EXHIBIT 10.11(i)
$750,000,000
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Dated as of October 13, 1999
Among
G-P RECEIVABLES, INC.
as the Seller
-------------
GEORGIA-PACIFIC CORPORATION
as the Collection Agent
-----------------------
CANADIAN IMPERIAL BANK OF COMMERCE
CITIBANK, N.A.
AND
BANK ONE, NA (CHICAGO OFFICE)
as the Secondary Purchasers
---------------------------
and
CANADIAN IMPERIAL BANK OF COMMERCE
as the Administrative Agent
---------------------------
TABLE OF CONTENTS
Page No.
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ARTICLE I. DEFINITIONS
SECTION 1.01 Certain Defined Terms..........................................1
SECTION 1.02 Defined Terms Incorporated by Reference........................5
SECTION 1.03 Other Terms....................................................6
ARTICLE II. AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01 Purchase Facility..............................................6
SECTION 2.02 Making Purchases...............................................8
SECTION 2.03 Incorporation by Reference.....................................9
SECTION 2.04 Incorporation by Reference.....................................9
SECTION 2.05 Fees...........................................................9
SECTION 2.06 Incorporation by Reference.....................................9
SECTION 2.07 Incorporation by Reference.....................................9
SECTION 2.08 Yield Protection..............................................10
SECTION 2.09 Incorporation by Reference....................................11
SECTION 2.10 Incorporation by Reference....................................11
ARTICLE III. CONDITIONS OF PURCHASES
SECTION 3.01 Conditions Precedent to Initial Purchase......................11
SECTION 3.02 Conditions Subsequent.........................................12
SECTION 3.03 Conditions Precedent to All Purchases and Reinvestments.......12
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Incorporation by Reference....................................13
ARTICLE V. COVENANTS
SECTION 5.01 Incorporation by Reference....................................13
ARTICLE VI. ADMINISTRATION AND COLLECTION
SECTION 6.01 Designation of Collection Agent...............................14
SECTION 6.02 Duties of Collection Agent....................................14
SECTION 6.03 Rights of the Administrative Agent............................16
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SECTION 6.04 Responsibilities of the Seller................................17
SECTION 6.05 Further Actions Evidencing Purchases..........................17
SECTION 6.06 Collection Agent Fee..........................................18
ARTICLE VII. EVENTS OF TERMINATION
SECTION 7.01 Incorporation by Reference; Additional Events of Termination..19
ARTICLE VIII. INDEMNIFICATION
SECTION 8.01 Indemnities by the Seller.....................................19
SECTION 8.02 Contribution..................................................22
ARTICLE IX. THE ADMINISTRATIVE AGENT
SECTION 9.01 Authorization and Action......................................22
SECTION 9.02 UCC Filings...................................................23
SECTION 9.03 Administrative Agent's Reliance, Etc..........................23
SECTION 9.04 CIBC and Affiliates...........................................24
SECTION 9.05 Secondary Purchasers' Purchase Decisions......................24
SECTION 9.06 Indemnification...............................................24
SECTION 9.07 Successor Administrative Agent................................25
ARTICLE X. ASSIGNMENT OF RECEIVABLE INTERESTS
SECTION 10.01 Assignment....................................................25
SECTION 10.02 Effects of Assignment.........................................26
ARTICLE XI. MISCELLANEOUS
SECTION 11.01 Amendments, Etc...............................................27
SECTION 11.02 Notices, Etc..................................................27
SECTION 11.03 Assignability; Termination....................................27
SECTION 11.04 Costs, Expenses and Taxes.....................................27
SECTION 11.05 Confidentiality...............................................28
SECTION 11.06 No Recourse...................................................28
SECTION 11.07 Governing Law; Execution in Counterparts......................29
SECTION 11.08 Construction of Agreement.....................................29
SECTION 11.09 Actions by Secondary Purchasers...............................29
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EXHIBITS
EXHIBIT A Form of Assignment Agreement
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of October
13, 1999 among G-P Receivables, Inc., a Delaware corporation (the "Seller"),
GEORGIA-PACIFIC CORPORATION, a Georgia corporation (the "Collection Agent"),
CANADIAN IMPERIAL BANK OF COMMERCE ("CIBC"), CITIBANK, N.A. ("Citibank") and
BANK ONE, NA (CHICAGO OFFICE) ("Bank One") (each of CIBC, Citibank and Bank One,
individually, a "Secondary Purchaser", and, collectively, the "Secondary
Purchasers") and CIBC, as agent (the "Administrative Agent") for the Secondary
Purchasers. Unless defined elsewhere herein, capitalized terms used in this
Agreement shall have the meanings assigned to such terms in Article I hereof.
ARTICLE I.
DEFINITIONS
SECTION 1.01 Certain Defined Terms.
As used in this Agreement, 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):
"ADJUSTED LIBOR RATE" means, with respect to a Secondary Purchaser for
any Fixed Period, the rate per annum obtained by dividing (a) the arithmetic
average (rounded upwards, if necessary, to the nearest multiple of one-sixteenth
of one percent per annum) of (i) the offered rates for deposits in United States
dollars which appear on the display designated as page "LIBO" (or any successor
page quoting the offered rates for United States dollars in the London interbank
market) on the ▇▇▇▇▇▇ Monitor Money Rates Service, or (ii) if such rates are not
obtainable from the ▇▇▇▇▇▇ Monitor Money Rates Service, the respective rates
notified to the Secondary Purchaser by each of the Reference Banks as the rate
at which it would offer deposits in United States dollars to prime banks in the
London interbank market, in either case for a period equal to such Fixed Period
as such Secondary Purchaser shall select and in an amount comparable to the
aggregate amount of Capital of the Receivable Interest to be funded or
maintained at or about 11:00 a.m. (London time) on the second Business Day
before (and for value on) the first day of such period by (b) a percentage equal
to (i) 100% minus (ii) the Eurodollar Reserve Percentage for such Fixed Period.
"AGGREGATE CAPITAL" means, at the time of any determination thereof
with respect to a Secondary Purchaser, the sum of the Capital for all Receivable
Interests of such Secondary Purchaser.
"BASE RATE" means, for any day, the per annum rate of interest
published on such day (or, if not then published, on the most recently preceding
day) in The Wall Street Journal as the "Prime Rate." Changes in the Base Rate
shall be effective on each date on which a change in the "Prime Rate" is
published.
"CAPITAL" of any Receivable Interest owned by a Secondary Purchaser
means the original amount paid by such Secondary Purchaser to the Seller or to a
Purchaser (in connection with an assignment as contemplated by SECTION 2.02(c)),
as the case may be,
for such Receivable Interest at the time of its purchase by such Secondary
Purchaser pursuant to this Agreement, or such amount divided or combined in
accordance with Section 2.07, in each case reduced from time to time by
Collections distributed on account of such Capital pursuant to Section 2.04;
provided, that if such Capital 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 Capital shall be increased by the amount of
such rescinded or returned distribution, as though it had not been made;
provided, further, that such Capital shall not be reduced for the purposes of
this Agreement to the extent and so long as Collections to be used to effect an
Optional Reduction or a Mandatory Reduction are retained by the Collection Agent
(if the Seller or an Affiliate thereof).
"COLLECTION AGENT" means at any time the Person (which may include the
Administrative Agent) then authorized pursuant to Article VI to service,
administer and collect Pool Receivables.
"COLLECTION AGENT FEE" has the meaning specified in Section 6.06.
"COMMITMENT" means (i) for all Secondary Purchasers in the aggregate an
amount equal to $750,000000 initially, or such lesser amount as shall reflect
any reduction pursuant to Section 2.01(b) and (ii) for each Secondary Purchaser,
its Pro Rata Share of such aggregate amount. References to the unused portion of
the Commitment shall mean, at any time, the Commitment in effect at such time,
less the sum of the Total Aggregate Capital under this Agreement and the "Total
Aggregate Capital" under the Primary Purchase Agreement.
"EURODOLLAR RESERVE PERCENTAGE" for any Secondary Purchaser and for any
Fixed Period means the reserve percentage applicable to such Secondary Purchaser
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) (or, if more than one such percentage
shall be so applicable, the weighted daily averages of such percentages for
those days in such Fixed Period during which any such percentage shall be so
applicable) for determining the maximum reserve requirement of such Secondary
Purchaser (including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) with respect to liabilities consisting of or
including Eurocurrency liabilities (as that term is defined in Regulation D of
the Board of Governors of the Federal Reserve System as in effect from time to
time) having a term equal to such Fixed Period.
"EVENT OF TERMINATION" has the meaning specified in Article VII.
"EXPIRATION DATE" has the meaning specified in Section 2.01(i).
"FACILITY TERMINATION DATE" means the earliest to occur of (i) the
Expiration Date, as determined pursuant to Section 2.01(i), (ii) the date of the
occurrence of an Event of Termination under Section 7.01(i), (iii) the date the
Facility Termination Date is declared pursuant to Section 7.01 or (iv) the date
the Commitment is reduced or falls to zero.
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"INVESTOR RATE" for any Settlement Period for any Receivable Interest
means:
(a) a rate equal to the weighted average of the Adjusted LIBOR Rates
for the Fixed Periods occurring within such Settlement Period or portion
thereof, plus 1.25%, notified to the Seller and the Collection Agent by the
Secondary Purchaser on the first day of each of such Fixed Periods, or such
other rate as such Secondary Purchaser and the Seller shall agree to in writing.
(b) if such Receivable Interest is acquired by the Secondary Purchaser
pursuant to Section 2.01(d) hereof, with respect to each day during such
Settlement Period which is either the first, second or third day immediately
following the day notice is given by the Related Purchaser of the assignment of
such Receivable Interest, the Base Rate in effect for such day.
(c) if during any Settlement Period more than one of the
above-mentioned rates shall be applicable, then the "Investor Rate" for such
Settlement Period shall be the daily weighted average of such applicable rates.
"LIQUIDATION FEE" means, for any Secondary Purchaser and for any
Settlement Period during which a Liquidation Day occurs, the amount, if any, by
which (i) the additional Yield (calculated without taking into account any
Liquidation Fee or any shortened duration of a Fixed Period pursuant to clause
(ii) of the definition thereof) which would have accrued during the remainder of
such Settlement Period on all reductions of Capital of the Receivable Interest
during such Settlement Period exceeds (ii) the income received by such Secondary
Purchaser's investing the proceeds of such reductions of Capital.
"LIQUIDATION YIELD" means, for any Receivable Interest on any date, an
amount equal to the product of (1) the Capital of such Receivable Interest on
such date, (2) the Adjusted LIBOR Rate for such Receivable Interest for a 30-day
Fixed Period to commence on such date multiplied by 1.3 and (3) a fraction
having the sum of the Average Maturity plus the Collection Delay Period (each as
in effect at such date) as its numerator and 360 as its denominator.
"ORIGINATOR" means Georgia-Pacific and any direct or indirect
Subsidiary of Georgia-Pacific party to a Transfer Agreement and approved by the
Purchasers (as of the date hereof being those Subsidiaries specified on Schedule
V of the Primary Purchase Agreement).
"POTENTIAL TERMINATION EVENT" means an event which, with the passage of
time or notice or both, would constitute an Event of Termination.
"PRIMARY PURCHASE AGREEMENT" means that certain Amended and Restated
Receivables Purchase Agreement dated as of October 13, 1999 among the Seller,
the Purchasers and the Administrative Agent, as the same may, from time to time,
be amended, modified or supplemented.
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"PRO RATA SHARE" means, for each Secondary Purchaser, the "Pro Rata
Share" of the Related Purchaser under the Primary Purchase Agreement.
"PURCHASE" has the meaning specified in Section 2.01(a).
"REFERENCE BANKS" means CIBC, Citibank and Bank One, or such other
banks as the Secondary Purchasers shall designate with the consent of the
Seller.
"RELATED PURCHASER" means, with respect to each Secondary Purchaser set
forth below, the Person set forth opposite its name.
CIBC ASCC
Citibank CAFCO
Bank One Falcon
"REQUIRED SECONDARY PURCHASERS" means, at a particular time, Secondary
Purchasers the aggregate Commitment of which equals at least 66.666666% of the
overall Commitment; provided, that the Commitment for any Purchaser that has
breached a material provision of this Agreement shall be zero for so long as
such breach has not been cured.
"SUBSIDIARY" means, with respect to any Person, any corporation of
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors (or others performing a
comparable function) of such corporation is at the time directly or indirectly
owned by such Person, by such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such Person.
"TOTAL AGGREGATE CAPITAL" means, at any time of determination, the sum
of the Aggregate Capital for the Secondary Purchasers.
"UNUSED COMMITMENT" means, with respect to any Secondary Purchaser, the
Commitment of such Secondary Purchaser less the Aggregate Capital of such
Secondary Purchaser and the "Aggregate Capital" of the Related Purchaser under
the Primary Purchase Agreement.
"YIELD" means for each Receivable Interest for any Settlement Period
IR x C x ED + LF
--
360
where:
C = the daily average (calculated at the close of
business each day) Capital of such Receivable
Interest during such Settlement Period
IR = Investor Rate for such Receivable Interest
for such Settlement Period
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ED = the actual number of days elapsed during
such Settlement Period
LF = the Liquidation Fee, if any, for such
Receivable Interest for such Settlement
Period;
provided, that no provision of this Agreement shall require the payment or
permit the collection of Yield in excess of the maximum permitted by applicable
law; and provided, further, that Yield for any Receivable Interest 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.
SECTION 1.02 Defined Terms Incorporated by Reference. Unless otherwise
defined in this Agreement and subject to the modifications herein set forth,
capitalized terms used in this Agreement or in any provisions of the Primary
Purchase Agreement incorporated in this Agreement by reference shall have the
meanings given to them in the Primary Purchase Agreement. Without limiting the
foregoing, the defined terms "Concentration Bank", "Concentration Notice",
"Consent and Acknowledgement", "Credit and Collection Policy", "Default Ratio",
"Depositary Bank", "Depositary Notice", "Investor Report", "Lock-Box Agreement",
"Lock-Box Bank", "Originator" and "Transfer Agreement" are hereby incorporated
by reference together with the related Schedule III, Exhibit G, Exhibit E,
Schedule IV, Schedule VII, Schedule II, Exhibit F Exhibit A, Exhibit B, Schedule
I, Schedule V and Exhibit C, respectively, of the Primary Purchase Agreement, as
well as Schedule VI thereto. All references to "the Administrative Agent" in
provisions of the Primary Purchase Agreement incorporated in this Agreement by
reference shall, without further reference, mean CIBC as Administrative Agent
under this Agreement. Each use of the word "hereunder", "herein" or "hereof" in
the provisions of the Primary Purchase Agreement incorporated in this Agreement
by reference shall, without further reference, be deemed to be a reference to
this Agreement. Unless the context otherwise requires, any reference to a
"Purchaser", the "Required Purchasers" or the "Purchasers" under the Primary
Purchase Agreement shall be deemed to be a reference to a "Secondary Purchaser",
the "Required Secondary Purchasers" or the "Secondary Purchasers" hereunder.
Furthermore, all references in such incorporated provisions to "Collections",
"Contract", "Net Receivables Pool Balance", "Pool Receivable", "Receivables
Pool" and "Related Security" shall mean the Collections, a Contract, the Net
Receivables Pool Balance, a Pool Receivable, the Receivables Pool and the
Related Security under this Agreement, respectively. To the extent any word or
phrase is defined in this Agreement, any such word or phrase appearing in
provisions so incorporated by reference from the Primary Purchase Agreement
shall have the meaning given to it in this Agreement. The incorporation by
reference into this Agreement from the Primary Purchase Agreement is for
convenience only, and this Agreement and the Primary Purchase Agreement shall at
all times be, and be treated as, separate and distinct agreements.
Incorporations by reference in this Agreement from the Primary Purchase
Agreement shall not be affected or impaired by any subsequent expiration or
termination of the Primary Purchase Agreement, nor by any amendment thereof or
waiver thereunder unless the parties hereto shall have consented to such
amendment or waiver in writing.
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SECTION 1.03 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.
ARTICLE II.
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01 Purchase Facility.
(a) On the terms and conditions hereinafter set forth, each Secondary
Purchaser shall purchase Receivable Interests from the Seller from time to time
during the period from the date hereof to the Facility Termination Date. Under
no circumstances shall a Secondary Purchaser make any Purchase if after giving
effect to such Purchase, such Secondary Purchaser's Aggregate Capital, together
with the Related Purchaser's "Aggregate Capital" under the Primary Purchase
Agreement, would exceed such Secondary Purchaser's Commitment. Notwithstanding
anything to the contrary contained herein, until such time as the parties
expressly agree, all Purchases of Receivable Interests hereunder and under the
Primary Purchase Agreement shall be made with respect to a single Receivables
Pool.
(b) The Seller may, upon at least five Business Days' notice to the
Administrative Agent and the Secondary Purchasers, terminate in whole or reduce
in part the unused portion of the Commitment; provided, that each partial
reduction shall be in the amount of at least $5,000,000 or an integral multiple
thereof and shall be applied pro rata among the Secondary Purchasers according
to their Pro Rata Shares; provided, further, that any partial reduction of the
Commitment for any Secondary Purchaser must not result in a remaining Commitment
of less than $25,000,000 or the Commitment for such Secondary Purchaser shall be
reduced to zero. Any reductions in the Commitment pursuant to this subsection
(b) shall be permanent.
(c) The Seller may, upon at least five Business Days' written notice to
the Administrative Agent and the Secondary Purchasers specifying an Optional
Reduction Amount and an Optional Reduction Effective Date, effect an Optional
Reduction. Commencing on the Optional Reduction Effective Date, the Collection
Agent shall cease the reinvestment of Collections for a period of time such that
after giving effect to the amount of Collections which are not reinvested in
accordance with the provisions of Section 2.04(b)(ii), the amount of Total
Aggregate Capital on the day immediately preceding the Optional Reduction
Effective Date is reduced by an amount equal to the Optional Reduction Amount.
Any Optional Reduction under this subsection (c) shall be applied pro rata among
the Secondary Purchasers according to their Pro Rata Shares. The Seller shall
indemnify any Secondary Purchaser for all losses, expenses and liabilities, if
any (including, without limitation, any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds required by any
Secondary Purchaser in connection with such Secondary Purchaser's funding or
maintenance of the Receivable Interests), which such Secondary Purchaser may
sustain as a result of any Optional Reduction pursuant to this subsection (c).
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(d) The Secondary Purchasers recognize and agree that their respective
Pro Rata Shares shall be reallocated in accordance with any reallocation of the
"Pro Rata Shares" of the Purchasers under the Primary Purchase Agreement. If, as
a result of any reallocation, a Secondary Purchaser's Aggregate Capital exceeds
its Pro Rata Share (as reallocated) of the Commitment, such Secondary Purchaser
shall transfer a Receivable Interest or Receivables Interest computed on the
basis of such excess Capital to the Secondary Purchaser or Secondary Purchasers
whose Pro Rata Share has increased as a result of such reallocation in exchange
for a cash payment in an amount equal to the aggregate Capital of the Receivable
Interests so transferred.
(e) The Seller may, upon thirty days' prior written notice to the
Administrative Agent and the Secondary Purchasers and the written signed consent
of the Administrative Agent and the Secondary Purchasers, cease purchasing
Receivables from any Originator, and after the Seller ceases purchasing
Receivables from such Originator, such Originator shall no longer have the
obligations of an Originator for all purposes of this Agreement other than with
respect to those obligations which are expressly intended to survive the
termination of this Agreement, including, without limitation, the indemnities
contained in Section 8.01 as incorporated by reference in the Consent and
Acknowledgement to which such Originator is a party. If, as a result of the
Seller's decision to cease purchasing Receivables from any Originator, the
Required Secondary Purchasers determine, in their sole discretion, that the
Events of Termination in Section 7.01(j) are no longer reasonable or protective,
the Required Secondary Purchasers may modify the provisions of such Section
7.01(j) with the consent of the Seller (which consent shall not be unreasonably
withheld or delayed).
(f) The Seller may, upon thirty days' prior written notice to the
Administrative Agent and the Secondary Purchasers and the written signed consent
of the Administrative Agent and the Secondary Purchasers (which consent shall
not be unreasonably withheld or delayed), cease purchasing from any Originator
all Receivables generated by any division of such Originator (an "Originator
Division"), and after the Seller ceases purchasing from such Originator
Division, all Receivables generated by such Originator Division, any agreement
arising thereafter between such Originator and an Obligor pursuant to or under
which such Obligor shall be obligated to pay for merchandise, insurance or
services provided by such Originator Division, shall not be a "Contract" for
purposes of this Agreement; provided, that any Contract generated by such
Originator Division prior to the date the Seller ceases purchasing such
Originator Division's Receivables shall remain a "Contract" under this
Agreement. If, as a result of the Seller's decision to cease purchasing from any
Originator all Receivables generated by an Originator Division pursuant to this
Section 2.01(f), the Required Secondary Purchasers determine, in their sole
discretion, that the Events of Termination in Section 7.01(j) are no longer
reasonable or protective, the Required Secondary Purchasers may modify the
provisions of such Section 7.01(j) with the consent of the Seller (which consent
shall not be unreasonably withheld or delayed).
(g) The Seller may, upon ninety days' prior written notice to the
Administrative Agent and the Secondary Purchasers and the written signed consent
of the Administrative Agent and the Secondary Purchasers, commence purchasing
from
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any Originator all Receivables generated by any Originator Division, and after
the Seller commences purchasing from such Originator all Receivables generated
by such Originator Division, all related agreements between the Originator and
an Obligor pursuant to or under which such Obligor shall be obligated to pay for
merchandise, insurance or service provided by such Originator Division shall be
"Contracts" for purposes of this Agreement. If, as a result of the Seller's
decision to commence purchasing from any Originator all Receivables generated by
an Originator Division pursuant to this Section 2.01(g), the Required Secondary
Purchasers determine, in their sole discretion, that the Events of Termination
in Section 7.01(j) are no longer reasonable or protective, the Required
Secondary Purchasers may modify the provisions of such Section 7.01(j) with the
consent of the Seller (which consent shall not be unreasonably withheld or
delayed).
(h) If Georgia-Pacific sells or otherwise conveys or disposes of the
stock of any Originator, upon the effective date of such sale, such Originator
shall no longer be an Originator under the Primary Purchase Agreement; provided,
that if the Required Secondary Purchasers determine, in their sole discretion,
that the Events of Termination in Section 7.01(j) are no longer reasonable or
protective as a result of such sale, the Required Secondary Purchasers may
modify the provisions of such Section 7.01(j) with the consent of the Seller
(which consent shall not be unreasonably withheld or delayed).
(i) The Expiration Date shall be 364 days from the date hereof;
provided, that the Expiration Date may be extended for an additional 364-day
period at the end of each 364-day period from the date hereof if the Seller
gives each Secondary Purchaser written notice not later than 90 days prior to
each such period (beginning with the first such period) and each Secondary
Purchaser provides the Seller with its written consent to such extension not
later than 60 days after receipt of the Seller's notice; provided, however, that
such extension of the Expiration Date shall not occur unless each Purchaser
consents to similarly extend the "Facility Termination Date" of the Primary
Purchase Agreement.
SECTION 2.02 Making Purchases.
(a) Each Purchase shall be made on at least three Business Days' notice
from the Seller to each Secondary Purchaser. Each such notice shall specify (i)
the amount requested to be paid to the Seller (which shall not be less than
$5,000,000), and (ii) the date of such Purchase (which shall be a Business Day).
Any notice from the Seller to a Related Purchaser to make a "Purchase" under the
Primary Purchase Agreement shall be deemed to satisfy the notice provisions
hereof. No Secondary Purchaser shall be responsible for any failure by any other
Secondary Purchaser to perform its obligations to make a Purchase hereunder nor
shall the Commitment of any Secondary Purchaser be increased or decreased as a
result of such failure.
(b) On the date of each Purchase, each Secondary Purchaser shall, upon
satisfaction of the applicable conditions set forth in Section 3.01 and Section
3.02, make available to the Seller in same day funds, at the Seller's account
with Bank One, account number 10-31343, an amount equal to the initial Capital
of such Receivable Interest purchased by such Secondary Purchaser. Each notice
given by the Seller pursuant to
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subsection (a) above (other than a notice given under the Primary Purchase
Agreement which is deemed to be notice hereunder) shall be irrevocable and
binding on the Seller and the Seller shall indemnify each Secondary Purchaser
against any loss or expense incurred by such Secondary Purchaser as a result of
any failure by the Seller to accept the amount requested to be paid by such
Secondary Purchaser, including, without limitation, any loss (including loss of
anticipated profits) or expense incurred by such Secondary Purchaser by reason
of the liquidation or reemployment of funds acquired or requested by such
Secondary Purchaser to fund such requested amount.
(c) Each Secondary Purchaser hereby agrees that it may, in its sole
discretion, subject to the satisfaction of the applicable conditions set forth
in Section 3.01 and Section 3.02 hereof and upon the request of such Secondary
Purchaser's Related Purchaser, acquire by assignment from such Related Purchaser
any "Receivable Interest" owned and maintained by such Related Purchaser under
the Primary Purchase Agreement. The Seller hereby agrees that each such
acquisition, if any, shall be considered to be a Purchase requested by the
Seller for all purposes hereunder other than with respect to the obligation of
the Secondary Purchasers to deliver funds to the Seller in respect of such
acquisition and with respect to the requirement of three Business Days' notice
of a Purchase being given by the Seller. The Seller hereby acknowledges that the
Secondary Purchasers may provide Liquidity Facilities to such Secondary
Purchaser's Related Purchaser and nothing in this Section 2.02(c) shall preclude
the assignment by a Purchaser to such Secondary Purchaser under a Liquidity
Facility of any such "Receivable Interest" in accordance with the terms and
conditions thereof.
SECTION 2.03 Incorporation by Reference. Section 2.03 of the Primary
Purchase Agreement is hereby incorporated herein by reference, except that each
reference therein to the "Reinvestment Termination Date" shall be deemed to be a
reference to the "Facility Termination Date".
SECTION 2.04 Incorporation by Reference. Section 2.04 of the Primary
Purchase Agreement is hereby incorporated herein by reference.
SECTION 2.05 Fees. The Seller shall pay to the Secondary Purchasers
fees in the amounts and at the times specified in the Fee Letter.
(a) The Collection Agent (if other than the Seller) shall be paid a
Collection Agent Fee as set forth in Section 6.06 hereof.
(b) The Seller shall pay to the Administrative Agent a fee as
separately agreed between the Seller and the Administrative Agent.
SECTION 2.06 Incorporation by Reference. Section 2.06 of the Primary
Purchase Agreement is hereby incorporated herein by reference.
SECTION 2.07 Incorporation by Reference. Section 2.07 of the Primary
Purchase Agreement is hereby incorporated herein by reference.
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SECTION 2.08 Yield Protection.
(a) If, after the date hereof, the adoption of any applicable law, rule
or regulation, or any change therein, including Regulation D of the Board of
Governors of the Federal Reserve System, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Secondary Purchaser or any Person controlling any Secondary Purchaser, or
any permitted assignee under this Agreement (each of which being an "Affected
Party") with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency,
(A) shall subject an Affected Party to any tax (except for taxes
on the overall net income of such Affected Party), duty or other charge with
respect to the Receivable Interests or any right to make purchases, or shall
change the basis of taxation of payments to an Affected Party of its Capital or
Yield or any other amounts due under this Agreement in respect of its Capital or
its rights, if any, to make purchases; or
(B) shall impose, modify or deem applicable any reserve
requirement (including, without limitation, any reserve requirement imposed by
the Board of Governors of the Federal Reserve System, but excluding any reserve
requirement, if any, included in the determination of Yield), special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Affected Party; or
(C) shall impose any other condition affecting the Receivable
Interests or the Secondary Purchaser's rights, if any, to make purchases;
and the result of any of the foregoing is (i) to increase the cost to, or, in
the case of Regulation D referred to above, to impose a cost on an Affected
Party funding or making or maintaining any Receivable Interest, or (ii) to
reduce the amount of any sum received or receivable by an Affected Party under
this Agreement with respect thereto, then within ten days after demand by such
Affected Party (which demand shall be accompanied by a statement setting forth
the basis for such demand), the Seller shall pay directly to such Affected Party
such additional amount or amounts as will compensate such Affected Party for
such additional or increased cost incurred or such reduction suffered.
(b) If an Affected Party shall reasonably determine that the adoption
of any applicable law, rule, regulation, directive or guideline regarding
capital adequacy, or any change in or phase-in of any applicable law, rule,
regulation, directive or guideline or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by an Affected
Party with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on the
capital of any Affected Party as a consequence of its obligations hereunder or
arising in connection herewith to a level below that which any such Affected
Party could have
10
achieved but for such adoption, change or compliance (taking into consideration
the policies of such Affected Party with respect to capital adequacy) by an
amount deemed by such Affected Party to be material, then from time to time,
within ten days after demand by such Affected Party, the Seller shall pay to
such Affected Party such additional amount or amounts as will compensate such
Affected Party for such reduction.
(c) Each Affected Party will promptly notify the Seller of any event of
which it has knowledge occurring after the date hereof which will entitle such
Affected Party to compensation pursuant to this Section 2.08. If an Affected
Party fails to give such notice within 90 days after it obtains actual knowledge
of such event and such result, such Affected Party shall be entitled to
compensation pursuant to this Section 2.08 only to the extent such additional
amount or reduction accrues on or after the date 90 days prior to the date on
which such Affected Party gives such notice.
(d) In determining any amount provided for in this Section 2.08, the
Affected Party may use any reasonable averaging and attribution methods. Any
Affected Party making a claim under this Section 2.08 shall submit to the Seller
a certificate as to such additional or increased cost or reduction, which
certificate shall be conclusive absent demonstrable error; provided, that the
failure to deliver any such certificate shall not affect the Affected Party's
right to payment hereunder unless notice as required by Section 2.08(c) has not
been given.
SECTION 2.09 Incorporation by Reference. Section 2.09 of the Primary
Purchase Agreement is hereby incorporated herein by reference.
SECTION 2.10 Incorporation by Reference. Section 2.10 of the Primary
Purchase Agreement is hereby incorporated herein by reference.
ARTICLE III.
CONDITIONS OF PURCHASES
SECTION 3.01 Conditions Precedent to Initial Purchase. The initial
Purchase of Receivable Interests under this Agreement is subject to the
conditions precedent that the Secondary Purchasers shall have received on or
before the date of such Purchase the following, each (unless otherwise
indicated) dated such date and in form and substance satisfactory to the
Secondary Purchasers and the Administrative Agent:
(a) Certificates of the Secretary or Assistant Secretary of the Seller
and each Originator certifying the names and true signatures of their respective
officers authorized to sign this Agreement, the Certificates and the other
documents to be delivered by them hereunder or in connection herewith, evidence
of corporate authorization of the transactions contemplated hereby, the articles
of incorporation (attached and appropriately certified by the Secretary of State
of the Seller's and each Originator's jurisdiction of incorporation) and the
by-laws and all amendments thereto of the Seller and each Originator.
11
(b) Executed financing statements (including any assignments of and
amendments to financing statements previously filed), to be filed on or before
the date of such initial Purchase under the UCC of all jurisdictions that the
Secondary Purchasers or the Administrative Agent may deem necessary or desirable
in order (i) to perfect the ownership interests contemplated by this Agreement
and (ii) to perfect the ownership interests of the Seller in the receivables
purchased by the Seller from the Originators pursuant to the Transfer
Agreements.
(c) Executed UCC termination statements, if any, necessary to release
all security interests and other rights of any Person (other than the Purchasers
and the Secondary Purchasers) in the Receivables, Contracts or Related Security
previously granted by the Seller or any Originator.
(d) Evidence (including Uniform Commercial Code search reports) that
all Receivables and all proceeds thereof are free and clear of liens, security
interests, claims and encumbrances other than those held by the Purchasers and
the Secondary Purchasers.
(e) An executed Transfer Agreement and Consent and Acknowledgment from
each Originator.
(f) [Notices, in form and substance satisfactory to the Secondary
Purchasers, to the Lock-Box Banks with respect to the interest of the Purchasers
in the Receivables.]
SECTION 3.02 Conditions Subsequent. The Seller shall, no later than
November 1, 1999, deliver to the Secondary Purchasers and the Administrative
Agent:
(a) A favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Seller
and the Originators, in form and substance reasonably satisfactory to the
Secondary Purchasers.
(b) A favorable opinion of local counsel for each Originator, in form
and substance reasonably satisfactory to the Secondary Purchasers.
SECTION 3.03 Conditions Precedent to All Purchases and Reinvestments.
Each Purchase (including the initial Purchase and each acceptance of an
assignment pursuant to Section 2.02(c) hereof) and each reinvestment shall be
subject to the further conditions precedent that (a) in the case of each
Purchase, the Collection Agent shall have delivered to the Secondary Purchasers
and the Administrative Agent on or prior to the date of such Purchase, in form
and substance satisfactory to the Secondary Purchasers, all Investor Reports as
and when due under Section 6.02(g) and, on or prior to the date of the initial
Purchase, an Investor Report containing then current information acceptable to
the Secondary Purchasers, and (b) on the date of each Purchase or reinvestment,
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):
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(i) the representations and warranties contained in Article IV are
correct on and as of the date of such Purchase or reinvestment as though made on
and as of such date,
(ii) no event has occurred and is continuing, or would result from such
Purchase or reinvestment, that constitutes an Event of Termination or a
Potential Termination Event,
(iii) the Facility Termination Date shall not have occurred,
(iv) the Internal Revenue Service shall not have filed a notice of lien
pursuant to Section 6323 of the Code with regard to any assets of the Seller or
any Originator, and the Pension Benefit Guaranty Corporation shall not have
filed a notice of lien pursuant to Section 4068 of ERISA with regard to any
assets of the Seller or any Originator, unless such liens (1) have been
suspended or (2) are being contested in good faith by the Seller or such
Originator and have been bonded in the full amount thereof; provided, however,
that with respect to any Originator, the amount of such lien shall be greater
than $50,000,000, and
(v) the Related Purchaser shall have failed to make a "Purchase" of
like amount, term and tenor which was requested by the Seller, or shall have
ceased to make reinvestments, in either case under the Primary Purchase
Agreement,
and (c) the Secondary Purchasers shall have received such other approvals,
opinions or documents as they may reasonably request.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Incorporation by Reference. Article IV of the Primary
Purchase Agreement is hereby incorporated herein by reference, except that each
reference to the "Secondary Purchase Agreement" shall be deemed to be a
reference to the "Primary Purchase Agreement."
ARTICLE V.
COVENANTS
SECTION 5.01 Incorporation by Reference. Article V of the Primary
Purchase Agreement is hereby incorporated herein by reference, except that each
reference therein to the "Secondary Purchase Agreement" shall be deemed to be a
reference to the "Primary Purchase Agreement."
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ARTICLE VI.
ADMINISTRATION AND COLLECTION
SECTION 6.01 Designation of Collection Agent. The administration and
collection of the Pool Receivables shall be conducted by such Person (the
"Collection Agent") so designated from time to time in accordance with this
Section 6.01. Georgia-Pacific is hereby designated as, and hereby agrees to
perform the duties and obligations of, the Collection Agent pursuant to the
terms of this Agreement. The Secondary Purchasers may at any time designate as
Collection Agent any Person (including a Secondary Purchaser or a Purchaser) to
succeed Georgia-Pacific or any successor Collection Agent, if such Person shall
consent and agree to the terms hereof. Unless the Required Secondary Purchasers
determine in their sole discretion that it would be impractical or inadvisable
to do so, the Secondary Purchasers shall give the Seller and the Collection
Agent at least five Business Days' notice of any such designation. The
Collection Agent may, with the prior consent of the Secondary Purchasers,
subcontract with any other Person for the administration and collection of all
or a significant portion of the Pool Receivables; provided, that the Collection
Agent may, so long as it is the Seller, subcontract with an Originator for the
administration and collection of the Pool Receivables without the consent of the
Secondary Purchasers; provided, further, that Georgia-Pacific may, without the
consent of the Secondary Purchasers, subcontract with any other Person for the
administration and collection of Pool Receivables as authorized by the Credit
and Collection Policy. Any such subcontract shall not affect the Collection
Agent's liability for performance of its duties and obligations pursuant to the
terms hereof.
SECTION 6.02 Duties of Collection Agent.
(a) The Collection Agent shall take or cause to be taken all such
actions as may be necessary or advisable to collect each Pool Receivable from
time to time, all in accordance with applicable laws, rules and regulations,
with reasonable care and diligence, and in accordance with the Credit and
Collection Policy. Each of the Seller, each Secondary Purchaser and the
Administrative Agent hereby appoints the Collection Agent, from time to time
designated pursuant to Section 6.01 hereof, as agent for itself and for the
owners of Receivable Interests to enforce their respective rights and interests
in the Pool Receivables, the Related Security and the related Contracts.
(b) The Collection Agent shall administer the Collections in accordance
with the procedures described herein and in Section 2.04. The Collection Agent
shall set aside and hold in trust for the account of the Seller and each
Secondary Purchaser, their respective shares of the Collections of Pool
Receivables in accordance with Section 2.04 but shall not be required, except
either upon the request of the Administrative Agent acting at the direction of
the Required Secondary Purchasers or upon the occurrence and during the
continuance of an Event of Termination or a Potential Termination Event, to
segregate the funds constituting each Secondary Purchaser's share of such
Collections from the general funds of the Collection Agent or the Seller prior
to the remittance thereof in accordance with Section 2.04. If the Collection
Agent shall be required to segregate Collections pursuant to the proceeding
sentence, the Collection Agent shall segregate and deposit with a bank (which
may be CIBC, Citibank or Bank
14
One) designated by each Secondary Purchaser such allocable share of Collections
of Pool Receivables set aside for such Secondary Purchaser on the first Business
Day following receipt by the Collection Agent of such Collections.
(c) If no Event of Termination or Potential Termination Event shall
have occurred, the Collection Agent, may, in accordance with the Credit and
Collection Policy, extend the maturity or adjust the Outstanding Balance of any
Receivable as the Collection Agent deems appropriate to maximize Collections in
respect thereof; provided, that the extension or adjustment by the Collection
Agent of a Receivable which is a Defaulted Receivable or a Delinquent Receivable
shall not change the status of such Receivable for purposes of this Agreement.
(d) The Collection Agent shall hold in trust for the Seller and the
Secondary Purchasers, in accordance with their respective interests, all Records
that evidence or relate to Pool Receivables and shall, as soon as practicable
upon demand of the Administrative Agent acting at the direction of the Required
Secondary Purchasers, deliver or make available to the Administrative Agent all
Records in its possession which evidence or relate to Pool Receivables.
(e) The Collection Agent, shall as soon as practicable following
receipt thereof, turn over to the Seller (i) that portion of Collections of Pool
Receivables representing the Seller's undivided fractional ownership interest
therein, less all reasonable out-of-pocket costs and expenses of the Collection
Agent of servicing, administering and collecting the Pool Receivables to the
extent not covered by the Collection Agent Fee received by it, and (ii) any cash
collections or other cash proceeds received with respect to Receivables not
constituting Pool Receivables.
(f) The Collection Agent shall, from time to time at the request of a
Secondary Purchaser, furnish to such Secondary Purchaser (promptly after any
such request) a calculation of the amounts set aside for such Secondary
Purchaser pursuant to Section 2.04 hereof.
(g) On or prior to each Investor Report Date, the Collection Agent
shall prepare and forward to each Secondary Purchaser and the Administrative
Agent (i) an Investor Report relating to each Receivable Interest outstanding on
the immediately preceding Settlement Date, and (ii) if requested by a Secondary
Purchaser, a listing by Obligor of all Pool Receivables outstanding on such
Settlement Date, together with an analysis of the aging of such Pool Receivables
by Obligor and such additional information as may be reasonably requested by
such Secondary Purchaser. Prior to the occurrence of an Event of Termination or
a Potential Termination Event, the Collection Agent will use its best efforts to
provide the Secondary Purchasers and the Administrative Agent with the
information in clauses (i) and (ii) above on a more frequent basis if reasonably
requested by the Required Secondary Purchasers. Following an Event of
Termination or a Potential Termination Event, the Collection Agent will provide
the Secondary Purchasers and the Administrative Agent with the information in
clauses (i) and (ii) above on a more frequent basis if required by the Required
Secondary Purchasers.
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(h) The Collection Agent will, to the extent permitted by applicable
law and with respect to any amount not paid by the Collection Agent when
required to be paid hereunder, pay on demand interest to each Secondary
Purchaser at a rate per annum equal to 2% above the Base Rate, provided,
however, that such interest rate will not at any time exceed the maximum rate
permitted by applicable law.
(i) The Collection Agent's authorization under this Agreement will
terminate after the Facility Termination Date, upon payment in full of all
amounts payable to the Secondary Purchasers and the Collection Agent under this
Agreement.
SECTION 6.03 Rights of the Administrative Agent.
(a) Upon five days notice to the Seller, unless the Required Secondary
Purchasers determine in their sole discretion that it would be impracticable or
inadvisable to give such notice, the Administrative Agent at the direction of
the Required Secondary Purchasers is authorized at any time to date and to
deliver to the Lock-Box Banks, the Lock-Box Notices, to the Depositary Banks,
the Depositary Notices and to the Concentration Banks, the Concentration Notices
delivered hereunder. The Seller hereby transfers to the Administrative Agent,
effective when the Administrative Agent delivers such Lock-Box Notices, such
Depositary Notices or such Concentration Notices, as the case may be, the
exclusive ownership and control of such Lock-Box Accounts, such Depositary
Accounts or such Concentration Accounts. The Seller shall, and shall cause each
Originator to, take any actions reasonably requested by the Administrative Agent
to effect such transfer. In case any authorized signatory of the Seller or any
Originator whose signature appears on a Lock-Box Notice, a Depositary Notice or
a Concentration Notice shall cease to have such authority before the delivery of
such Lock-Box Notice, such Depositary Notice or a Concentration Notice, such
signature shall nevertheless be valid as if such authority had remained in
force. The Administrative Agent at the direction of the Required Secondary
Purchasers may notify the Obligors of Pool Receivables, at any time and at the
Seller's expense, of the ownership of Receivable Interests under this Agreement
and may also direct that payments of all amounts due or that become due under
any or all Receivables be made directly to the Administrative Agent or its
designee. In furtherance of the foregoing, the Administrative Agent shall, upon
the direction of the Required Secondary Purchasers, be entitled to take all such
actions as it deems necessary or advisable to exercise dominion and control over
the collection and servicing of the Pool Receivables including such action as
shall be necessary or desirable to cause all cash, checks and other instruments
constituting Collections of Pool Receivables to come into the possession of the
Administrative Agent rather than the Seller. Unless the Required Secondary
Purchasers determine in their sole discretion that it would be impractical or
inadvisable to do so, the Secondary Purchasers must give the Seller five days
prior notice of any such action.
(b) At any time following the designation of a Collection Agent other
than Georgia-Pacific pursuant to Section 6.01:
(i) The Administrative Agent may, and at the direction of the
Required Secondary Purchasers shall, direct the Obligors of Pool
Receivables that
16
all payments thereunder be made directly to the Administrative Agent or
its designee.
(ii) The Seller shall, and shall cause each Originator to, at
the Administrative Agent's request and at the expense of the Seller and
the Originators, notify each Obligor of Pool Receivables of the
ownership of Receivable Interests under this Agreement and direct that
payments be made directly to the Administrative Agent or a designee of
the Administrative Agent approved by the Required Secondary Purchasers.
(iii) The Seller shall, and shall cause each Originator to, at
the Administrative Agent's request (which shall be at the direction of
the Required Secondary Purchasers) and at the expense of the Seller and
the Originators, (A) assemble all of the Records that evidence or
relate to the Pool Receivables, and the related Contracts and Related
Security, or that are otherwise necessary or desirable to collect the
Pool Receivables, and shall make the same available to the
Administrative Agent or its designee, at a place selected by the
Administrative Agent, and (B) segregate all cash, checks and other
instruments received by it from time to time constituting Collections
of Pool Receivables in a manner acceptable to the Administrative Agent
and the Required Secondary Purchasers and, promptly upon receipt, remit
all such cash, checks and instruments, duly endorsed or with duly
executed instruments of transfer, to the Administrative Agent or its
designee.
(iv) The Seller hereby authorizes the Administrative Agent to
take any and all steps in the Seller's name and on behalf of the Seller
that are necessary or desirable, in the determination of the
Administrative Agent and the Required Secondary Purchasers, to collect
amounts due under the Pool Receivables, including, without limitation,
endorsing the Seller's name on checks and other instruments
representing Collections of Pool Receivables and enforcing the Pool
Receivables and the Related Security and related Contracts.
SECTION 6.04 Responsibilities of the Seller. Anything herein to the
contrary notwithstanding:
(a) The Seller shall, and shall cause each Originator to, perform its
obligations under the Contracts related to the Pool Receivables to the same
extent as if Receivable Interests and Receivables had not been sold and the
exercise by the Administrative Agent and by the Secondary Purchasers of their
rights hereunder shall not release the Collection Agent, the Seller or any
Originator from any of their duties or obligations with respect to any Pool
Receivables or under the related Contracts; and
(b) Neither the Administrative Agent nor the Secondary Purchasers shall
have any obligation or liability with respect to any Pool Receivables or related
Contracts, nor shall any of them be obligated to perform the obligations of the
Seller or any Originator thereunder.
SECTION 6.05 Further Actions Evidencing Purchases.
17
(a) The Seller shall, and shall cause each Originator to, from time to
time, at their expense, promptly execute and deliver all further instruments and
documents, and take all further actions, that may be necessary or desirable, or
that the Administrative Agent or any Secondary Purchaser may reasonably request,
to perfect, protect or more fully evidence the Receivable Interests purchased
hereunder, or to enable any Secondary Purchaser or the Administrative Agent to
exercise and enforce their respective rights and remedies hereunder. Without
limiting the foregoing, the Seller and each Originator will upon the request of
any Secondary Purchaser or the Administrative Agent (i) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments and documents, that may be necessary or desirable, or that any
Secondary Purchaser or the Administrative Agent may reasonably request, to
perfect, protect or evidence such Receivable Interests; (ii) ▇▇▇▇ conspicuously
each invoice evidencing each Pool Receivable and the related Contract with a
legend, acceptable to the Secondary Purchasers, evidencing that Receivable
Interests therein have been sold; and (iii) ▇▇▇▇ its master data processing
records evidencing such Pool Receivables and related Contracts with a legend,
acceptable to the Secondary Purchasers, evidencing that Receivable Interests
therein have been sold; provided that the actions specified in clauses (ii) and
(iii) may be directed by the Required Secondary Purchasers or the Administrative
Agent only upon the occurrence of an Event of Termination or a Potential
Termination Event.
(b) The Seller authorizes the Administrative Agent to file financing or
continuation statements, and amendments thereto, relating to the Pool
Receivables and the Related Security, the related Contracts and the Collections
with respect thereto without the signature of the Seller where permitted by law.
A photocopy or other reproduction of this Agreement shall be sufficient as a
financing statement where permitted by law.
(c) If the Collection Agent fails to perform any of its obligations
hereunder, any Secondary Purchaser or the Administrative Agent may (but shall
not be required to) perform, or cause performance of, such obligation; and such
Secondary Purchaser's or the Administrative Agent's costs and expenses incurred
in connection therewith shall be payable by the Seller (if the Collection Agent
that fails to so perform is Georgia-Pacific or an Affiliate thereof) as provided
in Section 8.01 or Section 9.04, as applicable.
SECTION 6.06 Collection Agent Fee. The Collection Agent shall be paid a
collection fee (the "Collection Agent Fee") of 1% per annum on the average daily
amount of the Total Aggregate Capital payable monthly in arrears on each
Settlement Date. The Collection Agent Fee shall be payable only from Collections
pursuant to, and subject to the priority of payment set forth in, Section 2.04.
Notwithstanding anything contained in this Section 6.06 to the contrary, the
Collection Agent Fee payable hereunder shall be reduced to the extent and in the
amount of the "Collection Agent Fee" paid to the Collection Agent under the
Primary Purchase Agreement.
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ARTICLE VII.
EVENTS OF TERMINATION
SECTION 7.01 Incorporation by Reference; Additional Events of
Termination. If any of the events specified in subsection (a) or subsection (b)
below ("Events of Termination") shall occur and be continuing:
(a) The text set forth in Sections 7.01(a) through (q) of the Primary
Purchase Agreement is incorporated herein by reference as if set forth herein in
its entirety, except that each reference to the "Secondary Purchase Agreement"
shall be deemed to be a reference to the "Primary Purchase Agreement", each use
of the word "hereunder", "hereof" or "herein" shall be deemed to be a reference
to this Agreement and any reference to a "Purchaser", the "Required Purchasers"
or the "Purchasers" shall be deemed to be a reference to a "Secondary
Purchaser", the "Required Secondary Purchasers" or the "Secondary Purchasers");
or
(b) the occurrence or declaration of an "Event of Termination" under
the Primary Purchase Agreement, unless cured or waived;
then, and in any such event, at the direction of the Required Secondary
Purchasers, the Administrative Agent shall, by notice to the Seller, take either
or both of the following actions: (x) declare the Facility Termination Date to
have occurred (in which case the Facility Termination Date shall be deemed to
have occurred), and (y) designate another Person to succeed Georgia-Pacific as
the Collection Agent, subject to the approval of the Secondary Purchasers;
provided, that automatically upon the occurrence of any event (without any
requirement for the passage of time or the giving of notice) described in
subsection (i) of this Section 7.01, the Facility Termination Date shall occur.
Upon any such declaration or designation or upon any such automatic termination,
(i) each Receivables Pool shall be fixed as of the Business Day immediately
preceding the Facility Termination Date and the Collection Agent shall prepare
and forward to each Secondary Purchaser and the Administrative Agent, within one
Business Day after the Facility Termination Date, an Investor Report relating to
each Receivable Interest outstanding on the Business Day immediately preceding
the Facility Termination Date, and (ii) the Secondary Purchasers and the
Administrative Agent shall have, in addition to the rights and remedies which
they may have under this Agreement, all other rights and remedies provided after
default under the UCC and under other applicable law, which rights and remedies
shall be cumulative.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.01 Indemnities by the Seller. Without limiting any other
rights that the Administrative Agent or the Secondary Purchasers or any
Affiliate thereof and their respective officers, directors, employees and agents
(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, losses and liabilities (including reasonable attorneys fees and
expenses) (all of the foregoing being collectively referred
19
to as "Indemnified Amounts") arising out of or resulting from this Agreement or
the use of proceeds of purchases or reinvestments or the ownership of Receivable
Interests or in respect of any Receivable or any Contract, excluding, however,
(a) Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnified Party, (b) recourse for uncollectible
Receivables (except to the extent the Buyer has recourse against the Seller with
respect to such Receivable on grounds other than the noncollectability of the
Receivable) or (c) except as set forth below, any income taxes incurred by such
Indemnified Party arising out of or as a result of this Agreement or the
ownership of Receivable Interests or in respect of any Receivable or any
Contract. Without limitation of the generality of the foregoing, the Seller
shall pay on demand 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 creation of a Receivable Interest in any Pool
Receivable which is not at the date of the creation of such Receivable
Interest an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed
made by the Seller or any Originator (or any of their respective
Responsible Officers) or any statement made by any Responsible Officer
of the Seller or any Originator under or in connection with this
Agreement which shall have been incorrect when made;
(iii) the failure by the Seller or any Originator to comply
with any applicable law, rule or regulation;
(iv) the failure to vest in a Secondary Purchaser an undivided
percentage ownership interest, to the extent of such Secondary
Purchaser's Receivable Interest, in the Receivables (including, without
limitation, Receivables of Government Obligors) in, or purporting to be
in, the Receivables Pool and the Related Security and Collections in
respect thereof, free and clear of any Adverse Claim other than as
authorized hereunder;
(v) the failure to vest in the Seller all right, title and
interest in the Receivables purchased by the Seller from any Originator
pursuant to a Transfer Agreement, free and clear of any Adverse Claim
other than as authorized hereunder;
(vi) 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 under applicable law with
respect to the assignment of Receivables of Government Obligors or
other applicable laws with respect to any Receivables in, or purporting
to be in, the Receivables Pool and the Related Security and Collections
in respect thereof, whether at the time of any purchase or reinvestment
or at any subsequent time;
20
(vii) 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, without limitation, a defense based on such Receivable or
the related Contract not being a legal, valid and binding obligation of
such Obligor enforceable against it in accordance with its terms), or
any other claim resulting from the sale of the merchandise or service
related to such Receivable or the furnishing or failure to furnish such
merchandise or services;
(viii) any failure of the Seller or the Collection Agent (if
Georgia-Pacific or an Affiliate thereof), to perform their respective
duties or obligations in accordance with the provisions of this
Agreement;
(ix) any products liability claim arising out of or in
connection with merchandise, insurance or services which are the
subject of any Contract;
(x) any loss incurred by any Secondary Purchaser as a result
of the Outstanding Balance of all Pool Receivables from the same
Obligor, expressed as a percentage of the aggregate Outstanding Balance
of Eligible Receivables, being in excess of the Concentration Limit or,
if applicable, Special Concentration Limit for such Obligor;
(xi) the commingling of Collections of Pool Receivables at any
time with other funds;
(xii) any action or omission by the Seller or the Collection
Agent (if Georgia-Pacific or an Affiliate thereof), reducing or
impairing the rights of a Secondary Purchaser with respect to any Pool
Receivable or the value of any Pool Receivable, except in accordance
with the Credit and Collection Policy;
(xiii) any failure of the Seller to give reasonably equivalent
value to any Originator in consideration of the transfer by such
Originator to the Seller of any Receivables, or any attempt by any
Person to void any such transfer under statutory provisions or common
law or equitable action, including, without limitation, any provision
of the Bankruptcy Code;
(xiv) any reductions in the amount of a Pool Receivable the
Obligor of which is a Government Obligor, and the Related Security and
Collections with respect thereto, as the result of appropriation by the
government or the inability to collect any amount from a Government
Obligor;
(xv) any inability to collect the full Outstanding Balance of
a Pool Receivable which was entitled to an Administrative Priority as a
result of the Obligor's bankruptcy and which was included as an
Eligible Receivable as a result of such Administrative Priority;
(xvi) any investigation, litigation or proceeding related to
or arising from this Agreement, the transactions contemplated hereby,
the use of the
21
proceeds of the Purchase, the ownership of the Receivable Interests or
any Pool Receivable, Related Security or Contract or any other
investigation, litigation or proceeding relating to the Seller or any
Originator in which any Indemnified Party becomes involved as a result
of any of the transactions contemplated hereby;
(xvii) all losses, expenses and liabilities, if any
(including, without limitation, any loss or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired
by any Secondary Purchaser in connection with such Secondary
Purchaser's funding or maintenance of the Receivable Interests) which
such Secondary Purchaser may sustain as the result of the termination
or reduction of any Receivable Interest or the failure by the Seller or
the Collection Agent (if Georgia-Pacific or an Affiliate thereof) to
make any payment of Capital when due;
(xviii) any inability to litigate any claim against any
Obligor in respect of any Pool Receivable as a result of such Obligor
being immune from civil and commercial law and suit on the grounds of
sovereignty or otherwise from any legal action, suit or proceeding;
(xix) any Event of Termination described in clause (i) of
SECTION 7.01;
(xx) a Year 2000 Problem with respect to hardware or software
systems used by the Seller or the Collection Agent; or
(xxi) any loss incurred by any Secondary Purchaser on any Pool
Receivable of a Government Obligor.
SECTION 8.02 Contribution. If for any reason the indemnification
provided above in SECTION 8.01 (and subject to the exceptions set forth therein)
is unavailable to an Indemnified Party or is insufficient to hold an Indemnified
Party harmless, then the Seller shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, claim or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by such Indemnified Party on the one hand and the Seller on the other hand but
also the relative fault of such Indemnified Party as well as any other relevant
equitable considerations.
ARTICLE IX.
THE ADMINISTRATIVE AGENT
SECTION 9.01 Authorization and Action. Each Secondary Purchaser hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement, the Administrative Agent shall not be required to exercise any
discretion or take any action,
22
but shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of any
Secondary Purchaser, the Required Secondary Purchasers or all of the Secondary
Purchasers (and all references in this Agreement to the "Secondary Purchasers"
shall be deemed to mean "all of the Secondary Purchasers") as provided by this
Agreement and such instructions shall be binding upon all parties hereto and all
assignees of the Secondary Purchasers; provided, however, that the
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this
Agreement or applicable law. The Administrative Agent agrees to give to each
Secondary Purchaser prompt notice of each notice given to it by the Seller, or
by it to the Seller, pursuant to the terms of this Agreement. The appointment
and authority of the Administrative Agent hereunder shall terminate at the later
to occur of (i) the payment to (A) each Secondary Purchaser of its Aggregate
Capital, accrued and unpaid Yield and all other amounts due to such Secondary
Purchaser hereunder and (B) the Administrative Agent of all amounts due
hereunder and (ii) the Facility Termination Date.
SECTION 9.02 UCC Filings. The Secondary Purchasers and the Seller
expressly recognize and agree that the Administrative Agent may be listed as the
assignee or secured party of record on the various UCC filings required to be
made hereunder in order to perfect the transfer of the Receivable Interests from
the Seller to the Secondary Purchasers, that such listing shall be for
administrative convenience only in creating a record or nominee owner to take
certain actions hereunder on behalf of the Secondary Purchasers and that such
listing will not affect in any way the status of the Secondary Purchasers as the
beneficial owners of the Receivable Interests. In addition, such listing shall
impose no duties on the Administrative Agent other than those expressly and
specifically undertaken in accordance with the provisions of this Article IX. In
furtherance of the foregoing, each Secondary Purchaser shall be entitled to
enforce its rights created under this Agreement without the need to conduct such
enforcement through the Administrative Agent except as provided herein.
SECTION 9.03 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent (i) may consult with legal counsel
(including counsel for the Seller), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to any Person
and shall not be responsible to any Person for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iii) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Seller, or of any Transfer Agreement on the part of
the Seller or the Originator a party thereto, or to inspect the property
(including the books and records) of the Seller or any Originator; (iv) shall
not be responsible to any Secondary Purchaser for the due execution, legality,
23
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any Transfer Agreement or any other instrument or document furnished pursuant
hereto; and (v) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by facsimile, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 9.04 CIBC and Affiliates. With respect to any Pool Receivable
owned by CIBC, CIBC shall have the same rights and powers under this Agreement
and any document delivered pursuant hereto as would any Secondary Purchaser and
may exercise the same as though it were not the Administrative Agent. CIBC and
its Affiliates may generally engage in any kind of business with the Seller, any
Originator or any Obligor and any of their respective Affiliates and any Person
who may do business with or own securities of the Seller, any Originator or any
Obligor or any of their respective Affiliates, all as if CIBC were not the
Administrative Agent and without any duty to account therefor to any Secondary
Purchaser.
SECTION 9.05 Secondary Purchasers' Purchase Decisions. Each Secondary
Purchaser acknowledges that it has, independently and without reliance upon the
Administrative Agent, any of its Affiliates or any other Secondary Purchaser and
based on such documents and information as it has deemed appropriate, made its
own evaluation and decision to enter into this Agreement and, if it so
determines, to purchase undivided ownership interests in Pool Receivables
hereunder. Each Secondary Purchaser also acknowledges that it will,
independently and without reliance upon the Administrative Agent, any of its
Affiliates or any other Secondary Purchaser and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under this Agreement.
SECTION 9.06 Indemnification. Each Secondary Purchaser agrees to
indemnify the Administrative Agent (to the extent not reimbursed by the Seller),
ratably according to the ratio its Commitment bears to the aggregate Commitment
of the Secondary Purchasers, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement, provided that a Secondary
Purchaser shall not be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, each
Secondary Purchaser agrees to reimburse the Administrative Agent, ratably
according to the ratio its Commitment bears to the aggregate Commitment of the
Secondary Purchasers, promptly upon demand, for any out-of-pocket expenses
(including reasonable counsel fees) incurred by the Administrative Agent in
connection with the administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that such expenses are incurred in the interests of
24
or otherwise in respect of the Secondary Purchasers hereunder and are approved
by the Secondary Purchasers and to the extent that the Administrative Agent is
not reimbursed for such expenses by the Seller.
SECTION 9.07 Successor Administrative Agent. The Administrative Agent
may resign at any time by giving 30 days' written notice thereof to the
Secondary Purchasers, the Seller, the Collection Agent and the Purchasers and
may be removed at any time with or without cause by the Required Secondary
Purchasers. Upon any such resignation or removal, the Secondary Purchasers shall
have the right to appoint a successor Administrative Agent approved by the
Seller (which approval will not be unreasonably withheld or delayed). If no
successor Administrative Agent shall have been so appointed by the Secondary
Purchasers, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Secondary
Purchasers' removal of the Administrative Agent, then Georgia-Pacific shall
appoint a Secondary Purchaser or such other Person approved by the Purchasers
(which approval will not be unreasonably withheld or delayed) as a successor
Administrative Agent. If such successor Administrative Agent is not a Secondary
Purchaser, such successor Administrative Agent shall be (a) either (i) a
commercial bank having a combined capital and surplus of at least $250,000,000
or (ii) an Affiliate of such bank and (b) experienced in the types of
transactions contemplated by this Agreement. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE X.
ASSIGNMENT OF RECEIVABLE INTERESTS
SECTION 10.01 Assignment. Each Secondary Purchaser (with respect to any
Receivable Interest) may (i) without the consent of the Seller, assign to
another Secondary Purchaser, any Purchaser, or to any vehicle organized by a
Secondary Purchaser which is rated at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇ and
(ii) with the prior written consent of the Seller (which consent shall not be
unreasonably withheld or delayed), to any other Person (such Person, and the
Persons described in clause (i) above, referred to herein as "Assignees"), and
any such Assignee, may, without the written consent of the Seller, assign to any
Person described in clause (i) hereof and may, with the prior written consent of
the Seller (which consent shall not be
25
unreasonably withheld or delayed), assign to any other Person, its Commitment or
any Receivable Interest, in either case, in whole or in part; provided, however,
that any assignment of a Secondary Purchaser's Commitment to a Purchaser or to
any vehicle organized by a Secondary Purchaser pursuant to clause (i) above at a
time when such Purchaser or such vehicle cannot issue a commitment to make
Purchases shall be made only with the prior written consent of the Seller (which
consent shall not be unreasonably withheld or delayed). Upon any assignment of a
Receivable Interest, (i) the Assignee shall become the owner of such Receivable
Interest for all purposes of this Agreement and (ii) the assignor thereof (the
"Assignor") shall relinquish its rights with respect to such Receivable Interest
for all purposes of this Agreement. Any assignments hereunder shall be upon such
terms and conditions as the Assignor and the Assignee may mutually agree. The
parties thereto shall deliver to the Administrative Agent an assignment
agreement, in substantially the form of Exhibit B hereto (an "Assignment"), duly
executed by such parties, and such Assignor shall promptly execute and deliver
all further instruments and documents, and take all further action, that the
Assignee may reasonably request in order to perfect, protect or more fully
evidence the Assignee's right, title and interest in and to any Receivable
Interest assigned hereunder, and to enable the Assignee to exercise or enforce
any rights hereunder . Upon any assignment pursuant to this Section 10.01, the
Assignee thereof shall have all of the rights and obligations (and only such
rights and obligations) of a Secondary Purchaser hereunder, and shall be subject
to the same terms and conditions hereunder. The Administrative Agent shall
provide notice to the Seller of any assignment hereunder.
SECTION 10.02 Effects of Assignment. By executing and delivering an
Assignment, the Assignor thereunder and the Assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment, the Assignor makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other agreement, instrument or document furnished pursuant
hereto; (ii) the Assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Seller or any
Originator or the performance or observance by the Seller or any Originator of
any of its obligations under this Agreement (in the case of the Seller) or the
Transfer Agreements (in the case of the Seller and the Originators) or other
agreement, instrument or document furnished pursuant hereto; (iii) such Assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other agreements,
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and to purchase the
pertinent Receivable Interests; (iv) such Assignee will, independently and
without reliance upon the Administrative Agent, any Secondary Purchaser, any
Purchaser or any of their Affiliates or such Assignor and based on such
agreements, documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such Assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; (vi)
such Assignee appoints as its agent the Collection Agent from time to time
designated pursuant to Section 6.01 to enforce its respective rights and
interests in and under the pertinent Receivable Interests and the Related
Security and related Contracts; and (vii) such Assignee agrees that it will not
institute against any Secondary Purchaser any proceeding of the type referred to
in Section 7.01(i) of the Primary Purchase Agreement.
26
ARTICLE XI.
MISCELLANEOUS
SECTION 11.01 Amendments, Etc. No amendment or waiver of any provision
of this Agreement or consent to any departure by the Seller or the Collection
Agent therefrom shall be effective unless in a writing signed by all of the
Secondary Purchasers or, where permitted under this Agreement, the Required
Secondary Purchasers, 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 no amendment or waiver of Section 6.03 or of any
other provision of this Agreement which affects the rights or obligations of the
Administrative Agent shall be effective unless signed by the Administrative
Agent. No failure on the part of the Secondary Purchasers or the Administrative
Agent 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 11.02 Notices, Etc. All notices and other communications
hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be delivered or sent by facsimile, to each
party hereto, at its address set forth under its name on the signature pages
hereof or at such other address as shall be designated by such party in a
written notice to the other parties hereto. Notices and communications by
facsimile shall be effective when sent, and notices and communications sent by
other means shall be effective when received.
SECTION 11.03 Assignability; Termination.
(a) This Agreement and each Secondary Purchaser's rights herein
(including ownership of each Receivable Interest) shall be assignable by such
Secondary Purchaser and its respective successors and assigns in accordance with
Section 10.01. The term "Secondary Purchaser" shall include any owner by
assignment or otherwise of a Receivable Interest but shall not include any
Person to whom a participation is granted. The Seller may not assign its rights
hereunder or any interest herein without the prior written consent of the
Secondary Purchasers.
(b) Any Secondary Purchaser may grant participations to any Person
without the consent or knowledge of the Seller, any other Secondary Purchaser or
the Administrative Agent; provided, that such grant will not affect the
obligation, if any, of such Secondary Purchaser hereunder nor the obligations of
the Seller hereunder.
(c) The provisions of Sections 8.01, 11.04, 11.05, 11.06 and 11.07
survive any termination of this Agreement.
SECTION 11.04 Costs, Expenses and Taxes.
(a) In addition to the rights of indemnification granted under Section
8.01 hereof, the Seller agrees to pay on demand all reasonable costs and
expenses actually incurred in connection with the preparation, execution,
delivery and administration
27
(including periodic auditing of Pool Receivables) of this Agreement and the
other documents and agreements to be delivered hereunder, including, without
limitation, (i) the reasonable fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
for the Secondary Purchasers, actually incurred with respect to the preparation,
execution and delivery of this Agreement, the Primary Purchase Agreement and the
other documents and agreements to be delivered hereunder or thereunder; (ii) the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent actually incurred with respect to administration of this Agreement,
including without limitation, advising the Administrative Agent as to its rights
and remedies hereunder; and (iii) all costs and expenses, if any (including
reasonable counsel fees and expenses), in connection with the enforcement or
amendment of this Agreement and the other documents and agreements to be
delivered hereunder.
(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.
(c) The Seller also shall pay on demand all other reasonable costs,
expenses and all taxes (excluding income taxes) actually incurred by a Secondary
Purchaser or any stockholder of a Secondary Purchaser ("Other Costs"), including
(i) the costs of auditing such Secondary Purchaser's books by certified public
accountants, (ii) the taxes (excluding income taxes) resulting from such
Secondary Purchaser's operations and (iii) the reasonable fees and out-of-pocket
expenses of counsel for such Secondary Purchaser or any counsel for any
shareholder of such Secondary Purchaser with respect to advising such Secondary
Purchaser or shareholder as to rights and remedies under this Agreement, the
enforcement of this Agreement or advising such Secondary Purchaser or
shareholder as to matters relating to such Secondary Purchaser's operations;
provided, that the Seller and any other persons who from time to time sell
receivables or interests therein to such Secondary Purchaser ("Other Sellers")
each shall be liable for such Other Costs ratably in accordance with the usage
under their respective facilities; provided, further, that (i) if such Other
Costs are attributable to the Seller and not attributable to any Other Seller,
the Seller shall be solely liable for such Other Costs and (ii) if such Other
Costs are attributable to any Other Seller and not attributable to the Seller in
any way, the Seller shall not be liable for any of such Other Costs.
SECTION 11.05 Confidentiality. Unless otherwise required by applicable
law, rule or regulation or by court order or process, the Seller and the
Collection Agent agree to maintain the confidentiality of this Agreement (and
all drafts thereof) in communications with third parties and otherwise;
provided, that this Agreement may be disclosed to the Seller's and the
Collection Agent's legal counsel and auditors if they agree to hold it
confidential.
SECTION 11.06 No Recourse. The obligations of each Secondary Purchaser
under this Agreement or any other agreement, instrument, document or certificate
executed and delivered by or issued by such Secondary Purchaser or any officer
thereof in connection herewith are solely the corporate obligations of such
Secondary
28
Purchaser. No recourse shall be had for payment of any fee or other obligation
or claim arising out of or relating to this Agreement or any other agreement,
instrument, document or certificate executed and delivered or issued by such
Secondary Purchaser or any officer in connection herewith, against any
stockholder, employee, officer, director or incorporator of such Secondary
Purchaser. The provisions of this Section 11.07 shall survive the termination of
this Agreement.
SECTION 11.07 Governing Law; Execution in Counterparts.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING ITS APPLICABLE CONFLICT OF
LAWS RULES).
(b) 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 11.08 Construction of Agreement. It is the intention of each
Transfer Agreement that the conveyance by the applicable Originator to the
Seller of Receivables shall constitute a purchase and sale and not a secured
loan. It is the intention of this Agreement that the Purchases and reinvestments
shall convey to the Secondary Purchasers, to the extent of their Receivable
Interests, undivided ownership interests in the Pool Receivables and that each
such transaction shall constitute a purchase and sale and not a secured loan.
If, notwithstanding such intention, the conveyance of Receivables from any
Originator to the Seller pursuant to a Transfer Agreement shall ever be
characterized as a secured loan and not a sale, then the Seller shall be deemed
to have transferred to the Secondary Purchasers, in addition to the Receivable
Interests, all of the Seller's right, title and interest in, to and under the
obligations of such Originator deemed to be secured by a pledge of such
Receivables, and, in such event, this Agreement and the filings of the UCC
statements referred to in Section 3.01(b) shall be deemed to have granted
(subject to the exceptions set forth in Section 4.01 of the Primary Purchase
Agreement), to the Secondary Purchasers a duly perfected security interest prior
to all other liens on and security interests in all of the Seller's right,
title, and interest in, to and under the obligations of such Originator to the
Seller deemed to be secured by such pledge, and the Administrative Agent shall
be deemed to be an independent custodian for purposes of perfection of the
security interest granted to the Seller. If the conveyance of the Receivable
Interests from the Seller to the Secondary Purchasers shall ever be
characterized as a secured loan and not a sale, it is the intention of this
Agreement that this Agreement shall constitute a security agreement under
applicable law, and that the Seller shall be deemed to have granted to the
Secondary Purchasers a duly perfected security interest in all of the Seller's
right, title and interest in, to and under the Pool Receivables, all payments on
or with respect to such Pool Receivables, all other rights relating to and
payments made in respect of the Pool Receivables, and all proceeds of any
thereof prior to all other liens on and security interests therein.
SECTION 11.09 Actions by Secondary Purchasers. The Secondary Purchasers
expressly recognize and agree that in making any determination or taking
29
any action hereunder which is required to be made or taken by the Required
Secondary Purchasers or all of the Secondary Purchasers, the Purchasers shall be
treated as if they were Secondary Purchasers hereunder and no determination or
action hereunder shall be made or taken which would be inconsistent with or
contrary to a determination or action made or taken under the Primary Purchase
Agreement.
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.
SELLER:
G-P RECEIVABLES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Treasurer
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
COLLECTION AGENT:
GEORGIA-PACIFIC CORPORATION:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title Vice President and Treasurer
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
SECONDARY PURCHASERS:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Authorized Signatory
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Free
--------------------------
Vice President
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Global Securitization
Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
BANK ONE, NA (CHICAGO OFFICE)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Vice President
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
ADMINISTRATIVE AGENT:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Authorized Signatory
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Securitization Group
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
[FORM OF ASSIGNMENT AGREEMENT]
ASSIGNMENT AGREEMENT
Assignment dated __________, ____, made by the undersigned to
______________ pursuant to the Amended and Restated Receivables Purchase
Agreement dated as of October 13, 1999 (the "Agreement"; terms defined therein
being used herein as therein defined) among G-P Receivables, Inc.,
Georgia-Pacific Corporation, Canadian Imperial Bank of Commerce, Citibank, N.A.,
Bank One, NA (Chicago Office), and Canadian Imperial Bank of Commerce, as agent
(the "Administrative Agent").
In consideration of the payment of $___________, being the existing
[Aggregate] Capital of the Receivable Interest[s] referred to below, [and of
$________, being the [aggregate] unpaid accrued Yield for such Receivable
Interest[s],] receipt of which payment is hereby acknowledged, the undersigned
hereby assigns to _____________ all of its right, title and interest in and to
the Receivable Interest[s] purchased by the undersigned in [a] Purchase[s] on
___________, 19__, [__________, 19__, [etc.]] under the Agreement.]
The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the Receivable Interest[s] being assigned by it hereunder
and that such Receivable Interest[s] [is] [are] free and clear of any Adverse
Claim created by the Assignor; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Agreement, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Agreement or any other agreement, instrument or document furnished pursuant
thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Seller or the
performance or observance by the Seller of any of its obligations under the
Agreement or any other agreement, instrument or document furnished pursuant
thereto.
The Assignee (i) confirms that it has received a copy of the Agreement,
together with copies of the financial statements referred to in Section 4.01
thereof, and such other agreements, documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and purchase the Receivable Interest[s]; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, any of its
Affiliates or the Assignor and based on such agreements, documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Agreement; (iii)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Agreement as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) appoints as its agent the Collection Agent
from time to time designated pursuant to Section 6.01 to enforce its respective
rights and interests in and under the Pool Receivables, the Related Security and
the related Contracts; and
(v) agrees that it will not institute against any Secondary Purchaser any
proceeding of the type referred to in Section 7.01(i) incorporated by reference
in the Agreement so long as any Notes issued by such Secondary Purchaser shall
be outstanding or there shall not have elapsed one year plus one day since the
last day on which any such Notes shall have been outstanding.
Following the execution of this Assignment by the Assignor and the
Assignee, it will be delivered to the Administrative Agent. The effective date
of this Assignment shall be the date above specified (the "Effective Date").
As of the Effective Date, (i) the Assignee shall be and become an owner
in the Receivable Interest[s] referred to herein for all purposes of the
Agreement and (ii) the Assignor shall relinquish its rights with respect to the
Receivable Interest[s] for all purposes of the Agreement.
This Assignment shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed and delivered by its duly authorized officer or agent as of the
date first written above.
[NAME OF ASSIGNOR]
By: ______________________________
Title:
[NAME OF ASSIGNEE]
By: ______________________________
Title:
