that may at any time be imposed on, incurred by or asserted
against the Administrator or such Person as a result of, or related to, any of
the transactions contemplated by the Transaction Documents or the execution,
delivery or performance of the Transaction Documents or any other document
furnished in connection therewith (but excluding any such liabilities,
obligations, losses, damages, penalties, judgments, settlements, costs, expenses
or disbursements resulting solely from the gross negligence or willful
misconduct of the Administrator or such Person as finally determined by a court
of competent jurisdiction); provided, that in the case of each Purchaser that is
a commercial paper conduit, such indemnity shall be provided solely to the
extent of amounts received by such Purchaser under this Agreement which exceed
the amounts required to repay such Purchaser's outstanding Notes.
Notwithstanding anything in this Section 5.8 to the contrary, each of the
Administrator, each Purchaser Agent and each Purchaser hereby covenants and
agrees that it shall not institute against, or join any other Person in
instituting against, any Conduit Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law, for one year and a day after the
latest maturing Note issued by such Conduit Purchaser is paid in full.
Section 5.9 Successor Administrator. The Administrator may, upon at
least five (5) days notice to the Seller and each Purchaser and Purchaser Agent,
resign as Administrator. Such resignation shall not become effective until a
successor agent is appointed by the Majority Purchasers and has accepted such
appointment. Upon such acceptance of its appointment as Administrator hereunder
by a successor Administrator, such successor Administrator shall succeed to and
become vested with all the rights and duties of the retiring Administrator, and
the retiring Administrator shall be discharged from its duties and obligations
under the Transaction Documents. After any retiring Administrator's resignation
hereunder, the provisions of Sections 3.1 and 3.2 and this Article V shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
the Administrator.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Transaction Document, or consent to any departure by
the Seller or the Servicer therefrom, shall be effective unless in a writing
signed by the Administrator and each of the Majority Purchasers, and, in the
case of any amendment, by the other parties thereto; and then such amendment,
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that, if required by any
Conduit Purchaser, no such material amendment shall be effective until both
Moody's and Standard & Poor's have notified the related Purchaser Agent in
writing that such action will not result in a reduction or withdrawal of the
rating of any Notes; provided, further that no such amendment or waiver shall,
without the consent of each affected Purchaser, (A) extend the date of any
payment or deposit of Collections by the Seller or the Servicer, (B) reduce the
rate or extend the time of payment of Discount, (C) reduce any fees payable to
the Administrator, any Purchaser Agent or any Purchaser pursuant to the
applicable Purchaser Group Fee Letter, (D) change the amount of Investment of
any Purchaser, any Purchaser's pro rata share of the Purchased Interest or any
Related Committed Purchaser's Commitment, (E) amend, modify or waive any
provision of
24
the definition of "Majority Purchaser" or this Section 6.1, (F) consent to or
permit the assignment or transfer by the Seller of any of its rights and
obligations under this Agreement, (G) change the definition of "Concentration
Percentage," "Concentration Reserve," "Concentration Reserve Percentage,"
"Eligible Receivable," "Ineligible Elimination Amounts," "Loss Reserve," "Loss
Reserve Percentage," "Dilution Reserve," "Dilution Reserve Percentage,"
"Specifically Reserved Dilution Amount," "Termination Event," "Total Reserve,"
"Yield Reserve," or "Yield Reserve Percentage", (H) amend or modify any defined
term (or any defined term used directly or indirectly in such defined term) used
in clauses (A) through (G) above in a manner that would circumvent the intention
of the restrictions set forth in such clauses, or (I) otherwise materially and
adversely affect the rights of any such Purchaser hereunder. No failure on the
part of the Purchasers or the Administrator to exercise, and no delay in
exercising any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
Section 6.2 Notices, Etc. All notices and other communications
hereunder shall, unless otherwise stated herein, be in writing (which shall
include facsimile communication) and be sent or delivered to each party hereto
at its address set forth under its name on the signature pages hereof (or in any
Assumption Agreement pursuant to which it became a party hereto) or at such
other address as shall be designated by such party in a written notice to the
other parties hereto. Notices and communications by facsimile shall be effective
when sent (and shall be followed by hard copy sent by first class mail), and
notices and communications sent by other means shall be effective when received.
Section 6.3 Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Except as otherwise provided herein,
the Seller may not assign or transfer any of its rights or delegate any
of its duties hereunder or under any Transaction Document without the
prior consent of the Administrator, the Purchaser Agents and the
Purchasers.
(b) Participations. Any Purchaser may sell to one or more
Persons (each a "Participant") participating interests in the interests
of such Purchaser hereunder; provided, however, that no Purchaser shall
grant any participation under which the Participant shall have rights
to approve any amendment to or waiver of this Agreement or any other
Transaction Document. Such Purchaser shall remain solely responsible
for performing its obligations hereunder, and the Seller, each
Purchaser Agent and the Administrator shall continue to deal solely and
directly with such Purchaser in connection with such Purchaser's rights
and obligations hereunder. A Purchaser shall not agree with a
Participant to restrict such Purchaser's right to agree to any
amendment hereto, except amendments that require the consent of all
Purchasers.
(c) Assignments by Certain Related Committed Purchasers. Any
Related Committed Purchaser may assign to one or more Persons (each a
"Purchasing Related Committed Purchaser"), reasonably acceptable to the
related Purchaser Agent in its sole discretion, any portion of its
Commitment pursuant to a supplement hereto, substantially in the form
of Annex D with any changes as have been approved by the parties
thereto (a
25
"Transfer Supplement"), executed by each such Purchasing Related
Committed Purchaser, such selling Related Committed Purchaser, such
related Purchaser Agent. Any such assignment by Related Committed
Purchaser cannot be for an amount less than $10,000,000. Upon (i) the
execution of the Transfer Supplement, (ii) delivery of an executed copy
thereof to the Seller, such related Purchaser Agent and the
Administrator and (iii) payment by the Purchasing Related Committed
Purchaser to the selling Related Committed Purchaser of the agreed
purchase price, such selling Related Committed Purchaser shall be
released from its obligations hereunder to the extent of such
assignment and such Purchasing Related Committed Purchaser shall for
all purposes be a Related Committed Purchaser party hereto and shall
have all the rights and obligations of a Related Committed Purchaser
hereunder to the same extent as if it were an original party hereto.
The amount of the Commitment of the selling Related Committed Purchaser
allocable to such Purchasing Related Committed Purchaser shall be equal
to the amount of the Commitment of the selling Related Committed
Purchaser transferred regardless of the purchase price paid therefor.
The Transfer Supplement shall be an amendment hereof only to the extent
necessary to reflect the addition of such Purchasing Related Committed
Purchaser as a "Related Committed Purchaser" and any resulting
adjustment of the selling Related Committed Purchaser's Commitment.
(d) Replaceable Related Committed Purchaser. If any Related
Committed Purchaser (a "Replaceable Related Committed Purchaser") shall
(i) petition the Seller for any amounts under Section 1.7 or 1.8 or
(ii) cease to have a short-term debt rating of "A-1" by Standard &
Poor's and "P-1" by ▇▇▇▇▇'▇ (if such a rating is required by the
related Purchaser's securitization program), the related Purchaser
Agent or the Administrator may and if requested by the Seller, use its
reasonable best efforts to designate a replacement financial
institution (a "Replacement Related Committed Purchaser"), to which
such Replaceable Related Committed Purchaser shall, subject to its
receipt of an amount equal to the aggregate outstanding principal
balance of its Investment and accrued and unpaid Discount thereon (and,
if applicable, its receipt (unless a later date for the remittance
thereof shall be agreed upon by the Seller and such Replaceable Related
Committed Purchaser) of all amounts claimed under Section 1.7 and/or
1.8) promptly assign all of its rights, obligations and Commitment
hereunder, together with all of its right, title and interest in, to
and under the Purchased Interest allocable to it, to the Replacement
Related Committed Purchaser in accordance with Section 6.3(c), above.
Once such assignment becomes effective, the Replacement Related
Committed Purchaser shall be deemed to be a "Related Committed
Purchaser" for all purposes hereof and such Replaceable Related
Committed Purchaser shall cease to be "Related Committed Purchaser" for
all purposes hereof and shall have no further rights or obligations
hereunder.
(e) Assignment by Conduit Purchasers. Each party hereto agrees
and consents (i) to any Conduit Purchaser's assignment, participation,
grant of security interests in or other transfers of any portion of, or
any of its beneficial interest in, the Purchased Interest (or portion
thereof), including without limitation to any collateral agent in
connection with its commercial paper program and (ii) to the complete
assignment by any Conduit Purchaser of all of its rights and
obligations hereunder to any other Person, and upon such assignment
such Conduit Purchaser shall be released from
26
all obligations and duties, if any, hereunder; provided, however, that
such Conduit Purchaser may not, without the prior consent of its
Related Committed Purchasers, make any such transfer of its rights
hereunder unless the assignee (i) is principally engaged in the
purchase of assets similar to the assets being purchased hereunder,
(ii) has as its Purchaser Agent the Purchaser Agent of the assigning
Conduit Purchaser and (iii) issues commercial paper or other Notes with
credit ratings substantially comparable to the ratings of the assigning
Conduit Purchaser. Any assigning Conduit Purchaser shall deliver to any
assignee a supplement hereto, substantially in the form of Annex D with
any changes as have been approved by the parties thereto (also, a
"Transfer Supplement"), duly executed by such Conduit Purchaser,
assigning any portion of its interest in the Purchased Interest to its
assignee. Such Conduit Purchaser shall promptly (i) notify each of the
other parties hereto of such assignment and (ii) take all further
action that the assignee reasonably requests in order to evidence the
assignee's right, title and interest in such interest in the Purchased
Interest and to enable the assignee to exercise or enforce any rights
of such Conduit Purchaser hereunder. Upon the assignment of any portion
of its interest in the Purchased Interest, the assignee shall have all
of the rights hereunder with respect to such interest (except that the
Discount therefor shall thereafter accrue at the rate, determined with
respect to the assigning Conduit Purchaser unless the Seller, the
related Purchaser Agent and the assignee shall have agreed upon a
different Discount).
(f) Opinions of Counsel. If required by the Administrator or
the applicable Purchaser Agent or to maintain the ratings of any
Conduit Purchaser, each Transfer Supplement must be accompanied by an
opinion of counsel of the assignee as to such matters as the
Administrator or such Purchaser Agent may reasonably request.
Section 6.4 Costs, Expenses and Taxes. (a) In addition to the rights of
indemnification granted under Section 3.1, the Seller agrees to pay on demand
(which demand shall be accompanied by documentation thereof in reasonable
detail) all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic internal audits by
the Administrator of Pool Receivables) of this Agreement, the other Transaction
Documents and the other documents and agreements to be delivered hereunder (and
all reasonable costs and expenses in connection with any amendment, waiver or
modification of any thereof), including: (i) Attorney Costs for the
Administrator, each Purchaser Group and their respective Affiliates and agents
with respect thereto and with respect to advising the Administrator, each
Purchaser Group and their respective Affiliates and agents as to their rights
and remedies under this Agreement and the other Transaction Documents, and (ii)
all reasonable costs and expenses (including Attorney Costs), if any, of the
Administrator, each Purchaser Group and their respective Affiliates and agents
in connection with the enforcement of this Agreement and the other Transaction
Documents.
(b) In addition, the Seller shall pay on demand any and all
stamp and other taxes and fees payable in connection with the
execution, delivery, filing and recording of this Agreement or the
other documents or agreements to be delivered hereunder, and agrees to
save each Indemnified Party harmless from and against any liabilities
with respect to or resulting from any delay in paying or omission to
pay such taxes and fees.
27
Section 6.5 No Proceedings; Limitation on Payments. Each of the Seller,
York, the Servicer, the Administrator, the Purchaser Agents, the Purchasers,
each assignee of the Purchased Interest or any interest therein, and each Person
that enters into a commitment to purchase the Purchased Interest or interests
therein, hereby covenants and agrees that it will not institute against, or join
any other Person in instituting against, any Conduit Purchaser any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, for one year
and one day after the latest maturing Note issued by such Conduit Purchaser is
paid in full. The provision of this Section 6.5 shall survive any termination of
this Agreement.
Section 6.6 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT OF
ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK; AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN
RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE
PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH SERVICE MAY BE MADE BY ANY OTHER MEANS PERMITTED
BY NEW YORK LAW.
Section 6.7 Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which, when so executed, shall be deemed
to be an original, and all of which, when taken together, shall constitute one
and the same agreement.
Section 6.8 Survival of Termination. The provisions of Sections 1.7,
1.8, 3.1, 3.2, 6.4, 6.5, 6.6, 6.9 and 6.14 shall survive any termination of this
Agreement.
Section 6.9 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS
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AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR
OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT.
Section 6.10 Sharing of Recoveries. Each Purchaser agrees that if it
receives any recovery, through set-off, judicial action or otherwise, on any
amount payable or recoverable hereunder in a greater proportion than should have
been received hereunder or otherwise inconsistent with the provisions hereof,
then the recipient of such recovery shall purchase for cash an interest in
amounts owing to the other Purchasers (as return of Investment or otherwise),
without representation or warranty except for the representation and warranty
that such interest is being sold by each such other Purchaser free and clear of
any Adverse Claim created or granted by such other Purchaser, in the amount
necessary to create proportional participation by the Purchaser in such
recovery. If all or any portion of such amount is thereafter recovered from the
recipient, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.
Section 6.11 Right of Setoff. During a Termination Event, each
Purchaser is hereby authorized (in addition to any other rights it may have) to
setoff, appropriate and apply (without presentment, demand, protest or other
notice which are hereby expressly waived) any deposits and any other
indebtedness held or owing by such Purchaser (including by any branches or
agencies of such Purchaser) to, or for the account of, the Seller against
amounts owing by the Seller hereunder (even if contingent or unmatured).
Section 6.12 Entire Agreement. This Agreement and the other Transaction
Documents embody the entire agreement and understanding between the parties
hereto, and supersede all prior or contemporaneous agreements and understandings
of such Persons, verbal or written, relating to the subject matter hereof and
thereof.
Section 6.13 Headings. The captions and headings of this Agreement and
any Exhibit, Schedule or Annex hereto are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
Section 6.14 Purchaser Groups' Liabilities. The obligations of each
Purchaser Agent and each Purchaser under the Transaction Documents are solely
the corporate obligations of such Person. Except with respect to any claim
arising out of the intentional breach of this Agreement, willful misconduct or
gross negligence of the Administrator, any Purchaser Agent or any Purchaser, no
claim may be made by the Seller or the Servicer or any other Person against the
29
Administrator, any Purchaser Agent or any Purchaser or their respective
Affiliates, directors, officers, employees, attorneys or agents for any special,
indirect, consequential or punitive damages in respect of any claim for breach
of contract or any other theory of liability arising out of or related to the
transactions contemplated by the Agreement or any other Transaction Document, or
any act, omission or event occurring in connection therewith; and each of Seller
and Servicer hereby waives, releases, and agrees not to ▇▇▇ upon any claim for
any such damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
Section 6.15 Confidentiality. Unless otherwise required by applicable
law, each of the Seller and the Servicer agrees to maintain the confidentiality
of this Agreement and the other Transaction Documents (and all drafts thereof)
in communications with third parties and otherwise; provided, that this
Agreement may be disclosed to: (a) third parties to the extent such disclosure
is made pursuant to a written agreement of confidentiality in form and substance
reasonably satisfactory to the Administrator, and (b) the Seller's legal counsel
and auditors if they agree to hold it confidential. Unless otherwise required by
applicable law, each of the Administrator, the Purchaser Agents and the
Purchasers agree to maintain the confidentiality of non-public financial
information regarding York and its Subsidiaries and Affiliates; provided, that
such information may be disclosed to: (i) third parties to the extent such
disclosure is made pursuant to a written agreement of confidentiality in form
and substance reasonably satisfactory to York, (ii) legal counsel and auditors
of the Purchasers, the Purchaser Agents or the Administrator if they agree to
hold it confidential, (iii) the rating agencies rating the Notes, (iv) any
Program Support Provider or potential Program Support Provider (if they agree to
hold it confidential), (v) any placement agent placing the Notes and (vi) any
regulatory authorities having jurisdiction over PNC, BNS, the Purchasers, the
Purchaser Agents or any Program Support Provider.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
30
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
YORK RECEIVABLES FUNDING LLC
By: ___________________________________________
Name: ____________________________________
Title: ___________________________________
Address:
York Receivables Funding LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
YORK INTERNATIONAL CORPORATION, as Servicer
By: ___________________________________________
Name: ____________________________________
Title: ___________________________________
Address:
York International Corporation
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By: ___________________________________________
Name: ____________________________________
Title: ___________________________________
Address:
PNC Bank, National Association
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-2
PURCHASERS:
MARKET STREET FUNDING CORPORATION,
as a Conduit Purchaser and a Related
Committed Purchaser
By: ___________________________________________
Name: ____________________________________
Title: ___________________________________
Address:
Market Street Funding Corporation
c/o AMACAR Group, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
PNC Bank, National Association
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment $__________________________
▇-▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDING CORP.,
as a Conduit Purchaser and a Related
Committed Purchaser
By: ___________________________________________
Name: _____________________________________
Title: ____________________________________
Address:
Liberty Street Funding Corp.
c/o Global Securitization
Services, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Last
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment $_____________________
S-4
PNC BANK, NATIONAL ASSOCIATION,
as Market Street Purchaser Agent
By: ___________________________________________
Name: ____________________________________
Title: ___________________________________
Address:
PNC Bank, National Association
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as Liberty Street Purchaser Agent
BBy: __________________________________________
Name: ____________________________________
Title: ___________________________________
Address:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Last
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-6
EXHIBIT I
DEFINITIONS
As used in the Agreement (including its Exhibits, Schedules and
Annexes), the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined). Unless otherwise indicated, all Section, Annex, Exhibit and Schedule
references in this Exhibit are to Sections of and Annexes, Exhibits and
Schedules to the Agreement.
"Administrator" has the meaning set forth in the preamble to the
Agreement.
"Administrator's Account" means the account (account number 1002422076
ABA ▇▇▇▇▇▇▇▇▇) of the Administrator maintained at the office of PNC at One PNC
Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other
account as may be so designated in writing by the Administrator to the Servicer.
"Adverse Claim" means a lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement; it being understood
that any thereof in favor of the Administrator (for the benefit of the
Purchasers ) shall not constitute an Adverse Claim.
"Affected Person" has the meaning set forth in Section 1.7 of the
Agreement.
"Affiliate" means, as to any Person: (a) any Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person, or (b) who is a director or officer: (i) of such Person or (ii) of
any Person described in clause (a), except that, in the case of each Conduit
Purchaser, Affiliate shall mean the holder of its capital stock. For purposes of
this definition, control of a Person shall mean the power, direct or indirect:
(x) to vote 25% or more of the securities having ordinary voting power for the
election of directors of such Person, or (y) to direct or cause the direction of
the management and policies of such Person, in either case whether by ownership
of securities, contract, proxy or otherwise.
"Aggregate Discount" at any time, means the sum of the aggregate for
each Purchaser of the accrued and unpaid Discount with respect to each such
Purchaser's Investment at such time.
"Aggregate Investment" means the amount paid to the Seller in respect
of the Purchased Interest or portion thereof by each Purchaser pursuant to the
Agreement, as reduced from time to time by Collections distributed and applied
on account of such Aggregate Investment pursuant to Section 1.4(d) of the
Agreement; provided, that if such Aggregate Investment shall have been reduced
by any distribution, and thereafter all or a portion of such distribution is
rescinded or must otherwise be returned for any reason, such Aggregate
Investment shall be increased by the amount of such rescinded or returned
distribution as though it had not been made.
"Agreement" has the meaning set forth in the preamble to the Agreement.
"Assumption Agreement" means an agreement substantially in the form set
forth in Annex C to the Agreement.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel.
I-1
"Bankruptcy Code" means the United States Bankruptcy Reform Act of 1978
(11 U.S.C. Section 101, et seq.), as amended from time to time.
"Base Rate" means, for any day, (a) in the case of the Purchaser Group
including Market Street, the Market Street Base Rate, (b) in the case of the
Purchaser Group including Liberty Street, the Liberty Street Base Rate, and (c)
in the case of each other Purchaser Group, shall mean the rate set forth as the
Base Rate for such Purchaser Group in the related Purchaser Group Fee Letter.
"BBA" means the British Bankers' Association.
"Benefit Plan" means any employee benefit pension plan as defined in
Section 3(2) of ERISA in respect of which the Seller, any Originator, York or
any ERISA Affiliate is, or at any time during the immediately preceding six
years was, an "employer" as defined in Section 3(5) of ERISA.
"Business Day" means any day (other than a Saturday or Sunday) on
which: (a) banks are not authorized or required to close in New York City, New
York or Pittsburgh, Pennsylvania and (b) if this definition of "Business Day" is
utilized in connection with the Euro-Rate, dealings are carried out in the
London interbank market.
"Cancelled Distributor" means the following Obligors with whom the
Originators are no longer doing business, (i) Watsco Companies, Inc., (ii)
▇▇▇▇▇▇▇▇ Enterprises and (iii) ▇▇▇▇ Supply Company.
"Change in Control" means (a) with respect to Seller, that at any time
York shall fail to own, directly or indirectly through one or more wholly-owned
Subsidiaries free and clear of any Adverse Claim, 100% of the shares of
outstanding voting stock of the Seller on a fully diluted basis, (b) with
respect to any Originator other than York, that at any time York shall fail to
own, directly or indirectly through one or more wholly-owned Subsidiaries free
and clear of any Adverse Claim, 100% of the share of outstanding voting stock of
such Originator on a fully diluted basis, and (c) with respect to York, the
acquisition by any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) of 20% or more of the
shares of outstanding voting stock of York.
"Closing Date" means December 21, 2001.
"Collections" means, with respect to any Pool Receivable: (a) all funds
that are received by any Originator, York, the Seller or the Servicer in payment
of any amounts owed in respect of such Receivable (including purchase price,
finance charges, interest and all other charges), or that are applied to amounts
owed in respect of such Receivable (including insurance payments and net
proceeds of the sale or other disposition of repossessed goods or other
collateral or property of the related Obligor or any other Person directly or
indirectly liable for the payment of such Pool Receivable and available to be
applied thereon), (b) all amounts deemed to have been received pursuant to
Section 1.4(e) of the Agreement and (c) all other proceeds of such Pool
Receivable.
I-2
"Commitment" means, with respect to each Related Committed Purchaser,
the maximum amount which such Purchaser is obligated to pay hereunder on account
of any Purchase, as set forth below its signature to this Agreement or in the
Assumption Agreement pursuant to which it became a Purchaser, as such amount may
be modified in connection with any subsequent assignment pursuant to Section
6.3(c) or in connection with a change in the Purchase Limit pursuant to Section
1.1(b).
"Commitment Percentage" means, for each Related Committed Purchaser in
a Purchaser Group, such Related Committed Purchaser's Commitment divided by the
total of all Commitments of all Related Committed Purchasers in such Purchaser
Group.
"Company Note" has the meaning set forth in Section 3.1 of the Purchase
and Sale Agreement.
"Concentration Percentage" means as to any Obligor which is (a) a Group
A Obligor, 16.0%, (b) a Group B Obligor, 16.0%, (c) a Group C Obligor, 8.0%, or
(d) a Group D Obligor, 4.0%.
"Concentration Reserve" means, on any day, an amount equal to: (a) the
Aggregate Investment at the close of business of the Servicer on such date
multiplied by (b) (i) the Concentration Reserve Percentage on such date, divided
by (ii) 100% minus the Concentration Reserve Percentage on such date.
"Concentration Reserve Percentage" means, on any date, the quotient of
(i) the greatest of (a) the largest aggregate Outstanding Balance of the
Receivables of any single Group A Obligor or Group B Obligor, (b) the sum of the
largest aggregate Outstanding Balances of the Receivables of any two Group C
Obligors or (c) the sum of the largest aggregate Outstanding Balances of the
Receivables of any four Group D Obligors, divided by (ii) the aggregate
Outstanding Balance of all Eligible Receivables, on such date. For the purposes
of this definition the Outstanding Balance of an Obligor shall exclude the
Excess Concentration Amounts for such Obligor.
"Conduit Purchasers" means each commercial paper conduit that is a
party to the Agreement, as a purchaser, or that becomes a party to the
Agreement, as a purchaser pursuant to an Assumption Agreement.
"Contract" means, with respect to any Receivable, any and all
contracts, understandings, instruments, agreements, leases, invoices, notes or
other writings pursuant to which such Receivable arises or that evidence such
Receivable or under which an Obligor becomes or is obligated to make payment in
respect of such Receivable.
"CP Rate" for any Yield Period for any Portion of Investment (a) in the
case of the Purchaser Group including Market Street, means the Market Street CP
Rate, (b) in the case of the Purchaser Group including Liberty Street, means the
Liberty Street CP Rate and (c) in the case of each other Purchaser Group, shall
mean the rate set forth as the CP Rate for such Purchaser Group in the related
Purchaser Group Fee Letter.
I-3
"Credit and Collection Policy" means, as the context may require, those
receivables credit and collection policies and practices of each Originator and
of York in effect on the date of the Agreement and described in Schedule I to
the Agreement, as the same may be modified from time to time in compliance with
the Agreement.
"Current Days' Sales Outstanding" means, for any Fiscal Month, an
amount computed as of the last day of such Fiscal Month equal to: (a) the
average of the Outstanding Balance of all Pool Receivables that are not passed
their respective due date as of the last day of the most recent three Fiscal
Months divided by (b)(i) the average of the aggregate credit sales made by the
Originators during most recent three Fiscal Months divided by (ii) 90.
"Cut-off Date" has the meaning set forth in the Purchase and Sale
Agreement.
"Debt" means: (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases that shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, and (e) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (a) through (d).
"Default Ratio" means the ratio (expressed as a percentage and rounded
to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of
the last day of each Fiscal Month by dividing: (a) the aggregate Outstanding
Balance of all Pool Receivables that became Defaulted Receivables during such
month excluding Ineligible Elimination Amounts, by (b)(i) at all times during
which the Current Days' Sales Outstanding is less than or equal to 45, the
aggregate credit sales made by the Originators during the month that is five
months before such month and (ii) at all other times, the aggregate credit sales
made by the Originators during the month that is six months before such month.
"Defaulted Receivable" means a Receivable:
(a) as to which any payment, or part thereof, remains unpaid
for more than 120 days, in each case from the due date for such
payment, or
(b) without duplication (i) as to which an Insolvency
Proceeding shall have occurred with respect to the Obligor thereof or
any other Person obligated thereon or owning any Related Security with
respect thereto, (ii) that has been charged-off as uncollectible or
(iii) that should have been charged-off as uncollectible pursuant to
the Credit and Collection Policy. The "Outstanding Balance" of any
Defaulted Receivable shall be determined without regard to any credit
memos or balances.
"Delinquency Ratio" means the ratio (expressed as a percentage and
rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed
as of the last day of each Fiscal Month by dividing: (a) the aggregate
Outstanding Balance of all Pool Receivables that were Delinquent Receivables on
such day excluding Ineligible Elimination Amounts by (b) the aggregate
Outstanding Balance of all Pool Receivables on such day.
I-4
"Delinquent Receivable" means a Receivable (a) as to which any payment,
or part thereof, remains unpaid for more than 90 days from the due date for such
payment or (b) without duplication, which has been (or consistent with the
Credit and Collection Policy, would be) classified as a Delinquent Receivable by
the applicable Originator. The "Outstanding Balance" of any Delinquent
Receivable shall be determined without regard to any credit memos or balances.
"Dilution Ratio" means the ratio (expressed as a percentage and rounded
to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward), computed as
of the last day of each Fiscal Month by dividing: (a) the aggregate amount of
payments made or owed by the Seller pursuant to Section 1.4(e)(i) of the
Agreement during such Fiscal Month excluding payments related to Ineligible
Elimination Amounts, Specifically Reserved Dilution Amount and amounts reported
as credits and rebills on the Information Package, by (b) the aggregate credit
sales made by the Originators during the Fiscal Month that is one month prior to
such Fiscal Month.
"Dilution Reserve" means, on any day, an amount equal to: (a) the
Aggregate Investment at the close of business of the Servicer on such date
multiplied by (b) (i) the Dilution Reserve Percentage on such date, divided by
(ii) 100% minus the Dilution Reserve Percentage on such date.
"Dilution Reserve Percentage" means, on any date, the greater of (a)
6.0%, or (b) the percentage determined by the following formula:
[[(2.0 x ED) + ((DS-ED) x DS/ED))] x DHR]
ED = the "Expected Dilution," which shall be equal to the
12-month rolling average Dilution Ratio, expressed as a
percentage;
DS = the "Dilution Spike," which shall be equal to the
highest one month Dilution Ratio over the immediately
preceding 12 months, expressed as a percentage; and
DHR = the "Dilution Horizon Ratio," which shall be equal to
the aggregate credit sales made by the Originators
during the two preceding Fiscal Months divided by the
Net Receivables Pool Balance as of the last day of most
recent Fiscal Month.
"Discount" means with respect to any Purchaser:
(a) for any Portion of Investment for any Yield Period with
respect to any Purchaser to the extent such Portion of Investment will
be funded by such Purchaser during such Yield Period through the
issuance of Notes:
CPR x I x ED/360
(b) for any Portion of Investment for any Yield Period with
respect to any Purchaser to the extent such Portion of Investment will
not be funded by such Purchaser during such Yield Period through the
issuance of Notes:
I-5
YR x I x ED/Year + TF
where:
YR = the Yield Rate, as applicable, for such
Portion of Investment for such Yield Period
with respect to such Purchaser,
I = the Investment with respect to such Portion
of Investment during such Yield Period with
respect to such Purchaser,
CPR = the CP Rate for the Portion of Investment for
such Yield Period with respect to such Purchaser,
ED = the actual number of days during such Yield Period,
Year = if such Portion of Investment is funded based
upon: (a) the Euro-Rate, 360 days, and (b) the Base
Rate, 365 or 366 days, as applicable, and
TF = the Termination Fee, if any, for the Portion of
Investment for such Yield Period with respect to
such Purchaser;
provided, that no provision of the Agreement shall require the payment or permit
the collection of Discount in excess of the maximum permitted by applicable law;
and provided further, that Discount for any Portion of Investment shall not be
considered paid by any distribution to the extent that at any time all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
"Eligible Receivable" means, at any time, a Pool Receivable:
(a) the Obligor of which is (i) a United States resident;
provided, however, if (A) the Obligor of such Receivable is a resident
of Canada, such Receivable shall be deemed to satisfy the requirements
of this clause (a)(i) to the extent that the sum of the Outstanding
Balance of such Receivable and the aggregate Outstanding Balance of all
other Eligible Receivables of Obligors who are residents of Canada does
not exceed 5.00% of the aggregate Outstanding Balance of all Eligible
Receivables at such time as determined, without giving effect to this
proviso or (B) the Obligor of such Receivable is not a United States
resident such Receivables shall be deemed to satisfy the requirements
of this clause (a)(i) to the extent that the sum of the Outstanding
Balance of such Receivable and the aggregate Outstanding Balance of all
other Eligible Receivables the Obligors of which are not United States
residents does not exceed $5,000,000 and credit enhancement
satisfactory to each Purchaser Agent has been provided for such
Obligor, (ii) not a government or a governmental subdivision, affiliate
or agency; (iii) not subject to any action of the type described in
paragraph (f) of Exhibit V to the Agreement and (iv) not an Affiliate
of York,
(b) that is denominated and payable only in U.S. dollars in
the United States,
(c) that does not have a stated maturity which is more than 60
days after the original invoice date of such Receivable; provided,
however, that up to 10.00% of the
I-6
aggregate Outstanding Balance of all Receivables may have a stated
maturity which is more than 60 days but not more than 180 days from the
original invoice date of such Receivable; provided, further, that up to
10.00% of the aggregate Outstanding Balance of all Receivables may have
a stated maturity which is more than 180 days but not more than 360
days from the original invoice date of such Receivables and such
Receivables are covered by an insurance policy in form and substance
acceptable to the Purchasers.
(d) that arises under a duly authorized Contract for the sale
and delivery of goods and services in the ordinary course of an
Originator's business,
(e) that arises under a duly authorized Contract that is in
full force and effect and that is a legal, valid and binding obligation
of the related Obligor, enforceable against such Obligor in accordance
with its terms,
(f) that conforms in all material respects with all applicable
laws, rulings and regulations in effect,
(g) that is not the subject of any asserted dispute, offset,
hold back defense, Adverse Claim or other claim,
(h) that satisfies all applicable requirements of the
applicable Credit and Collection Policy,
(i) that has not been modified, waived or restructured since
its creation, except as permitted pursuant to Section 4.2 of the
Agreement,
(j) in which the Seller owns good and marketable title, free
and clear of any Adverse Claims, and that is freely assignable by the
Seller (including without any consent of the related Obligor),
(k) for which the Administrator (for the benefit of each
Purchaser) shall have a valid and enforceable undivided percentage
ownership or security interest, to the extent of the Purchased
Interest, and a valid and enforceable first priority perfected security
interest therein and in the Related Security and Collections with
respect thereto, in each case free and clear of any Adverse Claim,
(l) that constitutes an account as defined in the UCC, and
that is not evidenced by instruments or chattel paper,
(m) that is not a Defaulted Receivable or a Delinquent
Receivable,
(n) for which none of the Originator thereof, the Seller and
the Servicer has established any offset arrangements with the related
Obligor,
(o) for which Defaulted Receivables of the related Obligor do
not exceed 25% of the Outstanding Balance of all such Obligor's
Receivables,
I-7
(p) that represents amounts earned and payable by the Obligor
that are not subject to the performance of additional services by the
Originator or Servicer thereof, including without limitation, any
progress billed Receivables, and
(q) the Obligor of which is not a Cancelled Distributor.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"ERISA Affiliate" means: (a) any corporation that is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Seller, any Originator or York, (b) a trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Internal Revenue Code) with the Seller, any Originator
or York, or (c) a member of the same affiliated service group (within the
meaning of Section 414(m) of the Internal Revenue Code) as the Seller, any
Originator, any corporation described in clause (a) or any trade or business
described in clause (b).
"Euro-Rate" means with respect to any Yield Period, the interest rate
per annum determined by the Administrator by dividing (the resulting quotient
rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the
rate of interest determined by the applicable Purchaser Agent in accordance with
its usual procedures (which determination shall be conclusive absent manifest
error) to be the average of the London interbank market offered rates for U.S.
dollars quoted by the BBA as set forth on Dow ▇▇▇▇▇ Markets Service (formerly
known as Telerate) (or appropriate successor or, if BBA or its successor ceases
to provide display page 3750 (or such other display page on the Dow ▇▇▇▇▇
Markets Service system as may replace display page 3750) at or about 11:00 a.m.
(London time) on the Business Day which is two (2) Business Days prior to the
first day of such Yield Period for an amount comparable to the Portion of
Investment to be funded at the Yield Rate and based upon the Euro-Rate during
such Yield Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage. The Euro-Rate may also be expressed by the following formula:
Euro-Rate = Average of London interbank offered rates quoted by BBA as shown on
Dow ▇▇▇▇▇ Markets Service display page 3750 or appropriate successor
--------------------------------------------------------------------
1.00 - Euro-Rate Reserve Percentage
where "Euro-Rate Reserve Percentage" means, the maximum effective percentage in
effect on such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve requirements
(including without limitation, supplemental, marginal, and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities"). The Euro-Rate shall be adjusted with respect to any
Portion of Investment funded at the Yield Rate and based upon the Euro-Rate that
is outstanding on the effective date of any change in the Euro-Rate Reserve
Percentage as of such effective date. The applicable Purchaser Agent shall give
prompt notice to the Seller of the Euro-Rate as determined or adjusted in
accordance herewith (which determination shall be conclusive absent manifest
error).
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"Excess Concentration" means, on any date, the sum of the amounts by
which the Outstanding Balance of Eligible Receivables of each Obligor then in
the Receivables Pool exceeds an amount equal to: (a) the applicable
Concentration Percentage for such Obligor multiplied by (b) the Outstanding
Balance of all Eligible Receivables, on such date.
"Exiting Purchaser" has the meaning set forth in Section 1.4(b)(ii).
"Facility Termination Date" means the earliest to occur of: (a) with
respect to each Purchaser December 20, 2002, subject to any extension pursuant
to Section 1.10 of the Agreement (it being understood that if any such Purchaser
does not extend its Commitment hereunder then the Purchase Limit shall be
reduced ratably with respect to the Purchasers in each Purchaser Group by an
amount equal to the Commitment of such Exiting Purchaser and the Commitment
Percentages and Group Commitments of the Purchasers within each Purchaser Group
shall be appropriately adjusted), (b) the date determined pursuant to Section
2.2 of the Agreement, (c) the date the Purchase Limit reduces to zero pursuant
to Section 1.1(b) of the Agreement, (d) with respect to each Purchaser Group,
the date that the commitments of all of the Liquidity Providers terminate under
the related Liquidity Agreements and (e) with respect to each Purchaser Group,
the date that the commitment, of all of the Related Committed Purchasers of such
Purchaser Group terminate pursuant to Section 1.10 and (f) the failure to cause
the amendment or modification of any Transaction Document or related opinion as
required by Moody's or Standard and Poor's and such failure shall continue for
10 Business Days after such amendment is initially requested.
"Federal Funds Rate" means, for any day, the per annum rate set forth
in the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)." If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective Rate." If
on any relevant day the appropriate rate is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such day will be
the arithmetic mean as determined by the applicable Purchaser Agent of the rates
for the last transaction in overnight Federal funds arranged before 9:00 a.m.
(New York time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by such Purchaser Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
"Fees" means the fees payable by the Seller to each Purchaser Group
pursuant to the applicable Purchaser Group Fee Letter.
"Fiscal Month" means, with respect to any date, the monthly period
designated with respect to such date on Schedule IV hereto, as such Schedule may
be modified or replaced from time to time.
I-9
"GAAP" means the generally accepted accounting principles and practices
in the United States, consistently applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including any court, and any Person owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Group A Obligor" means an Obligor with a short-term senior unsecured
indebtedness rating (or, if such Obligor does not have such a short-term rating,
a long-term senior unsecured indebtedness rating) of at least "A-1" (or "A+") by
Standard & Poor's and "P-1" (or "A1") by Moody's.
"Group B Obligor" means an Obligor with a short-term senior unsecured
indebtedness rating (or, if such Obligor does not have such a short-term rating,
a long-term senior unsecured indebtedness rating) of at least "A-2" (or "BBB+")
by Standard & Poor's and "P-2" (or "Baa1") by Moody's, that is not a Group A
Obligor.
"Group C Obligor" means an Obligor with a short-term senior unsecured
indebtedness rating (or, if such Obligor does not have such a short-term rating,
a long-term senior unsecured indebtedness rating) of at least "A-3" (or "BBB-")
by Standard & Poor's and "P-3" (or "Baa3") by Moody's, that is not a Group A
Obligor or a Group B Obligor.
"Group Commitment" means with respect to any Purchaser Group the
aggregate of the Commitments of each Purchaser within such Purchaser Group.
"Group D Obligor" means an Obligor which is not a Group A Obligor, a
Group B Obligor or a Group C Obligor.
"Group Investment" means with respect to any Purchaser Group, an amount
equal to the aggregate of all Investments of the Purchasers within such
Purchaser Group.
"Indemnified Amounts" has the meaning set forth in Section 3.1 of the
Agreement.
"Indemnified Party" has the meaning set forth in Section 3.1 of the
Agreement.
"Independent Director" has the meaning set forth in paragraph 3(c) of
Exhibit IV to the Agreement.
"Ineligible Elimination Amounts" means amounts which are reported by
the Servicer as inputs to the Information Package as credit memos or aged
invoices which relate to Receivables, the Obligors of which are Cancelled
Distributors.
"Information Package" means a report, in substantially the form of
Annex A to the Agreement, including all supporting input information, source
data information, worksheets and calculations furnished to the Administrator
pursuant to the Agreement.
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"Insolvency Proceeding" means: (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of creditors
of a Person or, composition, marshaling of assets for creditors of a Person, or
other, similar arrangement in respect of its creditors generally or any
substantial portion of its creditors, in each of cases (a) and (b) undertaken
under U.S. Federal, state or foreign law, including the Bankruptcy Code.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of the Internal Revenue Code also refer to any successor
sections.
"Investment" means with respect to any Purchaser the amount paid to the
Seller by such Purchaser pursuant to the Agreement, or such amount divided or
combined in accordance with the Agreement, in each case reduced from time to
time by Collections distributed and applied on account of such Investment
pursuant to Section 1.4(d) of the Agreement; provided, that if such Investment
shall have been reduced by any distribution and thereafter all or a portion of
such distribution is rescinded or must otherwise be returned for any reason,
such Investment shall be increased by the amount of such rescinded or returned
distribution as though it had not been made.
"Liberty Street" has the meaning set forth in the preamble to the
Agreement.
"Liberty Street Base Rate" means, in the case of Liberty Street or any
Purchaser in its Purchaser Group, for any day, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate shall be at all times
equal to the higher of:
(a) the rate of interest in effect for such day as publicly
announced from time to time by BNS in New York, New York as its
"reference rate". Such "reference rate" is set by BNS based upon
various factors, including BNS's costs and desired return, general
economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above or below such
announced rate, and
(b) 0.50% per annum above the latest Federal Funds Rate.
"Liberty Street CP Rate" means, with respect to Liberty Street for any
Yield Period with respect to any Portion of Investment, the per annum rate
equivalent to the "weighted average cost" (as defined below) related to the
issuance of Liberty Street's Notes that are allocated, in whole or in part, by
Liberty Street (or by its Purchaser Agent) to fund or maintain such Portion of
Investment (and which may also be allocated in part to the funding of other
Portions of Investment hereunder or of other assets of Liberty Street);
provided, however, that if any component of such rate is a discount rate, in
calculating the "Liberty Street CP Rate" for such Portion of Investment for such
Yield Period, Liberty Street shall for such component use the rate resulting
from converting such discount rate to an interest bearing equivalent rate per
annum. As used in this definition, Liberty Street's "weighted average cost"
shall consist of (x) the actual interest rate (or discount) paid to purchasers
of Liberty Street's Notes, together with the
I-11
commissions of placement agents and dealers in respect of such Notes, to the
extent such commissions are allocated, in whole or in part, to such Notes by
Liberty Street (or by its Purchaser Agent) and (y) any incremental carrying
costs incurred with respect to Liberty Street's Notes maturing on dates other
than those on which corresponding funds are received by Liberty Street.
Notwithstanding the foregoing, the "Liberty Street CP Rate" for any day while a
Termination Event exists shall be an interest rate equal to 2% above the Base
Rate in effect on such day.
"Liberty Street Yield Rate" for any Yield Period for any Portion of
Investment of the Purchased Interest in the case of Liberty Street or any
Purchaser in its Purchaser Group, means an interest rate per annum equal to: (a)
the rate set forth as the "Applicable Margin" in the Purchaser Group Fee Letter
relating to Liberty Street above the Euro-Rate for such Yield Period, or (b) if
requested by the Seller the Base Rate for such Yield Period; provided, however,
that in the case of:
(i) any Yield Period on or before the first day of
which BNS shall have been notified by any Purchaser within the
Liberty Street Purchaser Group or other Program Support
Provider that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or
any central bank or other Governmental Authority asserts that
it is unlawful, for such Person, to fund any Euro-Rate Portion
of Investment (and such Person shall not have subsequently
notified BNS that such circumstances no longer exist),
(ii) any Yield Period of one to (and including) 29
days,
(iii) any Yield Period as to which BNS does not
receive notice before noon (New York City time) on the third
Business Day preceding the first day of such Yield Period that
the Seller desires that the related Portion of Investment be a
Euro-Rate Portion of Investment, or
(iv) any Yield Period relating to a Portion of
Investment that is less than $5,000,000,
the "Yield Rate" for each such Yield Period shall be an interest rate per annum
equal to the Base Rate in effect on each day of such Yield Period. The "Yield
Rate" for any day while a Termination Event exists shall be an interest rate
equal to 2% per annum above the applicable Base Rate in effect on such day.
"Liquidity Agent" means each of the banks acting as agent for the
various Liquidity Banks under each Liquidity Agreement.
"Liquidity Agreement" means any agreement entered into in connection
with this Agreement pursuant to which a Liquidity Provider agrees to make
purchases or advances to, or purchase assets from, any Conduit Purchaser in
order to provide liquidity for such Conduit Purchaser's Purchases.
"Liquidity Provider" means each bank or other financial institution
that provides liquidity support to any Conduit Purchaser pursuant to the terms
of a Liquidity Agreement.
I-12
"Lock-Box Account" means an account in the name of the Seller and
maintained by the Seller at a bank or other financial institution for the
purpose of, directly or indirectly, receiving Collections.
"Lock-Box Agreement" means an agreement, among the applicable
Originator, the Seller, the Servicer, the Administrator, the Purchasers and a
Lock-Box Bank.
"Lock-Box Bank" means any of the banks or other financial institutions
holding one or more Lock-Box Accounts.
"Loss Horizon" (a) (i) at all times during which the Current Days'
Sales Outstanding is less than or equal to 45, the aggregate credit sales made
by the Originators during the five most recent Fiscal Months, and (ii) at all
other times, the aggregate credit sales made by the Originators during the six
most recent Fiscal Months divided by (b) the Net Receivables Pool Balance as of
such date.
"Loss Reserve" means, on any date, an amount equal to (a) the Aggregate
Investment at the close of business of the Servicer on such date multiplied by
(b) (i) the Loss Reserve Percentage on such date divided by (2) 100% minus the
Loss Reserve Percentage on such date.
"Loss Reserve Percentage" means, on any date, the greater of, (a) 10.0%
and (b) the product of (i) 2 times (ii) the highest average of the Default
Ratios for any three consecutive Fiscal Months during the twelve most recent
Fiscal Months multiplied by (iii) the Loss Horizon.
"Majority Purchasers" means, at any time, Purchasers whose Commitments
aggregate more than 66.67% of the aggregate of the Commitments of all
Purchasers; provided, however, that so long as any Purchaser's Commitment is
greater than 50% of the aggregate Commitments, then "Majority Purchasers" shall
mean a minimum of two Purchasers whose Commitments aggregate more than 50% of
the aggregate Commitments.
"Market Street" has the meaning set forth in the preamble to the
Agreement.
"Market Street Base Rate" means, in the case of Market Street or any
Purchaser in its Purchaser Group, for any day, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate shall be at all times
equal to the higher of:
(a) the rate of interest in effect for such day as publicly
announced from time to time by PNC in Pittsburgh, Pennsylvania as its
"prime rate." Such "prime rate" is set by PNC based upon various
factors, including PNC's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such
announced rate, and
(b) 0.50% per annum above the latest Federal Funds Rate.
"Market Street CP Rate" means, with respect to Market Street for any
Yield Period with respect to any Portion of Investment, the per annum rate
equivalent to the "weighted average cost" (as defined below) related to the
issuance of Market Street's Notes that are allocated, in whole or in part, by
Market Street (or by its Purchaser Agent) to fund or maintain such Portion of
I-13
Investment (and which may also be allocated in part to the funding of other
Portions of Investment hereunder or of other assets of Market Street); provided,
however, that if any component of such rate is a discount rate, in calculating
the "Market Street CP Rate" for such Portion of Investment for such Yield
Period, Market Street shall for such component use the rate resulting from
converting such discount rate to an interest bearing equivalent rate per annum.
As used in this definition, Market Street's "weighted average cost" shall
consist of (x) the actual interest rate (or discount) paid to purchasers of
Market Street's Notes, together with the commissions of placement agents and
dealers in respect of such Notes, to the extent such commissions are allocated,
in whole or in part, to such Notes by Market Street (or by its Purchaser Agent)
and (y) any incremental carrying costs incurred with respect to Market Street's
Notes maturing on dates other than those on which corresponding funds are
received by Market Street. Notwithstanding the foregoing, the "Market Street CP
Rate" for any day while a Termination Event exists shall be an interest rate
equal to 2% above the Base Rate in effect on such day.
"Market Street Yield Rate" for any Yield Period for any Portion of
Investment of the Purchased Interest in the case of Market Street or any
Purchaser in its Purchaser Group, means an interest rate per annum equal to: (a)
the rate set forth as the "Applicable Margin" in the Purchaser Group Fee Letter
relating to Market Street above the Euro-Rate for such Yield Period, or (b) if
requested by the Seller, the Base Rate for such Yield Period; provided, however,
that in the case of:
(i) any Yield Period on or before the first day of
which the Administrator shall have been notified by any
Purchaser within the Market Street Purchaser Group or other
Program Support Provider that the introduction of or any
change in or in the interpretation of any law or regulation
makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for such Person, to
fund any Euro-Rate Portion of Investment (and such Person
shall not have subsequently notified the Administrator that
such circumstances no longer exist),
(ii) any Yield Period of one to (and including) 29
days,
(iii) any Yield Period as to which the Administrator
does not receive notice before noon (New York City time) on
the third Business Day preceding the first day of such Yield
Period that the Seller desires that the related Portion of
Investment be a Euro-Rate Portion of Investment, or
(iv) any Yield Period relating to a Portion of
Investment that is less than $5,000,000,
the "Yield Rate" for each such Yield Period shall be an interest rate per annum
equal to the Base Rate in effect on each day of such Yield Period. The "Yield
Rate" for any day while a Termination Event exists shall be an interest rate
equal to 2% per annum above the applicable Base Rate in effect on such day.
I-14
"Material Adverse Effect" means, relative to any Person with respect to
any event or circumstance, a material adverse effect on:
(a) the assets, operations, business or financial condition of
such Person.
(b) the ability of any of such Person to perform its
obligations under the Agreement or any other Transaction Document to
which it is a party,
(c) the validity or enforceability of any other Transaction
Document, or the validity, enforceability or collectibility of a
material portion of the Pool Receivables, or
(d) the status, perfection, enforceability or priority of any
Purchaser's or the Seller's interest in the Pool Assets.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Receivables Pool Balance" means, at any time: (a) the Outstanding
Balance of Eligible Receivables then in the Receivables Pool minus (b) the sum
of (i) the Excess Concentration and (ii) Specifically Reserved Dilution Amount;
provided that such calculation shall exclude the Receivables for which the
related Obligor has a net credit balance with respect to such Obligor's Eligible
Receivables.
"Notes" means short-term promissory notes issued, or to be issued, by
each Conduit Purchaser to fund its investments in accounts receivable or other
financial assets.
"Obligor" means, with respect to any Receivable, the Person obligated
to make payments pursuant to the Contract relating to such Receivable.
"Originator" has the meaning set forth in the Purchase and Sale
Agreement.
"Originator Assignment Certificate" means each assignment, in
substantially the form of Exhibit C to the Purchase and Sale Agreement,
evidencing Seller's ownership of the Receivables generated by Originator, as the
same may be amended, supplemented, amended and restated, or otherwise modified
from time to time in accordance with the Purchase and Sale Agreement.
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
"Payment Date" has the meaning set forth in Section 2.1 of the Purchase
and Sale Agreement.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"PNC" has the meaning set forth in the preamble to the Agreement.
"Pool Assets" has the meaning set forth in Section 1.2(d) of the
Agreement.
I-15
"Pool Receivable" means a Receivable in the Receivables Pool.
"Portion of Investment" means, with respect to any Purchaser and its
related Investment, the portion of such Investment being funded or maintained by
such Purchaser by reference to a particular interest rate basis.
"Program Support Agreement" means and includes any Liquidity Agreement
and any other agreement entered into by any Program Support Provider providing
for: (a) the issuance of one or more letters of credit for the account of any
Conduit Purchaser, (b) the issuance of one or more surety bonds for which the
such Conduit Purchaser is obligated to reimburse the applicable Program Support
Provider for any drawings thereunder, (c) the sale by such Conduit Purchaser to
any Program Support Provider of the Purchased Interest (or portions thereof)
maintained by such Conduit Purchaser and/or (d) the making of loans and/or other
extensions of credit to any Conduit Purchaser in connection with such Conduit
Purchaser's securitization program contemplated in the Agreement, together with
any letter of credit, surety bond or other instrument issued thereunder (but
excluding any discretionary advance facility provided by the Administrator).
"Program Support Provider" means and includes with respect to each
Conduit Purchaser any Liquidity Provider and any other Person (other than any
customer of such Conduit Purchaser) now or hereafter extending credit or having
a commitment to extend credit to or for the account of, or to make purchases
from, such Conduit Purchaser pursuant to any Program Support Agreement.
"Purchase" is defined in Section 1.1(a).
"Purchase and Sale Agreement" means the Purchase and Purchase and Sale
Agreement, dated as of December 21, 2001, among the Seller and the Originators
as amended through the date of the Agreement and as such agreement may be
amended, amended and restated, supplemented or otherwise modified from time to
time.
"Purchase and Sale Indemnified Amounts" has the meaning set forth in
Section 9.1 of the Purchase and Sale Agreement.
"Purchase and Sale Indemnified Party" has the meaning set forth in
Section 9.1 of the Purchase and Sale Agreement.
"Purchase and Sale Termination Date" has the meaning set forth in
Section 1.4 of the Purchase and Sale Agreement.
"Purchase and Sale Termination Event" has the meaning set forth in
Section 8.1 of the Purchase and Sale Agreement.
"Purchase Date" means the date of which a Purchase or a reinvestment is
made pursuant to the Agreement.
"Purchase Facility" has the meaning set forth in Section 1.1 of the
Purchase and Sale Agreement.
I-16
"Purchase Limit" means $175,000,000, as such amount may be reduced
pursuant to Section 1.1(b) of the Agreement. References to the unused portion of
the Purchase Limit shall mean, at any time, the Purchase Limit minus the then
outstanding Aggregate Investment.
"Purchase Price" has the meaning set forth in Section 2.1 of the
Purchase and Sale Agreement.
"Purchase Report" has the meaning set forth in Section 2.1 of the
Purchase and Sale Agreement.
"Purchased Interest" means, at any time, the undivided percentage
ownership interest in: (a) each and every Pool Receivable now existing or
hereafter arising, (b) all Related Security with respect to such Pool
Receivables and (c) all Collections with respect to, and other proceeds of, such
Pool Receivables and Related Security. Such undivided percentage interest shall
be computed as:
Aggregate Investment + Total Reserves
-------------------------------------
Net Receivables Pool Balance
The Purchased Interest shall be determined from time to time pursuant to Section
1.3 of the Agreement.
"Purchaser" means each Conduit Purchaser and/or each Related Committed
Purchaser, as applicable.
"Purchaser Agent" means each Person acting as agent on behalf of a
Purchaser Group and designated as a Purchaser Agent for such Purchaser Group on
the signature pages to the Agreement or any other Person who becomes a party to
this Agreement as a Purchaser Agent pursuant to an Assumption Agreement or a
Transfer Supplement.
"Purchaser Group" means, for each Conduit Purchaser, such Conduit
Purchaser, its Related Committed Purchasers and its related Purchaser Agent.
"Purchaser Group Fee Letter" has the meaning set forth in Section 1.5
of the Agreement.
"Purchasers' Share" of any amount means such amount multiplied by the
Purchased Interest at the time of determination.
"Ratable Share" means, for each Purchaser Group, such Purchaser Group's
aggregate Commitments divided by the aggregate Commitments of all Purchaser
Groups.
"Rating Agency Condition" means, with respect to any material event or
occurrence, receipt by the Administrator (or the applicable Purchaser Agent) of
written confirmation from each of Standard & Poor's and Moody's that such event
or occurrence shall not cause the rating on the then outstanding Notes of any
applicable Purchaser to be downgraded or withdrawn.
"Receivable" means any indebtedness and other obligations (whether or
not earned by performance) owed to the Seller or any Originator by, or any right
of the Seller or any Originator
I-17
to payment from or on behalf of, an Obligor, whether constituting an account,
chattel paper, instrument or general intangible, arising in connection with
property or goods that have been or are to be sold or otherwise disposed of, or
services rendered or to be rendered by an Originator, and includes the
obligation to pay any finance charges, fees and other charges with respect
thereto. Indebtedness and other obligations arising from any one transaction,
including indebtedness and other obligations represented by an individual
invoice or agreement, shall constitute a Receivable separate from a Receivable
consisting of the indebtedness and other obligations arising from any other
transaction.
"Receivables Pool" means, at any time, all of the then outstanding
Receivables purchased or otherwise acquired by the Seller pursuant to the
Purchase and Sale Agreement prior to the Facility Termination Date.
"Related Committed Purchaser" means each Person listed as such (and its
respective Commitment) for each Conduit Purchaser as set forth on the signature
pages of the Agreement or in any Assumption Agreement or Transfer Supplement.
"Related Rights" has the meaning set forth in Section 1.1 of the
Purchase and Sale Agreement.
"Related Security" means, with respect to any Receivable:
(a) all of the Seller's and the Originator thereof's interest
in any goods (including returned goods), and documentation of title
evidencing the shipment or storage of any goods (including returned
goods), relating to any sale giving rise to such Receivable,
(b) all instruments and chattel paper that may evidence such
Receivable,
(c) all other security interests or liens and property subject
thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable
or otherwise, together with all UCC financing statements or similar
filings relating thereto, and
(d) all of the Seller's and the Originator thereof's rights,
interests and claims under the Contracts and all guaranties,
indemnities, insurance, letters of credit and other agreements
(including the related Contract) or arrangements of whatever character
from time to time supporting or securing payment of such Receivable or
otherwise relating to such Receivable, whether pursuant to the Contract
related to such Receivable or otherwise.
"Seller" has the meaning set forth in the preamble to the Agreement.
"Seller's Share" of any amount means the greater of: (a) $0 and (b)
such amount minus the product of (i) such amount multiplied by (ii) the
Purchased Interest.
"Servicer" has the meaning set forth in the preamble to the Agreement.
I-18
"Servicing Fee" shall mean the fee referred to in Section 4.6 of the
Agreement.
"Settlement Date" means (a) prior to the Facility Termination Date the
23rd calendar day of each calendar month or if such day is not a Business Day
the next succeeding Business Day and (b) on and after the Facility Termination
Date, each day selected from time to time by the Administrator (it being
understood that the Administrator may select such Settlement Date to occur as
frequently as daily), or in the absence of any such selection, the day which
would be the Settlement Date for the Portion of Investment pursuant to clause
(a) of this definition.
"Simple Majority" means, at any time, Purchasers whose Commitments
aggregate 50% or more of the aggregate of the Commitments of all Purchasers.
"Solvent" means, with respect to any Person at any time, a condition
under which:
(a) the fair value and present fair saleable value of such
Person's total assets is, on the date of determination, greater than
such Person's total liabilities (including contingent and unliquidated
liabilities) at such time;
(b) the fair value and present fair saleable value of such
Person's assets is greater than the amount that will be required to pay
such Person's probable liability on its existing debts as they become
absolute and matured ("debts," for this purpose, includes all legal
liabilities, whether matured or unmatured, liquidated or unliquidated,
absolute, fixed, or contingent);
(c) such Person is and shall continue to be able to pay all of
its liabilities as such liabilities mature; and
(d) such Person does not have unreasonably small capital with
which to engage in its current and in its anticipated business.
For purposes of this definition:
(A) the amount of a Person's contingent or unliquidated
liabilities at any time shall be that amount which, in light of all the
facts and circumstances then existing, represents the amount which can
reasonably be expected to become an actual or matured liability;
(B) the "fair value" of an asset shall be the amount which may
be realized within a reasonable time either through collection or sale
of such asset at its regular market value;
(C) the "regular market value" of an asset shall be the amount
which a capable and diligent business person could obtain for such
asset from an interested buyer who is willing to Purchase such asset
under ordinary selling conditions; and
(D) the "present fair saleable value" of an asset means the
amount which can be obtained if such asset is sold with reasonable
promptness in an arm's-length transaction in an existing and not
theoretical market.
I-19
"Specifically Reserved Dilution Amount" means, at any time, the greater
of (a) the balance sheet reserve amount maintained by each Originator or the
Servicer representing pricing discount amounts; or (b) the actual amount of
credits issued in the most recent month related to pricing discounts.
"Standard & Poor's" means Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Subsidiary" means, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock of each class
or other interests having ordinary voting power (other than stock or other
interests having such power only by reason of the happening of a contingency) to
elect a majority of the Board of Directors or other managers of such entity are
at the time owned, or management of which is otherwise controlled: (a) by such
Person, (b) by one or more Subsidiaries of such Person or (c) by such Person and
one or more Subsidiaries of such Person.
"Tangible Net Worth" means, with respect to any Person, the tangible
net worth of such Person as determined in accordance with GAAP.
"Termination Day" means: (a) each day on which the conditions set forth
in Section 2 of Exhibit II to the Agreement are not satisfied or (b) each day
that occurs on or after the Facility Termination Date.
"Termination Event" has the meaning specified in Exhibit V to the
Agreement.
"Termination Fee" means, for any Yield Period, with respect to any
Purchaser, the amount, if any, by which: (a) the additional Discount related to
such Purchaser's Investment (calculated without taking into account any
Termination Fee or any shortened duration of such Yield Period) that would have
accrued during such Yield Period on the reductions of Investment relating to
such Yield Period had such reductions not been made, exceeds (b) the income, if
any, received by such Purchaser from investing the proceeds of such reductions
of Investment, as determined by the such Purchaser's Purchaser Agent, which
determination shall be binding and conclusive for all purposes, absent manifest
error.
"Total Reserves" means, at any time, the sum of the Yield Reserve and
the greater of (a) the sum of the Loss Reserve and the Dilution Reserve, or (b)
the Concentration Reserve.
"Transaction Documents" means the Agreement, the Lock-Box Agreements,
each Purchaser Group Fee Letter, the Purchase and Sale Agreement and all other
certificates, instruments, UCC financing statements, reports, notices,
agreements and documents executed or delivered under or in connection with any
of the foregoing, in each case as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the Agreement.
"Transfer Supplement" has the respective meanings set forth in Sections
6.3(c) and 6.3(e).
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"Turnover Rate" means, for any Fiscal Month, an amount computed as of
the last day of such Fiscal Month equal to: (a) the Outstanding Balance of all
Pool Receivables as of the last day of the most recent Fiscal Month, divided by
(b) the quotient of (i) the aggregate credit sales made by the Originators
during the three Fiscal Months ended on the last day of such Fiscal Month,
divided by (ii) 3.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the applicable jurisdiction.
"Unmatured Purchase and Sale Termination Event" means any event which,
with the giving of notice or lapse of time, or both, would become a Purchase and
Sale Termination Event.
"Unmatured Termination Event" means an event that, with the giving of
notice or lapse of time, or both, would constitute a Termination Event.
"Yield Period" means, with respect to each Portion of Investment: (a)
before the Facility Termination Date: (i) initially the period commencing on the
date of the initial Purchase pursuant to Section 1.2 of the Agreement (or in the
case of any fees payable hereunder, commencing on the Closing Date) and ending
on (but not including) the next Settlement Date, and (ii) thereafter, each
period commencing on such Settlement Date and ending on (but not including) the
next Settlement Date, and (b) on and after the Facility Termination Date, such
period (including a period of one day) as shall be selected from time to time by
the Administrator or, in the absence of any such selection, each period of 30
days from the last day of the preceding Yield Period.
"Yield Rate" for any Yield Period for any Portion of Investment of the
Purchased Interest (a) in the case of the Purchaser Group including Market
Street, means the Market Street Yield Rate, (b) in the case of the Purchaser
Group including Liberty Street, means the Liberty Street Yield Rate and (c) in
the case of each other Purchaser Group, shall mean the rate set forth as the
Yield Rate for such Purchaser Group in the related Purchaser Group Fee Letter.
"Yield Reserve" shall be equal to the Aggregate Investment multiplied
by a percentage equal to (a) the Yield Reserve Percentage divided by (b) 100%
minus the Yield Reserve Percentage.
"Yield Reserve Percentage" means, on any date, an amount equal to (a)
the sum of the Base Rate for the most recent period plus 1.0%, multiplied by (b)
the product of 1.5 times the Turnover Rate, divided by (c) 12.
"York" has the meaning set forth in the preamble to the Agreement.
Other Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles. All
terms used in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such Article 9.
Unless the context otherwise requires, "or" means "and/or," and "including" (and
with correlative meaning "include" and "includes") means including without
limiting the generality of any description preceding such term.
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EXHIBIT II
CONDITIONS OF PURCHASES
1. Conditions Precedent to Initial Purchase. The initial Purchase under
this Agreement is subject to the following conditions precedent that the
Administrator and each Purchaser Agent shall have received on or before the date
of such Purchase, each in form and substance (including the date thereof)
satisfactory to the Administrator and each Purchaser Agent:
(a) A counterpart of the Agreement and the other Transaction
Documents executed by the parties thereto.
(b) Certified copies of: (i) the resolutions of the Board of
Directors, the Managing Member or other managers of each of the Seller,
the Originators and York authorizing the execution, delivery and
performance by the Seller, such Originator and York, as the case may
be, of the Agreement and the other Transaction Documents to which it is
a party; (ii) all documents evidencing other necessary organizational
action and governmental approvals, if any, with respect to the
Agreement and the other Transaction Documents and (iii) the certificate
of incorporation and by-laws or certificate of formation and limited
liability company agreement or any other organizational document, as
applicable, of the Seller, each Originator and York.
(c) A certificate of the Secretary or Assistant Secretary of
the Seller, the Originators and York certifying the names and true
signatures of its officers who are authorized to sign the Agreement and
the other Transaction Documents. Until the Administrator and each
Purchaser Agent receives a subsequent incumbency certificate from the
Seller, an Originator or York, as the case may be, the Administrator
and each Purchaser Agent shall be entitled to rely on the last such
certificate delivered to it by the Seller, such Originator or York, as
the case may be.
(d) Acknowledgment copies, or time stamped receipt copies, of
proper financing statements, duly filed on or before the date of such
initial purchase under the UCC of all jurisdictions that the
Administrator may deem necessary or desirable in order to perfect the
interests of the Seller, York and the Administrator (on behalf of each
Purchaser) contemplated by the Agreement and the Purchase and Sale
Agreement.
(e) Acknowledgment copies, or time-stamped receipt copies, of
proper financing statements, if any, necessary to release all security
interests and other rights of any Person in the Receivables, Contracts
or Related Security previously granted by the Originators, York or the
Seller.
(f) Completed UCC search reports, dated on or shortly before
the date of the initial purchase hereunder, listing the financing
statements filed in all applicable jurisdictions referred to in
subsection (d) above that name the Originators or the Seller as debtor,
together with copies of such other financing statements, and similar
search reports with respect to judgment liens, federal tax liens and
liens of the Pension Benefit Guaranty
II-1
Corporation in such jurisdictions, as the Administrator or any
Purchaser Agent may request, showing no Adverse Claims on any Pool
Assets.
(g) Copies of executed Lock-Box Agreements with each Lock-Box
Bank.
(h) Favorable opinions, in form and substance reasonably
satisfactory to the Administrator and each Purchaser Agent, of: (i)
Blank Rome ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Seller, each
Originator, York and the Servicer, and (ii) general counsel for Seller,
York and each Originator.
(i) [Reserved]
(j) A pro forma Information Package representing the
performance of the Receivables Pool for the Fiscal Month before
closing.
(k) Evidence of payment by the Seller of all accrued and
unpaid fees (including those contemplated by each Purchaser Group Fee
Letter), costs and expenses to the extent then due and payable on the
date thereof, including any such costs, fees and expenses arising under
or referenced in Section 6.4 of the Agreement and the Fee Letter.
(l) Each Purchaser Group Fee Letter (received only by the
related Purchaser Group Agent) duly executed by the Seller and the
Servicer.
(m) Good standing certificates with respect to each of the
Seller, the Originators and the Servicer issued by the Secretary of
State (or similar official) of the state of each such Person's
organization and principal place of business.
(n) To the extent required by each Conduit Purchaser's
commercial paper program, letters from each of the rating agencies then
rating the Notes confirming the rating of such Notes after giving
effect to the transaction contemplated by the Agreement.
(o) Each Liquidity Agreement (received only by the related
Purchaser Group Agent) and all other Transaction Documents duly
executed by the parties thereto.
(p) A computer file containing all information with respect to
the Receivables as the Administrator or any Purchaser Agent may
reasonably request.
(q) Such other approvals, opinions or documents as the
Administrator or any Purchaser Agent may reasonably request.
2. Conditions Precedent to All Purchases and Reinvestments. Each
Purchase (including the initial Purchase) and each reinvestment shall be subject
to the further conditions precedent that:
(a) solely in the case of each purchase but not a
reinvestment, the Servicer shall have delivered to the Administrator
and each Purchaser Agent on or before such purchase, in form and
substance satisfactory to the Administrator and such Purchaser Agent, a
completed pro forma Information Package to reflect the level of
Investment with
II-2
respect to each Purchaser Group and related reserves and the
calculation of the Purchased Interest after such subsequent purchase
and a completed purchase notice in the form of Annex B; and
(b) on the date of such purchase or reinvestment (and with
respect to item (v) below within ninety days of the Closing Date) the
following statements shall be true (and acceptance of the proceeds of
such purchase or reinvestment shall be deemed a representation and
warranty by the Seller that such statements are then true):
(i) the representations and warranties contained in
Exhibit III to the Agreement are true and correct in all
material respects on and as of the date of such purchase or
reinvestment as though made on and as of such date (except to
the extent that such representations and warranties relate
expressly to an earlier date, and in which case such
representations and warranties shall be true and correct in
all material respects as of such earlier date);
(ii) no event has occurred and is continuing, or
would result from such purchase or reinvestment, that
constitutes a Termination Event or an Unmatured Termination
Event;
(iii) after giving effect to such purchase, the
Purchased Interest will not exceed 100% and the Aggregate
Investment will not exceed the Purchase Limit;
(iv) the Facility Termination Date shall not have
occurred; and
(v) Satisfactory results of a review and audit
(performed by representatives of each Purchaser Agent) of the
Servicer's collection, operating and reporting systems, the
Credit and Collection Policy of each Originator, historical
receivables data and accounts, including satisfactory results
of a review of the Servicer's operating location(s).
II-3
EXHIBIT III
REPRESENTATIONS AND WARRANTIES
1. Representations and Warranties of the Seller. The Seller represents
and warrants as follows:
(a) The Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and is duly qualified to do business and is in good standing
as a foreign organization in every jurisdiction where the nature of its
business requires it to be so qualified, except where the failure to be
so qualified would not have a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of
the Agreement and the other Transaction Documents to which it is a
party, including its use of the proceeds of purchases and
reinvestments: (i) are within its organizational powers; (ii) have been
duly authorized by all necessary organizational action; (iii) do not
contravene or result in a default under or conflict with: (A) its
certification of formation or limited liability company agreement, (B)
any law, rule or regulation applicable to it, (C) any indenture, loan
agreement, mortgage, deed of trust or other material agreement or
instrument to which it is a party or by which it is bound, or (D) any
order, writ, judgment, award, injunction or decree binding on or
affecting it or any of its property; and (iv) do not result in or
require the creation of any Adverse Claim upon or with respect to any
of its properties. The Agreement and the other Transaction Documents to
which it is a party have been duly executed and delivered by the
Seller.
(c) No authorization, approval or other action by, and no
notice to or filing with, any Governmental Authority or other Person is
required for its due execution, delivery and performance by the Seller
of the Agreement or any other Transaction Document to which it is a
party, other than the Uniform Commercial Code filings referred to in
Exhibit II to the Agreement, all of which shall have been filed on or
before the date of the first purchase hereunder.
(d) Each of the Agreement and the other Transaction Documents
to which the Seller is a party constitutes its legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws from time to time in
effect affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(e) There is no pending or, to Seller's best knowledge,
threatened action or proceeding affecting Seller or any of its
properties before any Governmental Authority or arbitrator.
(f) No proceeds of any purchase or reinvestment will be used
to acquire any equity security of a class that is registered pursuant
to Section 12 of the Securities Exchange Act of 1934.
III-1
(g) The Seller is the legal and beneficial owner of the Pool
Receivables and Related Security, free and clear of any Adverse Claim.
Upon each purchase or reinvestment, Administrator (for the benefit of
each Purchaser) shall acquire a valid and enforceable perfected
undivided percentage ownership or security interest, to the extent of
the Purchased Interest, in each Pool Receivable then existing or
thereafter arising and in the Related Security, Collections and other
proceeds with respect thereto, free and clear of any Adverse Claim. The
Agreement creates a security interest in favor of the Administrator
(for the benefit of each Purchaser) in the Pool Assets, and the
Administrator (for the benefit of each Purchaser) has a first priority
perfected security interest in the Pool Assets, free and clear of any
Adverse Claims. No effective financing statement or other instrument
similar in effect covering any Pool Asset is on file in any recording
office, except those filed in favor of the Seller pursuant to the
Purchase and Sale Agreement and the Administrator (for the benefit of
each Purchaser) relating to the Agreement, or in respect of which the
Administrator has received evidence satisfactory to the Administrator
of acknowledgment copies, or time-stamped receipt copies, of proper
financing statements releasing or terminating, as applicable, all
security interests and other rights of any Person in such Pool Asset.
(h) Each Information Package (if prepared by the Seller or one
of its Affiliates, or to the extent that information contained therein
is supplied by the Seller or an Affiliate), information, exhibit,
financial statement, document, book, record or report furnished or to
be furnished at any time by or on behalf of the Seller to the
Administrator or any Purchaser Agent in connection with the Agreement
or any other Transaction Document to which it is a party is or will be
complete and accurate in all material respects as of its date or as of
the date so furnished, and does not and will not contain any material
misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein not misleading.
(i) The Seller's principal place of business and chief
executive office (as such terms are used in the UCC) and the office
where it keeps its records concerning the Receivables are located at
the address referred to in Section 1(b) and 2(b) of Exhibit IV to the
Agreement. The Seller is a limited liability company, organized under
the laws of the State of Delaware and its organizational number is
3469762.
(j) The names and addresses of all the Lock-Box Banks,
together with the account numbers of the Lock-Box Accounts (and the
related lock-boxes) at such Lock-Box Banks, are specified in Schedule
II to the Agreement (or at such other Lock-Box Banks and/or with such
other Lock-Box Accounts (and such other related lock-boxes) as have
been notified to the Administrator in accordance with the Agreement)
and all Lock-Box Accounts (and all related lock-boxes) are subject to
Lock-Box Agreements. Seller has not granted to any Person, other than
the Administrator as contemplated by the Agreement, dominion and
control of any Lock-Box Account, or the right to take dominion and
control of any such account at a future time or upon the occurrence of
a future event.
(k) The Seller is not in violation of any order of any court,
arbitrator or Governmental Authority.
III-2
(l) Neither the Seller nor any of its Affiliates has any
direct or indirect ownership or other financial interest in any
Purchaser.
(m) No proceeds of any purchase or reinvestment will be used
for any purpose that violates any applicable law, rule or regulation,
including Regulations T, U or X of the Federal Reserve Board.
(n) Each Pool Receivable included as an Eligible Receivable in
the calculation of the Net Receivables Pool Balance is an Eligible
Receivable.
(o) No event has occurred and is continuing that constitutes a
Termination Event or an Unmatured Termination Event and no event would
result from a purchase in respect of, or reinvestment in respect of,
the Purchased Interest or from the application of the proceeds
therefrom that constitutes a Termination Event or an Unmatured
Termination Event.
(p) The Seller has accounted for each sale of undivided
percentage ownership interests in Receivables in its books and
financial statements as sales, consistent with generally accepted
accounting principles.
(q) The Seller has complied in all material respects with the
Credit and Collection Policy of each Originator with regard to each
Receivable originated by such Originator.
(r) The Seller has complied in all material respects with all
of the terms, covenants and agreements contained in the Agreement and
the other Transaction Documents that are applicable to it and all laws,
rules, regulations and orders that are applicable to it.
(s) The Seller's complete organizational name is set forth in
the preamble to the Agreement, and it does not use and has not during
the last six years used any other organizational name, trade name,
doing-business name or fictitious name, except as set forth on Schedule
III to the Agreement and except for names first used after the date of
the Agreement and set forth in a notice delivered to the Administrator
pursuant to Section 1(k)(iv) of Exhibit IV to the Agreement.
(t) The Seller is not an "investment company," or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. In addition, the Seller is
not a "holding company," a "subsidiary company" of a "holding company"
or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(u) With respect to each Receivable transferred to the Seller
under the Purchase and Sale Agreement, Seller has given reasonably
equivalent value to the Originator thereof in consideration therefor
and such transfer was not made for or on account of an antecedent debt.
No transfer by any Originator of any Receivable under the
III-3
Purchase and Sale Agreement is or may be voidable under any section of
the Bankruptcy Code.
(v) Each Contract with respect to each Receivable is effective
to create, and has created, a legal, valid and binding obligation of
the related Obligor to pay the Outstanding Balance of the Receivable
created thereunder and any accrued interest thereon, enforceable
against the Obligor in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors'
rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(w) Since its most recent fiscal year end, there has been no
change in the business, operations, financial condition, properties or
assets of the Seller which would have a Material Adverse Effect on its
ability to perform its obligations under the Agreement or any other
Transaction Document to which it is a party or materially and adversely
affect the transactions contemplated under the Agreement or such other
Transaction Documents.
(x) The Seller has filed all tax returns and reports required
by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges
which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books.
2. Representations and Warranties of York (including in its capacity as
the Servicer). York, individually and in its capacity as the Servicer,
represents and warrants as follows:
(a) York is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, and is
duly qualified to do business and is in good standing as a foreign
corporation in every jurisdiction where the nature of its business
requires it to be so qualified, except where the failure to be so
qualified would not have a Material Adverse Effect.
(b) The execution, delivery and performance by York, of the
Agreement and the other Transaction Documents to which it is a party,
including the Servicer's use of the proceeds of purchases and
reinvestments: (i) are within its corporate powers; (ii) have been duly
authorized by all necessary corporate action; (iii) do not contravene
or result in a default under or conflict with: (A) its charter or
by-laws, (B) any law, rule or regulation applicable to it, (C) any
indenture, loan agreement, mortgage, deed of trust or other material
agreement or instrument to which it is a party or by which it is bound,
or (D) any order, writ, judgment, award, injunction or decree binding
on or affecting it or any of its property; and (iv) do not result in or
require the creation of any Adverse Claim upon or with respect to any
of its properties. The Agreement and the other Transaction Documents to
which York is a party have been duly executed and delivered by York.
III-4
(c) No authorization, approval or other action by, and no
notice to or filing with any Governmental Authority or other Person, is
required for the due execution, delivery and performance by York of the
Agreement or any other Transaction Document to which it is a party.
(d) Each of the Agreement and the other Transaction Documents
to which York is a party constitutes the legal, valid and binding
obligation of York enforceable against York in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws from time to time in
effect affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(e) The balance sheets of York and its consolidated
Subsidiaries as at December 31, 2000, and the related statements of
income and retained earnings for the fiscal year then ended, copies of
which have been furnished to the Administrator and each Purchaser
Agent, fairly present the financial condition of York and its
consolidated Subsidiaries as at such date and the results of the
operations of York and its Subsidiaries for the period ended on such
date, all in accordance with generally accepted accounting principles
consistently applied, and since December 31, 2000 there has been no
event or circumstances which have had a Material Adverse Effect.
(f) Except as disclosed in the most recent audited financial
statements of York furnished to the Administrator and each Purchaser
Agent, there is no pending or, to its best knowledge, threatened action
or proceeding affecting it or any of its Subsidiaries before any
Governmental Authority or arbitrator that could have a Material Adverse
Effect.
(g) No proceeds of any purchase or reinvestment will be used
to acquire any equity security of a class that is registered pursuant
to Section 12 of the Securities Exchange Act of 1934.
(h) Each Information Package (if prepared by York or one of
its Affiliates, or to the extent that information contained therein is
supplied by York or an Affiliate), information, exhibit, financial
statement, document, book, record or report furnished or to be
furnished at any time by or on behalf of the Servicer to the
Administrator, any Purchaser or any Purchaser Agent in connection with
the Agreement is or will be complete and accurate in all material
respects as of its date or as of the date so furnished and does not and
will not contain any material misstatement of fact or omit to state a
material fact or any fact necessary to make the statements contained
therein not materially misleading.
(i) The principal place of business and chief executive office
(as such terms are used in the UCC) of York and the office where it
keeps its records concerning the Receivables are located at the address
referred to in Section 2(b) of Exhibit IV to the Agreement. York is a
corporation, organized under the laws of the State of Delaware and its
organizational number is 2164946.
III-5
(j) York is not in violation of any order of any court,
arbitrator or Governmental Authority, which could have a Material
Adverse Effect.
(k) Neither York nor any of its Affiliates has any direct or
indirect ownership or other financial interest in any Purchaser.
(l) The Servicer has complied in all material respects with
the Credit and Collection Policy of each Originator with regard to each
Receivable originated by such Originator.
(m) York has complied in all material respects with all of the
terms, covenants and agreements contained in the Agreement and the
other Transaction Documents that are applicable to it.
(n) York is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. In addition, York is not a
"holding company," a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(o) Since its most recent fiscal year end, there has been no
change in the business, operations, financial condition, properties or
assets of the Servicer which would have a Material Adverse Effect on
its ability to perform its obligations under the Agreement or any other
Transaction Document to which it is a party or materially and adversely
affect the transactions contemplated under the Agreement or such other
Transaction Documents.
(p) [Reserved]
(q) The Servicer has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes
or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
III-6
EXHIBIT IV
COVENANTS
1. Covenants of the Seller. Until the latest of the Facility
Termination Date, the date on which no Investment of or Discount in respect of
the Purchased Interest shall be outstanding or the date all other amounts owed
by the Seller under the Agreement to any Purchaser, Purchaser Agent, the
Administrator and any other Indemnified Party or Affected Person shall be paid
in full:
(a) Compliance with Laws, Etc. The Seller shall comply in all
material respects with all applicable laws, rules, regulations and
orders, and preserve and maintain its organizational existence, rights,
franchises, qualifications and privileges, except to the extent that
the failure so to comply with such laws, rules and regulations or the
failure so to preserve and maintain such rights, franchises,
qualifications and privileges would not have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Seller:
(i) shall keep its principal place of business and chief executive
office (as such terms or similar terms are used in the UCC) and the
office where it keeps its records concerning the Receivables at the
address of the Seller set forth under its name on the signature page to
the Agreement and keep its state of organization at the state set forth
in Section 1(a) of Exhibit III or, pursuant to clause (k)(iv) below, at
any other locations in jurisdictions where all actions reasonably
requested by the Administrator to protect and perfect the interest of
the Administrator (for the benefit of the Purchasers) in the
Receivables and related items (including the Pool Assets) have been
taken and completed and (ii) shall provide the Administrator with at
least 30 days' written notice before making any change in the Seller's
name or making any other change in the Seller's identity or
organizational structure (including a Change in Control) that could
render any UCC financing statement filed in connection with this
Agreement "seriously misleading" as such term (or similar term) is used
in the UCC or to be filed in the incorrect jurisdiction in order to
protect and perfect the interest of the Administrator (for the benefit
of the Purchasers) in the Receivables and related items (including the
Pool Assets) as a first priority security interest; each notice to the
Administrator pursuant to this sentence shall set forth the applicable
change and the effective date thereof. The Seller also will maintain
and implement (or cause the Servicer to maintain and implement)
administrative and operating procedures (including an ability to
recreate records evidencing Receivables and related Contracts in the
event of the destruction of the originals thereof), and keep and
maintain (or cause the Servicer to keep and maintain) all documents,
books, records, computer tapes and disks and other information
reasonably necessary or advisable for the collection of all Receivables
(including records adequate to permit the daily identification of each
Receivable and all Collections of and adjustments to each existing
Receivable). The Seller will (and will cause each Originator to) on or
prior to the date of the Agreement, ▇▇▇▇ its master data processing
records and other books and records relating to the Purchased Interest
(and at all times thereafter (until the latest of the Facility
Termination Date or the date all other amounts owed by the Seller under
the Agreement shall be paid in full) continue to maintain such records)
with a legend, acceptable to the Administrator, describing the
Purchased Interest.
IV-1
(c) Performance and Compliance with Contracts and Credit and
Collection Policy. The Seller shall (and shall cause the Servicer to),
at its expense, timely and fully perform and comply with all material
provisions, covenants and other promises required to be observed by it
under the Contracts related to the Receivables and timely and fully
comply in all material respects with the applicable Credit and
Collection Policies with regard to each Receivable and the related
Contract.
(d) Ownership Interest, Etc. The Seller shall (and shall cause
the Servicer to), at its expense, take all action necessary or
desirable to establish and maintain a valid and enforceable undivided
percentage ownership or security interest, to the extent of the
Purchased Interest which shall not be greater than 100%, in the Pool
Receivables, the Related Security and Collections with respect thereto,
and a first priority perfected security interest in the Pool Assets, in
each case free and clear of any Adverse Claim, in favor of the
Administrator (for the benefit of the Purchasers), including taking
such action to perfect, protect or more fully evidence the interest of
the Administrator (for the benefit of the Purchasers) as the
Administrator, may reasonably request.
(e) Sales, Liens, Etc. The Seller shall not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or
suffer to exist any Adverse Claim upon or with respect to, any or all
of its right, title or interest in, to or under any Pool Assets
(including the Seller's undivided interest in any Receivable, Related
Security or Collections, or upon or with respect to any account to
which any Collections of any Receivables are sent), or assign any right
to receive income in respect of any items contemplated by this
paragraph.
(f) Extension or Amendment of Receivables. Except as provided
in the Agreement, the Seller shall not, and shall not permit the
Servicer to, extend the maturity or adjust the Outstanding Balance or
otherwise modify the terms of any Pool Receivable, or amend, modify or
waive any term or condition of any related Contract.
(g) Change in Business or Credit and Collection Policy. The
Seller shall not make (or permit any Originator to make) any change in
the character of its business or in any Credit and Collection Policy
that would have a Material Adverse Effect. The Seller shall not make
(or permit any Originator to make) any other change in any Credit and
Collection Policy without the prior written consent of thereof to the
Administrator and each Purchaser Agent.
(h) Audits. The Seller shall (and shall cause each Originator
to), from time to time during regular business hours, but no more
frequently than annually unless (x) a Termination Event or Unmatured
Termination Event has occurred and is continuing or (y) in the opinion
of the Administrator (with the consent or at the direction of the
Majority Purchasers) reasonable grounds for insecurity exist with
respect to the collectibility of a material portion of the Pool
Receivables or with respect to the Seller's performance or ability to
perform in any material respect its obligations under the Agreement, as
reasonably requested in advance (unless a Termination Event or
Unmatured Termination Event exists) by the Administrator or any
Purchaser, permit the Administrator or any Purchaser, or agent or
representatives of the Administration or any
IV-2
Purchaser: (i) to examine and make copies of and abstracts from all
books, records and documents (including computer tapes and disks) in
the possession or under the control of the Seller (or any such
Originator) relating to Receivables and the Related Security, including
the related Contracts, and (ii) to visit the offices and properties of
the Seller and the Originators for the purpose of examining such
materials described in clause (i) above, and to discuss matters
relating to Receivables and the Related Security or the Seller's,
York's or the Originator's performance under the Transaction Documents
or under the Contracts with any of the officers, employees, agents or
contractors of the Seller, York or the Originator having knowledge of
such matters and (iii) without limiting clauses (i) and (ii) above, no
more than once annually (unless a Termination Event or an Unmatured
Termination Event exists or there shall be a material variance in the
performance of the Receivables), during regular business hours, and
upon reasonable prior notice, to engage certified public accountants or
other auditors acceptable to the Seller and the Administrator to
conduct, at the Seller's expense, a review of the Seller's books and
records with respect to such Receivables.
(i) Change in Lock-Box Banks, Lock-Box Accounts and Payment
Instructions to Obligors. The Seller shall not, and shall not permit
the Servicer or any Originator to, add or terminate any bank as a
Lock-Box Bank or any account as a Lock-Box Account (or any related
lock-box) from those listed in Schedule II to the Agreement, or make
any change in its instructions to Obligors regarding payments to be
made to the Seller, the Originators, the Servicer or any Lock-Box
Account (or related lock-box), unless the Administrator and the
Majority Purchasers shall have consented thereto in writing and the
Administrator shall have received copies of all agreements and
documents (including Lock-Box Agreements) that it may reasonably
request in connection therewith. Notwithstanding anything herein to the
contrary, the Administrator and the Majority Purchasers shall not be
required to consent in connection with the Seller's request to
terminate and/or add any bank as a Lock-Box Bank and/or Lock-Box
Account provided that the new Lock-Box Bank or Lock-Box Account to be
added is (or is with) a commercial bank having a combined capital and
surplus of at least $250,000,000. The Seller will not (and will not
permit the Servicer to) deposit or otherwise credit, or cause or permit
to be so deposited or credited, to any Lock-Box Account cash or cash
proceeds other than Collections.
(j) Deposits to Lock-Box Accounts. The Seller shall (or shall
cause the Servicer to): (i) deposit, or cause to be deposited, any
Collections received by it, the Servicer or any Originator into
Lock-Box Accounts not later than one Business Day after receipt
thereof, and (ii) instruct all Obligors to make payments of all
Receivables to one or more Lock-Box Accounts or to lock-boxes to which
only Lock-Box Banks have access (and shall instruct the Lock-Box Banks
to cause all items and amounts relating to such Receivables received in
such lock-boxes to be removed and deposited into a Lock-Box Account on
a daily basis). Each Lock-Box Account shall at all times be subject to
a Lock-Box Agreement. The Seller will not (and will not permit the
Servicer to) deposit or otherwise credit, or cause or permit to be so
deposited or credited, to any Lock-Box Account cash or cash proceeds
other than Collections.
IV-3
(k) Reporting Requirements. The Seller will provide to the
Administrator (in multiple copies, if requested by the Administrator)
and each Purchaser Agent the following:
(i) as soon as available and in any event within 90
days after the end of each fiscal year of the Seller,
unaudited financial statements for such year certified as to
accuracy by the chief financial officer or treasurer of the
Seller;
(ii) as soon as possible and in any event within five
days after the occurrence of each Termination Event or
Unmatured Termination Event, a statement of the chief
financial officer of the Seller setting forth details of such
Termination Event or Unmatured Termination Event and the
action that the Seller has taken and proposes to take with
respect thereto;
(iii) promptly after the filing or receiving thereof,
copies of all reports and notices that the Seller or any
Affiliate files under ERISA with the Internal Revenue Service,
the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or that the Seller or any Affiliate
receives from any of the foregoing or from any multiemployer
plan (within the meaning of Section 4001(a)(3) of ERISA) to
which the Seller or any of its Affiliates is or was, within
the preceding five years, a contributing employer, in each
case in respect of the assessment of withdrawal liability or
an event or condition that could, in the aggregate, result in
the imposition of material liability on the Seller and/or any
such Affiliate;
(iv) at least 30 days before any change in the
Seller's name or any other change requiring the amendment of
UCC financing statements, a notice setting forth such changes
and the effective date thereof;
(v) promptly after the Seller obtains knowledge
thereof, notice of any: (A) litigation, investigation or
proceeding that may exist at any time between the Seller and
any Person or (B) litigation or proceeding relating to any
Transaction Document;
(vi) promptly after obtaining knowledge thereof,
notice of a material adverse change in the business,
operations, property or financial or other condition of the
Seller, the Servicer or any Originator; and
(vii) such other information respecting the
Receivables or the condition or operations, financial or
otherwise, of the Seller or any of its Affiliates as the
Administrator or any Purchaser Agent may from time to time
reasonably request.
(l) Certain Agreements. Without the prior written consent of
the Administrator and the Majority Purchasers, the Seller will not (and
will not permit any Originator to) amend, modify, waive, revoke or
terminate any Transaction Document to which it is a party or any
provision of Seller's certificate of incorporation or by-laws.
IV-4
(m) Restricted Payments. (i) Except pursuant to clause (ii)
below, the Seller will not: (A) purchase or redeem any shares of its
capital stock, (B) declare or pay any dividend or set aside any funds
for any such purpose, (C) prepay, purchase or redeem any Debt, (D) lend
or advance any funds or (E) repay any loans or advances to, for or from
any of its Affiliates (the amounts described in clauses (A) through (E)
being referred to as "Restricted Payments").
(ii) Subject to the limitations set forth in clause
(iii) below, the Seller may make Restricted Payments so long
as such Restricted Payments are made only in one or more of
the following ways: (A) the Seller may make cash payments
(including prepayments) on the Company Note in accordance with
its terms, and (B) if no amounts are then outstanding under
the Company Note, the Seller may declare and pay dividends.
(iii) The Seller may make Restricted Payments only
out of the funds it receives pursuant to Sections 1.4(b)(ii)
and (iv) of the Agreement. Furthermore, the Seller shall not
pay, make or declare: (A) any dividend if, after giving effect
thereto, the Seller's Tangible Net Worth would be less than
$20,000,000 or (B) any Restricted Payment (including any
dividend) if, after giving effect thereto, any Termination
Event or Unmatured Termination Event shall have occurred and
be continuing.
(n) Other Business. The Seller will not: (i) engage in any
business other than the transactions contemplated by the Transaction
Documents; (ii) create, incur or permit to exist any Debt of any kind
(or cause or permit to be issued for its account any letters of credit
or bankers' acceptances) other than pursuant to this Agreement or the
Company Note; or (iii) form any Subsidiary or make any investments in
any other Person; provided, however, that the Seller shall be permitted
to incur minimal obligations to the extent necessary for the day-to-day
operations of the Seller (such as expenses for stationery, audits,
maintenance of legal status, etc.).
(o) Use of Seller's Share of Collections. The Seller shall
apply the Seller's Share of Collections to make payments in the
following order of priority: (i) the payment of its expenses (including
all obligations payable to the Purchaser Groups and the Administrator
under the Agreement and under each Purchaser Group Fee Letter); (ii)
the payment of accrued and unpaid interest on the Company Note; and
(iii) other legal and valid organizational purposes.
(p) Tangible Net Worth. The Seller will not permit its
Tangible Net Worth, at any time, to be less than $20,000,000.
2. Covenants of the Servicer and York. Until the latest of the Facility
Termination Date, the date on which no Investment of or Discount in respect of
the Purchased Interest shall be outstanding or the date all other amounts owed
by the Seller under the Agreement to the Purchaser Agents, the Purchasers, the
Administrator and any other Indemnified Party or Affected Person shall be paid
in full:
IV-5
(a) Compliance with Laws, Etc. The Servicer and, to the extent
that it ceases to be the Servicer, York shall comply (and shall cause
each Originator to comply) in all material respects with all applicable
laws, rules, regulations and orders, and preserve and maintain its
corporate existence, rights, franchises, qualifications and privileges,
except to the extent that the failure so to comply with such laws,
rules and regulations or the failure so to preserve and maintain such
existence, rights, franchises, qualifications and privileges would not
have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Servicer
and, to the extent that it ceases to be the Servicer, York, shall keep
(and shall cause each Originator to keep) its principal place of
business and chief executive office (as such terms or similar terms are
used in the applicable UCC) and the office where it keeps its records
concerning the Receivables at the address of the Servicer set forth
under its name on the signature page to the Agreement or, upon at least
30 days' prior written notice of a proposed change to the
Administrator, at any other locations in jurisdictions where all
actions reasonably requested by the Administrator to protect and
perfect the interest of the Administrator (for the benefit of each
Purchaser) in the Receivables and related items (including the Pool
Assets) have been taken and completed. The Servicer and, to the extent
that it ceases to be the Servicer, York, also will (and will cause each
Originator to) maintain and implement administrative and operating
procedures (including an ability to recreate records evidencing
Receivables and related Contracts in the event of the destruction of
the originals thereof), and keep and maintain all documents, books,
records, computer tapes and disks and other information reasonably
necessary or advisable for the collection of all Receivables (including
records adequate to permit the daily identification of each Receivable
and all Collections of and adjustments to each existing Receivable).
The Servicer will (and will cause each Originator to) on or prior to
the date of the Agreement, ▇▇▇▇ its master data processing records and
other books and records relating to the Purchased Interest (and at all
times thereafter (until the latest of the Facility Termination Date or
the date all other amounts owing by the Seller under the Agreement
shall be paid in full) continue to maintain such records) with a
legend, acceptable to the Administrator, describing the Purchased
Interest.
(c) Performance and Compliance with Contracts and Credit and
Collection Policy. The Servicer and, to the extent that it ceases to be
the Servicer, York, shall (and shall cause each Originator to), at its
expense, timely and fully perform and comply with all material
provisions, covenants and other promises required to be observed by it
under the Contracts related to the Receivables, and timely and fully
comply in all material respects with the applicable Credit and
Collection Policies with regard to each Receivable and the related
Contract.
(d) Extension or Amendment of Receivables. Except as provided
in the Agreement, the Servicer and, to the extent that it ceases to be
the Servicer, York, shall not extend (and shall not permit any
Originator to extend), the maturity or adjust the Outstanding Balance
or otherwise modify the terms of any Pool Receivable, or amend, modify
or waive any term or condition of any related Contract.
IV-6
(e) Change in Business or Credit and Collection Policy. The
Servicer and, to the extent that it ceases to be the Servicer, York,
shall not make (and shall not permit any Originator to make) any change
in the character of its business or in any Credit and Collection Policy
that would have a Material Adverse Effect. The Servicer and, to the
extent that it ceases to be the Servicer, York, shall not make (and
shall not permit any Originator to make) any other change in any Credit
and Collection Policy without the prior written consent of the
Administrator and each Purchaser Agent.
(f) Audits. The Servicer and, to the extent that it ceases to
be the Servicer, York, shall (and shall cause each Originator to), from
time to time during regular business hours, but no more frequently than
annual unless (x) a Termination Event or Unmatured Termination Event
has occurred and is continuing or (y) in the opinion of the
Administrator (with the consent or at the direction of the Majority
Purchasers) reasonable grounds for insecurity exist with respect to the
collectibility of a material portion of the Pool Receivables or with
respect to the Servicer's performance or ability to perform in any
material respect its obligations under the Agreement, as reasonably
requested in advance (unless a Termination Event or Unmatured
Termination Event exists) by the Administrator or a Purchaser, permit
the Administrator or a Purchaser, or of the Administrator or any
Purchaser agent or representative: (i) to examine and make copies of
and abstracts from all books, records and documents (including computer
tapes and disks) in its possession or under its control relating to
Receivables and the Related Security, including the related Contracts;
and (ii) to visit its offices and properties for the purpose of
examining such materials described in clause (i) above, and to discuss
matters relating to Receivables and the Related Security or its
performance hereunder or under the Contracts with any of its officers,
employees, agents or contractors having knowledge of such matters and
(iii) without limiting clauses (i) and (ii) above, no more than once
annually (unless a Termination Event or an Unmatured Termination Event
exists or there shall be a material variance in the performance of the
Receivables), during regular business hours, and upon reasonable prior
notice, to engage certified public accountants or other auditors
acceptable to the Servicer and the Administrator to conduct, at the
Servicer's expense, a review of the Servicer's books and records with
respect to such Receivables.
(g) Change in Lock-Box Banks, Lock-Box Accounts and Payment
Instructions to Obligors. The Servicer and, to the extent that it
ceases to be the Servicer, York, shall not (and shall not permit any
Originator to) add or terminate any bank as a Lock-Box Bank or any
account as a Lock-Box Account (or any related lock-box) from those
listed in Schedule II to the Agreement, or make any change in its
instructions to Obligors regarding payments to be made to the Servicer
or any Lock-Box Account (or related lock-box), unless the Administrator
and the Majority Purchasers shall have consented thereto in writing and
the Administrator shall have received copies of all agreements and
documents (including Lock-Box Agreements) that it may reasonably
request in connection therewith. Notwithstanding anything herein to the
contrary, the Administrator and the Majority Purchasers shall not be
required to consent in connection with the Servicer's request to
terminate and/or add any bank as a Lock-Box Bank and/or Lock-Box
Account provided that the new Lock-Box Bank or Lock-Box Account to be
added is (or is with) a commercial bank having a combined capital and
surplus of at least
IV-7
$250,000,000. The Servicer will not deposit or otherwise credit, or
cause or permit to be so deposited or credited, to any Lock-Box Account
cash or cash proceeds other than Collections.
(h) Deposits to Lock-Box Accounts. The Servicer shall: (i)
deposit, or cause to be deposited, any Collections received by it into
Lock-Box Accounts not later than one Business Day after receipt
thereof, and (ii) instruct all Obligors to make payments of all
Receivables to one or more Lock-Box Accounts or to lock-boxes to which
only Lock-Box Banks have access (and shall instruct the Lock-Box Banks
to cause all items and amounts relating to such Receivables received in
such lock-boxes to be removed and deposited into a Lock-Box Account on
a daily basis). Each Lock-Box Account shall at all times be subject to
a Lock-Box Agreement. The Servicer will not deposit or otherwise
credit, or cause or permit to be so deposited or credited, to any
Lock-Box Account cash or cash proceeds other than Collections.
(i) Reporting Requirements. York shall provide to the
Administrator (in multiple copies, if requested by the Administrator)
and each Purchaser Agent the following:
(i) as soon as available and in any event within 45
days after the end of the first three quarters of each fiscal
year of York and the Seller, balance sheets of York and its
consolidated Subsidiaries and of Seller as of the end of such
quarter and statements of income, retained earnings and cash
flow of York and its consolidated Subsidiaries and the Seller
for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, certified by the
chief financial officer of such Person;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of York and of Seller,
a copy of the annual report for such year for York and its
consolidated Subsidiaries and the Seller, containing financial
statements for such year audited by independent certified
public accountants of nationally recognized standing;
(iii) as to the Servicer only, as soon as available
and in any event not later than two Business Days prior to the
Settlement Date, an Information Package as of the last day of
such month or, within 10 Business Days of a request by the
Administrator or any Purchaser Agent, an Information Package
for such periods as is specified by the Administrator or such
Purchaser Agent (including on a semi-monthly, weekly or daily
basis);
(iv) as soon as possible and in any event within five
days after becoming aware of the occurrence of each
Termination Event or Unmatured Termination Event, a statement
of the chief financial officer of York setting forth details
of such Termination Event or Unmatured Termination Event and
the action that such Person has taken and proposes to take
with respect thereto;
IV-8
(v) promptly after the sending or filing thereof,
copies of all reports that York sends to any of its security
holders, and copies of all reports and registration statements
that York or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange;
provided, that any filings with the Securities and Exchange
Commission that have been granted "confidential" treatment
shall be provided promptly after such filings have become
publicly available;
(vi) promptly after the filing or receiving thereof,
copies of all reports and notices that York or any of its
Affiliate files under ERISA with the Internal Revenue Service,
the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or that such Person or any of its
Affiliates receives from any of the foregoing or from any
multiemployer plan (within the meaning of Section 4001(a)(3)
of ERISA) to which such Person or any of its Affiliate is or
was, within the preceding five years, a contributing employer,
in each case in respect of the assessment of withdrawal
liability or an event or condition that could, in the
aggregate, result in the imposition of a liability on York
and/or any such Affiliate;
(vii) at least thirty days before any change in
York's or any Originator's name or any other change requiring
the amendment of UCC financing statements, a notice setting
forth such changes and the effective date thereof;
(viii) promptly after York obtains knowledge thereof,
notice of any: (A) litigation, investigation or proceeding
that may exist at any time between York or any of its
Subsidiaries and any Governmental Authority that, if not cured
or if adversely determined, as the case may be, would have a
Material Adverse Effect; (B) litigation or proceeding
adversely affecting such Person or any of its Subsidiaries in
which the amount involved is $1,000,000 or more and not
covered by insurance or in which injunctive or similar relief
is sought; or (C) litigation or proceeding relating to any
Transaction Document;
(ix) promptly after obtaining knowledge thereof,
notice of a material adverse change in the business,
operations, property or financial or other condition of the
Servicer, the Seller or York or any of its subsidiaries;
(x) promptly after the occurrence thereof, notice of
any downgrade of York;
(xi) such other information respecting the
Receivables or the condition or operations, financial or
otherwise, of York or any of its Affiliates as the
Administrator or any Purchaser Agent may from time to time
reasonably request; and
(xii) promptly after the occurrence thereof, notice
of any material acquisition or investment by York of or in any
Person, business or operation.
3. Separate Existence. Each of the Seller and York hereby acknowledges
that the Purchasers, the Purchaser Agents, the Administrator and the Liquidity
Providers are entering
IV-9
into the transactions contemplated by this Agreement and the other Transaction
Documents in reliance upon the Seller's identity as a legal entity separate from
York and its Affiliates. Therefore, from and after the date hereof, each of the
Seller and York shall take all steps specifically required by the Agreement or
reasonably required by the Administrator to continue the Seller's identity as a
separate legal entity and to make it apparent to third Persons that the Seller
is an entity with assets and liabilities distinct from those of York and any
other Person, and is not a division of York, its Affiliates or any other Person.
Without limiting the generality of the foregoing and in addition to and
consistent with the other covenants set forth herein, each of the Seller and
York shall take such actions as shall be required in order that:
(a) The Seller will be a limited purpose limited liability
company whose primary activities are restricted in its limited
liability company agreement to: (i) purchasing or otherwise acquiring
from the Originators, owning, holding, granting security interests or
selling interests in Pool Assets, (ii) entering into agreements for the
selling and servicing of the Receivables Pool, and (iii) conducting
such other activities as it deems necessary or appropriate to carry out
its primary activities;
(b) The Seller shall not engage in any business or activity,
or incur any indebtedness or liability, other than as expressly
permitted by the Transaction Documents;
(c) Not less than one member of the Seller's Board of
Directors (the "Independent Director") shall be an individual who is
not a direct, indirect or beneficial stockholder, officer, director,
employee, affiliate, associate or supplier of York or any of its
Affiliates. The limited liability company agreement of the Seller shall
provide that: (i) the Seller's Board of Directors shall not approve, or
take any other action to cause the filing of, a voluntary bankruptcy
petition with respect to the Seller unless the Independent Director
shall approve the taking of such action in writing before the taking of
such action, and (ii) such provision cannot be amended without the
prior written consent of the Independent Director;
(d) The Independent Director shall not at any time serve as a
trustee in bankruptcy for the Seller, York or any Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be
compensated from the Seller's funds for services provided to the
Seller. The Seller will not engage any agents other than its attorneys,
auditors and other professionals, and a servicer and any other agent
contemplated by the Transaction Documents for the Receivables Pool,
which servicer will be fully compensated for its services by payment of
the Servicing Fee, and a manager, which manager will be fully
compensated from the Seller's funds;
(f) The Seller will contract with the Servicer to perform for
the Seller all operations required on a daily basis to service the
Receivables Pool. The Seller will pay the Servicer the Servicing Fee
pursuant to the Agreement. The Seller will not incur any material
indirect or overhead expenses for items shared with York (or any other
Affiliate thereof) that are not reflected in the Servicing Fee. To the
extent, if any, that the Seller (or any Affiliate thereof) shares items
of expenses not reflected in the Servicing Fee or
IV-10
the manager's fee, such as legal, auditing and other professional
services, such expenses will be allocated to the extent practical on
the basis of actual use or the value of services rendered, and
otherwise on a basis reasonably related to the actual use or the value
of services rendered; it being understood that York shall pay all
expenses relating to the preparation, negotiation, execution and
delivery of the Transaction Documents, including legal, agency and
other fees;
(g) The Seller's operating expenses will not be paid by York
or any other Affiliate thereof;
(h) All of the Seller's business correspondence and other
communications shall be conducted in the Seller's own name and on its
own separate stationery;
(i) The Seller's books and records will be maintained
separately from those of York and any other Affiliate thereof;
(j) All financial statements of York or any Affiliate thereof
that are consolidated to include Seller will contain detailed notes
clearly stating that: (i) a special purpose limited liability company
exists as a Subsidiary of York, and (ii) the Originators have sold
receivables and other related assets to such special purpose Subsidiary
that, in turn, has sold undivided interests therein to certain
financial institutions and other entities;
(k) The Seller's assets will be maintained in a manner that
facilitates their identification and segregation from those of York or
any Affiliate thereof;
(l) The Seller will strictly observe organizational
formalities in its dealings with York or any Affiliate thereof, and
funds or other assets of the Seller will not be commingled with those
of York or any Affiliate thereof except as permitted by the Agreement
in connection with servicing the Pool Receivables. The Seller shall not
maintain joint bank accounts or other depository accounts to which York
or any Affiliate thereof (other than York in its capacity as the
Servicer) has independent access. The Seller is not named, and has not
entered into any agreement to be named, directly or indirectly, as a
direct or contingent beneficiary or loss payee on any insurance policy
with respect to any loss relating to the property of York or any
Subsidiary or other Affiliate of York. The Seller will pay to the
appropriate Affiliate the marginal increase or, in the absence of such
increase, the market amount of its portion of the premium payable with
respect to any insurance policy that covers the Seller and such
Affiliate;
(m) The Seller will maintain arm's-length relationships with
York (and any Affiliate thereof). Any Person that renders or otherwise
furnishes services to the Seller will be compensated by the Seller at
market rates for such services it renders or otherwise furnishes to the
Seller. Neither the Seller nor York will be or will hold itself out to
be responsible for the debts of the other or the decisions or actions
respecting the daily business and affairs of the other. The Seller and
York will immediately correct any known misrepresentation with respect
to the foregoing, and they will not operate or
IV-11
purport to operate as an integrated single economic unit with respect
to each other or in their dealing with any other entity; and
(n) York shall not pay the salaries of Seller's employees, if
any.
IV-12
EXHIBIT V
TERMINATION EVENTS
Each of the following shall be a "Termination Event":
(a) (i) the Seller, York, any Originator or the Servicer shall fail to
perform or observe any term, covenant or agreement under the Agreement or any
other Transaction Document and, except as otherwise provided herein, such
failure shall continue for more than 15 Business Days after knowledge or notice
thereof, (ii) the Seller or the Servicer shall fail to make when due any payment
or deposit to be made by it under the Agreement and such failure shall continue
unremedied for one Business Day or (iii) York shall resign as Servicer, and no
successor Servicer reasonably satisfactory to the Administrator and the Majority
Purchasers shall have been appointed;
(b) York (or any Affiliate thereof) shall fail to transfer to any
successor Servicer when required any rights pursuant to the Agreement that York
(or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller,
York or any Originator (or any of their respective officers) under or in
connection with the Agreement or any other Transaction Document, or any
information or report delivered by the Seller, York or any Originator or the
Servicer pursuant to the Agreement or any other Transaction Document, shall
prove to have been incorrect or untrue in any respect when made or deemed made
or delivered; provided, however, if the violation of this paragraph (c) by the
Seller, any Originator or the Servicer may be cured without any potential or
actual detriment to the Issuer, the Administrator or any Program Support
Provider, the Seller, such Originator or the Servicer, as applicable, shall have
15 Business Days from the earlier of (i) such Person's actual knowledge of such
failure and (ii) notice to such Person of such failure to so cure any such
violation before a Termination Event shall occur so long as such Person is
diligently attempting to effect such cure;
(d) the Seller or the Servicer shall fail to deliver the Information
Package pursuant to the Agreement, and such failure shall remain unremedied for
two Business Days;
(e) the Agreement or any purchase or reinvestment pursuant to the
Agreement shall for any reason: (i) cease to create, or the Purchased Interest
shall for any reason cease to be, a valid and enforceable perfected undivided
percentage ownership or security interest to the extent of the Purchased
Interest in each Pool Receivable, the Related Security and Collections with
respect thereto, free and clear of any Adverse Claim, or (ii) cease to create
with respect to the Pool Assets, or the interest of the Administrator (for the
benefit of the Purchasers) with respect to such Pool Assets shall cease to be, a
valid and enforceable first priority perfected security interest, free and clear
of any Adverse Claim;
(f) the Seller, York or any Originator shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Seller, York
or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization
V-1
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for it
or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 days, or any
of the actions sought in such proceeding (including the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall
occur; or the Seller, York or any Originator shall take any organizational
action to authorize any of the actions set forth above in this paragraph;
(g) (i) (A) the Default Ratio shall exceed 4.00%, or (B) the
Delinquency Ratio shall exceed 13.00% or (c) the Current Days' Sales Outstanding
shall exceed 80 days or (ii) the average for three consecutive Fiscal Months of
(A) the Default Ratio shall exceed 3.50%, (B) the Delinquency Ratio shall exceed
11.00%, or (C) the Dilution Ratio shall exceed 4.75%;
(h) a Change in Control shall occur with respect to Seller, any
Originator or York;
(i) at any time (i) the sum of (A) the Aggregate Investment plus (B)
the Total Reserves, exceeds (ii) the sum of (A) the Net Receivables Pool Balance
at such time plus (B) the Purchasers' Share of the amount of Collections then on
deposit in the Lock-Box Accounts (other than amounts set aside therein
representing Discount and Fees), and such circumstance shall not have been cured
within five days;
(j) (i) York or any of its Subsidiaries shall fail to pay any principal
of or premium or interest on any of its Debt that is outstanding in a principal
amount of at least $25,000,000 in the aggregate when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement, mortgage, indenture or instrument
relating to such Debt (and shall have not been waived); or (ii) any other event
shall occur or condition shall exist under any agreement, mortgage, indenture or
instrument relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement, mortgage, indenture or
instrument (and shall have not been waived), if, in either case: (a) the effect
of such non-payment, event or condition is to give the applicable debtholders
the right (whether acted upon or not) to accelerate the maturity of such Debt,
or (b) any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), redeemed,
purchased or defeased, or an offer to repay, redeem, purchase or defease such
Debt shall be required to be made, in each case before the stated maturity
thereof;
(k) either: (i) a contribution failure shall occur with respect to any
Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA and
such failure shall not be cured within 10 days, (ii) the Internal Revenue
Service shall file a notice of lien asserting a claim or claims of $250,000 or
more in the aggregate pursuant to the Internal Revenue Code with regard to any
of the assets of Seller, any Originator, York or any ERISA Affiliate and such
lien shall have been filed and not released within 10 days, or (iii) the Pension
Benefit Guaranty Corporation shall, or shall indicate its intention in writing
to the Seller, any Originator, York or any ERISA Affiliate to, either file a
notice of lien asserting a claim pursuant to ERISA with regard to any assets of
the Seller, any Originator, York or any ERISA Affiliate or terminate any
V-2
Benefit Plan that has unfunded benefit liabilities, or any steps shall have been
taken to terminate any Benefit Plan subject to Title IV of ERISA so as to result
in any liability in excess of $1,000,000 and such lien shall have been filed and
not released within 10 days;
(l) one or more final judgments for the payment of money shall be
entered against the Seller or (ii) one or more final judgments for the payment
of money in an amount in excess of $20,000,000, individually or in the
aggregate, shall be entered against the Servicer or any Originator on claims not
covered by insurance or as to which the insurance carrier has denied its
responsibility, and such judgment shall continue unsatisfied and in effect for
sixty (60) consecutive days without a stay of execution; or
(m) the "Purchase and Sale Termination Date" under and as defined in
the Purchase and Sale Agreement shall occur under the Purchase and Sale
Agreement or any Originator shall for any reason cease to transfer, or cease to
have the legal capacity to transfer, or otherwise be incapable of transferring
Receivables to the Seller under the Purchase and Sale Agreement.
V-3
EXHIBIT VI
SUPPLEMENTAL PERFECTION REPRESENTATIONS,
WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained
in Exhibit III and Exhibit IV hereof, the Seller hereby makes the following
additional representations, warranties and covenants:
1. Receivables; Lock-box Accounts.
(a) The Pool Receivables constitute "accounts", "general
intangibles" or "tangible chattel paper", each within the meaning of the
applicable UCC.
(b) Lock-Box Accounts. Each Lock-Box Account constitutes a
"deposit account" within the meaning of the applicable UCC.
2. Creation of Security Interest. The Seller owns and has good and
marketable title to the Pool Receivables and Lock-Box Accounts (and the related
lock-boxes), free and clear of any Adverse Claim. The Agreement creates a valid
and continuing security interest (as defined in the applicable UCC) in the Pool
Receivables and the Lock-Box Accounts (and the related lock-boxes) in favor of
the Administrator (for the benefit of the Purchasers), which security interest
is prior to all other Adverse Claims and is enforceable as such as against any
creditors of and purchasers from the Seller.
3. Perfection.
(a) General. The Seller has or has caused, or will or will
cause within ten days after the date hereof, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the sale of the Pool
Receivables from the Originators to the Seller pursuant to the Purchase and Sale
Agreement and the security interest granted by the Seller to the Administrator
(for the benefit of the Purchasers) in the Receivables and Lock-Box Accounts
(and the related lock-boxes) hereunder.
(b) Tangible Chattel Paper. With respect to any Pool
Receivable that constitutes "tangible chattel paper", the Servicer is in
possession of the original copies of the tangible chattel paper that constitute
or evidence such Pool Receivables, and the Seller has filed and has caused each
Originator to file, or will file or will cause each Originator to file within
ten days after the date hereof, the financing statements described in paragraph
(a) above, each of which will contain a statement that: "A purchase of or a
grant of a security interest in any property described in this financing
statement will violate the rights of the Administrator." The Pool Receivables to
the extent they are evidenced by "tangible chattel paper" do not have any marks
or notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Seller or the Administrator.
(c) Lock-Box Accounts. With respect to all Lock-Box Accounts
(and all related lock-boxes), the Seller has delivered to the Administrator, on
behalf of the Purchasers, a fully executed Lock-Box Agreement pursuant to which
the applicable Lock-Box Bank has agreed, following the occurrence and
continuation of a Termination Event, to comply with all
VI-1
instructions given by the Administrator with respect to all funds on deposit in
such Lock-Box Account (and all funds sent to the respective lock-box), without
further consent by the Seller or the Servicer.
4. Priority.
(a) Other than the transfer of the Receivables by the
Originators to the Seller pursuant to the Purchase and Sale Agreement and the
grant of security interest by the Seller to the Administrator (for the benefit
of the Purchasers) in the Pool Receivables and Lock-Box Accounts (and the
related lock-boxes) hereunder, neither the Seller nor any Originator has
pledged, assigned, sold, conveyed, or otherwise granted a security interest in
any of the Pool Receivables or Lock-Box Accounts (and the related lock-boxes) to
any other Person.
(b) Neither the Seller nor any Originator has authorized, or
is aware of, any filing of any financing statement against the Seller or any
Originator that include a description of collateral covering the Pool
Receivables or any other Pool Assets, other than any financing statement filed
pursuant to the Purchase and Sale Agreement and the Agreement or financing
statements that have been validly terminated prior to the date hereof.
(c) The Seller is not aware of any judgment, ERISA or tax lien
filings against either the Seller or any Originator.
(d) None of the Lock-Box Accounts (and the related lock-boxes)
are in the name of any Person other than the Seller or the Administrator.
Neither the Seller, the Servicer or any Originator has consented to any Lock-Box
Bank's complying with instructions of any person other than the Administrator.
5. Survival of Supplemental Representations. Notwithstanding any other
provision of the Agreement or any other Transaction Document, the
representations contained in this Exhibit VI shall be continuing, and remain in
full force and effect until such time as all the Investment has finally been
paid in full and all other obligations of the Seller under the Agreement or any
other Transaction Documents have been fully performed.
6. No Waiver. The parties to the Agreement: (i) shall not, without
obtaining a written confirmation of the then-current rating of the Notes by the
rating agencies then rating the Notes, waive any of the representations set
forth in this Exhibit VI; (ii) shall provide the ratings agencies rating the
Notes with prompt written notice of any breach of any representations set forth
in this Exhibit VI, and (iii) shall not, without obtaining a written
confirmation of the then-current rating of the Notes by the rating agencies then
rating the Notes (as determined after any adjustment or withdrawal of the
ratings following notice of such breach) waive a breach of any of the
representations set forth in this Exhibit VI.
7. Seller or Servicer to Maintain Perfection and Priority. In order to
evidence the interests of the Administrator under this Agreement, the Seller or
Servicer shall, from time to time take such action, or execute and deliver such
instruments (other than filing financing statements) as may be necessary or
advisable (including, without limitation, such actions as are requested by the
Administrator on behalf of the Purchasers) to maintain and perfect, as a
first-priority interest, the Administrator's security interest (for the benefit
of the Purchasers) in
VI-2
the Pool Assets. The Seller or Servicer shall, from time to time and within the
time limits established by law, prepare and present to the Administrator for the
Administrator's authorization and approval all financing statements, amendments,
continuations or initial financing statements in lieu of a continuation
statement, or other filings necessary to continue, maintain and perfect the
Administrator's security interest (for the benefit of the Purchasers in the Pool
Assets as a first-priority interest. The Administrator's approval of such
filings shall authorize the Seller or Servicer to file such financing statements
under the UCC without the signature of the Seller, any Originator or the
Administrator where allowed by applicable law. Notwithstanding anything else in
the Transaction Documents to the contrary, neither the Seller, the Servicer, nor
any Originator, shall have any authority to file a termination, partial
termination, release, partial release or any amendment that deletes the name of
a debtor or excludes collateral of any such financing statements, without the
prior written consent of the Administrator, on behalf of the Purchasers.
VI-3
SCHEDULE I
CREDIT AND COLLECTION POLICY
Schedule I-1
SCHEDULE II
LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
Lock-Box Bank Lock-Box Account
Bank of America, N.A. 100561 ▇▇▇▇▇▇▇▇▇▇
281181 ▇▇▇▇▇▇▇▇▇▇
198247 ▇▇▇▇▇▇▇▇▇▇
96823 7188101154
91760 7188101154
91286 7188101154
96696 7188101154
54521 123570522
N/A 3750682319
First Union National Bank N/A 2095380336562
PNC Bank, National Association 5092 2285978
64 2285978
▇▇▇ ▇▇▇▇▇▇▇
910013 2286671
Schedule II-1
SCHEDULE III
TRADE NAMES
Organizational Name Trade Names / Fictitious Names
York Receivables Funding LLC None
Schedule III-1
ANNEX A
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF INFORMATION PACKAGE
Annex A-2
ANNEX B
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF PURCHASE NOTICE
December 21, 2001
PNC Bank, National Association
One PNC Plaza, 3rd Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement, dated
as of December 21, 2001 (as heretofore amended or supplemented, the "
Receivables Purchase Agreement"), among York Receivables Funding LLC ("Seller
"), York International Corporation, as Servicer, Market Street Funding
Corporation, Liberty Street Funding Corp., The Bank of Nova Scotia, the various
other Purchaser Groups from time to time a party thereto and PNC Bank National
Association, (the "Administrator"). Capitalized terms used in this Purchase
Notice and not otherwise defined herein shall have the meanings assigned thereto
in the Receivables Purchase Agreement.
This letter constitutes a Purchase Notice pursuant to Section 1.2(a) of
the Receivables Purchase Agreement. Seller desires to sell an undivided variable
interest in a pool of receivables on ___________, [2001], for a purchase price
of $____________. Subsequent to this Purchase, the Aggregate Investment will be
$___________. Each Purchaser's Purchaser Group Ratable Share of such Purchase is
set forth on Schedule I attached hereto.
Seller hereby represents and warrants as of the date hereof, and as of
the date of Purchase, as follows:
(i) the representations and warranties contained in Exhibit III of the
Receivables Purchase Agreement are correct on and as of such dates as though
made on and as of such dates and shall be deemed to have been made on such
dates;
(ii) no Termination Event or Unmatured Termination Event has occurred
and is continuing, or would result from such purchase;
(iii) after giving effect to the purchase proposed hereby, the
Purchased Interest will not exceed 100% and the Aggregate Investment will not
exceed the Purchase Limit; and
(iv) the Facility Termination Date shall not have occurred.
IN WITNESS WHEREOF, the undersigned has caused this Purchase Notice to
be executed by its duly authorized officer as of the date first above written.
Annex B-1
YORK RECEIVABLES FUNDING LLC
By: ______________________________________________
Name Printed__________________________________
Title:________________________________________
Annex B-2
SCHEDULE I TO
PURCHASE NOTICE
Purchaser Group
Purchaser Ratable Share
Annex B-3
ANNEX C
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of [______ __,
____], is among YORK RECEIVABLES FUNDING LLC (the "Seller"), [________], as
purchaser (the "[_____]Conduit Purchaser"), [________], as the related committed
purchaser (the "[______] Related Committed Purchaser" and together with the
Conduit Purchaser, the "[_____] Purchasers"), and [________], as agent for the
Purchasers (the "[______] Purchaser Agent" and together with the Purchasers, the
"[_______] Purchaser Group").
BACKGROUND
The Seller and various others are parties to a certain Receivables
Purchase Agreement dated as of December 21, 2001 (as amended through the date
hereof, the "Receivables Purchase Agreement"). Capitalized terms used and not
otherwise defined herein have the respective meaning assigned to such terms in
the Receivables Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. This letter constitutes an Assumption Agreement pursuant to
Section 1.2(e) of the Receivables Purchase Agreement. The Seller desires [the
[_____] Purchasers] [the [______] Related Committed Purchaser] to [become
Purchasers under] [increase its existing Commitment under] the Receivables
Purchase Agreement and upon the terms and subject to the conditions set forth in
the Receivables Purchase Agreement, the [________] Purchasers agree to [become
Purchasers thereunder] [increase its Commitment in an amount equal to the amount
set forth as the "Commitment" under the signature of the [______] Related
Committed Purchaser hereto].
Seller hereby represents and warrants to the [________] Purchasers as
of the date hereof, as follows:
(i) the representations and warranties contained in Exhibit III of the
Receivables Purchase Agreement are correct on and as of such dates as though
made on and as of such dates and shall be deemed to have been made on such
dates;
(ii) no Termination Event or Unmatured Termination Event has occurred
and is continuing, or would result from such purchase; and
(iii) the Facility Termination Date shall not have occurred.
SECTION 2. Upon execution and delivery of this Assumption Agreement by
the Seller and each member of the [______] Purchaser Group, satisfaction of the
other conditions to assignment specified in Section 1.2(e) of the Receivables
Purchase Agreement (including the consent of the Administrator and each of the
other Purchasers party thereto) and receipt by the Administrator of counterparts
of this Agreement (whether by facsimile or otherwise) executed by
Annex C-1
each of the parties hereto, [the [_____] Purchasers shall become a party to, and
have the rights and obligations of Purchasers under, the Receivables Purchase
Agreement] [the [______] Related Committed Purchaser shall increase its
Commitment in the amount set forth as the "Commitment" under the signature of
the [______] Related Committed Purchaser, hereto].
SECTION 3. Each party hereto hereby covenants and agrees that it will
not institute against, or join any other Person in instituting against, any
Conduit Purchaser, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, for one year and one day after the latest maturing
Notes issued by such Conduit Purchaser is paid in full. The covenant contained
in this paragraph shall survive any termination of the Receivables Purchase
Agreement.
SECTION 4. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Agreement may not be amended, supplemented or waived
except pursuant to a writing signed by the party to be charged. This Agreement
may be executed in counterparts, and by the different parties on different
counterparts, each of which shall constitute an original, but all together shall
constitute one and the same agreement.
(continued on following page)
Annex C-2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
[___________], as a Conduit Purchaser
By: ______________________________________________
Name Printed:_________________________________
Title:________________________________________
[Address]
[___________], as a Related Committed Purchaser
By: ______________________________________________
Name Printed:_________________________________
Title:________________________________________
[Address]
[Commitment]
[_____________], as Purchaser Agent for [_________]
By: ______________________________________________
Name Printed:_________________________________
Title:________________________________________
[Address]
Annex C-3
YORK RECEIVABLES FUNDING LLC,
as Seller
By:__________________________________________________
Name Printed:________________________________________
Title:_______________________________________________
Consented and Agreed:
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By:__________________________________________________
Name Printed:________________________________________
Title:_______________________________________________
Consented and Agreed:
[THE PURCHASERS]
Annex C-4
ANNEX D
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF TRANSFER SUPPLEMENT
WITH RESPECT TO
YORK RECEIVABLES FUNDING LLC
RECEIVABLES PURCHASE AGREEMENT
[------- --, ------]
Section 1.
[Commitment assigned: $_______
Assignor's remaining Commitment: $_______
Investment allocable to Commitment assigned: $_______
Investment assigned:](1)
Assignor's remaining Investment: $_______
Discount (if any) allocable to Investment assigned: $_______
Discount(if any) allocable to Assignor's remaining Investment: $_______
Section 2.
Effective Date of this Transfer Supplement: [__________]
Upon execution and delivery of this Transfer Supplement by transferee
and transferor and the satisfaction of the other conditions to assignment
specified in [Section 6.3(c)] [Section 6.3(e)] of the Receivables Purchase
Agreement, from and after the effective date specified above, the transferee
shall become a party to, and have the rights and obligations of a [Conduit
Purchaser] [Related Committed Purchaser] under, the Receivables Purchase
Agreement dated as of December 21, 2001 (as amended through the date hereof, the
Receivables Purchase Agreement), among YORK RECEIVABLES FUNDING LLC, YORK
INTERNATIONAL CORPORATION and various other parties.
-----------------------
1 Bracketed language is only applicable to assignments by Related
Committed Purchasers pursuant to Section 6.3(c).
Annex D-1
ASSIGNOR [_________], as a [Related Committed Purchaser for [_______]]
[Conduit Purchaser]
By: ____________________________________________________________
Name:_______________________________________________________
Title:______________________________________________________
ASSIGNEE: [_________], as a [Related Committed Purchaser for [_______]]
[Conduit Purchaser]
By: ____________________________________________________________
Name:_______________________________________________________
Title:______________________________________________________
[Address]
[Commitment Assigned](2)
---------------------
2 Bracketed language is only applicable to assignments by Related Committed
Purchasers pursuant to Section 6.3(c).
Annex D-2
Accepted as of date first above
written:
[--------------------------------------------------],
as Purchaser Agent for the
[______] Purchaser Group
By: ________________________________________________
Name:___________________________________________
Title:__________________________________________
Annex D-3
ANNEX E
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF PAYDOWN NOTICE
December 21, 2001
PNC Bank, National Association
One PNC Plaza, 3rd Floor
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Ladies and Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement, dated
as of December 21, 2001 (as heretofore amended or supplemented, the "
Receivables Purchase Agreement"), among York Receivables Funding LLC ("Seller
"), York International Corporation, as Servicer, Market Street Funding
Corporation, Liberty Street Funding Corp., The Bank of Nova Scotia, the various
other Purchaser Groups from time to time a party thereto and PNC Bank National
Association, (the "Administrator"). Capitalized terms used in this Purchase
Notice and not otherwise defined herein shall have the meanings assigned thereto
in the Receivables Purchase Agreement.
This letter constitutes a Paydown Notice pursuant to Section 1.4(f)(i)
of the Receivables Purchase Agreement. Seller desires to reduce the Aggregate
Investment on ______________, ___ by(3) the application of $____________ in cash
to pay the Aggregate Investment and Discount to accrue (until such cash can be
used to pay commercial paper notes) with respect to such Aggregate Investment,
together with all cost related to such reduction of Aggregate Investment.
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3 Notice must be given at least five Business Days' prior to the requested
paydown date, in the case of reductions in excess of $10,000,000, or at
least two Business Days prior to the requested paydown date, in case of
reductions of $10,000,000 or less.
Annex E-1
IN WITNESS WHEREOF, the undersigned has caused this Paydown Notice to
be executed by its duly authorized officer as of the date first above written.
YORK RECEIVABLES FUNDING LLC
By: ____________________________________________
Name Printed:_______________________________
Title:______________________________________
Annex E-2
TABLE OF CONTENTS
Page
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1 Purchase Facility............................................1
Section 1.2 Making Purchases.............................................2
Section 1.3 Purchased Interest Computation...............................4
Section 1.4 Settlement Procedures........................................4
Section 1.5 Fees.........................................................9
Section 1.6 Payments and Computations, Etc...............................9
Section 1.7 Increased Costs.............................................10
Section 1.8 Requirements of Law.........................................11
Section 1.9 Inability to Determine Euro-Rate............................12
Section 1.10 Extension of Termination Date...............................13
ARTICLE II
REPRESENTATIONS AND WARRANTIES; COVENANTS; TERMINATION EVENTS
Section 2.1 Representations and Warranties; Covenants...................14
Section 2.2 Termination Events..........................................14
ARTICLE III
INDEMNIFICATION
Section 3.1 Indemnities by the Seller...................................14
Section 3.2 Indemnities by the Servicer.................................16
ARTICLE IV
ADMINISTRATION AND COLLECTIONS
Section 4.1 Appointment of the Servicer.................................17
Section 4.2 Duties of the Servicer......................................18
Section 4.3 Lock-Box Account Arrangements...............................19
Section 4.4 Enforcement Rights..........................................19
Section 4.5 Responsibilities of the Seller..............................21
Section 4.6 Servicing Fee...............................................21
ARTICLE V
THE AGENTS
Section 5.1 Appointment and Authorization...............................21
Section 5.2 Delegation of Duties........................................23
Section 5.3 Exculpatory Provisions......................................23
Section 5.4 Reliance by Agents..........................................23
Section 5.5 Notice of Termination Events................................24
Section 5.6 Non-Reliance on Administrator, Purchaser Agents and
Other Purchasers..........................................24
Section 5.7 Administrators and Affiliates...............................25
Section 5.8 Indemnification.............................................25
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TABLE OF CONTENTS
(continued)
Page
Section 5.9 Successor Administrator.....................................25
ARTICLE VI
MISCELLANEOUS
Section 6.1 Amendments, Etc.............................................26
Section 6.2 Notices, Etc................................................26
Section 6.3 Successors and Assigns; Participations; Assignments.........27
Section 6.4 Costs, Expenses and Taxes...................................29
Section 6.5 No Proceedings; Limitation on Payments......................29
Section 6.6 GOVERNING LAW AND JURISDICTION..............................29
Section 6.7 Execution in Counterparts...................................30
Section 6.8 Survival of Termination.....................................30
Section 6.9 WAIVER OF JURY TRIAL........................................30
Section 6.10 Sharing of Recoveries.......................................31
Section 6.11 Right of Setoff.............................................31
Section 6.12 Entire Agreement............................................31
Section 6.13 Headings....................................................31
Section 6.14 Purchaser Groups' Liabilities...............................31
Section 6.15 Confidentiality.............................................32
EXHIBIT I Definitions
EXHIBIT II Conditions of Purchases
EXHIBIT III Representations and Warranties
EXHIBIT IV Covenants
EXHIBIT V Termination Events
EXHIBIT VI Supplemental Perfection Representations,
Warranties and Covenants
SCHEDULE I Credit and Collection Policy
SCHEDULE II Lock-Box Banks and Lock-Box Accounts
SCHEDULE III Trade Names
SCHEDULE IV Fiscal Months
ANNEX A Form of Information Package
ANNEX B Form of Purchase Notice
ANNEX C Form of Assumption Agreement
ANNEX D Form of Transfer Supplement
ANNEX E Form of Paydown Notice
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