Exhibit 10.1
SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
dated as of September 27, 2006
among
U. S. STEEL RECEIVABLES LLC,
as Seller
UNITED STATES STEEL CORPORATION,
as initial Servicer
THE PERSONS PARTY HERETO AS CP CONDUIT PURCHASERS,
COMMITTED PURCHASERS, FUNDING AGENTS AND ▇▇ ▇▇▇▇▇
and
THE BANK OF NOVA SCOTIA,
as Collateral Agent
ARTICLE I. AMOUNTS AND TERMS OF THE PURCHASES 2
Section 1.1. Facility; Termination, Decrease and Increase. 2
Section 1.2. Transfers; Security Interests; Repurchase of Defaulted
Receivables. 3
Section 1.3. Purchased Interest Computation. 6
Section 1.4. Non-Liquidation Settlement and Reinvestment Procedures. 6
Section 1.5. Liquidation Settlement Procedures. 7
Section 1.6. Deemed Collections; Reduction in Net Investment. 11
Section 1.7. Fees 13
Section 1.8. Payments and Computations, Etc. 13
Section 1.9. Increased Costs. 13
Section 1.10. Requirements of Law. 14
Section 1.11. Inability to Determine Eurodollar Rate. 15
Section 1.12. Sharing of Payments, etc. 16
Section 1.13. Expiration or Extension of Commitments. 16
Section 1.14. Purchaser Groups and Purchasers. 17
Section 1.15. Obligations Several. 17
Section 1.16. Issuance of Letters of Credit. 18
Section 1.17. Form of Letters of Credit. 19
Section 1.18. Requirements For Issuance of Letters of Credit. 19
Section 1.19. Disbursements, Reimbursement. 19
Section 1.20. Documentation. 20
Section 1.21. Determination to Honor Drawing Request. 20
Section 1.22. Nature of Reimbursement Obligations. 20
Section 1.23. Liability for Acts and Omissions. 22
Section 1.24. Termination of Letters of Credit 23
ARTICLE II. REPRESENTATIONS AND WARRANTIES; COVENANTS; TERMINATION EVENTS 23
Section 2.1. Representations and Warranties; Covenants. 23
Section 2.2. Termination Events. 23
ARTICLE III.INDEMNIFICATION 23
Section 3.1. Indemnities by the Seller. 24
Section 3.2. Indemnities by the Servicer. 25
Section 3.3. Defense of Claims. 26
ARTICLE IV. ADMINISTRATION AND COLLECTIONS 27
Section 4.1. Appointment of the Servicer. 27
Section 4.2. Duties of the Servicer. 28
Section 4.3. Establishment and Use of Certain Accounts. 29
Section 4.4. Enforcement Rights. 30
Section 4.5. Responsibilities of the Seller. 31
Section 4.6. Servicing Fee. 31
ARTICLE V. THE AGENTS 31
Section 5.1. Appointment and Authorization. 32
Section 5.2. Delegation of Duties. 33
Section 5.3. Exculpatory Provisions. 33
Section 5.4. Reliance by Agents. 33
Section 5.5. Notice of Termination Events. 34
Section 5.6. Non-Reliance on Collateral Agent, Funding Agents and
Other Purchasers. 34
Section 5.7. Collateral Agent, Funding Agents and Purchasers. 35
Section 5.8. Indemnification. 35
Section 5.9. Successor Collateral Agent. 36
ARTICLE VI. MISCELLANEOUS 36
Section 6.1. Amendments, Etc. 36
Section 6.2. Notices, Etc. 37
Section 6.3. Assignability. 37
Section 6.4. Costs, Expenses and Taxes. 40
Section 6.5. No Proceedings; Limitation on Payments. 40
Section 6.6. GOVERNING LAW AND JURISDICTION. 41
Section 6.7. Execution in Counterparts. 41
Section 6.8. Survival of Termination. 41
Section 6.9. WAIVER OF JURY TRIAL. 41
Section 6.10. Entire Agreement. 42
Section 6.11. Headings. 42
Section 6.12. Purchaser's Liabilities. 42
Section 6.13. Confidentiality. 42
Section 6.14. Agent Conflict Waiver. 43
Section 6.15. Interpretation 43
EXHIBIT I Definitions
EXHIBIT II Conditions of Purchases
EXHIBIT III Representations and Warranties
EXHIBIT IV Covenants
EXHIBIT V Termination Events
EXHIBIT VI Form of Assumption Agreement
EXHIBIT VII Form of Transfer Supplement
SCHEDULE I Credit and Collection Policy
SCHEDULE II Lock-Box Banks and Lock-Box Accounts
SCHEDULE III Trade Names
SCHEDULE IV Special Obligors
ANNEX A Form of Purchase Notice
ANNEX B Form of Monthly Report
ANNEX C Form of Increase Notice
ANNEX D Form of Request to Add Classified Obligor
ANNEX E Form of Acceptance of Additional Classified Obligor
This SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (as
amended, supplemented or otherwise modified from time to time, this "Agreement")
is dated as of September 27, 2006, among U. S. STEEL RECEIVABLES LLC, a Delaware
limited liability company, as Seller (the "Seller"), UNITED STATES STEEL
CORPORATION ("USS"), a Delaware corporation as initial Servicer (in such
capacity, together with its successors and permitted assigns in such capacity,
the "Servicer"), the several commercial paper conduits identified on the
signature pages hereto and their respective successors and permitted assigns
(the "CP Conduit Purchasers"; each, individually, a "CP Conduit Purchaser"), the
several financial institutions identified on the signature pages hereto as
"Committed Purchasers" and their respective successors and permitted assigns
(the "Committed Purchasers"; each, individually, a "Committed Purchaser"), the
several financial institutions identified on the signature pages hereto as "▇▇
▇▇▇▇▇" and their respective successors and permitted assigns (the "▇▇ ▇▇▇▇▇",
each individually, an "LC Bank"), the agent banks identified for each CP Conduit
Purchaser, Committed Purchaser and LC Bank on the signature pages hereto and
their respective successors and permitted assigns (the "Funding Agents"), each
CP Conduit Purchaser, Committed Purchaser, LC Bank and Funding Agent that
becomes a party hereto from time to time pursuant to an Assumption Agreement,
Transfer Supplement or otherwise, and THE BANK OF NOVA SCOTIA, a Canadian
chartered bank acting through its New York Agency ("BNS"), as Collateral Agent
for the CP Conduit Purchasers, Committed Purchasers and ▇▇ ▇▇▇▇▇ (in such
capacity, together with its successors and permitted assigns in such capacity,
the "Collateral Agent").
The Seller may desire to convey, transfer and assign, from time to time,
undivided percentage interests in certain accounts receivable, and (i) the CP
Conduit Purchasers may desire to, and the Committed Purchasers, if requested by
the related CP Conduit Purchasers, if any, or if the CP Conduit Purchasers are
unable to do so, shall, accept such conveyance, transfer and assignment of such
undivided percentage interests, and (ii) the applicable LC Bank shall, upon the
request of the Seller, issue Letters of Credit, in each case subject to the
terms and conditions of this Agreement.
This Agreement amends and restates in its entirety, as of the Closing Date,
the Amended and Restated Receivables Purchase Agreement dated as of November 28,
2001 (as amended, supplemented or otherwise modified through the date hereof,
the "Original Agreement"), among the Seller and initial Servicer, the CP Conduit
Purchasers, the Committed Purchasers and the Funding Agents from time to time
party thereto, and the Collateral Agent. Upon the effectiveness of this
Agreement, the terms and provisions of the Original Agreement shall, subject to
this paragraph, be superseded hereby in their entirety and Market Street Funding
LLC shall become a party hereto as a "CP Conduit Purchaser", PNC Bank, National
Association shall become a party hereto as a "Committed Purchaser" and as a
"Funding Agent" and each of the ▇▇ ▇▇▇▇▇ shall become parties hereto.
Notwithstanding the amendment and restatement of the Original Agreement by this
Agreement, the Seller and USS shall continue to be liable to each Indemnified
Party or Affected Person (as such terms are defined in the Original Agreement)
with respect to all unpaid Capital, Discount (as such terms are defined in the
Original Agreement), fees and expenses (the "Original Agreement Outstanding
Amounts") under the Original Agreement (which shall continue to accrue
thereunder until such amounts are paid in full) and all agreements to indemnify
such parties in connection with events or conditions arising or existing prior
to the effective date of this Agreement . Upon the effectiveness of this
Agreement, each reference to the Original Agreement in any other document,
instrument or agreement shall mean and be a reference to this Agreement.
Nothing contained herein, unless expressly herein stated to the contrary, is
intended to amend, modify or otherwise affect any other instrument, document or
agreement executed and or delivered in connection with the Original Agreement.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 1.1. Facility; Termination, Decrease and Increase. (a) On the
terms and conditions hereinafter set forth in this Agreement, the parties
hereto establish a receivables financing facility.
(b) The Seller may, upon at least 30 days' written notice to each Funding
Agent, terminate or reduce the unused portion of the aggregate Commitments of
all Purchaser Groups (ratably according to each Purchaser Group's Commitment);
provided, that each reduction shall be in the amount of at least $10,000,000
with respect to each Purchaser Group, or an integral multiple of $1,000,000 in
excess thereof, and that, unless terminated, the total amount of all Commitments
of all Purchaser Groups shall in no event be reduced below $200,000,000, unless
the Facility Limit is being reduced to zero and the aggregate LC Stated Amount
for each LC Bank is being cash collateralized in full by deposit of such amounts
into the applicable LC Collateral Accounts; provided, further that the
Commitment of any Purchaser Group shall not be less than the aggregate LC Stated
Amount for the related LC Bank, unless such amount is being cash collateralized
in full by deposit of such amounts into the applicable LC Collateral Account.
(c) The Seller may, upon at least 30 days' written notice in substantially
the form of Annex C hereto to each Funding Agent request that the related
Purchaser Group increase their existing Commitment; provided that: (i) the
Facility Limit after giving effect to such increases shall not exceed
$800,000,000 without the unanimous written consent of all the Funding Agents,
(ii) the Seller's request for the increases in the respective Commitments of the
Purchaser Groups shall be ratable with respect to each such Purchaser Group
(according to the then existing Commitments of all such Purchaser Groups), and
if Purchaser Groups holding less than 100% of the aggregate Commitments of all
Purchaser Groups consent to such increase (any such non consenting Purchaser
Group, a "Non-Increasing Purchaser Group") in their respective Commitment, the
Seller may request (by written notice to the Funding Agents) increases in the
Commitments of the Purchaser Groups who have consented (any such Purchaser
Group, an "Increasing Purchaser Group"), on a ratable basis (based on the then
existing Commitments of all such Increasing Purchaser Groups), unless otherwise
consented to in writing by the Funding Agents for such Increasing Purchaser
Groups, (iii) each Funding Agent (and the related Purchasers) shall, in its sole
discretion, make a determination whether or not to so grant such request and
(iv) the Seller shall (and shall cause the Servicer to) deliver all documents,
instruments, reports, opinions and agreements as any Funding Agent may
reasonably request in connection with making a determination as to whether or
not to grant such request.
(d) The Seller may, if, following the Seller's request for an increase
pursuant to clause (c) above, the aggregate amount of Commitment increases from
all the Increasing Purchaser Groups does not equal the amount requested by the
Seller, at its own expense, add one or more additional Purchaser Groups as
parties hereto pursuant to, and in accordance with the terms of, Section 1.14;
provided, that the aggregate amount of all the Commitments of all Purchaser
Groups after giving effect to such joinder does not cause the Facility Limit to
exceed $800,000,000 without the unanimous written consent of all the Funding
Agents.
Section 1.2. Transfers; Security Interests; Repurchase of Defaulted
Receivables. (a) Prior to the Facility Termination Date, upon the terms and
subject to the conditions set forth herein and in the other Transaction
Documents, the Seller may, at its option from time to time, convey, transfer and
assign to the Collateral Agent for the benefit of each applicable Purchaser
(which, for the avoidance of doubt, shall not be a CP Conduit Purchaser during
the pendency of a CP Conduit Purchaser Termination Event), and the Collateral
Agent for the benefit of the applicable Purchasers shall, accept such
conveyance, transfer and assignment from the Seller (without recourse except as
provided herein), of undivided percentage ownership interests in the Pool
Receivables, together with the Related Security, Collections and proceeds with
respect thereto (each, an "Incremental Transfer") for an amount equal to the
applicable Transfer Price from time to time prior to the Facility Termination
Date; provided that after giving effect to the issuance of Notes by the CP
Conduit Purchasers or the obtaining of funds by the Committed Purchasers or the
issuance of Letters of Credit by the applicable ▇▇ ▇▇▇▇▇, as the case may be, to
fund the Transfer Price of any Incremental Transfer and the payment (or issuance
of the applicable Letters of Credit, as the case may be) to the Seller of such
Transfer Price, (i) the Net Exposure of any such Purchaser Group shall not
exceed the Commitment of the related Purchaser Group, (ii) the Capital plus the
LC Aggregate Stated Amount shall not exceed the Facility Limit and (iii) in the
case of requests for a Letter of Credit, the aggregate LC Stated Amount for any
LC Bank shall not exceed such LC Bank's LC Sub-Commitment; and provided further,
that the conditions set forth in Exhibit II of this Agreement shall be satisfied
with respect thereto.
The Seller may, from time to time, by notice to the applicable Funding
Agents given by telecopy, offer to convey, transfer and assign to the Collateral
Agent for the benefit of each applicable Purchaser (which, for the avoidance of
doubt, shall not be a CP Conduit Purchaser during the pendency of a CP Conduit
Purchaser Termination Event), undivided percentage ownership interests in the
Purchased Interest at least two (2) Business Days prior to the proposed date of
any Incremental Transfer. Each such notice (each a "Purchase Notice") shall
specify (x) the desired Transfer Price (which shall be at least (i) $1,000,000
per CP Conduit Purchaser or Committed Purchaser or integral multiples of
$100,000 in excess thereof or (ii) $25,000 per Letter of Credit) or, in each
case such lesser amount as shall equal the remaining commitment of the
applicable Purchaser Group, (y) the desired date of such Incremental Transfer
which shall be a Business Day and (z) whether or not all or any portion of such
desired Transfer Price is requested in the form of the issuance by any
applicable LC Bank of one or more Letters of Credit pursuant to the terms of
Sections 1.16 and 1.17. In the case of any request for a purchase (or portion
thereof) in cash (rather than through the issuance of one or more Letters of
Credit), at the option of each such CP Conduit Purchaser, the Funding Agent for
the benefit of such CP Conduit Purchaser shall accept or reject any such offer
by prompt notice given to the Seller.
Each Purchase Notice in respect of a proposed Incremental Transfer shall be
irrevocable and binding on the Seller, and the Seller shall indemnify the
Purchasers against any loss or expense incurred by the Purchasers, either
directly or indirectly, as a result of any failure by the Seller to complete
such Incremental Transfer, including, without limitation, any loss or expense
incurred by Purchasers by reason of the liquidation or reemployment of funds
acquired by the Purchasers (including, without limitation, funds obtained by
issuing Notes, obtaining deposits as loans from third parties, reemployment of
funds and/or issuing or arranging for the issuance of Letters of Credit) to fund
such Incremental Transfer.
The Seller may, subject to the limitations on funding set forth in this
paragraph (a) and the other requirements and conditions herein, use the proceeds
of any purchase or reinvestment by a CP Conduit Purchaser or a Committed
Purchaser hereunder to satisfy its Reimbursement Obligation to the related LC
Bank pursuant to Section 1.19.
In addition, if the Seller fails to reimburse the applicable LC Bank for
the full amount of any drawing under any Letter of Credit when due (out of its
own funds available therefor, or otherwise, at such time), pursuant to Section
1.19, then the Seller shall, automatically (and without the requirement of any
further action on the part of any Person hereunder), be deemed to have requested
a new purchase from the CP Conduit Purchaser or Committed Purchaser, as the case
may be, in such LC Bank's Purchaser Group on such date, pursuant to the terms
hereof, in an amount equal to the amount of such Reimbursement Obligation at
such time. Subject to the limitations on funding set forth in this paragraph
(a) (and the other requirements and conditions herein), the CP Conduit Purchaser
or Committed Purchaser in the LC Bank's Purchaser Group shall fund such deemed
purchase request and deliver the proceeds thereof directly to the related
Funding Agent to be immediately distributed to the LC Bank in satisfaction of
the Seller's Reimbursement Obligation pursuant to Section 1.19, to the extent
such amounts can be funded by such Purchaser, at such time, hereunder.
(b) On the date of each Funded Purchase (but not reinvestment or issuance
of a Letter of Credit) of undivided percentage ownership interests with regard
to the Purchased Interest hereunder, each CP Conduit Purchaser or Committed
Purchaser making such a purchase (through the Collateral Agent) on such date
pursuant to subsection (a) of this Section 1.2 (or its Funding Agent on such
Purchaser's behalf) shall, upon satisfaction of the applicable conditions set
forth in Exhibit II, make available to the Seller in same day funds, at Mellon
Bank, N.A., account number 000-0300, ABA ▇▇▇▇▇▇▇▇▇, an amount equal to such
Purchaser's Purchaser Group Funded Share of the Transfer Price with respect to
thereto (as specified by the Seller pursuant to subsection (a) of this Section
1.2) relating to the undivided percentage ownership interest then being
purchased by such Purchaser for cash.
(c) Effective on the date of each Funded Purchase pursuant to this
Section 1.2, each reinvestment pursuant to Section 1.4 or 1.5 and each issuance
of a Letter of Credit, as applicable, the Seller hereby sells and assigns to
the Collateral Agent for the benefit of the Purchasers (according to the Net
Exposure of each Purchaser Group) an undivided percentage ownership interest
in: (i) each Pool Receivable then existing, (ii) all Related Security with
respect to such Pool Receivables, and (iii) all Collections with respect to,
and other proceeds of, such Pool Receivables and Related Security.
(d) (i) It is the express intent of the parties hereto that the transfers
of the Pool Receivables, Related Security, Collections and other proceeds of
such Receivables by the Seller to the Collateral Agent, as contemplated by this
Agreement be, and be treated as, sales and not as secured loans. If, however,
notwithstanding the intent of the parties, such transactions are deemed to be
loans, the Seller hereby grants to the Collateral Agent for the benefit of the
Purchasers (ratably, according to the Net Exposure of each Purchaser Group) a
security interest (and hereby authorizes the filing of all applicable UCC
financing statements to perfect such security interest) in all of the Seller's
right, title and interest in and to the Pool Receivables, Related Security and
Collections now existing and hereafter created, all monies due or to become due
and all amounts received with respect thereto, and all proceeds thereof, to
secure the obligations of the Seller hereunder, and this Agreement shall be
deemed a security agreement under applicable law. If the Collateral Agent files
any UCC financing statement in connection with this facility, it shall provide
the Servicer with a copy thereof promptly upon the Collateral Agent's receipt of
an acknowledgment copy from the applicable UCC filing office.
(ii) In addition to and without limiting the grant of security
interest described in clause (i) of this Section 1.2(d), to secure all of the
Seller's obligations (monetary or otherwise) under this Agreement and the other
Transaction Documents to which it is a party, whether now or hereafter existing
or arising, due or to become due, direct or indirect, absolute or contingent,
the Seller hereby grants to the Collateral Agent for the benefit of the
Purchasers (according to the Net Exposure of each Purchaser Group) a security
interest in all of the Seller's right, title and interest, if any, (including
any undivided interest of the Seller) in, to and under all of the following,
whether now or hereafter owned, existing or arising: (i) all Pool Receivables,
(ii) all Related Security with respect to such Pool Receivables, (iii) all
Collections with respect to such Pool Receivables, (iv) the Lock-Box Accounts,
the Concentration Account and the Collection Account, and all amounts on deposit
therein, and all certificates and instruments, if any, from time to time
evidencing such Lock-Box Accounts, the Concentration Account and the Collection
Account, and amounts on deposit therein, (v) all of the Seller's right, title
and interest in and to the Purchase and Sale Agreement and each other
Transaction Document to which it is a party, and (vi) all proceeds of, and all
amounts received or receivable under any or all of, the foregoing (collectively,
the "Pool Assets"). The Collateral Agent (for the benefit of the Purchasers)
shall have, with respect to the Pool Assets, and in addition to all the other
rights and remedies available to the Collateral Agent (for the benefit of the
Purchasers), all the rights and remedies of a secured party under any applicable
UCC.
(e) Whenever the LC Bank issues a Letter of Credit pursuant to the terms
hereof, it shall, automatically and without further action of any kind upon the
effective date of issuance of such Letter of Credit, have irrevocably been
deemed to make a Funded Purchase hereunder if such Letter of Credit is
subsequently drawn and such drawn amount shall not have been reimbursed pursuant
to Section 1.19 upon such draw. All such Funded Purchases shall comprise Base
Rate Portions of Capital in an amount equal to the amount of such draw, and
shall accrue Discount from the date of such draw. If any Letter of Credit
expires or is surrendered without being drawn (in whole or in part) then, in
such event, the foregoing commitment to make such Funded Purchases shall expire
with respect to such Letter of Credit and the related LC Stated Amount shall
automatically reduce by the amount of the Letter of Credit which is no longer
outstanding.
(f) At any time and from time to time upon at least three Business Days
written notice to the Collateral Agent, the Seller may purchase any Triggered
Receivables and the Related Security, Collections and proceeds with respect
thereto, provided that in consideration therefor, the Seller shall cause an
amount equal to the unpaid portion of such Receivables to be remitted directly
to the Concentration Account. Upon closing any transaction referenced in the
preceding sentence, the Collateral Agent shall, if requested, upon receipt of
evidence satisfactory to it that an amount equal to the unpaid portion of such
Receivable has been deposited into the Concentration Account to be remitted
directly to the Concentration Account execute and deliver, at the Seller's
expense, to the Seller such documents and instruments as are reasonably
requested and authorize the filing of such UCC-3 termination statements as are
appropriate, to terminate its interests (for itself and on behalf of the
Purchasers) with respect to the affected Receivables and any Related Security,
Collections and proceeds with respect thereto.
Section 1.3. Purchased Interest Computation. The Purchased Interest
shall be initially computed on the date hereof. Thereafter, until the Facility
Termination Date, the Purchased Interest shall be automatically recomputed (or
deemed to be recomputed) on each Business Day other than a Termination Day.
From and after the occurrence of any Termination Day, the Purchased Interest
shall (until the event(s) giving rise to such Termination Day are satisfied or
are waived by the Funding Agents) be deemed to be 100%. The Purchased Interest
shall become zero when the aggregate of the Capital thereof, and all accrued and
unpaid Discount thereon with respect to each Purchaser shall have been paid in
full, the aggregate LC Stated Amount for each LC Bank shall have been cash
collateralized in full by deposit thereof into the applicable LC Collateral
Accounts and all other amounts owed by the Seller and the Servicer hereunder to
the Purchasers, the Funding Agents, and the Collateral Agent and any other
Indemnified Party or Affected Person are paid in full, and the Servicer shall
have received the accrued Servicing Fee thereon; provided that nothing in this
Section 1.3 shall be construed to require the Seller, the Servicer or any
Affiliate thereof to make actual computations on a daily basis or to deliver to
the Purchasers, the Funding Agents, or the Collateral Agent a writing setting
forth any computation, recomputation or deemed recomputation effected under this
Section 1.3, except to the extent required pursuant to Section 2 of Exhibit II
or as otherwise required pursuant to this Agreement.
Section 1.4. Non-Liquidation Settlement and Reinvestment Procedures. On
each day after the date of any Incremental Transfer but prior to the Facility
Termination Date, and provided that Section 1.5 shall not be applicable, the
Servicer shall, out of the Collections represented by the Purchased Interest
received on or prior to such day and not previously set aside or paid:
(i) set aside and hold in trust in the Concentration Account for the
Purchasers, as applicable (or deposit into the Collection Account if so required
pursuant to Section 1.5 hereof) an amount equal to all Discount, Fees and, if
USS or any Affiliate thereof is not the Servicer, the Purchasers' share of the
Servicing Fee (such share based on the Purchased Interest at such time), in each
case accrued through such day and not so previously set aside or paid;
(ii) subject to Section 1.6(b), reinvest the balance of such
Collections in respect of the Purchased Interest remaining after application of
Collections as provided in clause (i) of this Section 1.4 for the ratable
benefit of the Purchasers, as applicable, in additional undivided percentage
ownership interests in the Pool Receivables, Related Security and Collections
and other proceeds with respect thereto;
(iii) if USS or any Affiliate thereof is the Servicer, pay to the
Servicer out of the amount of such Collections remaining after application
pursuant to clause (i) and (ii), of this Section 1.4, an amount equal to the
Purchasers' share of the Servicing Fee (such share based on the Purchased
Interest at such time), accrued through such day and not previously set aside
or paid; and
(iv) remit the balance, if any, of such Collections remaining after
the applications provided in clauses (i), (ii) and (iii), of this Section 1.4,
and Section 1.6(b), to the Seller for its own account. Such Collections
remitted to the Seller shall be available for the ordinary business purposes of
the Seller or otherwise, subject to the provisions of the Transaction Documents.
On each Settlement Date, from the amounts set aside as described in clause (i)
of the first sentence of this Section 1.4 and Section 1.6(b), the Servicer shall
pay to each Funding Agent, for the benefit of the Purchasers related to such
Funding Agent (ratably according to accrued Discount and Fees), an amount equal
to the accrued and unpaid Discount and Fees (as calculated by such Funding
Agent) for the immediately preceding Settlement Period. Each Funding Agent
shall distribute such amounts received from the Servicer in accordance with the
preceding sentence to the related Purchasers entitled thereto; provided that if
any Funding Agent has not received amounts sufficient on any such Settlement
Date to pay all of the aforesaid amounts in full, such Funding Agent shall pay
such amounts to the Purchasers, ratably among all such Purchasers in the related
Purchaser Group entitled to payment thereof (based on the amount owing to such
Purchasers in such categories at such time).
Section 1.5. Liquidation Settlement Procedures. (a) If at any time on or
prior to any Termination Day, the Purchased Interest is determined to be (or the
Servicer or the Seller is otherwise notified that the Purchased Interest is)
greater than 100%, then the Seller shall immediately pay to each Funding Agent,
for the benefit of the Purchasers related to such Funding Agent (according to
the Net Exposure of each Purchaser Group) an amount that, when applied to reduce
the Capital, will cause the Purchased Interest to be less than or equal to 100%;
it being understood that if any such amounts are not immediately paid by the
Seller, the Servicer shall cease making any reinvestments pursuant to Section
1.4 and shall instead apply such amounts as would otherwise be available to make
such reinvestments to so reduce the Purchased Interest by depositing the same
into the Collection Account for distribution to the applicable Purchasers on the
next Settlement Date in accordance with the provisions set forth in the last
paragraph of Section 1.4 or paragraph (d) of this Section 1.5, as applicable.
(b) On and after any Termination Day or the day on which an Unmatured
Termination Event occurs, the Servicer shall deposit or cause to be deposited to
the Collection Account, for the benefit of the Purchasers (and shall pay such
amounts to each applicable Funding Agent on the next Settlement Date pursuant to
paragraph (d) below), all amounts previously set aside in the Concentration
Account pursuant to Section 1.4 and not previously applied in accordance with
the terms hereof.
(c) If a Purchaser Group elects not to extend its Commitment pursuant to
Section 1.13(a) and such Non-Extending Committed Purchaser is not required to
transfer and assign its Commitment pursuant to Section 1.13(b)(ii) of this
Agreement, the Servicer shall implement the procedures set forth in this clause
(c) (a "Partial Liquidation") beginning on a Business Day that is (x) no more
than 60 days prior to such Non-Extending Committed Purchaser's Commitment Expiry
Date then in effect and (y) no later than such Non-Extending Committed
Purchaser's Commitment Expiry Date then in effect. On each Business Day
thereafter and prior to the Net Investment of each such Purchaser in such Non-
Extending Committed Purchaser's Group being reduced to zero and cash
collateralizing in full such Purchaser Group's LC Bank's LC Collateral Account
in an amount equal to such LC Bank's aggregate LC Stated Amount (provided that
no Termination Event and no Unmatured Termination Event has occurred and is
continuing), the Servicer shall apply funds, out of the Collections represented
by the Purchased Interest received and not previously applied, in the following
manner:
(i) set aside and hold in trust in the Concentration Account (or
deposit into the Collection Account if so required by paragraph (b) of this
Section 1.5), for the benefit of the Purchasers an amount equal to all Discount
on all Fees, and, if USS or any Affiliate is not the Servicer, the Purchasers'
share of the Servicing Fee (ratably, based on the Purchased Interest at such
time), in each case accrued through such day and not so previously set aside or
paid. The Servicer shall thereafter pay to each applicable Funding Agent on the
next Settlement Date for the Purchasers (ratably according to accrued Discount
and Fees) the amount of such accrued and unpaid Fees and Discount, and shall pay
such portion of the Servicing Fee to the Servicer pursuant to Section 1.4(iii);
(ii) pay to each applicable Funding Agent for the account of each Non-
Extending Committed Purchaser, if any, related to such Funding Agent (based on
the Net Exposure of such Purchaser Group at such time), and, for the account of
any related CP Conduit Purchasers, if any, solely to the extent necessary to
reduce the Net Exposure with respect to any such CP Conduit Purchaser to an
amount that is equal to or lesser than the amount of any available Commitment of
its Purchaser Group at such time, from such Collections remaining after
application pursuant to clause (i) of this Section 1.5, the amount of such Non-
Extending Committed Purchaser's Net Exposure; provided that solely for purposes
of determining such Non-Extending Committed Purchaser's ratable share of such
Collections, the Net Exposure of each such Purchaser in such Non-Extending
Committed Purchaser shall be deemed to remain constant from the date such
Purchaser Group becomes a Non-Extending Committed Purchaser until the date the
Net Exposure of each such Purchaser in such Non-Extending Committed Purchaser
has been paid in full (or in the case of an LC Bank, its LC Collateral Account
has been cash collateralized in full in an amount equal to such LC Bank's
aggregate LC Stated Amount); it being understood that if such day is also a
Termination Day or a day on which an Unmatured Termination Event has occurred
and is continuing, such Net Exposure shall be recalculated at such time (taking
into account amounts received by or on behalf of such Purchaser Group in respect
of its Net Exposure pursuant to this clause (ii)), and thereafter Collections
shall be set aside in the Collection Account for payment to all Purchasers
(according to each such Purchaser Group's Net Exposure) pursuant to paragraph
(d) below;
(iii) reinvest the balance, if any, of such Collections in respect of
Capital to the acquisition of additional undivided percentage interests pursuant
to Section 1.4(ii) hereof; and
(iv) if USS or any Affiliate thereof is the Servicer, pay to the
Servicer out of such Collections remaining after application pursuant to clause
(i) through (iii) of this Section 1.5(c), an amount equal to the Purchasers'
share of the Servicing Fee (based on the Purchased Interest at such time).
(d) On and after any Termination Day and on each day thereafter, and on
each day on which an Unmatured Termination Event has occurred and is continuing,
the Servicer shall deposit or cause to be deposited into the Collection Account,
for the benefit of the Purchasers, all Collections received on such day in
respect of the Purchased Interest, to be applied by the Collateral Agent on the
next succeeding Settlement Date in the following order (i) to the payment in
full of the accrued Discount, (ii) pari passu, to the payment in full of the
outstanding Net Investment of each Purchaser in each Purchaser Group and to cash
collateralize in full the LC Collateral Account for each related LC Bank in an
amount equal to the aggregate LC Stated Amount for such LC Bank, and (iii) to
the payment in full of all other amounts payable to the Purchasers and their
assigns in respect of indemnities, fees, costs and expenses hereunder and not
covered in clauses (i) and (ii) of this paragraph (d). On each such day, the
Servicer shall deposit to its account, from the amounts set aside for the
Purchasers pursuant to the preceding sentence which remain after payment in full
of the aforementioned amounts, the accrued Servicing Fee. If there shall be
insufficient funds on deposit in the Collection Account following deposits
therein by the Servicer pursuant to this paragraph and paragraph (b) of this
Section 1.5, for the Collateral Agent to distribute funds in payment in full of
the aforementioned amounts, the Collateral Agent shall distribute such funds as
are in the Collection Account on the next succeeding Settlement Date (and on
each Settlement Date thereafter, if applicable) in the following order of
priority:
(i) first, to the applicable Funding Agents, ratably (according to
the amounts thereof then payable to all Purchasers at such time), for the
benefit of the Purchasers in such Funding Agent's Purchaser Group, the payment
of the accrued Discount and all Fees;
(ii) second, to the Servicer, in payment of the accrued and unpaid
Servicing Fee, if USS or any Affiliate of USS is not then the Servicer (and
if such amount has not already been paid by operation of the immediately
preceding sentence);
(iii) third, to the applicable Funding Agents, ratably (according to
the amounts thereof then payable to all Purchasers at such time), for the
benefit of the Purchasers in such Funding Agent's Purchaser Group, for
reduction to zero of the Net Exposure of the related Purchaser Group (including,
by cash collateralizing in full the LC Collateral Account for each related LC
Bank in an amount equal to the aggregate LC Stated Amount for such LC Bank);
(iv) fourth, to the applicable Funding Agents, ratably (according to
the amounts thereof then payable to all Purchasers at such time), for the
benefit of the Purchasers in such Funding Agent's Purchaser Group, in payment
of all other amounts payable to such Purchasers and their assigns in respect of
indemnities, fees, costs and expenses hereunder and not covered in clauses (i)
through (iii) of this Section 1.5(d); and
(v) fifth, to its account as Servicer, in payment of the accrued and
unpaid Servicing Fee, if USS or any Affiliate of USS is the Servicer (and if
such amount has not already been paid by operation of the immediately preceding
sentence).
Each Funding Agent shall distribute such amounts received from the Collateral
Agent in accordance with the preceding sentence to the related Purchasers
entitled thereto; provided that if any Funding Agent has not received amounts
sufficient on any such Settlement Date to pay all of the foregoing amounts in
full, such Funding Agent shall pay such amounts to the Purchasers ratably among
all such Purchasers in the related Purchaser Group entitled to payment thereof
(based on the amount owing to such Purchasers in such categories at such time).
(e) Following the date on which the Net Investment of each Purchaser Group
has been reduced to zero, the aggregate LC Stated Amount for each LC Bank has
been cash collateralized in full by deposit thereof into the applicable LC
Collateral Account, and all accrued Discount, Fees, Servicing Fees and all other
amounts payable to the Purchasers, the Funding Agents, the Collateral Agent,
each Indemnified Party and Affected Person and their assigns hereunder have been
paid in full, (i) the Purchased Interest shall become zero, (ii) the Collateral
Agent, on behalf of the Purchasers, shall be considered to have reconveyed to
the Seller all of the Purchasers' right, title and interest in, to and under the
Receivables, Related Security, Collections and proceeds with respect thereto,
and (iii) the Collateral Agent, on behalf of the Purchasers, shall execute and
deliver to the Seller, at the Seller's expense, such documents or instruments as
are necessary, and authorize the filing of such UCC termination statements as
are appropriate to terminate the Purchasers' respective interests in the
Receivables, Related Security, Collections and proceeds with respect thereto.
Any such documents shall be prepared by or on behalf of the Seller. Thereafter
any remaining Collections shall be for the account of the Seller.
Section 1.6. Deemed Collections; Reduction in Net Investment.
(a) For the purposes of this Agreement:
(i) if on any day the Outstanding Balance of any Pool Receivable is
reduced or adjusted as a result of any defective, rejected, returned,
repossessed or foreclosed goods or services, or any revision, cancellation,
allowance, discount or other adjustment made by the Seller or any Affiliate of
the Seller, or any setoff or dispute between the Seller or any Affiliate of the
Seller and an Obligor, the Seller shall be deemed to have received on such day
a Collection of such Pool Receivable in the amount of such reduction or
adjustment; and
(ii) if on any day any of the representations or warranties in Section
1(f), (k) or (q) of Exhibit III is not true with respect to any Pool Receivable,
the Seller shall be deemed to have received on such day a Collection of such
Pool Receivable in full (Collections deemed to have been received pursuant to
clauses (i) and (ii) of this paragraph (a) are hereinafter sometimes referred
to as "Deemed Collections").
(b) If at any time the Seller shall wish to cause the reduction of
Capital of the Purchased Interest funded by CP Conduit Purchasers or Committed
Purchasers (but not to commence the liquidation, or reduction to zero, of the
entire Capital of the Purchased Interest), the Seller may do so as follows:
(i) the Seller shall give each Funding Agent and the Servicer at
least two Business Days' prior written notice thereof (including the amount of
such proposed reduction and the proposed date on which such reduction will
commence);
(ii) on the proposed date of commencement of such reduction and on
each day thereafter, the Servicer shall cause Collections not to be reinvested
pursuant to Section 1.4 or 1.5, as applicable, until the amount thereof not so
reinvested shall equal the desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust in the
Concentration Account (or, if required pursuant to Section 1.5, transfer to the
Collection Account) for the benefit of such Purchasers, for payment to each
applicable Funding Agent ratably among all such Purchasers in the related
Purchaser Group entitled to payment thereof (based on the amount owing to such
Purchasers in such categories at such time) on the next Settlement Date
immediately following the current Settlement Period, and the Capital (and each
applicable Net Investment) of the Purchased Interest shall be deemed reduced in
the amount to be paid to the Funding Agents only when in fact finally so paid;
provided, that:
(A) notwithstanding the requirement to make such a payment on a
Settlement Date as described in clause (iii) of this Section 1.6(b), the
Seller may, prior to the occurrence and continuation of any Termination
Event, so long as sufficient funds have been retained or deposited in the
Collection Account therefor (including out of any funds of the Seller
deposited therein and available therefor at such time), and so long as the
Seller has provided each Funding Agent at least two Business Days prior
written notice thereof (such notice to be received on or prior to 11:00
a.m. on such Business Day), make the payments (in accordance with such
clause (iii) of this Section 1.6(b), other than the requirement that such
payments be made on a Settlement Date) to reduce the Capital (and each
applicable Net Investment), on any day during such related Settlement
Period prior to such Settlement Date, and shall (x) on the date of such
payments, to the extent that any applicable Purchaser is funding its Net
Investment (or any portion thereof) at such time through a source of funds
which matures or is maturing on such date, pay to such Purchaser (or the
applicable Funding Agent on its behalf) in respect of the accrued and
unpaid Discount on such source of funds at such time, an amount equal to
such Purchaser's ratable share of the Discount (with respect to such source
of funds) being held by the Servicer or the Collateral Agent for the
benefit of all Purchasers in respect of the aggregate Discount pursuant to
Section 1.4 or 1.5, as the case may be, and (y) on the next succeeding
Settlement Date relating to any applicable Net Investment for any
Purchaser, pay to such Purchaser the amount, if any, of additional Discount
related to the applicable Net Investment (or portion thereof) so reduced
(and with respect to which the related source of funds therefor does not
mature on the date of such repayment as described in clause (x) of this
Section 1.6(b)), that would have accrued on such Net Investment (or portion
thereof) through the maturity date of such related source of funds, or the
portion so reduced (such amount, the applicable "Breakage Fee") (as
notified to the Seller in writing on or prior to such Settlement Date by
the applicable Funding Agent for such Purchaser) and payable at the time
and in the same order of priority that Discount is payable on such date
pursuant to Section 1.4 or 1.5, as the case may be; it being understood
that any Purchaser who receives a Breakage Fee pursuant to clause (y) of
this Section 1.6(b)(ii)(A) on any Settlement Date, shall (or shall cause
the applicable Funding Agent on its behalf), on or prior to the second
Business Day following such Settlement Date on which such Breakage Fee was
received, pay to the Seller an amount equal to the income, if any, received
by such Purchaser (up to an amount not exceeding the applicable Breakage
Fee paid with respect thereto), from investing the amounts received by it
from the Seller to so reduce such Net Investment (or portion thereof) in
accordance with this paragraph (A), as determined by the applicable Funding
Agent, which determination shall be binding and conclusive absent manifest
error. In addition, if any such reduction payment is made prior to the
related Settlement Date, the amount of any such reduction shall be not less
than $5,000,000 (with respect to payments made to any Purchaser) and shall
be an integral multiple of $1,000,000, and the Net Investment of any
Purchaser after giving effect to such reduction, if not reduced to zero,
shall be not less than $5,000,000 and shall be in an integral multiple of
$500,000, and
(B) the Seller shall choose a reduction amount, and the date of
commencement thereof, so that to the extent practicable such reduction
shall commence and conclude in the same Settlement Period.
Section 1.7. Fees. The Seller shall pay to each Funding Agent for the
benefit of the Purchasers in the related Purchaser Group in accordance with the
provisions set forth in Sections 1.4 and 1.5 certain fees in the amounts and on
the dates set forth in one or more letters, dated the date hereof (or dated the
date any such Purchaser becomes a party hereto pursuant to an Assumption
Agreement, a Transfer Supplement or otherwise), among the Servicer, the Seller,
and each applicable Funding Agent, respectively (as any such letter agreement
may be amended, supplemented or otherwise modified from time to time, each, a
"Fee Letter").
Section 1.8. Payments and Computations, Etc. (a) All amounts to be paid
or deposited by the Seller or the Servicer hereunder shall be made without
reduction for offset or counterclaim and shall be paid or deposited no later
than noon on the day when due in same day funds to the account designated to the
Servicer at such time by the applicable Funding Agent. All amounts received
after noon will be deemed to have been received on the next Business Day.
(b) The Seller or the Servicer, as the case may be, shall, to the extent
permitted by law and not otherwise included within the definition of "Discount"
or otherwise provided hereunder, pay interest on any amount not paid or
deposited by the Seller or the Servicer, as the case may be, when due hereunder,
at an interest rate equal to 2% per annum above the Eurodollar Rate or Base
Rate, as applicable, payable on demand.
(c) All computations of interest under clause (b) and all computations of
Discount, fees and other amounts hereunder shall be made on the basis of a year
of 360 days except with respect to Discount or other amounts calculated by
reference to the Base Rate that shall be calculated on the basis of a year of
365 or 366 days, as applicable, for the actual number of days elapsed. Whenever
any payment or deposit to be made hereunder shall be due on a day other than a
Business Day, such payment or deposit shall be made on the next Business Day and
such extension of time shall be included in the computation of such payment or
deposit.
Section 1.9. Increased Costs. (a) If any Funding Agent, any Purchaser,
any Program Support Provider or any of their respective Affiliates (each an
"Affected Person") reasonably determines that the existence of or compliance
with: (i) any law or regulation or any change therein or in the interpretation
or application thereof, in each case adopted, issued or occurring after the date
hereof, or (ii) any request, guideline or directive from any central bank or
other Governmental Authority (whether or not having the force of law) issued or
occurring after the date of this Agreement, affects or would affect the amount
of capital required or expected to be maintained by such Affected Person, and
such Affected Person determines that the amount of such capital is increased by
or based upon the existence of any commitment to make purchases of, or issue
Letters of Credit in respect of (or otherwise to maintain the investment in)
Pool Receivables related to this Agreement or any related liquidity facility,
credit enhancement facility and other commitments of the same type, then, upon
written demand by such Affected Person (accompanied by the certificate referred
to in the next sentence, with a copy to the applicable Funding Agent), the
Seller shall promptly pay to the applicable Funding Agent, for the account of
such Affected Person, from time to time as specified by such Affected Person,
additional amounts sufficient to compensate such Affected Person. A certificate
describing in reasonable detail such amounts and the basis for such Affected
Person's demand for such amounts submitted to the Seller and the applicable
Funding Agent by such Affected Person shall be conclusive and binding for all
purposes, absent manifest error.
(b) If, due to either: (i) the introduction of or any change in or in the
interpretation of any law or regulation occurring after the date hereof or
(ii) compliance with any guideline or request occurring after the date hereof
from any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to any Affected Person of
agreeing to purchase or purchasing, or maintaining the ownership of, the
Purchased Interest in respect of which Discount is computed by reference to the
Eurodollar Rate, then, upon written demand by such Affected Person (accompanied
by the certificate referred to in the next sentence, with a copy to the
applicable Funding Agent), the Seller shall promptly pay to such Affected
Person, from time to time as specified by such Affected Person, additional
amounts sufficient to compensate such Affected Person for such increased costs.
A certificate describing, in reasonable detail, such amounts and the basis for
such Affected Person's demand for such amounts submitted to the Seller and the
applicable Funding Agent by such Affected Person shall be conclusive and binding
for all purposes, absent manifest error.
(c) In determining the additional amounts necessary to compensate an
Affected Person pursuant to clause (a) or (b) of this Section 1.9, such Affected
Person may use any reasonable method of averaging and attribution that it (in
its sole and absolute discretion) shall deem applicable.
(d) Each Affected Person will promptly notify the Seller of any event of
which it has knowledge that will entitle such Affected Person to compensation
pursuant to this Section 1.9 and will use all reasonable efforts to take such
action as it deems appropriate to avoid the need for, or reduce the amount of,
such compensation that would not be otherwise disadvantageous to such Affected
Person. For purposes of this Section 1.9, an Affected Person shall be deemed to
have promptly notified the Seller of an event if such notice is given to the
Seller within 6 months of the date such Affected Person obtains knowledge of
such event.
Section 1.10. Requirements of Law. If any Affected Person reasonably
determines that the existence of or compliance with: (a) any law or regulation
or any change therein or in the interpretation or application thereof, in each
case adopted, issued or occurring after the date hereof, or (b) any request,
guideline or directive from any central bank or other Governmental Authority
(whether or not having the force of law) issued or occurring after the date of
this Agreement:
(i) subjects such Affected Person to any tax of any kind whatsoever
with respect to this Agreement, any increase in the Purchased Interest or in the
amount of Capital relating thereto, or does or shall change the basis of
taxation of payments to such Affected Person on account of Collections, Discount
or any other amounts payable hereunder (excluding taxes imposed on the overall
pre-tax net income of such Affected Person, taxes based in whole or part on
receipts of such Affected Person (excluding taxes in the nature of sales and use
taxes and withholding taxes), or franchise taxes imposed on such Affected
Person, by any jurisdiction unless such Affected Person is subject to tax in
such jurisdiction solely as a result of the transactions contemplated by this
Agreement,
(ii) imposes, modifies or holds applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, or
deposits or other liabilities in or for the account of, purchases, advances or
loans by, or other credit extended by, or any other acquisition of funds by,
any office of such Affected Person that are not otherwise included in the
determination of the Eurodollar Rate or the Base Rate hereunder, or
(iii) imposes on such Affected Person any other condition,
and the result of any of the foregoing is: (A) to increase the cost to such
Affected Person of acting as Collateral Agent or Funding Agent, or of agreeing
to purchase or purchasing or maintaining the ownership of undivided percentage
ownership interests with regard to the Purchased Interest (or interests therein)
or any Portion of Capital (including by issuing or agreeing to issue any Letters
of Credit), or (B) to reduce any amount receivable hereunder (whether directly
or indirectly), then, in any such case, upon written demand by such Affected
Person (accompanied by the certificate hereinafter described, with a copy to the
applicable Funding Agent), the Seller shall promptly pay to such Affected Person
additional amounts necessary to compensate such Affected Person for such
additional cost or reduced amount receivable. All such amounts shall be payable
as incurred. A certificate from such Affected Person to the Seller describing in
reasonable detail the amount and basis for the amount of such additional costs
or reduced amount receivable shall be conclusive and binding for all purposes,
absent manifest error. Each Affected Person will promptly notify the Seller of
any event of which it has knowledge that will entitle such Affected Person to
compensation pursuant to this Section 1.10 and will use all reasonable efforts
to take such action as it deems appropriate to avoid the need for, or reduce the
amount of, such compensation that would not be otherwise disadvantageous to such
Affected Person. For purposes of this Section 1.10, an Affected Person shall be
deemed to have promptly notified the Seller of an event if such notice is given
to the Seller within 6 months of the date such Affected Person obtains knowledge
of such event.
Section 1.11. Inability to Determine Eurodollar Rate. If any Funding
Agent shall have determined before the first day of any Settlement Period (which
determination shall be conclusive and binding upon the parties hereto), by
reason of circumstances affecting the interbank Eurodollar market, either that:
(a) dollar deposits in the relevant amounts and for the relevant Settlement
Period are not available, (b) adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Settlement Period or (c) the
Eurodollar Rate determined pursuant hereto does not accurately reflect the cost
to the applicable Affected Person (as conclusively determined by such Funding
Agent) of maintaining any Portion of Capital during such Settlement Period, such
Funding Agent shall promptly give telephonic notice of such determination,
confirmed in writing, to the Seller before the first day of such Settlement
Period. Upon delivery of such notice: (i) no Portion of Capital shall be funded
thereafter at the Alternate Rate determined by reference to the Eurodollar Rate
unless and until such Funding Agent shall have given notice to the Seller that
the circumstances giving rise to such determination no longer exist, and (ii)
with respect to any outstanding Portions of Capital then funded at the Alternate
Rate determined by reference to the Eurodollar Rate, such Alternate Rate shall,
on the immediately succeeding Settlement Date, automatically be converted to the
Alternate Rate determined by reference to the Base Rate at the respective last
days of the then-current Settlement Periods relating to such Portions of
Capital.
Section 1.12. Sharing of Payments, etc. If any Purchaser (for purpose of
this Section 1.12 only, a "Recipient") shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) on account of any interest in the Purchased Interest owned by it in
excess of its ratable share thereof, such Recipient shall forthwith purchase
from the other Purchasers entitled to a share of such amount participations in
the percentage interests owned by such Persons as shall be necessary to cause
such Recipient to share the excess payment ratably with each such other Person
entitled thereto; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such Recipient, such purchase from each
such other Person shall be rescinded and each such other Person shall repay to
the Recipient the purchase price paid by such Recipient for such participation
to the extent of such recovery, together with an amount equal to such other
Person's ratable share (according to the proportion of (a) the amount of such
other Person's required payment to (b) the total amount so recovered from the
Recipient) of any interest or other amount paid or payable by the Recipient in
respect of the total amount so recovered.
Section 1.13. Expiration or Extension of Commitments. (a) For each of the
first three years after the Closing Date, the Seller may request the extension
of any Purchaser Group's Commitment Expiry Date for an additional three hundred
and sixty four (364) days from any Purchaser Group's Commitment Expiry Date then
in effect by providing the applicable Funding Agent with a written request for
such extension no fewer than forty-five (45) days, but no more than sixty (60)
days prior to the relevant anniversary of the Closing Date. The related Funding
Agent shall provide written notice to each other Funding Agent and the Seller on
or prior to the thirtieth (30th) day (the "Consent Date") following the
applicable Funding Agent's actual receipt of such written request for extension
of its desire to extend (any such Funding Agent's Purchaser Group, an "Extending
Committed Purchaser") or not to so extend (any such Funding Agent's Purchaser
Group, a "Non-Extending Committed Purchaser") such date.
(b) If Purchaser Groups holding less than 100% of the aggregate Commitments
of all Purchaser Groups consent to such extension, then the Seller may elect by
written notice to the Funding Agents to either:
(i) continue this receivables financing facility for such additional
period with an aggregate Commitment equal to the then effective aggregate
Commitment of all Purchaser Groups less the Commitment of the Non-Extending
Committed Purchaser(s); or
(ii) require any such Non-Extending Committed Purchaser(s) and the
related Purchasers(s) to execute a Transfer Supplement in accordance with
Section 6.3(d) with respect to all of such Non-Extending Committed
Purchaser(s) Commitment and their other interests, rights and obligations
under this Agreement as follows:
A. first, to any Committed Purchaser(s) who have consented to extend
and agreed (each in its sole discretion at such time) to assume
all the Non-Extending Committed Purchaser(s) Commitment(s) on a
ratable basis,
B. second, if all the Extending Committed Purchasers have not
consented to and agreed to assume the Non-Extending Committed
Purchaser(s) Commitment(s) on a ratable basis, to any Extending
Committed Purchaser(s) on a non-ratable basis, and
C. third, to the extent the Extending Committed Purchasers do not
agree to assume the entire balance of the Commitments, to an
additional Purchaser Group under and in accordance with the terms
of Section 1.14;
provided, however, that (x) no such assignment shall conflict with any law, (y)
each such assignment shall be at the Seller's cost and expense, and (z) the
purchase price to be paid to each Non-Extending Committed Purchaser shall be an
amount equal to the Net Exposure and accrued and unpaid Discount and Fees
attributable to such Non-Extending Committed Purchaser.
Section 1.14. Purchaser Groups and Purchasers. The Seller may (a) with
the written consent of the Collateral Agent (not to be unreasonably withheld or
delayed), add additional Persons as Purchasers to an existing Purchaser Group
(with the prior written consent of the related Funding Agent) or (b) pursuant to
and in accordance with the terms set forth in Section 1.1(c) or Section
1.13(b)(ii), cause an existing Purchaser Group to increase its Commitment in
connection with a corresponding increase in the Facility Limit; provided,
however, that the Commitment of any Purchaser Group may only be increased with
the consent of the related Funding Agent or (c) pursuant to and in accordance
with the terms set forth in Section 1.1(d), and subject to the proviso set forth
in such clause, or Section 1.13(b)(ii) add one or more Purchaser Groups as
parties hereto. Each new Purchaser Group shall become a party hereto by
executing and delivering to each Funding Agent and the Seller an Assumption
Agreement (each, an "Assumption Agreement") in the form of Exhibit VI hereto
(which Assumption Agreement shall, in the case of any new Purchaser Group be
executed by each Person (including the related Funding Agent) in such new
Purchaser Group).
Section 1.15. Obligations Several. Each Committed Provider's obligation
hereunder shall be several, such that the failure of any Committed Provider to
make a payment in connection with any Funded Purchase hereunder shall not
relieve any other Committed Provider of its obligation hereunder to make payment
(or issue Letters of Credit, as applicable) for any purchase. Further, if any
Committed Provider fails to satisfy its obligation to make a purchase or issue a
Letter of Credit as required hereunder, upon receipt of notice of such failure
from the relevant Funding Agent, subject to the limitations set forth herein,
the non-defaulting Committed Providers (but limited to the Committed Purchasers
in the case of a purchase requested in cash, and limited to the ▇▇ ▇▇▇▇▇ in the
case of a purchase request in consideration for the issuance of one or more
Letters of Credit) in such defaulting Committed Provider's Purchaser Group shall
purchase the defaulting Committed Provider's portion of the related purchase pro
rata in proportion to their relative Commitments (determined without regard to
the Commitment of the defaulting Committed Purchaser; it being understood that a
defaulting Committed Provider's Commitment of any purchase shall be first put to
the Committed Providers related to such defaulting Committed Provider and
thereafter if there are no other Committed Providers in its Purchaser Group or
if such other Committed Providers are also defaulting Committed Providers, then
such defaulting Committed Provider's portion of such purchase shall be put to
each other Purchaser Group ratably and applied in accordance with this Section
1.15). Notwithstanding anything in this Section 1.15 to the contrary, no
Committed Provider shall be required to make a purchase pursuant to this Section
1.15 for an amount which (a) would cause the aggregate Net Exposure (after
giving effect to such purchase) of the related Purchaser Group to exceed the
Commitment for such Purchaser Group or (b) would cause the sum of (i) the
Capital plus (ii) the LC Aggregate Stated Amount to exceed the Facility Limit.
Notwithstanding the foregoing, no Committed Purchaser shall ever be required to
fund a purchase other than in cash, and no LC Bank shall ever be required to
fund a purchase other than through the issuance of one or more Letters of
Credit.
Section 1.16. Issuance of Letters of Credit.
(a) The Seller may, on a non-pro rata basis, request an LC Bank, upon two
(2) Business Days' prior written notice submitted on or before 11:00 a.m., to
issue a Letter of Credit by delivering to the Funding Agent for the applicable
LC Bank (with a copy to the Collateral Agent), an LC Bank's form of letter of
credit application with such changes as are agreed by such LC Bank and the
Seller (each "Letter of Credit Application"); and, such other certificates,
documents and other papers and information as such LC Bank may reasonably
request. The Seller also has the right to give instructions and make agreements
with respect to any Letter of Credit Application and the disposition of
documents, and to agree with LC Bank upon any amendment, extension or renewal of
any Letter of Credit.
(b) Each Letter of Credit shall, among other things, (i) provide for
written demands for payment when presented for honor thereunder in accordance
with the terms thereof and when accompanied by the documents described therein
(ii) and have an expiry date not later than eighteen (18) months after such
Letter of Credit's date of issuance and in no event later than twelve (12)
months after the related Purchaser Group's Commitment Expiry Date then in
effect. Each Letter of Credit shall be subject either to the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, and any amendments or revisions thereof adhered
to by an LC Bank or the International Standby Practices (ISP98-International
Chamber of Commerce Publication Number 590), and any amendments or revisions
thereof adhered to by an LC Bank, as determined by the applicable LC Bank.
(c) The applicable Funding Agent shall promptly notify the related LC
Bank, at its address for notices hereunder of the request by the Seller for a
Letter of Credit hereunder, and shall provide such LC Bank with the Letter of
Credit Application delivered to such Funding Agent by the Seller pursuant to
paragraph (a), above, by the close of business on the day received or if
received on a day that is not a Business Day or on any Business Day after
11:00 a.m., on such day, on the next Business Day.
Section 1.17. Form of Letters of Credit.
Subject to the terms and conditions hereof, an LC Bank shall issue or cause
the issuance of Letters of Credit ("Letters of Credit") on behalf of Seller
(and, if applicable, for the account of, the Originator in favor of such
beneficiaries as the Originator may elect) in a form acceptable to the LC Bank;
provided, however, that an LC Bank will not be required to issue or cause to be
issued any Letter of Credit to the extent that the issuance of such Letter of
Credit (a) would then cause the Net Exposure of the related Purchaser Group to
exceed the Commitment of such Purchaser Group or (b) would then cause the sum of
(i) the Capital plus (ii) the requested LC Stated Amount (together with the LC
Aggregate Stated Amount of all other Letters of Credit issued by all ▇▇ ▇▇▇▇▇)
to exceed the Facility Limit or (c) would then cause the aggregate LC Stated
Amounts (together with the aggregate LC Stated Amounts of all other Letters of
Credit issued by such LC Bank) to exceed such LC Bank's LC Sub-Commitment. All
amounts drawn upon Letters of Credit shall accrue Discount. Letters of Credit
that have not been drawn upon shall not accrue Discount.
Section 1.18. Requirements For Issuance of Letters of Credit.
The Seller shall authorize and direct the applicable LC Bank to name the
Seller as the "Applicant" or "Account Party" of each Letter of Credit.
Section 1.19. Disbursements, Reimbursement. Upon any request for a
drawing under a Letter of Credit by the beneficiary or transferee thereof, the
applicable LC Bank will promptly notify the related Funding Agent, the
Collateral Agent and the Seller of such request. If an LC Bank pays any amount
under any Letter of Credit prior to 11:00 a.m. on any Drawing Date (as defined
below), the Seller shall reimburse (such obligation to reimburse each applicable
LC Bank shall sometimes be referred to as a "Reimbursement Obligation") such LC
Bank prior to 2:00 p.m. on each date that an amount is paid by an LC Bank under
any Letter of Credit (each such date, a "Drawing Date") in an amount equal to
the amount so paid by an LC Bank. (Any cash collateral held by or on behalf of
an LC Bank in respect of a Letter of Credit shall be applied to discharge the
Seller's Reimbursement Obligation with respect thereto so long as any remaining
cash collateral with respect to that Letter of Credit equals or exceeds any
undrawn amount under that Letter of Credit following such application.) If an
LC Bank pays any amount under any Letter of Credit on or after 11:00 a.m. on any
Drawing Date, the Seller shall reimburse such LC Bank prior to 12:00 p.m. on the
next Business Day occurring after the Drawing Date in an amount equal to the
amount so paid by an LC Bank. If the Seller fails to reimburse an LC Bank for
the full amount of any drawing under any Letter of Credit when due, the Seller
shall be deemed to have requested that a Funded Purchase be made by a CP Conduit
Purchaser or Committed Purchaser in such LC Bank's Purchaser Group to be
disbursed on such date under such Letter of Credit, subject to the amount of the
unutilized portion of the Commitment for such Purchaser Group; provided that if
the amount so drawn under such Letter of Credit is less than $250,000 and cannot
be funded by a CP Conduit Purchaser, the Seller shall be deemed to have
requested that a Funded Purchase be made by a Committed Purchaser in such LC
Bank's Purchaser Group, and for all purposes of this Agreement and each other
Transaction Document, "Discount" with respect to such amount shall,
notwithstanding anything to the contrary in this Agreement or in any other
Transaction Document, be calculated at a rate equal to the Eurodollar Rate plus
0.50%, or if the Eurodollar Rate is unavailable, at the Base Rate until the
conditions to fund at the Eurodollar Rate have been satisfied. Any notice given
by an LC Bank pursuant to this Section may be oral if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
Section 1.20. Documentation.
The Seller agrees to be bound by the terms of each Letter of Credit
Application. If there is a conflict between a Letter of Credit Application and
this Agreement, this Agreement shall govern. It is understood and agreed that,
except in the case of gross negligence or willful misconduct by the applicable
LC Bank, such LC Bank shall not be liable for any error, negligence and/or
mistakes, whether of omission or commission, in following the Seller's
instructions or those contained in the Letters of Credit or any modifications,
amendments or supplements thereto.
Section 1.21. Determination to Honor Drawing Request.
In determining whether to honor any request for drawing under any Letter of
Credit by the beneficiary thereof, the applicable LC Bank shall be responsible
only to determine that the documents and certificates required to be delivered
under such Letter of Credit have been delivered and that they comply on their
face with the requirements of such Letter of Credit and that any other drawing
condition appearing on the face of such Letter of Credit has been satisfied in
the manner so set forth.
Section 1.22. Nature of Reimbursement Obligations.
Each LC Bank's obligation in accordance with this Agreement to make
advances as a result of a drawing under one of its Letters of Credit and the
obligations of the Seller to reimburse such an LC Bank upon a draw under such a
Letter of Credit, shall be performed strictly in accordance with the terms of
this Article I, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other right
which any Person may have against such LC Bank, the related Funding Agent or any
other Purchaser in such LC Bank's Purchaser Group or any other Person for any
reason whatsoever;
(ii) the failure of the Seller or any other Person to comply with the
conditions set forth in this Agreement for the making of a Funded Purchase,
reinvestments, requests for Letters of Credit or otherwise, it being
acknowledged that such conditions are not required for the making of
participation advances hereunder;
(iii) any lack of validity or enforceability of any Letter of Credit;
(iv) any claim of breach of warranty that might be made by the Seller
or such LC Bank against the beneficiary of a Letter of Credit, or the existence
of any claim, set-off, defense or other right which the Seller or such LC Bank
may have at any time against a beneficiary, any successor beneficiary or any
transferee of any Letter of Credit or the proceeds thereof (or any Persons for
whom any such transferee may be acting), such LC Bank or any other Person,
whether in connection with this Agreement, the transactions contemplated herein
or any unrelated transaction (including any underlying transaction between the
Seller or any Subsidiaries of the Seller or any Affiliates of the Seller and the
beneficiary for which any Letter of Credit was procured);
(v) the lack of power or authority of any signer of, or lack of
validity, sufficiency, accuracy, enforceability or genuineness of, any draft,
demand, instrument, certificate or other document presented under any Letter
of Credit, or any such draft, demand, instrument, certificate or other document
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, even if such LC Bank or the
related Funding Agent has been notified thereof;
(vi) payment by the LC Bank under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does not
comply with the terms of such Letter of Credit other than as a result of the
gross negligence or willful misconduct of the LC Bank;
(vii) the solvency of, or any acts or omissions by, any beneficiary
of any Letter of Credit, or any other Person having a role in any transaction
or obligation relating to a Letter of Credit, or the existence, nature, quality,
quantity, condition, value or other characteristic of any property or services
relating to a Letter of Credit;
(viii) any failure by the LC Bank or any of the LC Bank's Affiliates
to issue any Letter of Credit in the form requested by the Seller, unless the
LC Bank has received written notice from the Seller of such failure within
three Business Days after the LC Bank shall have furnished the Seller a copy
of such Letter of Credit and such error is material and no drawing has been
made thereon prior to receipt of such notice;
(ix) any Material Adverse Effect on the Seller, the Originator or
any Affiliates thereof;
(x) any breach of this Agreement or any Transaction Document by any
party thereto;
(xi) the occurrence or continuance of an Event of Bankruptcy with
respect to the Seller, the Originator or any Affiliate thereof;
(xii) the fact that a Termination Event or an Unmatured Termination
Event shall have occurred and be continuing; and
(xiii) the fact that this Agreement or the obligations of Seller or
Servicer hereunder shall have been terminated.
Section 1.23. Liability for Acts and Omissions.
As between the Seller, on the one hand, and the Collateral Agent, the
applicable LC Bank, the related Funding Agent and the other members of the
Purchaser Group for the applicable LC Bank, on the other, the Seller assumes all
risks of the acts and omissions of, or misuse of the Letters of Credit by, the
respective beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the foregoing, none of the Collateral Agent, the ▇▇ ▇▇▇▇▇, the
related Funding Agents or any other Person shall be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for an
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) any claim of the Seller against
any beneficiary of such Letter of Credit, or any such transferee, or any dispute
between or among the Seller and any beneficiary of any Letter of Credit or any
such transferee; (iv) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical
terms; (vi) any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any such Letter of Credit or of the
proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter
of Credit of the proceeds of any drawing under such Letter of Credit; or (viii)
any consequences arising from causes beyond the control of the Collateral Agent,
any LC Bank or any related Funding Agent, including any dishonor of any Letter
of Credit resulting from any act or omission, whether rightful or wrongful, of
any present or future de jure or de facto Governmental Authority, and none of
the foregoing shall affect or impair, or prevent the vesting of, any of an LC
Bank's rights or powers hereunder. None of the LC Bank, the applicable Funding
Agent, the other members of the Purchaser Group for the LC Bank nor the
Collateral Agent shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder, or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the LC Bank; provided however that none of foregoing shall excuse
the LC Bank from liability to the Seller, any Originator or any affiliate of any
Originator to the extent of any direct damages suffered by the Seller, any
Originator or any affiliate of any Originator that are caused by the LC Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. In the
absence of gross negligence or willful misconduct on the part of LC Bank, the LC
Bank shall be deemed to have exercised care in each such determination. Without
limiting the generality of the foregoing, the parties agree that, with respect
to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the LC Issuing Bank may, in its
sole discretion, either (A) accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or (B) refuse to accept and make payment upon such
documents if such documents do not strictly comply with the terms of such Letter
of Credit.
Without limiting the generality of the foregoing, the Collateral Agent,
each LC Bank, the related Funding Agents, each other Purchaser and each of their
respective Affiliates (i) may rely on any written communication believed in good
faith by such Person to have been authorized or given by or on behalf of the
applicant for a Letter of Credit; (ii) may honor any presentation if the
documents presented appear on their face to comply with the terms and conditions
of the relevant Letter of Credit; (iii) may honor a previously dishonored
presentation under a Letter of Credit, whether such dishonor was pursuant to a
court order, to settle or compromise any claim of wrongful dishonor, or
otherwise, and shall be entitled to reimbursement to the same extent as if such
presentation had initially been honored, together with any interest paid by an
LC Bank or its Affiliates; and (iv) may pay any paying or negotiating bank
claiming that it rightfully honored under the laws or practices of the place
where such bank is located.
Section 1.24. Termination of Letters of Credit. An LC Bank shall
terminate a given Letter of Credit upon receipt of appropriate documentation
from the beneficiary thereof or, upon the expiration thereof, and return to the
Seller any cash collateral in excess of the aggregate LC Stated Amount.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
SECTION 2.1. Representations and Warranties; Covenants. Each of the
Seller and the Servicer hereby makes the representations and warranties, and
hereby agrees to perform and observe the covenants, applicable to it set forth
in Exhibits III and IV respectively.
Section 2.2. Termination Events. If any of the Termination Events set
forth in Exhibit V shall occur, the Collateral Agent (acting at the direction
of each of the Funding Agents) may, by written notice to the Seller, declare
the Facility Termination Date to have occurred (in which case the Facility
Termination Date shall be deemed to have occurred); provided, that the Facility
Termination Date shall automatically occur upon the occurrence of any event
(without any requirement for the passage of time or the giving of notice)
described in paragraph (f) of Exhibit V. Upon any such declaration, occurrence
or deemed occurrence of the Facility Termination Date, the Collateral Agent, the
Funding Agents and the Purchasers shall have, in addition to the rights and
remedies that they may have under this Agreement, all other rights and remedies
provided after default under the New York UCC and under other applicable law,
which rights and remedies shall be cumulative.
ARTICLE III.
INDEMNIFICATION
SECTION 3.1. Indemnities by the Seller. Without duplicating any amounts
otherwise payable by the Seller pursuant to Sections 1.9 and 1.10 of this
Agreement, and without limiting any other rights that the Collateral Agent, the
Funding Agents, the Purchasers, any Program Support Provider or any of their
respective Affiliates, employees, officers, directors, agents, counsel,
successors, transferees or assigns (each, an "Indemnified Party") may have
hereunder or under applicable law, the Seller hereby agrees to indemnify each
Indemnified Party from and against any and all claims, damages, expenses, costs,
losses and liabilities (including Attorney Costs) (all of the foregoing being
collectively referred to as "Indemnified Amounts") arising out of or resulting
from this Agreement (whether directly or indirectly), the use of proceeds of
purchases or reinvestments or issuances of Letters of Credit, the ownership of
the Purchased Interest, or any interest therein, or in respect of any
Receivable, Related Security or Contract, excluding, however: (a) Indemnified
Amounts to the extent resulting from gross negligence or willful misconduct on
the part of such Indemnified Party or its officers, directors, agents (including
any successor Servicer appointed by the Funding Agents pursuant to Section
4.1(a)) or counsel, (b) recourse (except as otherwise specifically provided in
this Agreement) for uncollectible Receivables, or (c) any overall net income
taxes, taxes based in whole or part on receipts (excluding taxes in the nature
of sales and use taxes and withholding taxes), or franchise taxes imposed on
such Indemnified Party by any jurisdiction unless such Indemnified Party is
subject to tax in such jurisdiction solely as a result of the transactions
contemplated by this Agreement). Subject to the exclusions set forth in the
preceding sentence, but without otherwise limiting or being limited by 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 failure of any Receivable included in the calculation of the
Net Receivables Pool Balance as an Eligible Receivable to be an Eligible
Receivable, the failure of any information contained in a Monthly Report to be
true and correct, or the failure of any other information provided to the
Collateral Agent, any Purchaser or any Funding Agent with respect to
Receivables or this Agreement to be true and correct,
(ii) the failure of any representation, warranty or statement made or
deemed made by the Seller (or any of its officers) under or in connection with
this Agreement to have been true and correct as of the date made or deemed made
in all respects,
(iii) the failure by the Seller to comply with any applicable law,
rule or regulation with respect to any Pool Receivable or the related Contract,
or the failure of any Pool Receivable or the related Contract to conform to any
such applicable law, rule or regulation,
(iv) the failure to vest in the Collateral Agent (for the benefit of
the Purchasers) a valid and enforceable: (A) perfected undivided percentage
ownership interest, to the extent of the Purchased Interest, in the Receivables
in, or purporting to be in, the Receivables Pool and the other Pool Assets, or
(B) first priority perfected security interest in the Pool Assets, in each case,
free and clear of any Adverse Claim,
(v) the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any Receivables
in, or purporting to be in, the Receivables Pool and the other Pool Assets,
whether at the time of any Funded Purchase or reinvestment or issuance of a
Letter of Credit or at any subsequent time,
(vi) any dispute, claim, offset or defense of an Obligor (other than
discharge in bankruptcy of such Obligor) to the payment of any Receivable in, or
purporting to be in, the Receivables Pool (including a defense based on such
Receivable or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its terms),
or any other claim resulting from the sale of the goods or services related to
such Receivable or the furnishing or failure to furnish such goods or services
or relating to collection activities with respect to such Receivable (if such
collection activities were performed by the Seller or by any agent or
independent contractor retained by the Seller),
(vii) any failure of the Seller to perform its duties or obligations
in accordance with the provisions hereof or under the Contracts,
(viii) any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with merchandise,
insurance or services that are the subject of any Contract,
(ix) the commingling of Collections at any time with other funds,
(x) the use of proceeds of purchases or reinvestments or the
issuance of any Letters of Credit by the Seller, or
(xi) any reduction in Capital (or any applicable Net Exposure) as a
result of the distribution of Collections pursuant to Section 1.4, 1.5 or 1.6,
if all or a portion of such distributions shall thereafter be rescinded or
otherwise must be returned for any reason.
Section 3.2. Indemnities by the Servicer. Without limiting any other
rights that the Collateral Agent, the Funding Agents, the Purchasers or any
other Indemnified Party may have hereunder or under applicable law, the Servicer
hereby agrees to indemnify each Indemnified Party from and against any and all
Indemnified Amounts arising out of or resulting from (whether directly or
indirectly): (a) the failure of any information contained in a Monthly Report to
be true and correct, or the failure of any other information provided to the
Collateral Agent, any Funding Agent or any Purchaser by, or on behalf of, the
Servicer to be true and correct, (b) the failure of any representation, warranty
or statement made or deemed made by the Servicer (or any of its officers) under
or in connection with this Agreement to have been true and correct in all
respects as of the date made or deemed made, (c) the failure by the Servicer to
comply with any applicable law, rule or regulation with respect to any Pool
Receivable or the related Contract, (d) any dispute, claim, offset or defense of
the Obligor to the payment of any Receivable in, or purporting to be in, the
Receivables Pool resulting from or related to the collection activities with
respect to such Receivable, or (e) any failure of the Servicer to perform its
duties or obligations in accordance with the provisions hereof.
Section 3.3. Defense of Claims. (a) Promptly after the receipt by an
Indemnified Party or Parties of a notice of the commencement of any action,
suit, proceeding, investigation or claim against such Indemnified Party or
Parties as to which it proposes to demand indemnification from the Seller or
Servicer (either or both such parties, as applicable, the "Indemnifying Party"
or "Parties") pursuant to Section 3.1 or 3.2, as applicable, such Indemnified
Party or Parties shall notify the Indemnifying Party or Parties in writing of
the commencement thereof; but the failure so to notify the Indemnifying Party or
Parties will not relieve such Indemnifying Party or Parties from any liability
which such Indemnifying Party or Parties may have to such Indemnified Party or
Parties pursuant to Section 3.1 or 3.2, as applicable, unless and to the extent
that such failure results in a material impairment of the Indemnifying Party or
Parties ability to defend such action, suit, proceeding, investigation or claim
in accordance with the terms of this Section 3.3. After such notice, if (i) an
Indemnifying Party or Parties shall acknowledge (without prejudice to any
exclusion of Indemnified Amounts as a result of an Indemnified Party's gross
negligence or willful misconduct pursuant to Section 3.1 or 3.2) in writing to
such Indemnified Party or Parties that such Indemnifying Party or Parties shall
be obligated to indemnify such Indemnified Party or Parties for any Indemnified
Amounts described in Section 3.1 or 3.2, as applicable, with respect to such
action, suit, proceeding, investigation or claim, (ii) the defendants in, or
targets of, any such action, suit, proceeding, investigation or claim include
both the Indemnifying Party or Parties and any such Indemnified Party or
Parties, and (iii) no Termination Event or Unmatured Termination Event shall
have occurred and be continuing, the Indemnifying Party or Parties, to the
extent that it or they shall wish, jointly with such Indemnified Party or
Parties, shall be entitled to participate therein in defense of such action,
suit, proceeding or investigation, and the Indemnifying Party or Parties and
such Indemnified Party or Parties shall cooperate in the defense thereof and
shall retain counsel reasonably satisfactory to the Indemnifying Party or
Parties and such Indemnified Party or Parties to undertake the joint defense of
such Indemnifying Party or Parties and such Indemnified Party or Parties at such
Indemnifying Party's or Parties' cost, risk and expense. If (i) in the
reasonable opinion of such Indemnified Party or Parties, the engagement of such
counsel would present a conflict of interest that would prevent such counsel
from effectively undertaking such joint defense, (ii) such Indemnified Party or
Parties reasonably conclude that there may be legal defenses available to it or
them that are different from or in addition to those available to such
Indemnifying Party or Parties, (iii) such Indemnifying Party or Parties fail to
employ counsel reasonably satisfactory to such Indemnified Party or Parties in a
timely manner, or (iv) a Termination Event or Unmatured Termination Event shall
have occurred and be continuing, then such Indemnified Party or Parties may
employ separate counsel to represent or defend it or them in any such action,
suit, proceeding or investigation and such Indemnifying Party or Parties shall
pay all fees, expenses and disbursements of such counsel; provided, however,
that in no event shall such Indemnifying Party or Parties be liable for the
fees, expenses and disbursements of more than one counsel representing all
Indemnified Parties that are related to the same Funding Agent and that are
parties to the same action, suit, proceeding, investigation or claim.
(b) No Indemnifying Party shall (i) without the prior written consent of
the relevant Indemnified Party or Parties (which consent shall not be
unreasonably withheld or delayed) settle or compromise or consent to the entry
of any judgment with respect to any pending action, suit, proceeding,
investigation or claim in respect to which indemnification or contribution may
be sought hereunder (whether or not the relevant Indemnified Party or Parties
are actual or potential parties to such claim) unless such settlement,
compromise or consent includes an unconditional release of each relevant
Indemnified Party from all liability arising out of such action, suit,
proceeding, investigation or claim or (ii) be liable for any settlement of any
such action affected without its written consent (which consent shall not be
unreasonably withheld or delayed), but if settled with its written consent or
if there be a final judgment in favor of the plaintiff in any action, the
Indemnifying Parties agree to indemnify and hold harmless any Indemnified Party
from and against any indemnified amounts (subject to the terms of Sections 3.1
and 3.2) relating thereto.
If there is a dispute between any Indemnified Party or Parties, on the one
hand, and any Indemnifying Party, on the other hand, as to whether such
Indemnifying Party or Indemnified Party is acting reasonably in objecting to any
proposed settlement, compromise or consent, such dispute shall be resolved
through binding arbitration in New York, New York in accordance with the
commercial arbitration rules of the American Arbitration Association. There
shall be a single arbitrator to be selected by mutual agreement of such
Indemnified Party or Parties and such Indemnifying Party or Parties (or if such
parties cannot agree on an arbitrator, by an arbitrator selected by a federal or
state court located in the City of New York). Any such arbitration must be
commenced not later than 30 days after the date such dispute arose.
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
SECTION 4.1. Appointment of the Servicer. (a) The servicing,
administering and collection of the Pool Receivables shall be conducted by the
Person so designated from time to time as the Servicer in accordance with this
Section 4.1. Until the Funding Agents give notice to USS (in accordance with
this Section 4.1) of the designation of a new Servicer, USS is hereby
designated as, and hereby agrees to perform the duties and obligations of, the
Servicer pursuant to the terms hereof. Upon the occurrence and during the
continuation of a Termination Event, the Funding Agents may designate as
Servicer any Person (including itself) to succeed USS or any successor Servicer,
on the condition in each case that any such Person so designated shall agree to
perform the duties and obligations of the Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Servicer as set forth in clause
(a), USS agrees it will terminate its activities as Servicer hereunder in a
manner that the Funding Agents reasonably determine will facilitate the
transition of the performance of such activities to the new Servicer, and USS
shall cooperate with and assist such new Servicer. Such cooperation shall
include access to and transfer of related records and use by the new Servicer
of all licenses, hardware or software necessary or desirable to collect the Pool
Receivables and the Related Security.
(c) USS acknowledges that, in making their decision to execute and deliver
this Agreement, the Collateral Agent, each Funding Agent and each Purchaser have
relied on USS's agreement to act as Servicer hereunder. Accordingly, USS agrees
that it will not voluntarily resign as Servicer.
(d) The Servicer may with the prior written consent of the Funding Agents,
delegate its duties and obligations hereunder to any subservicer (each a "Sub-
Servicer"); provided, that, in each such delegation: (i) such Sub-Servicer shall
agree in writing to perform the duties and obligations of the Servicer pursuant
to the terms hereof, (ii) the Servicer shall remain primarily liable for the
performance of the duties and obligations so delegated, (iii) the Seller, the
Collateral Agent, each Funding Agent and each Purchaser shall have the right to
look solely to the Servicer for performance, and (iv) the terms of any agreement
with any Sub-Servicer shall provide that the Funding Agents may terminate such
agreement upon the termination of the Servicer hereunder by giving notice of its
desire to terminate such agreement to the Servicer (and the Servicer shall
provide appropriate notice to each such Sub-Servicer).
Section 4.2. Duties of the Servicer. (a) The Servicer shall take or
cause to be taken all such action as may be necessary or advisable to administer
and collect each Pool Receivable from time to time, all in accordance with this
Agreement and all applicable laws, rules and regulations, with reasonable care
and diligence, and in accordance with the Credit and Collection Policy. The
Servicer shall set aside, for the accounts of the Seller and the Purchasers, the
amount of the Collections to which each is entitled in accordance with Article
I. The Servicer may, in accordance with the Credit and Collection Policy, extend
the maturity of any Pool Receivable (but not beyond 60 days and not more than
once with respect to any such Pool Receivable) and extend the maturity or adjust
the Outstanding Balance of any Defaulted Receivable as the Servicer may
determine to be appropriate to maximize Collections thereof; provided, however,
that: (i) such extension or adjustment shall not alter the status of such Pool
Receivable as a Delinquent Receivable or a Defaulted Receivable or limit the
rights of the Purchasers, the Collateral Agent or the Funding Agents under this
Agreement and (ii) if a Termination Event has occurred and USS or an Affiliate
thereof is serving as the Servicer, USS or such Affiliate may make such
extension or adjustment only upon the prior written approval of the Funding
Agents. The Seller shall deliver to the Servicer and the Servicer shall hold for
the benefit of the Seller and the Collateral Agent (individually and for the
benefit of the Purchasers and the Funding Agents), in accordance with their
respective interests, all records and documents (including computer tapes or
disks) with respect to each Pool Receivable. Notwithstanding anything to the
contrary contained herein, the Funding Agents may direct the Servicer (whether
the Servicer is USS or any other Person) to commence or settle any legal action
to enforce collection of any Pool Receivable or to foreclose upon or repossess
any Related Security; provided, however, that no such direction may be given
unless either: (A) a Termination Event has occurred or (B) any Funding Agent
believes in good faith that the failure to commence, settle or effect such legal
action, foreclosure or repossession could adversely affect Receivables
constituting a material portion of the Pool Receivables.
(b) The Servicer shall, as soon as practicable following actual receipt of
collected funds, turn over the collections of any indebtedness that is not a
Pool Receivable to the Person to whom such indebtedness is owed, less, if USS or
an Affiliate thereof is not the Servicer, all reasonable and appropriate out-of-
pocket costs and expenses of such Servicer of servicing, collecting and
administering such collections. The Servicer, if other than USS or an Affiliate
thereof, shall, as soon as practicable upon demand, deliver to the Seller all
records in its possession that evidence or relate to any indebtedness that is
not a Pool Receivable, and copies of records in its possession that evidence or
relate to any indebtedness that is a Pool Receivable.
(c) The Servicer's obligations hereunder shall terminate on the later of:
(i) the Facility Termination Date and (ii) the date on which all amounts
required to be paid to the Purchasers, the Funding Agents, the Collateral Agent,
and any other Indemnified Party or Affected Person hereunder shall have been
paid in full.
After such termination, if USS or an Affiliate thereof was not the Servicer
on the date of such termination, the Servicer shall promptly deliver to the
Seller all books, records and related materials that the Seller previously
provided to the Servicer, or that have been obtained by the Servicer, in
connection with this Agreement.
Section 4.3. Establishment and Use of Certain Accounts. (a) On or prior
to the Closing Date, the Seller shall execute and deliver to the relevant Lock-
Box Banks and the Funding Agents the Lock-Box Letters with respect to the Lock-
Box Accounts listed on Schedule II. The Lock-Box Accounts shall be the only
accounts used to receive Collections with respect to the Pool Receivables from
the related Obligors. The Servicer shall on each day on which Collections of
Pool Receivables are received in the Lock-Box Accounts cause such Collections to
be transferred from the Lock-Box Accounts into the Concentration Account.
(b) On or prior to the Closing Date, the Seller shall have entered into a
Concentration Account Agreement with the Concentration Account Bank and deliver
an original counterpart thereof to the Funding Agents. Any amount in the
Concentration Account may be invested by the Seller (or Servicer on the Seller's
behalf) in Permitted Investments; provided, however, that such investments shall
mature not later than the Settlement Date immediately succeeding such Permitted
Investments and any such Permitted Investments shall be credited to a securities
account (as defined in the applicable UCC) over which the Collateral Agent for
the benefit of the Purchasers shall have a first priority perfected Security
interest. All income or other gain from investment of monies deposited in the
Concentration Account shall be deposited in the Concentration Account
immediately upon receipt thereof, and any loss resulting from Permitted
Investments shall be charged to the Concentration Account.
(c) The Collateral Agent has established the Collection Account which
shall be used to accept the transfer of Collections of Pool Receivables from the
Concentration Account pursuant to Article I and for such other purposes
described in the Transaction Documents and the Collateral Agent with the consent
or at the direction of the Funding Agents shall have the exclusive right to
withdraw funds therefrom. On the Closing Date, the Collateral Agent shall
release (or authorize the bank maintaining the Collection Account to release) to
the Seller an amount equal to $2,500,000 (plus accrued and unpaid interest
thereon), solely to the extent such amount is on deposit in the Collection
Account.
So long as no Termination Event shall have occurred and be continuing, all
or any portion of the amounts on deposit in the Collection Account shall be
invested by the Collateral Agent at the Servicer's written direction in one or
more Permitted Investments. All income or other gain from investment of monies
deposited in the Collection Account shall be deposited in the Collection Account
immediately upon receipt thereof, and any loss resulting from Permitted
Investments shall be charged to the Collection Account. The maximum permissible
maturity of any Permitted Investment shall be not later than the Settlement Date
immediately succeeding such Permitted Investment.
(d) Upon the occurrence and during the continuation of a Termination Event,
the Collateral Agent with the consent or at the direction of the Funding Agents
may at any time thereafter give notice to each Lock-Box Bank, the Concentration
Account Bank and the Collection Account Bank that the Collateral Agent is
exercising its rights under the Lock-Box Letters, the Concentration Account
Agreement and the Collection Account Agreement, as applicable, to do any or all
of the following: (i) to have the exclusive ownership and control of the
Accounts transferred to the Collateral Agent and to exercise exclusive dominion
and control over the funds deposited therein, (ii) to have the proceeds that are
sent to the respective Accounts redirected pursuant to the Collateral Agent's
instructions, and (iii) to take any or all other actions permitted under the
applicable Lock-Box Letter, the Concentration Account Agreement and the
Collection Account Agreement, as applicable. The Seller hereby agrees that if
the Collateral Agent at any time takes any action set forth in the preceding
sentence, the Collateral Agent shall have exclusive control of the proceeds
(including Collections) of all Pool Receivables and the Seller hereby further
agrees to take any other action that the Collateral Agent or any Funding Agent
may reasonably request to transfer such control. Any proceeds of Pool
Receivables received by the Seller or the Servicer thereafter shall be sent
immediately to the Collateral Agent.
Section 4.4. Enforcement Rights. (a) At any time following the
occurrence and during the continuation of a Termination Event:
(i) the Funding Agents may direct the Obligors that payment of all
amounts payable under any Pool Receivable is to be made directly to the
Collateral Agent or its designee,
(ii) the Funding Agents may give notice of the Purchaser's interest
in Pool Receivables to each Obligor, which notice shall direct that payments
be made directly to the Collateral Agent or its designee, and
(iii) the Collateral Agent may request the Servicer to, and upon such
request the Servicer shall: (A) assemble all of the records necessary or
desirable to collect the Pool Receivables and the Related Security, and transfer
or license to a successor Servicer the use of all software necessary or
desirable to collect the Pool Receivables and the Related Security, and make the
same available to the Collateral Agent or its designees at a place selected by
the Collateral Agent and (B) segregate all cash, checks and other instruments
received by it from time to time constituting Collections in a manner acceptable
to the Funding Agents and, promptly upon receipt, remit all such cash, checks
and instruments, duly endorsed or with duly executed instruments of transfer, to
the Collateral Agent or its designee.
(b) The Seller hereby authorizes the Collateral Agent, and irrevocably
appoints the Collateral Agent as its attorney-in-fact with full power of
substitution and with full authority in the place and stead of the Seller, which
appointment is coupled with an interest, to take any and all steps in the name
of the Seller and on behalf of the Seller necessary or desirable, in the
determination of the Collateral Agent, with the consent or at the direction of
the Funding Agents, after the occurrence and during the continuation of a
Termination Event, to collect any and all amounts or portions thereof due under
any and all Pool Assets, including endorsing the name of the Seller on checks
and other instruments representing Collections and enforcing such Pool Assets.
Notwithstanding anything to the contrary contained in this subsection, none of
the powers conferred upon such attorney-in-fact pursuant to the preceding
sentence shall subject such attorney-in-fact to any liability if any action
taken by it shall prove to be inadequate or invalid, nor shall they confer any
obligations upon such attorney-in-fact in any manner whatsoever.
Section 4.5. Responsibilities of the Seller. (a) Anything herein to the
contrary notwithstanding, the Seller shall pay when due any taxes, including any
sales taxes payable in connection with the Pool Receivables and their creation
and satisfaction. None of the Collateral Agent, Funding Agents or any Purchaser
shall have any obligation or liability with respect to any Pool Asset, nor shall
any of them be obligated to perform any of the obligations of the Seller or
Servicer.
(b) USS hereby agrees that if at any time it shall cease to be the Servicer
hereunder, it shall act (if the then-current Servicer so requests) as the data-
processing agent of the Servicer and, in such capacity, USS shall conduct the
data-processing functions of the administration of the Receivables and the
Collections thereon in substantially the same way that USS conducted such data-
processing functions while it acted as the Servicer.
Section 4.6. Servicing Fee. (a) Subject to clause (b), the Servicer shall
be paid a fee (the "Servicing Fee") equal to 1.0% per annum of the daily average
Outstanding Balance of the Pool Receivables. The Purchasers' share of such fee
shall be paid through the distributions contemplated by Sections 1.4 and 1.5,
and the Seller's share of such fee shall be paid by the Seller.
(b) If the Servicer ceases to be USS or an Affiliate thereof, the
successor Servicer shall be paid a fee in the amount specified by such successor
Servicer not to exceed 110% of the aggregate reasonable costs and expenses
incurred by such successor Servicer in connection with the performance of its
obligations as Servicer. The Purchasers' share of such fee shall be paid
through the distributions contemplated by Sections 1.4 and 1.5, and the Seller's
share of such fee shall be paid by the Seller.
ARTICLE V.
THE AGENTS
SECTION 5.1. Appointment and Authorization. (a) Each Purchaser and
Funding Agent (including each Purchaser and Funding Agent that may from time
to time become a party hereto) hereby irrevocably designates and appoints BNS
as the "Collateral Agent" hereunder and authorizes the Collateral Agent to take
such actions and to exercise such powers as are delegated to the Collateral
Agent hereby and to exercise such other powers as are reasonably incidental
thereto, including the execution and delivery on the date hereof by the
Collateral Agent (on behalf of such Purchaser and/or Funding Agent) of the
Intercreditor Agreement, and taking all such action by it thereunder for the
benefit of the Purchasers and Funding Agents pursuant to the terms thereof.
The Collateral Agent shall hold, in its name, for the benefit of each Purchaser,
ratably, the Purchased Interest. The Collateral Agent shall not have any duties
other than those expressly set forth herein or any fiduciary relationship with
any Purchaser or Funding Agent, and no implied obligations or liabilities shall
be read into this Agreement, any other Transaction Document or the Intercreditor
Agreement, or otherwise exist, against the Collateral Agent. The Collateral
Agent does not assume, nor shall it be deemed to have assumed, any obligation
to, or relationship of trust or agency with, the Seller or Servicer.
Notwithstanding any provision of this Agreement, the Intercreditor Agreement or
any other Transaction Document to the contrary, in no event shall the Collateral
Agent ever be required to take any action which exposes the Collateral Agent to
personal liability or which is contrary to the provision of any Transaction
Document, the Intercreditor Agreement or applicable law.
(b) Each Purchaser hereby irrevocably designates and appoints the
respective institution identified as the Funding Agent for such Purchaser on the
signature pages hereto or in any agreement pursuant to which such Purchaser
becomes a party hereto, and each authorizes such Funding Agent to take such
action on its behalf under the provisions of this Agreement and to exercise such
powers and perform such duties as are expressly delegated to such Funding Agent
by the terms of this Agreement, if any, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Funding Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Purchaser or other Funding Agent or the Collateral Agent,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of such Funding Agent shall be read into this Agreement
or otherwise exist against such Funding Agent.
(c) Except as otherwise specifically provided in this Agreement, the
provisions of this Article V are solely for the benefit of the Funding Agents,
the Collateral Agent and the Purchasers, and none of the Seller or Servicer
shall have any rights as a third-party beneficiary or otherwise under any of the
provisions of this Article V, except that this Article V shall not affect any
obligations which any Funding Agent, the Collateral Agent or any Purchaser may
have to the Seller or the Servicer under the other provisions of this Agreement.
Furthermore, no Purchaser shall have any rights as a third-party beneficiary or
otherwise under any of the provisions hereof in respect of a Funding Agent which
is not the Funding Agent for such Purchaser.
(d) In performing its functions and duties hereunder, the Collateral Agent
shall act solely as the agent of the Purchasers and the Collateral Agent and
does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Seller or Servicer or any of
their successors and assigns. In performing its functions and duties hereunder,
each Funding Agent shall act solely as the agent of its respective Purchasers
and does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Seller, the Servicer, any other
Purchaser, any other Funding Agent or the Collateral Agent, or any of their
respective successors and assigns.
Section 5.2. Delegation of Duties. The Collateral Agent may, with the
consent of the Funding Agents, execute any of its duties through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Collateral Agent shall not be
responsible to the Funding Agents or any Purchaser for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
Section 5.3. Exculpatory Provisions. None of the Funding Agents, the
Collateral Agent or any of their directors, officers, agents or employees shall
be liable for any action taken or omitted (i) with the consent or at the
direction of the Purchasers (or in the case of each Funding Agent, the
Purchasers relating to such Funding Agent) that have a majority of the aggregate
Commitments of the Purchasers or the Funding Agents or (ii) in the absence of
such Person's gross negligence or willful misconduct. The Collateral Agent
shall not be responsible to any Purchaser or Funding Agent for (i) any recitals,
representations, warranties or other statements made by the Seller, Servicer,
any Originator or any of their Affiliates, (ii) the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Transaction
Document or the Intercreditor Agreement, (iii) any failure of the Seller, the
Servicer, any Originator or any of their Affiliates to perform any obligation it
may have under any Transaction Document to which it is a party, (iv) the
satisfaction of any condition specified in Exhibit II or (v) the failure of any
party to the Intercreditor Agreement (other than the Collateral Agent acting in
such capacity) to perform any obligation it may have thereunder. The Collateral
Agent shall not have any obligation to any Purchaser or Funding Agent to
ascertain or inquire about the observance or performance of any agreement
contained in any Transaction Document or to inspect the properties, books or
records of the Seller, Servicer, any Originator or any of their Affiliates.
Section 5.4. Reliance by Agents. (a) Each Funding Agent and the Collateral
Agent shall in all cases be entitled to rely, and shall be fully protected in
relying, upon any document or other writing or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
and upon advice and statements of legal counsel (including counsel to the
Seller), independent accountants and other experts selected by the Collateral
Agent or any such Funding Agent. Each Funding Agent and the Collateral Agent
shall in all cases be fully justified in failing or refusing to take any action
under any Transaction Document unless it shall first receive such advice or
concurrence of the Purchasers (or in the case of each Funding Agent, the
Purchasers relating to such Funding Agent) that have a majority of the aggregate
Commitment of all such Purchasers, and assurance of its indemnification, as it
deems appropriate.
(b) With regard to the Purchasers and the Funding Agents, the Collateral
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Purchasers or
the Funding Agents, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all Purchasers, the Collateral Agent and
Funding Agents.
(c) Related Purchasers within any group of Purchasers that have a common
Funding Agent and that have a majority of the Commitment of all such related
Purchasers shall be entitled to request or direct the related Funding Agent to
take action, or refrain from taking action, under this Agreement on behalf of
such Purchasers. With regard to the Purchasers and the Funding Agents, such
Funding Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement in accordance with a request of such majority
Purchasers, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all of such Funding Agent's related Purchasers.
(d) Unless otherwise advised in writing by a Funding Agent or by any
Purchaser on whose behalf such Funding Agent is purportedly acting, each party
to this Agreement may assume that (i) such Funding Agent is acting for the
benefit of each of the Purchasers for which such Funding Agent is identified
herein (or in any Assumption Agreement or Transfer Supplement) as being the
Funding Agent, as well as for the benefit of each assignee or other transferee
from any such Person, and (ii) each action taken by such Funding Agent has been
duly authorized and approved by all necessary action on the part of the
Purchasers on whose behalf it is purportedly acting. Each Funding Agent and its
Purchaser(s) shall agree amongst themselves as to the circumstances and
procedures for removal, resignation and replacement of such Funding Agent.
Section 5.5. Notice of Termination Events. Neither any Funding Agent nor
the Collateral Agent shall be deemed to have knowledge or notice of the
occurrence of any Termination Event or Unmatured Termination Event unless such
Person has received notice from any Purchaser, Funding Agent, the Servicer or
the Seller stating that a Termination Event or Unmatured Termination Event has
occurred hereunder and describing such Termination Event or Unmatured
Termination Event. If the Collateral Agent receives such a notice, it shall
promptly give notice thereof to each Funding Agent whereupon each such Funding
Agent shall promptly give notice thereof to its Purchasers. If a Funding Agent
receives such a notice (other than from the Collateral Agent), it shall promptly
give notice thereof to the Collateral Agent. The Collateral Agent shall take
such action concerning a Termination Event or Unmatured Termination Event as may
be directed by the Funding Agents unless such action otherwise requires the
consent of all Purchasers), but until the Collateral Agent receives such
directions, the Collateral Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, as the Collateral Agent deems
advisable and in the best interests of the Purchasers and Funding Agents.
Section 5.6. Non-Reliance on Collateral Agent, Funding Agents and Other
Purchasers. Each Purchaser expressly acknowledges that none of the Collateral
Agent, the Funding Agents nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Collateral Agent, or any Funding
Agent hereafter taken, including any review of the affairs of the Seller,
Servicer or any Originator, shall be deemed to constitute any representation or
warranty by the Collateral Agent or such Funding Agent, as applicable. Each
Purchaser represents and warrants to the Collateral Agent and the Funding Agents
that, independently and without reliance upon the Collateral Agent, Funding
Agents or any other Purchaser and based on such documents and information as it
has deemed appropriate, it has made and will continue to make its own appraisal
of and investigation into the business, operations, property, prospects,
financial and other conditions and creditworthiness of the Seller, Servicer or
the Originators, and the Receivables and its own decision to enter into this
Agreement and to take, or omit, action under any Transaction Document. Except
for items specifically required to be delivered hereunder, the Collateral Agent
shall not have any duty or responsibility to provide any Funding Agent with any
information concerning the Seller, Servicer or the Originators or any of their
Affiliates that comes into the possession of the Collateral Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
Section 5.7. Collateral Agent, Funding Agents and Purchasers. Each of
the Purchasers, the Collateral Agent, the Funding Agents and their Affiliates
may extend credit to, accept deposits from and generally engage in any kind of
banking, trust, debt, entity or other business with the Seller, USS, Servicer or
any Originator or any of their Affiliates. With respect to the acquisition of
the Eligible Receivables pursuant to this Agreement, each of the Funding Agents
and the Collateral Agent shall have the same rights and powers under this
Agreement as any Purchaser and may exercise the same as though it were not such
an agent, and the terms "Purchaser" and "Purchasers" shall include each of the
Funding Agents and the Collateral Agent in their individual capacities.
Section 5.8. Indemnification. Each Committed Provider shall indemnify
and hold harmless the Collateral Agent (but solely in its capacity as Collateral
Agent) and its officers, directors, employees, representatives and agents (to
the extent not reimbursed by the Seller or Servicer and without limiting the
obligation of the Seller or Servicer to do so), ratably in accordance with their
respective Commitments and LC Sub-Commitments, as the case may be, from and
against any and all liabilities, obligations, losses, damages, penalties,
judgments, settlements, costs, expenses and disbursements of any kind whatsoever
(including in connection with any investigative or threatened proceeding,
whether or not the Collateral Agent or such Person shall be designated a party
thereto) that may at any time be imposed on, incurred by or asserted against the
Collateral Agent or such Person as a result of, or related to, any of the
transactions contemplated by the Transaction Documents or the execution,
delivery or performance of the Transaction Documents or any other document
furnished in connection therewith (but excluding any such liabilities,
obligations, losses, damages, penalties, judgments, settlements, costs, expenses
or disbursements resulting solely from the gross negligence or willful
misconduct of the Collateral Agent or such Person as finally determined by a
court of competent jurisdiction); provided, that in the case of each Purchaser
that is a commercial paper conduit, such indemnity shall be provided solely to
the extent of amounts received by such Purchaser under this Agreement which
exceed the amounts required to repay such Purchaser's outstanding Notes.
Notwithstanding anything in this Section 5.8 to the contrary, each of the
Collateral Agent, each Funding Agent and each Purchaser hereby covenants and
agrees that it shall not institute against, or join any other Person in
instituting against, any CP Conduit Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law, for one year and a day after the
latest maturing Note issued by such CP Conduit Purchaser is paid in full.
Section 5.9. Successor Collateral Agent. The Collateral Agent may, upon
at least thirty (30) days notice to the Seller and each Purchaser and Funding
Agent, resign as Collateral Agent. Such resignation shall not become effective
until a successor Collateral Agent is appointed by the Funding Agents (and,
unless such appointment is to an existing Funding Agent or Purchaser, such
successor Collateral Agent has been consented to by the Seller, such consent not
to be unreasonably withheld) and has accepted such appointment. Upon such
acceptance of its appointment as Collateral Agent hereunder by a successor
Collateral Agent, such successor Collateral Agent shall succeed to and become
vested with all the rights and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall be discharged from its duties and obligations
under the Transaction Documents. After any retiring Collateral Agent's
resignation hereunder, the provisions of Sections 3.1 and 3.2 and this Article V
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Collateral Agent.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Transaction Document, or consent to any departure by
the Seller or the Servicer therefrom, shall be effective unless in a writing
signed by each of the Majority Funding Agents; 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, to the extent required by the
securitization program of any CP Conduit Purchaser, no such material amendment
shall be effective until the Rating Agency Condition shall have been satisfied
with respect thereto; provided, further that no such amendment or waiver shall,
without the consent of each affected Purchaser, (A) extend the date of any
payment owing to such Purchaser or deposit of Collections by the Seller or the
Servicer, (B) reduce the rate or extend the time of payment of Discount owing to
such Purchaser, (C) reduce any fees payable to the Collateral Agent, any Funding
Agent or such Purchaser pursuant to the applicable Fee Letter, (D) change the
amount of Net Investment of such Purchaser, such Purchaser's pro rata share of
the Purchased Interest or such Committed Purchaser's Commitment or extend either
the Facility Termination Date or the related Purchaser Group's Commitment Expiry
Date then in effect, (E) amend, modify or waive any provision of the definition
of "Majority Funding Agents" or this Section 6.1, (F) consent to or permit the
assignment or transfer by the Seller of any of its rights and obligations under
this Agreement, (G) change the definition of "Eligible Receivable," "Loss
Reserve," "Loss Reserve Percentage," "Dilution Reserve," "Dilution Reserve
Percentage", "Termination Event", "Classified Obligor," "Designated Obligor,"
"Concentration Percentage," "Concentration Reserve Percentage," "Concentration
Reserve," "Excluded Obligor," "Excess Concentration," or "Special Obligor" or
(H) amend or modify any defined term (or any defined term used directly or
indirectly in such defined term) used in clauses (A) through (G) above in a
manner that would circumvent the intention of the restrictions set forth in such
clauses. No amendment or modification to Article V or to any other provision
that affects or otherwise relates to the rights, duties, obligations or
liabilities of the Collateral Agent shall be effective without the prior written
consent of the Collateral Agent. No failure on the part of the Collateral
Agent, the Purchasers or the Funding Agents 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. The Collateral Agent shall
provide each Rating Agency with a copy of each amendment to or waiver or consent
under this Agreement promptly following the effective date thereof.
Section 6.2. Notices, Etc. All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by express
mail or courier or by certified mail, postage-prepaid, or by facsimile, to the
intended party at the address or facsimile number of such party set forth under
its name on the signature pages hereof or at such other address or facsimile
number as shall be designated by such party in a written notice to the other
parties hereto. All such notices and communications shall be effective, (i) if
personally delivered or sent by express mail or courier or if sent by certified
mail, when received, and (ii) if transmitted by facsimile, when sent, receipt
confirmed by telephone or electronic means.
Section 6.3. Assignability. (a) This Agreement shall be binding on the
parties hereto and their respective successors and assigns; provided, however,
that neither the Seller nor the Servicer may assign any of its rights or
delegate any of its duties hereunder or under any of the other Transaction
Documents to which it is a party without the prior written consent of the
Funding Agents. Each CP Conduit Purchaser may assign, participate, grant
security interests in or otherwise transfer all or any portion of the Purchased
Interest held by it to any bank or other financial institution providing
liquidity support to such CP Conduit Purchaser in connection with its commercial
paper program (each, a "Liquidity Bank") or any other Program Support Provider
with respect to such CP Conduit Purchaser without prior notice to or consent
from the Seller, the Servicer, any Originator, any other party or any other
condition or restriction of any kind.
(b) Conduit Assignees. Each CP Conduit Purchaser may, from time to time
with prior or concurrent notice to the Seller, the Funding Agent for such CP
Conduit Purchaser and the Collateral Agent, assign all or any portion of such
CP Conduit Purchaser's interest in the Purchased Interest (and its related
Committed Purchasers) and its rights and obligations under this Agreement and
any other Transaction Document to which it is a party to a Conduit Assignee with
respect to such CP Conduit Purchaser. Upon such assignment by a CP Conduit
Purchaser to a Conduit Assignee, (A) the related administrative or managing
agent for such Conduit Assignee will act as the Funding Agent for such Conduit
Assignee hereunder, (B) such Conduit Assignee and its liquidity support
provider(s) and credit support provider(s) and other related parties shall have
the benefit of all the rights and protections provided to such CP Conduit
Purchaser and its related Committed Purchasers herein and in the other
Transaction Documents (including, without limitation, any limitation on recourse
against such Conduit Assignee), (C) such Conduit Assignee shall assume all of
such CP Conduit Purchaser's obligations hereunder or under any other Transaction
Document (whenever created, whether before or after such assignment) with
respect to the assigned portion of the CP Conduit Purchaser's interest in the
Purchased Interest and such CP Conduit Purchaser shall be released from all such
obligations, (D) all distributions to such CP Conduit Purchaser hereunder with
respect to the assigned portion of the CP Conduit Purchaser's interest shall be
made to such Conduit Assignee, (E) the definition of the term "CP Rate" shall be
determined on the basis of the interest rate or discount applicable to
commercial paper issued by such Conduit Assignee (rather than such CP Conduit
Purchaser), (F) the defined terms and other terms and provisions of this
Agreement and other Transaction Documents shall be interpreted in accordance
with the foregoing, and (G) if requested by any Funding Agent or administrative
or managing agent with respect to the Conduit Assignee, the parties will execute
and deliver such further agreements and documents (including amendments to this
Agreement) and take such other actions as the Funding Agents or such
administrative agent may reasonably request to evidence and give effect to the
foregoing.
(c) Participations. Any Committed Provider may, with the consent of the
applicable Funding Agent and in the ordinary course of its business and its
accordance with applicable law, at any time sell to one or more Persons (each, a
"Participant") participating interests in its rights and obligations hereunder
and under the Transaction Documents. Notwithstanding any such sale by a
Committed Provider of participating interests to a Participant, such Committed
Provider's rights and obligations under this Agreement shall remain unchanged,
such Committed Provider shall remain solely responsible for the performance
hereof, and each CP Conduit Purchaser, the Collateral Agent and the Funding
Agents shall continue to deal solely and directly with such Committed Provider
in connection with such Committed Provider's rights and obligations under this
Agreement and the other Transaction Documents. Each Committed Provider agrees
that any agreement between such Committed Provider and any such Participant in
respect of such participating interest shall not restrict such Committed
Provider's right to agree to any amendment, supplement, waiver or modification
to this Agreement.
(d) Assignments.
(i) Any Committed Purchaser may at any time and from time to time,
upon the prior written consent of the related CP Conduit Purchaser, if any, and
the Funding Agents, and, if the Purchaser is not an Affiliate of or otherwise
related to the selling Committed Purchaser and is not an existing Committed
Purchaser, the prior written consent of the Seller (which consent shall not be
unreasonably withheld), assign to one or more accredited investors or other
Persons all or any part of its rights and obligations under this Agreement and
the other Transaction Documents pursuant to a supplement to this Agreement,
substantially in the form of Exhibit VII hereto (each, a "Transfer Supplement"),
executed by the Purchaser, such selling Committed Purchaser, the related CP
Conduit Purchaser, if any, and, if applicable, the Seller; and provided,
however, that (A) any such assignment cannot be for an amount less than the
lesser of (1) $10,000,000 and (2) such selling Committed Purchaser's Commitment
and (B) each Purchaser must be a financial institution with a short-term rating
by the Rating Agencies at least equal to the rating by each such Rating Agency
on the Notes of the related CP Conduit Purchaser, if any.
(ii) Each of the Committed Purchasers agrees that if it ceases to have
short-term debt ratings at least equal to the ratings then assigned to the Notes
of the related CP Conduit Purchaser by the Rating Agencies, or, if such
Committed Purchaser does not have short-term debt which is rated by the Rating
Agencies, if the parent corporation of such Committed Purchaser has rated short-
term debt, such parent corporation ceases to have short-term debt ratings at
least equal to the ratings then assigned to the Notes of the related CP Conduit
Purchaser by the Rating Agencies (each, an "Affected Committed Purchaser"), such
Affected Committed Purchaser shall be obliged, at the request of the related CP
Conduit Purchaser and the related Funding Agent, to assign all of its rights and
obligations hereunder to (x) one or more other Committed Purchasers selected by
such CP Conduit Purchaser and the related Funding Agent which are willing to
accept such assignment, or (y) another financial institution having short-term
debt ratings at least equal to the ratings then assigned to the Notes of the
related CP Conduit Purchaser by the Rating Agencies nominated by the related
Funding Agent and consented to by such CP Conduit Purchaser (which consent shall
not be unreasonably withheld) and the Collateral Agent, and willing to
participate in this facility through the then current scheduled Facility
Termination Date in the place of such Affected Committed Purchaser; provided
that (i) the Affected Committed Purchaser receives payment in full of all
outstanding Net Investment and LC Aggregate Stated Amounts and accrued Discount,
if any, of such Person and any other amounts due and owning to such Affected
Committed Purchaser under this Agreement and the other Transaction Documents and
(ii) such nominated financial institution, if not an existing Committed
Purchaser, satisfies all the requirements of this Agreement.
(iii) Upon (A) execution of a Transfer Supplement, (B) delivery of an
executed copy thereof to the related CP Conduit Purchaser, the Collateral Agent
and the Seller, (C) payment, if applicable, by the Purchaser to such selling
Committed Purchaser of an amount equal to the purchase price agreed between such
selling Committed Purchaser and the Purchaser and (D) if required by the
documents governing any applicable CP Conduit Purchaser's commercial paper
program, receipt by such CP Conduit Purchaser of confirmation from each Rating
Agency that such action will not cause the downgrade or withdrawal of the then
current rating on such CP Conduit Purchaser's Notes, such selling Committed
Purchaser shall be released from its obligations hereunder to the extent of such
assignment and the purchaser shall, for all purposes, be a Committed Purchaser
party to this Agreement and shall have all the rights and obligations of a
Committed Purchaser under this Agreement to the same extent as if it were an
original party hereto, and no further consent or action by the CP Conduit
Purchasers, the Committed Purchasers or the Funding Agents shall be required.
The amount of the assigned portion of the selling Committed Purchaser's share of
the related Net Investment allocable to the Purchaser shall be equal to the
transferred percentage (as set forth in the Transfer Supplement) of such selling
Committed Purchaser's share of the related Net Investment that is transferred
thereunder regardless of the purchase price paid therefor. Such Transfer
Supplement shall be deemed to amend this Agreement to the extent, and only to
the extent, necessary to reflect the addition of the Purchaser as a Committed
Purchaser and the resulting adjustment of the selling Committed Purchaser's
Commitment arising from the purchase by the Purchaser of all or a portion of the
selling Committed Purchaser's rights, obligations and interest hereunder.
(e) Without limiting any other rights that may be available under
applicable law, the rights of the Purchasers hereunder may be enforced through
such Purchaser or by its agents.
Section 6.4. Costs, Expenses and Taxes. (a) In addition to the rights of
indemnification granted under Section 3.1, the Seller agrees to pay on demand
all reasonable and documented out-of-pocket costs and expenses in connection
with the preparation, execution, delivery and administration (including the
internal audits by any Funding Agent or their agents pursuant to Exhibit IV
hereto) of this Agreement, the other Transaction Documents and the other
documents and agreements (including, without limitation, the preparation,
execution and delivery of each Letter of Credit Application and the issuance of
each Letter of Credit hereunder) to be delivered hereunder (and all reasonable
and documented out-of-pocket costs and expenses in connection with any
amendment, waiver or modification of any thereof), including: (i) Attorney Costs
for the Collateral Agent, each Funding Agent, each Purchaser and their
respective Affiliates and agents with respect thereto and with respect to
advising each such Person and its respective Affiliates and agents as to their
rights and remedies under this Agreement and the other Transaction Documents,
and (ii) all reasonable and documented out-of-pocket costs and expenses
(including Attorney Costs), if any, of the Collateral Agent, each Funding Agent,
each Purchaser and their respective Affiliates and agents in connection with the
enforcement of this Agreement and the other Transaction Documents.
(b) In addition, the Seller shall pay on demand any and all stamp and
other taxes and fees payable in connection with the execution, delivery, filing
and recording of this Agreement or the other documents or agreements to be
delivered hereunder, if any, 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.
Section 6.5. No Proceedings; Limitation on Payments. (a) Each of the
Seller,the Servicer, the Collateral Agent, each Funding Agent, each assignee of
thePurchased Interest or any interest therein, hereby covenants and agrees that
itwill not institute against, or join any other Person in instituting against,
any CP Conduit Purchaser any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, for one year and one day after the latest maturing
Note issued by such CP Conduit Purchaser is paid in full. The provision of this
Section 6.5 shall survive any termination of this Agreement.
(b) Notwithstanding any provisions contained in this Agreement to the
contrary, no CP Conduit Purchaser shall, or shall be obligated to, pay any
amount, if any, payable by it pursuant to this Agreement or any other
Transaction Document unless (i) such CP Conduit Purchaser has received funds
which may be used to make such payment and which funds are not required to repay
Notes when due and (ii) after giving effect to such payment, either (x) such CP
Conduit Purchaser could issue Notes to refinance all outstanding Notes (assuming
such outstanding Notes matured at such time) in accordance with the program
documents governing such CP Conduit Purchaser's securitization program or (y)
all Notes of such CP Conduit Purchaser are paid in full. Any amount that such
CP Conduit Purchaser does not pay pursuant to the operation of the preceding
sentence shall not constitute a claim (as defined in 101 of the Bankruptcy Code)
against or company obligation of such CP Conduit Purchaser for any such
insufficiency unless and until such CP Conduit Purchaser satisfies the
provisions of clauses (i) and (ii) of this Section 6.5(b).
Section 6.6. GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK; AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES
HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO
THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH
OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH SERVICE MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
Section 6.7. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which, when so executed, shall be deemed
to be an original, and all of which, when taken together, shall constitute one
and the same agreement.
Section 6.8. Survival of Termination. The provisions of Sections 1.8,
1.9, 1.22, 3.1, 3.2, 3.3, 5.8, 6.4, 6.5, 6.6, 6.9, 6.12 and 6.13 shall survive
any termination of this Agreement.
Section 6.9. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH OF THE PARTIES
HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO
FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 6.10. Entire Agreement. This Agreement and the other Transaction
Documents embody the entire agreement and understanding between the parties
hereto, and supersede all prior or contemporaneous agreements and understandings
of such Persons, verbal or written, relating to the subject matter hereof and
thereof.
Section 6.11. Headings. The captions and headings of this Agreement and
any Exhibit, Schedule or Annex hereto are for convenience of reference only and
shall not affect the interpretation hereof or thereof.
Section 6.12. Purchaser's Liabilities. The obligations of each Purchaser
and each Funding Agent under the Transaction Documents are solely the
obligations of such Person. No recourse shall be had for any obligation or
claim arising out of or based upon any Transaction Document against any
stockholder, employee, officer, director or incorporator of such Person;
provided, however, that this Section 6.12 shall not relieve any such Person of
any liability it might otherwise have for its own gross negligence or willful
misconduct.
Section 6.13. Confidentiality. Unless otherwise required by applicable
law, each of the Seller and Servicer agrees to maintain the confidentiality of
this Agreement and the other Transaction Documents (and all drafts hereof and
thereof) in communications with third parties and otherwise; provided that this
Agreement may be disclosed to: (a) third parties to the extent such disclosure
is made pursuant to a written agreement of confidentiality in form and substance
reasonably satisfactory to each Funding Agent, (b) the Seller's legal counsel
and auditors if they agree to hold it confidential and (c) in filings made under
securities laws. Unless otherwise required by applicable law, each of the
Collateral Agent, each Purchaser, and each Funding Agent agrees to maintain the
confidentiality of all non-public information regarding the Seller, USS and its
Subsidiaries; provided that such information may be disclosed to: (i) third
parties to the extent such disclosure is made pursuant to a written agreement of
confidentiality in form and substance reasonably satisfactory to USS, (ii) legal
counsel and auditors of the Collateral Agent, each Purchaser, and each Funding
Agent if they agree to hold it confidential, (iii) the rating agencies rating
the Notes of each CP Conduit Purchaser to the extent such information relates to
the Receivables Pool or the transactions contemplated by this Agreement, or if
not so related, upon obtaining the prior consent of USS (such consent not to be
unreasonably withheld), (iv) any Program Support Provider or potential Program
Support Provider to the extent such information relates to the Receivables Pool
or the transactions contemplated by this Agreement, or if not so related, upon
obtaining the prior written consent of USS (such consent not to be unreasonably
withheld), (v) any placement agent placing the Notes of any CP Conduit
Purchaser, and (vi) any regulatory authorities having jurisdiction over the
Collateral Agent, the Funding Agents, the Purchasers, any Program Support
Provider or any Liquidity Bank.
Section 6.14. Agent Conflict Waiver. Each of the Collateral Agent and the
Funding Agents, respectively, acts in various capacities with respect to the
maintenance and administration of the commercial paper program of its related CP
Conduit Purchaser (including, administrative agent for such CP Conduit
Purchaser, as issuing and paying agent, as provider of other backup facilities,
and may provide other services or facilities from time to time, the "Agent
Roles"). Each of the parties hereto hereby acknowledges and consents to any and
all Agent Roles, waives any objections it may have to any actual or potential
conflict of interest caused by any such Funding Agent acting as the Funding
Agent for its related CP Conduit Purchaser or as a related Committed Purchaser
or as a liquidity or credit support provider under such CP Conduit Purchaser's
commercial paper program and acting as or maintaining any of the Agent Roles,
and agrees that in connection with any Agent Role, such Funding Agent may take,
or refrain from taking, any action which it in its discretion deems appropriate.
Section 6.15. Interpretation. Capitalized terms used in this Agreement
and the other Transaction Documents shall, unless otherwise defined, have the
meanings ascribed to them in Exhibit I attached hereto. Whenever the context
may require, any pronoun includes the corresponding masculine, feminine and
neuter forms. All references to times of day refer to "eastern standard time"
as defined in 15 USC 263 as modified by 15 USC 260a unless provided otherwise.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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.
UNITED STATES STEEL CORPORATION,
as initial Servicer
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Treasurer
Address:
United States Steel Corporation
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Attention: Assistant Treasurer - Cash & Banking
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
U. S. STEEL RECEIVABLES LLC,
as Seller
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Address:
U. S. Steel Receivables LLC
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With a copy to:
United States Steel Corporation
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Attention: Assistant Treasurer - Cash & Banking
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE PURCHASER GROUPS:
LIBERTY STREET FUNDING CORP.,
as a CP Conduit Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address:
Liberty Street Funding Corp.
c/o Global Securitization Services, LLC
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
The Bank of Nova Scotia
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Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA,
as a Committed Purchaser for Liberty Street
Funding Corp.
By: /s/ ▇▇▇▇▇▇ Last
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Name: ▇▇▇▇▇▇ Last
Title: Managing Director
Address:
The Bank of Nova Scotia
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Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA,
as LC Bank for the Purchaser Group for which The
Bank of Nova Scotia acts as Funding Agent
By: /s/ ▇▇▇▇▇▇ Last
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Name: ▇▇▇▇▇▇ Last
Title: Managing Director
Address:
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Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
LC Sub-Commitment: $125,000,000
THE BANK OF NOVA SCOTIA,
as Funding Agent for Liberty Street Funding Corp.,
as CP Conduit Purchaser and The Bank of Nova
Scotia, as Committed Purchaser and as LC Bank
By: /s/ ▇▇▇▇▇▇ Last
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Name: ▇▇▇▇▇▇ Last
Title: Managing Director
Address:
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Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment for its Purchaser Group: $375,000,000
MARKET STREET FUNDING LLC, as a CP Conduit
Purchaser
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address: Market Street Funding LLC
c/o AMACAR Group, LLC
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
PNC Bank, National Association
One PNC Plaza, 26th Floor
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
PNC BANK, NATIONAL ASSOCIATION, as Committed
Purchaser for Market Street Funding LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Address:
PNC Bank, National Association
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
PNC Bank, National Association
One PNC Plaza, 26th Floor
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
PNC BANK, NATIONAL ASSOCIATION, as LC Bank for the
Purchaser Group for which PNC Bank, National
Association, acts as Funding Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Address:
PNC Bank, National Association
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
LC Sub-Commitment: $125,000,000
With a copy to:
PNC Bank, National Association
One PNC Plaza, 26th Floor
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PNC BANK, NATIONAL ASSOCIATION, as Funding Agent
for Market Street Funding LLC, as CP Conduit
Purchaser and PNC Bank, National Association, as
Committed Purchaser and LC Bank
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address:
PNC Bank, National Association
One PNC Plaza, 26th Floor
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Commitment for its Purchaser Group: $125,000,000
THE BANK OF NOVA SCOTIA,
as Collateral Agent
By: /s/ ▇▇▇▇▇▇ Last
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Name: ▇▇▇▇▇▇ Last
Title: Managing Director
Address:
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EXHIBIT I
DEFINITIONS
As used in the Agreement (including its Exhibits, Schedules and Annexes)
and each other Transaction Document, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined). Unless otherwise indicated, all Section,
Annex, Exhibit and Schedule references in the Exhibits, Annexes and Schedules
are to Sections of and Annexes, Exhibits and Schedules to the Agreement.
"Accounts" means, the Lock-Box Account(s), the Concentration Account and/or
the Collection Account, as applicable.
"Adverse Claim" means a lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement; it being understood
that any of the foregoing in favor of the Seller or the Collateral Agent (for
the benefit of the Purchasers) shall not constitute an Adverse Claim.
"Affected Person" has the meaning set forth in Section 1.9 of the
Agreement.
"Affiliate" means, as to any Person: (a) any Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person, or (b) who is a director or officer: (i) of such Person or (ii) of
any Person described in clause (a), except that, with respect to any CP Conduit
Purchaser, Affiliate shall mean the holder(s) of its capital stock. For purposes
of this definition, control of a Person shall mean the power, direct or
indirect: (x) to vote 25% or more of the securities having ordinary voting power
for the election of directors of such Person, or (y) to direct or cause the
direction of the management and policies of such Person, in either case whether
by ownership of securities, contract, proxy or otherwise.
"Agreement" has the meaning set forth in the preamble.
"Alternate Rate" for any Settlement Period for any Net Investment (or
portion thereof) funded by any Purchaser other than through the issuance of
Notes, means an interest rate per annum equal to: (a) 1.50% per annum above the
Eurodollar Rate for such Settlement Period, or, if the Eurodollar Rate is then
unavailable, (b) the Base Rate for such Settlement Period; provided, however,
that the "Alternate Rate" for any day while a Termination Event exists shall be
an interest rate equal to 2.00% per annum above the Eurodollar Rate (or if for
any reason, the Eurodollar Rate is unavailable at such time, the Base Rate) in
effect on such day.
"Assumption Agreement" has the meaning set forth in Section 1.14 of the
Agreement.
"Attorney Costs" means and includes all reasonable fees and disbursements
of any external counsel, which fees, disbursements and costs shall be set forth
in reasonably detailed statements.
"Bankruptcy Code" means the United States Bankruptcy Reform Act of 1978 (11
U.S.C. 101, et seq.), as amended from time to time or any successor statute.
"Base Rate" means, with respect to any Purchaser, for any day, a
fluctuating interest rate per annum as shall be in effect from time to time,
which rate shall be at all times equal to the higher of:
(a) the rate of interest in effect for such day as publicly
announced from time to time by the applicable Funding Agent as its
"reference rate". Such "reference rate" is set by the applicable Funding
Agent based upon various factors, including the applicable Funding Agent's
costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be
priced at, above or below such announced rate, and
(b) 0.50% per annum above the latest Federal Funds Rate.
"Benefit Plan" means any employee benefit pension plan as defined in
Section 3(2) of ERISA in respect of which the Seller, any Originator or any
ERISA Affiliate is, or at any time during the immediately preceding six years
was, an "employer" as defined in Section 3(5) of ERISA.
"Business Day" means any day (other than a Saturday or Sunday) on which:
(a) banks are not authorized or required to close in New York, New York and (b)
if this definition of "Business Day" is utilized in connection with the
Eurodollar Rate, dealings are carried out in the London interbank market.
"Capital" means, at any time, the sum of the aggregate outstanding amount
of the Net Investment of each Purchaser at such time.
"Change in Control" means that USS ceases to own, directly or indirectly,
100% of the capital stock of the Seller free and clear of all Adverse Claims.
"Classified Obligor" means each Person requested by the Seller and the
Servicer pursuant to a written notice in substantially the form of Annex D
attached hereto, solely to the extent that such Person is approved as a
"Classified Obligor" by the Collateral Agent and each Funding Agent, as
evidenced by a written notice in substantially the form of Annex E attached
hereto.
"Closing Date" means September 27, 2006.
"Collateral Agent" has the meaning set forth in the preamble to the
Agreement.
"Collection Account" means that certain bank account numbered 2520-18
maintained at The Bank of Nova Scotia which is (i) identified as the "USS
Collection Account," (ii) pledged, on a first-priority basis, to the Collateral
Agent pursuant to Section 1.2(d), and (iii) governed by a Collection Account
Agreement.
"Collection Account Agreement" means a letter agreement among, inter alia,
the Seller and the Collection Account Bank, as the same may be amended,
supplemented, amended and restated, or otherwise modified from time to time in
accordance with the Agreement.
"Collection Account Bank" means the bank maintaining the Collection
Account.
"Collections" means, with respect to any Pool Receivable: (a) all funds
that are received by the Seller, the Servicer or any Originator in payment of
any amounts owed in respect of such Receivable (including purchase price,
finance charges, interest and all other charges), or applied to amounts owed in
respect of such Receivable (including insurance payments and net proceeds of the
sale or other disposition of repossessed goods or other collateral or property
of the related Obligor or any other Person directly or indirectly liable for the
payment of such Pool Receivable and available to be applied thereon), (b) all
Deemed Collections and (c) all other proceeds of such Pool Receivable.
"Commitment" means, with respect to any Purchaser Group, at any time, (i)
the amount set forth below the signature of the Funding Agent for such Purchaser
Group, as the maximum purchase commitment of the Purchasers in such Purchaser
Group or (ii) the amount set forth in any Assumption Agreement or Transfer
Supplement pursuant to which a Purchaser Group becomes a party to the Agreement,
in each case: (x) as such amounts may be increased or reduced from time to time
pursuant and in accordance with the terms of the Agreement and the other
Transaction Documents, and (y) which shall be inclusive of the LC Sub-Commitment
for the related LC Bank for such Purchaser Group.
"Commitment Expiry Date" means, for any Committed Purchaser and its
Purchaser Group September 25, 2009 or as extended in accordance with the terms
hereof.
"Committed Provider" means each Committed Purchaser and each LC Bank.
"Committed Purchasers" has the meaning set forth in the preamble to the
Agreement.
"Company Notes" has the meaning set forth in the Purchase and Sale
Agreement.
"Concentration Account" means that certain bank account numbered 069-3695,
maintained at Mellon Bank, N.A. which is (i) pledged on a first priority basis,
to the Collateral Agent pursuant to Section 1.2(d), and (ii) governed by the
Concentration Account Agreement.
"Concentration Account Agreement" means the blocked account agreement
among, inter alia, the Seller and the Concentration Account Bank, as the same
may be amended, supplemented, amended and restated, or otherwise modified from
time to time in accordance with the Agreement.
"Concentration Account Bank" means the bank maintaining the Concentration
Account.
"Concentration Percentage" means: (a) for any Group A Obligor, 16%, (b) for
any Group B Obligor, 8%, (c) for any Group C Obligor, 4%, (d) for any Group D
Obligor, 4% and (e) if such Obligor is a Special Obligor, such percentage as has
been so designated in writing by the Funding Agents to the Seller as the
"Concentration Percentage" for such Obligor; provided, however, that the Funding
Agents may, if the Rating Agency Condition is satisfied, approve higher
Concentration Percentages for selected Obligors.
"Concentration Reserve" means, at any time the product of (i) sum of (x)
the aggregate Capital at such time plus (y) the LC Aggregate Stated Amount
multiplied by (ii) the Concentration Reserve Percentage divided by (iii) 1,
minus the Concentration Reserve Percentage at such time.
"Concentration Reserve Percentage" means, at any time, 16%.
"Conduit Assignee" shall mean, with respect to any CP Conduit Purchaser,
any commercial paper conduit that issues commercial paper rated at least A-1 by
Standard & Poor's and P-1 by Moody's administered by the Funding Agent with
respect to such CP Conduit Purchaser and designated by such Funding Agent to
accept an assignment from such CP Conduit Purchaser of such CP Conduit
Purchaser's rights and obligations pursuant to Section 5.3 of the Agreement.
"Consent Date" has the meaning set forth in Section 1.13 of the Agreement.
"Contract" means, with respect to any Receivable, any and all contracts,
instruments, agreements, leases, invoices, notes or other writings pursuant to
which such Receivable arises or that evidence such Receivable or under which an
Obligor becomes or is obligated to make payment in respect of such Receivable.
"CP Conduit Purchaser" has the meaning set forth in the preamble to the
Agreement.
"CP Conduit Purchaser Termination Event" means, with respect to any CP
Conduit Purchaser, any of such CP Conduit Purchaser's Program Support Providers
(or the entity administering or servicing such CP Conduit Purchaser's commercial
paper program) shall have given it notice that an event of default has occurred
and is continuing under their respective commercial paper program agreements
with such CP Conduit Purchaser and/or that such event of default requires such
CP Conduit Purchaser to stop issuing Notes (or otherwise obtaining funds from
any such source) to fund or maintain its interest in the Purchased Interest.
"CP Rate" means, for any CP Conduit Purchaser and for any Settlement Period
for any Portion of Capital (a) the per annum rate equivalent to the weighted
average cost (as determined by the applicable Funding Agent and which shall
include commissions of placement agents and dealers, incremental carrying costs
incurred with respect to Notes of such Person maturing on dates other than those
on which corresponding funds are received by such CP Conduit Purchaser, other
borrowings by such CP Conduit Purchaser (other than under any Program Support
Agreement) and any other costs associated with the issuance of Notes) of or
related to the issuance of Notes that are allocated, in whole or in part, by the
applicable Funding Agent to fund or maintain such Portion of Capital (and which
may be also allocated in part to the funding of other assets of such CP Conduit
Purchaser); provided, however, that if any component of such rate is a discount
rate, in calculating the "CP Rate" for such Portion of Capital for such
Settlement Period, the applicable Funding Agent shall for such component use the
rate resulting from converting such discount rate to an interest bearing
equivalent rate per annum; provided, further, that notwithstanding anything in
the Agreement or the other Transaction Documents to the contrary, the Seller
agrees that any amounts payable to the Purchasers in respect of Discount for any
Settlement Period with respect to any Portion of Capital funded by such
Purchaser at the CP Rate shall include an amount equal to the portion of the
face amount of the outstanding Notes issued to fund or maintain such Portion of
Capital that corresponds to the portion of the proceeds of such Notes that was
used to pay the interest component of maturing Notes issued to fund or maintain
such Portion of Capital, to the extent that such Purchaser had not received
payments of interest in respect of such interest component prior to the maturity
date of such maturing Notes (for purposes of the foregoing, the "interest
component" of Notes equals the excess of the face amount thereof over the net
proceeds received by such Purchaser from the issuance of Notes, except that if
such Notes are issued on an interest-bearing basis its "interest component" will
equal the amount of interest accruing on such Notes through maturity) or (b) or
any other rate designated as the "CP Rate" for such CP Conduit Purchaser in an
Assumption Agreement or Transfer Supplement pursuant to which such Person
becomes a party as a CP Conduit Purchaser to the Agreement, or any other writing
or agreement provided by such CP Conduit Purchaser to the Seller, the Servicer
and Funding Agents from time to time.
"Credit and Collection Policy" means, as the context may require, those
receivables credit and collection policies and practices of the Seller or any
Originator in effect on the Closing Date and described in Schedule I to the
Agreement, as modified in compliance with the Agreement.
"Days' Sales Outstanding" means, for any calendar month, an amount computed
as of the last day of such month equal to: (a) the Outstanding Balance of all
Pool Receivables as of the last day of such month, divided by (b) (i) the
aggregate amount of new Receivables generated by the Originators during the
three calendar months ended on or before the last day of such month, divided by
(ii) 90.
"Debt" means, without duplication: (a) indebtedness for borrowed money,
(b) obligations evidenced by bonds, debentures, notes or other similar
instruments, (c) obligations to pay the deferred purchase price of property or
services, (d) obligations as lessee under leases that shall have been or should
be, in accordance with generally accepted accounting principles, recorded as
capital leases, and (e) obligations under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (d).
"Deemed Collections" has the meaning set forth in Section 1.6 of the
Agreement.
"Default Ratio" means the ratio (expressed as a percentage and rounded to
the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the
last day of each calendar month by dividing: (a) the aggregate Outstanding
Balance (excluding credit balances) of all Pool Receivables that became
Defaulted Receivables during such month, by (b) the aggregate amount of
Receivables generated by the Originators during the calendar month that is three
calendar months prior to such calendar month; provided that the aggregate
Outstanding Balance of all Pool Receivables that are Defaulted Receivables as of
the last day of each calendar month with respect to which the related Obligors
are Designated Obligors shall not be included in the calculation of this ratio.
"Defaulted Receivable" means a Receivable:
(a) as to which any payment, or part thereof, remains unpaid for more
than 60 days from the original due date for such payment, or
(b) without duplication (i) as to which an Event of Bankruptcy shall
have occurred with respect to the Obligor thereof or any other Person
obligated thereon or owning any Related Security with respect thereto, or
(ii) which has been, or, consistent with the Credit and Collection Policy
would be, written off the Seller's books as uncollectible.
"Delinquency Ratio" means the ratio (expressed as a percentage and rounded
to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of
the last day of each calendar month by dividing: (a) the aggregate Outstanding
Balance of all Pool Receivables that were Delinquent Receivables on such day by
(b) the Net Receivables Pool Balance on such day; provided that the aggregate
Outstanding Balance of all Pool Receivables that are Delinquent Receivables as
of the last day of each calendar month with respect to which the related
Obligors are Designated Obligors shall not be included in the calculation of
this ratio.
"Delinquent Receivable" means a Receivable (other than a Defaulted
Receivable) as to which any payment, or part thereof, remains unpaid for more
than 30 days from the original due date for such payment.
"Designated Obligor" means a Classified Obligor that the Seller has, by
written notice to the Collateral Agent and each Funding Agent, declared as a
Designated Obligor; it being understood that once a Person becomes a "Designated
Obligor" hereunder, it shall continue to be classified as such until such time
as the Collateral Agent and each Funding Agent consent to any de-classification.
"Dilution Horizon" means, for any calendar month, the ratio (expressed as a
percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded
upward) computed as of the last day of each calendar month by dividing: (a) the
aggregate amount of Receivables generated by the Originators during the last
calendar month by (b) the Net Receivable Pool Balance on such day.
"Dilution Ratio" means the ratio (expressed as a percentage and rounded to
the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward), computed as of
the last day of each calendar month by dividing: (a) the aggregate amount of
payments made or owed by the Seller pursuant to Section 1.6(a)(i) of the
Agreement during such calendar month (excluding such amounts related to
Receivables the Obligors of which are Designated Obligors) by (b) the aggregate
amount of Receivables generated by the Originators during the immediately
preceding calendar month (excluding such amounts related to Receivables the
Obligors of which are Designated Obligors generated by the Originators during
such period).
"Dilution Reserve" means, on any date, an amount equal to (a) the sum of
the Capital at the close of business of the Servicer on such date plus the LC
Aggregate Stated Amount at the close of business of the Servicer on such date
multiplied by (b)(i) the Dilution Reserve Percentage on such date divided by
(ii) 1.0 minus the Dilution Reserve Percentage on such date.
"Dilution Reserve Percentage" means on any date, the greater of: (a) 3% and
(b) the product of (i) the Dilution Horizon multiplied by (ii) the sum of (x)
the Reserve Adjustment Factor times the average of the Dilution Ratios for the
twelve most recent calendar months and (y) the Spike Factor.
"Discount" means:
(a) for the Portion of Capital for any Settlement Period to the extent
the applicable Purchaser will be funding such Portion of Capital during
such Settlement Period through the issuance of Notes:
CPR x C x ED/360 + YPF
(b) for the Portion of Capital for any Settlement Period to the extent
the applicable Purchaser will not be funding such Portion of Capital during
such Settlement Period through the issuance of Notes or, to the extent an
LC Bank has made a Funded Purchase, in connection with any drawing under a
Letter of Credit, which accrues Discount pursuant to Section 1.2(e) of the
Agreement:
AR x C x ED/Year + YPF
where:
AR = the applicable Alternate Rate for the Portion of
Capital for such Settlement Period,
C = the relevant Portion of Capital during such Settlement
Period,
CPR = the applicable CP Rate for the Portion of Capital,
ED = the actual number of days during such Settlement
Period,
Year = if such Portion of Capital is funded based
upon: (i) the Eurodollar Rate, 360 days, and (ii) the Base
Rate, 365 or 366 days, as applicable, and
YPF = the Yield Protection Fee, if any, for the Portion of
Capital for such Settlement Period;
provided, however, that during the occurrence and continuance of a Termination
Event, the CP Rate shall not be available and Discount for the Portion of
Capital shall be determined for each day in a Settlement Period using a rate
equal to 2.00% per annum above the Eurodollar Rate (or, if for any reason, the
Eurodollar Rate is not then available, the Base Rate) in effect on such day;
provided, further, that no provision of the Agreement shall require the payment
or permit the collection of Discount in excess of the maximum permitted by
applicable law; and provided further, that Discount for the Portion of Capital
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.
"Drawing Date" has the meaning set forth in Section 1.19 of the Agreement.
"Eligible Receivable" means, at any time, a Pool Receivable:
(a) the Obligor of which is (i) a United States resident,(ii) not a
government or a governmental subdivision, affiliate or agency, (iii) not
subject to any action of the type described in paragraph (f) of Exhibit V
to the Agreement, (iv) not an Affiliate of the Seller or any Originator or
any Affiliate of the Seller or any Originator (other than a Joint Venture
Obligor), and (v) not a Designated Obligor,
(b) that is denominated and payable only in U.S. dollars in the United
States,
(c) that does not have a stated maturity which is more than 64 days
after the original invoice date,
(d) that arises under a duly authorized Contract for the sale and
delivery of goods and services in the ordinary course of an Originator's
business,
(e) that arises under a duly authorized Contract that is in full force
and effect and that is a legal, valid and binding obligation of the related
Obligor, enforceable against such Obligor in accordance with its terms,
(f) that conforms in all material respects with all applicable laws,
rulings and regulations in effect,
(g) that is not the subject of any asserted dispute, offset, hold back
defense, Adverse Claim or other claim, provided that (i) undisputed amounts
with respect to any Receivable shall, solely to the extent that such
Receivable satisfies each of the other criteria set forth in this
definition, be an Eligible Receivable up to such undisputed amount and (ii)
any Receivable subject to potential offset shall, solely to the extent that
such Receivable satisfies each of the other criteria set forth in this
definition, be an Eligible Receivable so long as no actual offset has been
applied with respect thereto.
(h) that satisfies all applicable requirements of the Credit and
Collection Policy,
(i) that has not been modified, waived or restructured since its
creation, except as permitted pursuant to Section 4.2 of the Agreement,
(j) in which the Seller owns good and marketable title, free and clear
of any Adverse Claims, and that is freely assignable by the Seller
(including without any consent of the related Obligor),
(k) for which the Collateral Agent (for the benefit of the Purchasers)
shall have a valid and enforceable undivided percentage ownership or
security interest, to the extent of the Purchased Interest, and a valid and
enforceable first priority perfected security interest therein and in the
Related Security and Collections with respect thereto, in each case free
and clear of any Adverse Claim,
(l) that constitutes an account as defined in the UCC, and that is not
evidenced by instruments or chattel paper,
(m) that is not a Defaulted Receivable,
(n) for which none of the Seller, the Servicer or any Originator
thereof has established any offset arrangements with the related Obligor,
(o) for which Defaulted Receivables of the related Obligor do not
exceed 35% of the Outstanding Balance of all such Obligor's Receivables,
and
(p) that represents amounts earned and payable by the Obligor that are
not subject to the performance of additional services by the Seller, the
Servicer or any Originator.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"ERISA Affiliate" means: (a) any corporation that is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Internal Revenue Code) as the Seller, any Originator or the Servicer, (b) a
trade or business (whether or not incorporated) under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the Seller, any
Originator or Servicer, or (c) a member of the same affiliated service group
(within the meaning of Section 414(m) of the Internal Revenue Code) as the
Seller, Servicer, any Originator or any corporation described in clause (a) or
any trade or business described in clause (b).
"Eurodollar Rate" means, for any Purchaser and for any Settlement Period,
(a) an interest rate per annum (rounded upward to the nearest 1/16th of 1%)
determined pursuant to the following formula:
LIBOR
-----------------------------------------
100% - Eurodollar Rate Reserve Percentage
where "Eurodollar Rate Reserve Percentage" means, for any Settlement Period, the
maximum reserve percentage (expressed as a decimal, rounded upward to the
nearest 1/100th of 1%) in effect on the date LIBOR for such Settlement Period is
determined under regulations issued from time to time by the Federal Reserve
Board for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
"Eurocurrency" funding (currently referred to as "Eurocurrency liabilities")
having a term comparable to such Settlement Period, or (b) any other rate
designated as the "Eurodollar Rate" for such Purchaser in an Assumption
Agreement or Transfer Supplement pursuant to which such Person becomes a party
to the Agreement as a Purchaser, or any other writing or agreement provided by
such Purchaser to the Seller, the Servicer and the Funding Agents from time to
time.
"Event of Bankruptcy" means (a) any case, action or proceeding before any
court or other governmental authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors or (b) any general assignment for the benefit of creditors of a Person,
composition, marshaling of assets for creditors of a Person, or other similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in each of cases (a) and (b) undertaken under U.S. Federal, state
or foreign law, including the Bankruptcy Code.
"Excess Concentration" means the sum of the amounts by which the
Outstanding Balance of Eligible Receivables of each Obligor then in the
Receivables Pool exceeds an amount equal to: (a) the Concentration Percentage,
for such Obligor, multiplied by (b) the Outstanding Balance of all Eligible
Receivables then in the Receivables Pool.
"Excluded Obligor" means any of: (a) USS--POSCO Industries, (b) Metro
Metals Corporation, (c) TPSS Acquisition Corporation, (d) Clairton 1314B
Partnership, L.P. or (e) any other Person, if such Person is approved in writing
as an "Excluded Obligor" by the Funding Agents.
"Extending Committed Purchaser" has the meaning set forth in Section 1.13
of the Agreement.
"Facility Limit" means at any time, the aggregate of the Commitments of all
Purchaser Groups at such time (which amount shall initially total $500,000,000),
as such amount may be increased or reduced pursuant to the Agreement.
References to the unused portion of the Facility Limit shall mean, at any time,
the Facility Limit minus the sum of the then outstanding Capital plus the LC
Aggregate Stated Amount.
"Facility Termination Date" means the earliest to occur of: (a) with
respect to any Committed Purchaser (and the CP Conduit Purchasers related
thereto, if any), the then scheduled Commitment Expiry Date with respect to such
Purchaser, (b) the date determined pursuant to Section 2.2 of the Agreement and,
(c) the date the Facility Limit reduces to zero pursuant to Section 1.1(b) of
the Agreement.
"Federal Funds Rate" means, with respect to any Purchaser, for any day, the
per annum rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal Reserve Board
(including any such successor, "H.15(519)") for such day opposite the caption
"Federal Funds (Effective)." If on any relevant day such rate is not yet
published in H.15(519), the rate for such day will be the rate set forth in the
daily statistical release designated as the Composite 3:30 p.m. Quotations for
U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor, the "Composite
3:30 p.m. Quotations") for such day under the caption "Federal Funds Effective
Rate." If on any relevant day the appropriate rate is not yet published in
either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such day
will be the arithmetic mean as determined by the applicable Funding Agent of the
rates for the last transaction in overnight Federal funds arranged before 9:00
a.m. on that day by each of three leading brokers of Federal funds transactions
in New York City selected by the applicable Funding Agent.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System, or any entity succeeding to any of its principal functions.
"Fee Letter" has the meaning set forth in Section 1.7 of the Agreement.
"Fees" means the fees payable by the Seller pursuant to each Fee Letter.
"Funded Purchase" shall mean a purchase or deemed purchase of undivided
interests in the Purchased Interest under the Agreement which (i) is paid for in
cash (other than through reinvestment of Collections pursuant to Section 1.4(b)
of the Agreement), (ii) treated as a Funded Purchase pursuant to Section 1.2(e)
of the Agreement and/or any of the provisions set forth in Sections 1.16 through
1.24 of the Agreement or (iii) without double counting any of the amounts
described in clause (i) or (ii), of this definition, is the result of the
issuance of Notes by a CP Conduit Purchaser, pursuant to the Agreement or
otherwise, the proceeds of which are used to reimburse draws on the related LC
Bank under any Letter of Credit, whether on, prior to or after the date any such
draw is treated as or deemed to be a Funded Purchase under the Agreement.
"GAAP" means the generally accepted United States accounting principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors and successors from time to time.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including any court, and any Person owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Group A Obligor" means any Obligor with a short-term rating of at least:
(a) "A-1" by Standard & Poor's, or if such Obligor does not have a short-term
rating from Standard & Poor's, a rating of "A+" or better by Standard & Poor's
on its long-term senior unsecured and uncredit-enhanced debt securities, and (b)
"P-1" by Moody's, or if such Obligor does not have a short-term rating from
▇▇▇▇▇'▇, "▇▇" or better by Moody's on its long-term senior unsecured and
uncredit-enhanced debt securities.
"Group B Obligor" means an Obligor, not a Group A Obligor, with a short-
term rating of at least: (a) "A-2" by Standard & Poor's, or if such Obligor does
not have a short-term rating from Standard & Poor's, a rating of "BBB+" to "A"
by Standard & Poor's on its long-term senior unsecured and uncredit-enhanced
debt securities, and (b) "P-2" by Moody's, or if such Obligor does not have a
short-term rating from Moody's, "Baa1" to "A2" by Moody's on its long-term
senior unsecured and uncredit-enhanced debt securities.
"Group C Obligor" means an Obligor, not a Group A Obligor or Group B
Obligor, with a short-term rating of at least: (a) "A-3" by Standard & Poor's,
or if such Obligor does not have a short-term rating from Standard & Poor's, a
rating of "BBB-" to "BBB" by Standard & Poor's on its long-term senior unsecured
and uncredit-enhanced debt securities, and (b) "P-3" by Moody's, or if such
Obligor does not have a short-term rating from Moody's, "Baa3" to "Baa2" by
Moody's on its long-term senior unsecured and uncredit-enhanced debt
securities."
"Group D Obligor" means any Obligor that is not a Group A Obligor, Group B
Obligor or Group C Obligor.
"Incremental Transfer" has the meaning set forth in Section 1.2 of the
Agreement.
"Indemnified Amounts" has the meaning set forth in Section 3.1 of the
Agreement.
"Indemnified Party" has the meaning set forth in Section 3.1 of the
Agreement.
"Intercreditor Agreement" means that certain Intercreditor Agreement, dated
as of May 20, 2003 (as amended, supplemented or otherwise modified from time to
time), among The Bank of Nova Scotia, as Receivables Collateral Agent and as a
Funding Agent, JPMorgan Chase Bank, N.A., as Lender Agent and as a Funding
Agent, U. S. Steel Receivables LLC and United States Steel Corporation.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute of similar import, together with
the regulations thereunder, in each case as in effect from time to time.
References to sections of the Internal Revenue Code also refer to any successor
sections.
"Joint Venture Obligor" means Pro-Tec Coating Company and each other Person
notified from time to time by the Seller to the Funding Agents, if such Person
is approved in writing as "Joint Venture Obligors" by the Funding Agents and the
Rating Agency Condition is satisfied with respect thereto.
"LC Aggregate Stated Amount" shall mean, at any time, the then aggregate
undrawn amount of all outstanding Letters of Credit issued by all ▇▇ ▇▇▇▇▇.
"LC Bank" has the meaning set forth in the preamble to the Agreement.
"LC Collateral Account" means the account designated as the LC Collateral
Account established and maintained by the applicable Funding Agent (for the
benefit of the related LC Bank), or such other account as may be so designated
as such by such Funding Agent to the Collateral Agent and the Seller.
"LC Stated Amount" shall mean, at any time with respect to an LC Bank, the
then-undrawn amount of a Letter of Credit issued by such LC Bank.
"LC Sub-Commitment" means, the "LC Sub-Commitment" of each LC Bank party
hereto as set forth under its name on the signature pages to the Agreement or as
set forth in any Assignment Agreement or Transfer Supplement pursuant to which
it and the other members of its Purchaser Group became a party hereto.
"Letter of Credit" shall mean any outstanding letter of credit issued by an
LC Bank for the account of the Seller pursuant to the Agreement.
"Letter of Credit Application" has the meaning set forth in Section 1.16 of
the Agreement.
"LIBOR" means, with respect to any Purchaser, the rate of interest per
annum determined by the applicable Funding Agent to be the arithmetic mean
(rounded upward to the nearest 1/16th of 1%) of the rates of interest per annum
determined by the applicable Funding Agent as the rate of interest at which
dollar deposits in the approximate amount of the Portion of Capital to be funded
at the Eurodollar Rate during such Settlement Period would be offered by major
banks in the London interbank market to such Funding Agent at its request at or
about 11:00 a.m. (London time) on the second Business Day before the
commencement of such Settlement Period.
"Liquidity Agreement" means, with respect to each CP Conduit Purchaser, an
agreement pursuant to which certain Liquidity Banks agree to provide liquidity
support to such CP Conduit Purchaser in connection with the Notes issued to fund
or maintain its Net Investment hereunder, as the same may be amended,
supplemented or otherwise modified from time to time.
"Liquidity Bank" has the meaning set forth in Section 6.3(a) of the
Agreement.
"Lock-Box Account" means an account maintained at a bank or other financial
institution for the purpose of receiving Collections.
"Lock-Box Bank" means any of the banks or other financial institutions
holding one or more Lock-Box Accounts.
"Lock-Box Letter" means a letter, in form and substance reasonably
acceptable to the Funding Agents, which provides the relevant Lock-Box Bank with
notice of the Purchasers' interest in the amounts on deposit in the related
Lock-Box Account and acknowledges control of such account by the Collateral
Agent.
"Loss Reserve" means, on any date, an amount equal to (a) the sum of the
Capital at the close of business of the Servicer on such date plus the LC
Aggregate Stated Amount at the close of business of the Servicer on such date
multiplied by (b)(i) the Loss Reserve Percentage on such date divided by (ii) 1
minus the Loss Reserve Percentage on such date.
"Loss Reserve Percentage" means, on any date, (i) the product of (x) the
Reserve Adjustment Factor times the highest average of the Default Ratios for
any three consecutive calendar months during the twelve most recent calendar
months multiplied by (y) the aggregate amount of Receivables generated by the
Originators during the four most recent calendar months divided by (ii) the Net
Receivables Pool Balance on such date.
"Majority Funding Agents" means, at any time, the Funding Agent(s) which in
their related Purchaser Groups have Committed Purchasers whose Commitments
aggregate more than 50% of the aggregate of the Commitments of all Committed
Purchasers in all Purchaser Groups; provided, however, that so long as any one
Committed Purchaser's Commitment is greater than 50% of the aggregate
Commitments and there is more than one Purchaser Group, then "Majority Funding
Agents" shall mean a minimum of two Funding Agents which in their related
Purchaser Group have Committed Purchasers whose Commitments aggregate more than
50% of the aggregate Commitment of all Committed Purchasers in all Purchaser
Groups.
"Material Adverse Effect" means, relative to any Person with respect to any
event or circumstance, a material adverse effect on:
(a) the ability of any such Person to perform its obligations under
the Agreement or any other Transaction Document to which it is a party,
(b) the validity or enforceability of any other Transaction Document,
or the validity, enforceability or collectability of a material portion of
the Pool Receivables, or
(c) the status, perfection, enforceability or priority of the
Collateral Agent's or the Seller's interest in the Pool Assets.
"Monthly Report" means a report, in substantially the form of Annex B to
the Agreement, furnished to each Funding Agent pursuant to the Agreement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Exposure" means, with respect to each Purchaser Group at any date of
determination, an aggregate amount equal to (a) the aggregate Net Investment of
the Purchasers in such Purchaser Group at such time plus (b) the aggregate LC
Stated Amount for the LC Bank for such Purchaser Group at such time less any
sums in the applicable LC Collateral Account that serve as cash collateral to
secure one or more Letters of Credit of such LC Bank.
"Net Investment" means, for each Purchaser, the amount paid to the Seller
in connection with Funded Purchases in respect of the Purchased Interest
(including pursuant to Section 1.2(e) of the Agreement) by such Purchaser
pursuant to the Agreement, or such amount divided or combined in order to
determine the Discount applicable to any Portion of Capital, in each case
reduced from time to time by Collections distributed and applied on account of
such Net Investment pursuant to Section 1.4, 1.5 or 1.6 of the Agreement;
provided, that if such Net Investment shall have been reduced by any
distribution, and thereafter all or a portion of such distribution is rescinded
or must otherwise be returned for any reason, such Net Investment shall be
increased by the amount of such rescinded or returned distribution as though it
had not been made.
"Net Receivables Pool Balance" means, at any time: (a) the Outstanding
Balance of Eligible Receivables then in the Receivables Pool, minus (b) the
Excess Concentration.
"Non-Extending Committed Purchaser" has the meaning set forth in Section
1.13 of the Agreement.
"Notes" means short-term promissory notes issued, or to be issued, by any
CP Conduit Purchaser to fund its investments in accounts receivable or other
financial assets.
"Obligor" means, with respect to any Receivable, the Person obligated to
make payments pursuant to the Contract relating to such Receivable.
"Originators" has the meaning set forth in the Purchase and Sale Agreement.
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year
from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date
of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from Standard & Poor's and Moody's; and
(c) investments in certificates of deposit, banker's acceptances and time
deposits maturing within one year from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, BNS or any domestic office of any commercial bank organized under
the laws of the United States of America or any State thereof that has a
combined capital and surplus and undivided profits of not less than
$250,000,000.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Pool Assets" has the meaning set forth in Section 1.2(d) of the Agreement.
"Pool Receivable" means a Receivable in the Receivables Pool.
"Portion of Capital" means, with respect to any Purchaser, any separate
portion of such Purchaser's Net Investment being funded or maintained by such
Purchaser (or its successors or permitted assigns) by reference to a particular
interest rate basis.
"Program Support Agreement" means and includes, with respect to any
Purchaser, each Liquidity Agreement and any other agreement entered into by any
Program Support Provider providing for: (a) the issuance of one or more letters
of credit for the account of such Purchaser, (b) the issuance of one or more
surety bonds for which such Purchaser is obligated to reimburse the applicable
Program Support Provider for any drawings thereunder, (c) the sale by such
Purchaser to any Program Support Provider of the Purchased Interest (or portions
thereof) and/or (d) the making of loans and/or other extensions of credit to
such Purchaser in connection with such Purchaser's receivables-securitization
program contemplated in the Agreement, together with any letter of credit,
surety bond or other instrument issued thereunder (but excluding any
discretionary advance facility provided by the applicable Funding Agent).
"Program Support Provider" means and includes any Liquidity Bank and any
other Person (other than any customer of the applicable CP Conduit Purchaser)
now or hereafter extending credit or having a commitment to extend credit to or
for the account of, or to make purchases from, the Issuer pursuant to any
Program Support Agreement.
"Purchase and Sale Agreement" means, that certain Purchase and Sale
Agreement dated as of November 28, 2001, among the Seller, USS, as initial
Servicer and each of the Originators from time to time party hereto, as such
agreement may be amended, supplemented or otherwise modified from time to time.
"Purchased Interest" means, at any time, the undivided percentage ownership
interest of the Purchasers in: (a) each and every Pool Receivable now existing
or hereafter arising, (b) all Related Security with respect to such Pool
Receivables and (c) all Collections with respect to, and other proceeds of, such
Pool Receivables and Related Security. Such undivided percentage interest shall
be computed as:
Capital + LC Aggregate Stated Amount + Total Reserves
-----------------------------------------------------
Net Receivables Pool Balance
The Purchased Interest shall be determined from time to time pursuant to Section
1.3 of the Agreement.
"Purchaser" means, whether singly or in the aggregate, the CP Conduit
Purchasers, the Committed Purchasers and the ▇▇ ▇▇▇▇▇.
"Purchaser Group" means for any Purchaser, such Purchaser, the related
Funding Agent and each of the other Purchasers for whom such Funding Agent acts
in such capacity.
"Purchaser Group Funded Share" shall mean, with respect to each CP Conduit
Purchaser and each Committed Purchaser at any time of determination, a fraction
(expressed as a percentage), (a) the numerator of which is equal to the unused
portion of the related Purchaser Group's Commitment at such time and (b) the
denominator of which is equal to the sum of all unused Commitments of all
Purchaser Groups at such time.
"Rating Agency Condition" means, with respect to any event or occurrence,
receipt by the applicable CP Conduit Purchaser (if required by the documents
governing its commercial paper program) of written confirmation from Standard &
Poor's and Moody's that such event or occurrence shall not cause the rating on
the then outstanding Notes to be downgraded or withdrawn.
"Receivable" means any indebtedness and other obligations owed to the
Seller or any Originator by, or any right of the Seller or any Originator to
payment from or on behalf of, an Obligor (other than an Excluded Obligor)
whether constituting an account, chattel paper, instrument or general intangible
arising in connection with the sale of goods or the rendering of services by any
Originator or the Seller and includes the obligation to pay any finance charges,
fees and other charges with respect thereto; provided, however, that the term
"Receivable" shall not include any such indebtedness or right to payment arising
in connection with the sale of goods by the Seller or any such Originator that
are shipped by or on behalf of such Originator to or at the direction of the
related Obligor to an ultimate destination that is not a state within the United
States. Indebtedness and other obligations arising from any one transaction,
including indebtedness and other obligations represented by an individual
invoice or agreement, shall constitute a Receivable separate from a Receivable
consisting of the indebtedness and other obligations arising from any other
transaction.
"Receivables Pool" means, at any time, all of the then outstanding
Receivables purchased by the Seller or contributed to the Seller pursuant to the
Purchase and Sale Agreement.
"Related Security" means, with respect to any Receivable:
(a) all of the Seller's and the applicable Originator's interest in
any goods (including returned goods), and documentation of title evidencing
the shipment or storage of any goods (including returned goods), relating
to any sale giving rise to such Receivable,
(b) all instruments and chattel paper that may evidence such
Receivable,
(c) all other security interests or liens and property subject thereto
from time to time purporting to secure payment of such Receivable, whether
pursuant to the Contract related to such Receivable or otherwise, together
with all UCC financing statements or similar filings relating thereto,
(d) all of the Seller's and the applicable Originator's rights,
interests and claims under the Contracts and all guaranties, indemnities,
insurance and other agreements (including the related Contract) or
arrangements of whatever character from time to time supporting or securing
payment of such Receivable or otherwise relating to such Receivable,
whether pursuant to the Contract related to such Receivable or otherwise,
and
(e) all of the Seller's rights, interests and claims under the
Purchase and Sale Agreement.
"Reserve Adjustment Factor" means 2.
"Seller" has the meaning set forth in the preamble to the Agreement.
"Servicer" has the meaning set forth in the preamble to the Agreement.
"Servicing Fee" shall mean the fee referred to in Section 4.6 of the
Agreement.
"Servicing Fee Amount" at any time means the sum of (a) the then accrued
and unpaid Servicing Fee plus (b) the product of (i) the Outstanding Balance of
Pool Receivables at such time, times (ii) the product of (x) the Servicing Fee
Rate multiplied by (y) a fraction, the numerator of which is 1.5 times the Days'
Sales Outstanding (calculated on the last day of the most recent preceding
calendar month) and the denominator of which is 360.
"Servicing Fee Rate" shall mean the per annum rate payable pursuant to
Section 4.6 to any Servicer that becomes a successor Servicer hereunder.
"Settlement Date" means (a) prior to the Facility Termination Date, the
last day of each calendar month (or if such day is not a Business Day, then the
next following Business Day) and (b) on and after the Facility Termination Date,
each day selected from time to time by the Funding Agents (it being understood
that the Funding Agents may select such Settlement Date to occur as frequently
as daily), or, in the absence of any such selection, the day which would be the
Settlement Date pursuant to clause (a) of this definition.
"Settlement Period" for each Portion of Capital means: (a) before the
Facility Termination Date: (i) initially the period commencing on (and
including) the date hereof and ending on (but not including) the next Settlement
Date, and (ii) thereafter, each period commencing on such Settlement Date and
ending on (but not including) the next Settlement Date, and (b) on and after the
Facility Termination Date, such period (including a period of one day) as shall
be selected from time to time by the Funding Agents or, in the absence of any
such selection, each period of 30 days from the last day of the preceding
Settlement Period.
"Special Obligor" means an Obligor, so designated in writing by the Funding
Agents and set forth on Schedule IV to the Agreement, and with respect to which
each of Moody's and Standard & Poor's shall have provided a notice in writing to
each Funding Agent (if required by the documents governing the commercial paper
program of such Funding Agent's related CP Conduit Purchaser, if any) to the
effect that the inclusion of such Obligor as a Special Obligor with the proposed
Concentration Percentage will not result in the downgrading or withdrawal of
such rating agencies' current rating of such related CP Conduit Purchaser's
Notes; it being understood that (i) if the short-term debt rating any such
Special Obligor by either Moody's or Standard & Poor's shall cease to be at
least equal to the rating assigned by such rating agency to such related CP
Conduit Purchaser's Notes, if any, such Obligor shall cease to be a Special
Obligor under the Agreement, (ii) the Seller may request from time to time that
the Funding Agents designate additional Obligors as Special Obligors and
(iii) if, at any time, the long-term debt rating of General Motors Corporation
falls below BBB+ by Standard & Poor's or A3 by Moody's, General Motors
Corporation shall cease to be a Special Obligor under the Agreement.
"Spike Factor" means on any date, the product of (i) the positive
difference, if any, between: (a) the highest Dilution Ratio for any calendar
month during the twelve most recent calendar months and (b) the arithmetic
average of the Dilution Ratios for such twelve months, times (ii) (a) the
highest Dilution Ratio for any calendar month during the twelve most recent
calendar months, divided by (b) the arithmetic average of the Dilution Ratios
for such twelve months.
"Standard & Poor's" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Subsidiary" means, as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock of each class or
other interests having ordinary voting power (other than stock or other
interests having such power only by reason of the happening of a contingency) to
elect a majority of the Board of Directors or other managers of such entity are
at the time owned, or management of which is otherwise controlled: (a) by such
Person, (b) by one or more Subsidiaries of such Person or (c) by such Person and
one or more Subsidiaries of such Person.
"Termination Day" means: (a) each day on which the conditions set forth in
Section 2 of Exhibit II to the Agreement are not satisfied or (b) each day that
occurs on or after the Facility Termination Date.
"Termination Event" has the meaning specified in Exhibit V to the
Agreement.
"Total Reserves" means, at any time, an amount equal to the sum of (i) the
Yield Reserve, plus (ii) the Servicing Fee Amount, plus (iii) the greater of (x)
the sum of the Loss Reserve plus Dilution Reserve and (y) the Concentration
Reserve.
"Transaction Documents" means the Agreement, the Lock-Box Letter(s), the
Concentration Account Agreement and the Collection Account Agreement, each Fee
Letter, the Purchase and Sale Agreement, any applicable Company Notes and all
other certificates, instruments, UCC financing statements, reports, notices,
agreements and documents executed or delivered under or in connection with the
Agreement, in each case as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the Agreement.
"Transfer" means any Incremental Transfer or reinvestment under the terms
of the Agreement.
"Transfer Price" means the amount requested from the Purchasers by the
Seller in connection with any Incremental Transfer.
"Transfer Supplement" has the meaning set forth in Section 6.3(d) of the
Agreement.
"Triggered Receivables" means any (i) Defaulted Receivables and (ii)
Receivables of an Obligor that has failed to make payments for borrowed money in
an aggregate amount of $5,000,000 or more when due and following the expiration
of any applicable grace period.
"UCC" means the Uniform Commercial Code as from time to time in effect in
the applicable jurisdiction.
"Unmatured Termination Event" means an event that, with the giving of
notice or lapse of time, or both, would constitute a Termination Event.
"USS Credit Agreement" means that certain Credit Agreement, dated as of May
20, 2003 and as amended and restated as of October 22, 2004 (as further amended,
supplemented or otherwise modified from time to time), among USS, as borrower,
JPMorgan Chase Bank, N.A., as administrative agent, collateral agent, co-
syndication agent and swingline lender, General Electric Capital Corporation, as
co-collateral agent and co-syndication agent, and the various other agents and
the lenders (including certain of the purchasers and/or their Affiliates) from
time to time party thereto.
"USS Security Agreement" means that certain Security Agreement, dated as of
May 20, 2003 and as amended and restated as of October 22, 2004 (as further
amended, supplemented or otherwise modified from time to time), between USS and
JPMorgan Chase Bank, N.A., as collateral agent, executed in connection with the
USS Credit Agreement.
"Yield Protection Fee" means, for any Settlement Period, with respect to
any Net Investment, to the extent that (i) any payments are made by the Seller
to a Purchaser (including payments made in accordance with the proviso in
Section 1.6(b)(iii)) in respect of such Net Investment hereunder prior to the
applicable maturity date of any Notes or other instruments or obligations used
or incurred by such Purchaser to fund or maintain such Net Investment or (ii)
any failure by the Seller to borrow, continue or prepay any Net Investment on
the date specified in the related purchase notice delivered pursuant to Section
1.2 of the Agreement, the amount, if any, of the additional Discount related to
such Net Investment that would have accrued through the maturity date of such
Notes or other instruments or obligations on the portion thereof for which
payments were received from the Seller (or with respect to which the Seller
failed to borrow such amounts); it being understood that any Purchaser who
receives any Yield Protection Fee as part of the Discount payable to it on any
Settlement Date, shall (or shall cause the applicable Funding Agent on its
behalf), on or prior to the second Business Day following such Settlement Date
on which such Yield Protection Fee was received, pay to the Seller an amount
equal to the income, if any, received by such Purchaser (up to an amount not
exceeding the applicable Yield Protection Fee paid with respect thereto), from
investing the amounts received by it from the Seller to so reduce such Net
Investment (or portion thereof) or such amounts not so borrowed, as determined
by the applicable Funding Agent, which determination shall be binding and
conclusive absent manifest error.
"Yield Reserve" means, at any time:
( BR/360 x 1.5 (DSO)) x (Capital + ASA)
where:
ASA = the LC Aggregate Stated Amount at such time;
BR = the Base Rate in effect at such time, and
DSO = Days' Sales Outstanding.
Other Terms. All accounting terms not specifically defined herein shall be
construed in accordance with GAAP. All terms used in Article 9 of the UCC in
the State of New York, and not specifically defined herein, are used herein as
defined in such Article 9. Unless the context otherwise requires, "or" means
"and/or," and "including" (and with correlative meaning "include" and
"includes") means including without limiting the generality of any description
preceding such term.
EXHIBIT II
CONDITIONS OF PURCHASES
1. Conditions Precedent to Initial Funded Purchase or Initial Issuance of
Letter of Credit. The initial Funded Purchase or initial issuance of a Letter of
Credit under this Agreement is subject to the following conditions precedent
that the Funding Agents shall have received on or before the date of such
initial Funded Purchase or issuance of a Letter of Credit, each in form and
substance (including the date thereof) satisfactory to the Funding Agents:
(a) A counterpart of the Agreement, the other Transaction Documents and
the Intercreditor Agreement duly executed by the parties thereto.
(b) Certified copies of: (i) the resolutions of the Board of Directors of
each of the Seller and Servicer authorizing the execution, delivery and
performance by it, of the Agreement and the other Transaction Documents to which
it is a party; (ii) all documents evidencing other necessary action and
governmental approvals, if any, with respect to the Agreement and the other
Transaction Documents and (iii) the organizational documents of such Person.
(c) A certificate of the Secretary or Assistant Secretary of each of the
Seller and Servicer certifying the names and true signatures of its officers who
are authorized to sign the Agreement and the other Transaction Documents. Until
the Funding Agents receive a subsequent incumbency certificate from such Person,
the Funding Agents shall be entitled to rely on the last such certificate
delivered.
(d) Copies of proper financing statements, duly filed under the UCC on or
before the date of such initial Funded Purchase or issuance of a Letter of
Credit in such jurisdictions that are necessary or desirable in order to perfect
the interests of the Collateral Agent contemplated by the Agreement.
(e) Copies of any proper UCC termination statements necessary to release
all security interests and other similar rights of any Person in the
Receivables, Contracts or Related Security previously granted by the Seller or
any Originator.
(f) Completed UCC search reports, dated on or shortly before the date of
the initial Funded Purchase or issuance of a Letter of Credit hereunder, listing
the financing statements filed in all applicable jurisdictions referred to in
subsection (d) of this Section 1 that name the Seller or any Originator as
debtor, together with copies of such other financing statements, and similar
search reports with respect to judgment liens, federal tax liens and liens of
the Pension Benefit Guaranty Corporation in such jurisdictions, as any Funding
Agent may reasonably request, showing no Adverse Claims (i) with respect to any
Pool Assets (other than Adverse Claims created and existing, until the sale or
contribution of Receivables and Related Rights to the Seller in accordance with
the Purchase and Sale Agreement, or (ii) pursuant to the USS Security
Agreement).
(g) Copies of the executed (i) Lock-Box Letter(s), (ii) the Concentration
Account Agreement with the Concentration Account Bank and (iii) Collection
Account Agreement with the Collection Account Bank.
(h) Opinions, in form and substance reasonably satisfactory to the
Funding Agents, of (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to the Seller,
the Servicer and the Originators with respect to various UCC, perfection,
enforceability and bankruptcy matters and, (ii) in-house counsel to the Seller,
the Servicer and the Originators as to various company matters with respect to
each such Person.
(i) [Reserved].
(j) A pro forma Monthly Report representing the performance of the
Receivables Pool for the calendar month before closing.
(k) Evidence of payment by the Seller of all accrued and unpaid fees
(including those contemplated by each Fee Letter), costs and expenses to the
extent then due, billed and payable on the date thereof, including any such
costs, fees and expenses arising under or referenced in Section 6.4 of the
Agreement and each Fee Letter.
(l) Each Fee Letter duly executed by the Seller and Servicer.
(m) Good standing certificates with respect to the Seller, the Servicer
and the Originators issued by the Secretary of State (or similar official) of
the state of each such Person's organization and principal place of business.
(n) To the extent required by each CP Conduit Purchaser's commercial
paper program, letters from each of the rating agencies then rating the Notes of
such CP Conduit Purchaser confirming the rating of its Notes after giving effect
to the transaction contemplated by the Agreement.
(o) A file (computer generated or otherwise) containing all information
with respect to the Receivables as the Funding Agents may reasonably request.
2. Conditions Precedent to All Funded Purchases and Reinvestments and
Issuances of Letters of Credit. Each Funded Purchase (except as to clause (a),
including the initial Funded Purchase) and each reinvestment and each issuance
of a Letter of Credit shall be subject to the further conditions precedent that:
(a) in the case of each Funded Purchase and each reinvestment and each
issuance of a Letter of Credit, the Servicer shall have delivered to the Funding
Agents on or before such Funded Purchase, reinvestment or issuance, in form and
substance satisfactory to the Funding Agents, a completed pro forma Monthly
Report to reflect the level of Capital, the LC Aggregate Stated Amount, the
aggregate LC Stated Amount of each LC Bank, a calculation of the related
reserves after such purchase, reinvestment or issuance and the calculation of
the Purchased Interest thereafter and a completed Purchase Notice; and
(b) on the date of such Funded Purchase or reinvestment or issuance of a
Letter of Credit the following statements shall be true (and acceptance of the
proceeds of such Funded Purchase or reinvestment or Letter of Credit shall be
deemed a representation and warranty by the Seller that such statements are then
true):
(i) the representations and warranties contained in Exhibit III to
the Agreement are true and correct in all material respects on and as of
the date of such Funded Purchase or reinvestment or issuance as though made
on and as of such date;
(ii) no event has occurred and is continuing, or would result from
such Funded Purchase or reinvestment or issuance, that constitutes a
Termination Event or an Unmatured Termination Event;
(iii) after giving effect to such Funded Purchase or reinvestment
or issuance (x) the Net Exposure of any Purchaser Group does not exceed the
Commitment of such Purchaser Group, (y) the Capital plus the LC Aggregate
Stated Amount does not exceed the Facility Limit and (z) the aggregate LC
Stated Amount for any LC Bank does not exceed such LC Bank's LC Sub-
Commitment; and
(iv) The Facility Termination Date has not occurred.
EXHIBIT III
REPRESENTATIONS AND WARRANTIES
1. Representations and Warranties of the Seller. The Seller represents
and warrants as follows:
(a) Company Existence and Power. The Seller is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware and has all necessary powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as currently conducted in each applicable jurisdiction.
(b) Company and Governmental Authorization: Contravention. The
execution, delivery and performance by the Seller of the Agreement and the other
Transaction Documents to which it is a party (i) are within the Seller's company
powers, (ii) have been duly authorized by all necessary action, (iii) require no
action or authorization by or in respect of, or filing with, any governmental
body, agency or official (other than the Uniform Commercial Code filings
referred to in Exhibit II to the Agreement, all of which have been filed on or
before the first Funded Purchase or issuance of Letter of Credit hereunder) and
(iv) do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of formation or operating
agreement of the Seller or of any other agreement, judgment, injunction, order,
decree or other instrument binding upon the Seller or result in the creation or
imposition of any Adverse Claim on any asset of the Seller or any of its
Subsidiaries. The Agreement and the other Transaction Documents to which it is
a party have been duly executed and delivered by the Seller.
(c) Enforceability. This Agreement and the other Transaction Documents
to which it is a party are legal, valid and binding obligations of the Seller,
enforceable against the Seller in accordance with their respective terms, except
to the extent that enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and to the extent that general equitable principles may limit
the right to obtain the remedy of specific performance of the obligations
hereunder and thereunder.
(d) Litigation. Except as set forth in USS's most recently distributed
Form 10-K or 10-Q, there is no action, suit, arbitration or other proceeding,
inquiry or investigation, at law or in equity, or before or by any court, public
board or body, arbitrator or arbitral body pending against the Seller or of
which the Seller has otherwise received official notice or which to the
knowledge of the Seller is threatened against the Seller, wherein there is a
reasonable possibility of an unfavorable decision, ruling or finding that would
reasonably be expected to have a Material Adverse Effect, and since the dates of
the respective descriptions of proceedings contained in the reports heretofore
identified, there has been no change in the status of such proceedings that
would reasonably be expected to have a Material Adverse Effect.
(e) No proceeds of any Funded Purchase or reinvestment or issuance of
Letter of Credit will be used by the Seller to acquire any equity security of a
class that is registered pursuant to Section 12 of the Securities Exchange Act
of 1934.
(f) The Seller is the legal and beneficial owner of the Pool Receivables
and Related Security, free and clear of any Adverse Claim, other than Adverse
Claims created and existing, until the sale or contribution of Receivables and
Related Rights to the Seller in accordance with the Purchase and Sale Agreement,
pursuant to the USS Security Agreement. Upon each Funded Purchase or
reinvestment or issuance of a Letter of Credit, the Collateral Agent (for the
benefit of the Purchasers) shall acquire a valid and enforceable perfected
undivided percentage ownership or security interest, to the extent of the
Purchased Interest, in each Pool Receivable then existing or thereafter arising
and in the Related Security, Collections and other proceeds with respect
thereto, free and clear of any Adverse Claim. The Agreement creates a security
interest in favor of the Collateral Agent (for the benefit of the Purchasers) in
the Pool Assets, and the Collateral Agent (for the benefit of the Purchasers)
has a first priority perfected security interest in the Pool Assets, free and
clear of any Adverse Claims. No effective financing statement or other
instrument similar in effect covering any Pool Asset is on file in any recording
office, except (x) those filed in favor of the Collateral Agent (for the benefit
of the Purchasers) relating to the Agreement and (y) those financing statements
filed pursuant to the USS Security Agreement, covering the Pool Assets prior to
the time of the sale or contribution thereof to the Seller pursuant to the
Purchase and Sale Agreement.
(g) Each Monthly Report (if prepared by the Seller or one of its
Affiliates, or to the extent that information contained therein is supplied by
the Seller or an Affiliate), information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Seller to the Funding Agents or any Purchaser in connection
with the Agreement or any other Transaction Document to which it is a party is
or will be complete and accurate in all material respects as of its date or as
of the date so furnished.
(h) The Seller's location (as such term is used in Section 9-307 of the
UCC) is Delaware and the office where it keeps its records concerning the
Receivables are located at the address referred to in Section 1(b) of Exhibit IV
to the Agreement.
(i) The names and addresses of all the Lock-Box Banks, together with the
account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified
in Schedule II to the Agreement (or at such other Lock-Box Banks and/or with
such other Lock-Box Accounts as have been notified to the Funding Agents in
accordance with the Agreement) and all Lock-Box Banks have received a Lock-Box
Letter.
(j) No proceeds of any Funded Purchase or reinvestment or issuance of a
Letter of Credit will be used for any purpose that violates any applicable law,
rule or regulation, including Regulations T, U or X of the Federal Reserve
Board.
(k) Each Pool Receivable included as an Eligible Receivable in the
calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(l) No event has occurred and is continuing, or would result from a
Funded Purchase in respect of, or reinvestment in respect of, or issuance of a
Letter of Credit in respect of, the Purchased Interest or from the application
of the proceeds therefrom, that constitutes a Termination Event or an Unmatured
Termination Event.
(m) The Seller has complied in all material respects with the Credit and
Collection Policy of each Originator with regard to each Receivable originated
by such Originator.
(n) The Seller has complied in all material respects with all of the
terms, covenants and agreements contained in the Agreement and the other
Transaction Documents that are applicable to it.
(o) The Seller's complete company name is set forth in the preamble to
the Agreement, and it does not use and has not during the last five years used
any other company name, trade name, doing-business name or fictitious name,
except as set forth on Schedule III to the Agreement and except for names first
used after the date of the Agreement and set forth in a notice delivered to the
Funding Agents pursuant to Section 1(k)(iii) of Exhibit IV to the Agreement.
(p) The Seller is not an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(q) Each Pool Receivable of an Obligor, that is not a resident of the
United States, is not (and shall not at any time be) subject to any currency
controls imposed by any Governmental Authority under the laws of which such
Obligor is organized or a political subdivision thereof, which currency controls
restrict the ability of such Obligor to pay its obligations in connection with
such Pool Receivable.
2. Representations and Warranties of the Servicer. The Servicer
represents and warrants as follows:
(a) Company Existence and Power. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all necessary powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as
currently conducted in each applicable jurisdiction, except where the failure to
do so would not reasonably be expected to result in a Material Adverse Effect.
(b) Company and Governmental Authorization: Contravention. The
execution, delivery and performance by the Servicer of this Agreement and the
other Transaction Documents to which it is a party (i) are within the Servicer's
corporate powers, (ii) have been duly authorized by all necessary action, (iii)
require no action or authorization by or in respect of, or filing with, any
governmental body, agency or official and (iv) do not contravene, or constitute
a default under, any provision of applicable law or regulation or of the
restated certificate of incorporation or by-laws of the Servicer or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Servicer or result in the creation or imposition of any Adverse Claim on any
asset of the Servicer or any of its Subsidiaries. The Agreement and the other
Transaction Documents to which it is a party have been duly executed and
delivered by the Servicer.
(c) Enforceability. This Agreement and the other Transaction Documents
to which it is a party are legal, valid and binding obligations of the Servicer,
enforceable against the Servicer in accordance with their respective terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and to the extent that general equitable principles
may limit the right to obtain the remedy of specific performance of the
obligations hereunder and thereunder.
(d) Financial Information.
(i) The consolidated balance sheet of USS and its Subsidiaries as of
December 31, 2005 and the related consolidated statements of changes in
financial position, income and cash flows for the fiscal year then ended,
reported on by PricewaterhouseCoopers and included in USS's Annual Report
on Form 10-K for the year ended December 31, 2005 (the "2005 Form 10-K"),
as filed with the Securities and Exchange Commission, copies of which have
been delivered to the Funding Agents, fairly present, in conformity with
GAAP, the consolidated financial position of USS and its Subsidiaries as of
such date and its consolidated results of operations and changes in
financial position for such fiscal year.
(ii) The unaudited consolidated balance sheet of USS and its
Subsidiaries as of March 30, 2006 and the related unaudited consolidated
statements of changes in financial position, income and cash flows for the
three months then ended, set forth in USS's quarterly report on Form 10-Q
for the fiscal quarter ended March 30, 2006 (the "First Quarter 2006
10-Q"), as filed with the Securities and Exchange Commission, copies of
which have been delivered to the Funding Agents, fairly present, in
conformity with GAAP, the consolidated financial position of USS and its
Subsidiaries as of such date and its consolidated results of operations and
changes in financial position for such three month period (subject to
normal year-end adjustments).
(iii) Since December 31, 2005, there has been no change in the
consolidated financial position or operations of USS and its Subsidiaries,
considered as a whole, that would reasonably be expected to have a Material
Adverse Effect.
(e) Litigation. Except as set forth in USS's most recently distributed
Form 10-K or 10-Q, there is no action, suit, arbitration or other proceeding,
inquiry or investigation, at law or in equity, or before or by any court, public
board or body, arbitrator or arbitral body pending against USS or of which USS
has otherwise received official notice or which to the knowledge of USS is
threatened against USS, wherein there is a reasonable possibility of an
unfavorable decision, ruling or finding that would reasonably be expected to
have a Material Adverse Effect, and since the dates of the respective
descriptions of proceedings contained in the reports identified in Section 2(d),
there has been no change in the status of such proceedings that would reasonably
be expected to have a Material Adverse Effect.
(f) Each Monthly Report (if prepared by the Servicer or one of its
Affiliates, or to the extent that information contained therein is supplied by
the Servicer or an Affiliate), information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Servicer to the Funding Agents or any Purchaser in connection
with the Agreement or any other Transaction Document to which it is a party is
or will be complete and accurate in all material respects as of its date or as
of the date so furnished.
(g) Each Pool Receivable included as an Eligible Receivable in the
calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(h) No event has occurred and is continuing, or would result from a
Funded Purchase in respect of, or reinvestment in respect of, or an issuance of
a Letter of Credit in respect of, the Purchased Interest or from the application
of the proceeds therefrom, that constitutes a Termination Event or an Unmatured
Termination Event.
(i) The Servicer has complied in all material respects with the Credit
and Collection Policy of each Originator with regard to each Receivable
originated by such Originator.
(j) The Servicer has complied in all material respects with all of the
terms, covenants and agreements contained in the Agreement and the other
Transaction Documents that are applicable to it.
(k) The Servicer is not an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
EXHIBIT IV
COVENANTS
1. Covenants of the Seller. Until the latest of the Facility Termination
Date, the date on which no Capital or Net Investment of or Discount in respect
of the Purchased Interest shall be outstanding, the date on which the aggregate
LC Stated Amount for each LC Bank shall have been cash collateralized in full by
deposit thereof into the applicable LC Collateral Account or the date all other
amounts owed by the Seller under the Agreement to the Collateral Agent, the
Funding Agents, the Purchasers and any other Indemnified Party or Affected
Person shall be paid in full:
(a) Compliance with Laws, Etc. The Seller shall comply in all material
respects with all applicable laws, rules, regulations and orders, and preserve
and maintain its existence, rights, franchises, qualifications and privileges,
except to the extent that the failure to do so would not be reasonably expected
to have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Seller: (i) shall
keep its location (as such terms or similar terms are used in Section 9-307 of
the UCC) in Delaware and the office where it keeps its records concerning the
Receivables at the address of the Seller set forth under its name on the
signature page to the Agreement or, upon thirty days prior written notice to the
Collateral Agent, at any other locations in jurisdictions where all actions
reasonably requested by the Collateral Agent to protect and perfect the interest
of the Collateral Agent in the Receivables and related items (including the Pool
Assets) have been taken and completed and (ii) shall provide the Collateral
Agent with at least 30 days' written notice before making any change in the
Seller's name or making any other change in the Seller's identity or
organizational status that could render any UCC financing statement filed in
connection with the Agreement "seriously misleading" as such term (or similar
term) is used in the UCC; each notice to the Collateral Agent pursuant to this
sentence shall set forth the applicable change and the effective date thereof.
The Seller will also maintain and implement administrative and operating
procedures (including an ability to recreate records evidencing Receivables and
related Contracts in the event of the destruction of the originals thereof), and
keep and maintain all documents, books, records, computer tapes and disks and
other information reasonably necessary or advisable for the collection of all
Receivables (including records adequate to permit the daily identification of
each Receivable and all Collections of and adjustments to each existing
Receivable).
(c) Performance and Compliance with Contracts and Credit and Collection
Policy. The Seller shall comply in all material respects with the applicable
Credit and Collection Policies with regard to each Receivable and the related
Contract.
(d) Ownership Interest, Etc. Except with regard to Receivables
repurchased pursuant to Section 1.2(f) of the Agreement, the Seller shall, at
its expense, take all action necessary or desirable to establish and maintain a
valid and enforceable undivided percentage ownership or security interest, to
the extent of the Purchased Interest, in the Pool Receivables, the Related
Security and Collections with respect thereto, and a first priority perfected
security interest in the Pool Assets, in each case free and clear of any Adverse
Claim, in favor of the Collateral Agent (for the benefit of the Purchasers),
including taking such action to perfect, protect or more fully evidence the
interest of the Collateral Agent (for the benefit of the Purchasers) as the
Collateral Agent may reasonably request.
(e) Sales, Liens, Etc. Other than dispositions made in accordance with
the Transaction Documents, the Seller shall not sell, assign (by operation of
law or otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim upon or with respect to, any or all of its right, title or
interest in, to or under any Pool Assets (including the Seller's undivided
interest in any Receivable, Related Security or Collections, or upon or with
respect to any account to which any Collections of any Receivables are sent), or
assign any right to receive income in respect of any items contemplated by this
paragraph; provided, however, that the Seller may sell Triggered Receivables and
the Related Security, Collections and proceeds with respect thereto pursuant to
any trade put agreement, credit default swap or other arrangement pursuant to
which the Seller has hedged its credit exposure so long as Seller complies with
Section 1.2(f) of this Agreement.
(f) Extension or Amendment of Receivables. Except as provided in the
Agreement, the Seller shall not extend the maturity or adjust the Outstanding
Balance or otherwise modify the terms of any Pool Receivable, or amend, modify
or waive any term or condition of any related Contract.
(g) Change in Credit and Collection Policy. The Seller shall not make any
material change in the character of its business or in the Credit and Collection
Policy, or any change in the Credit and Collection Policy that would materially
and adversely affect the collectability of the Receivables Pool or the
enforceability of any related Contract or the ability of the Seller to perform
its obligations under any related Contract or under the Agreement.
(h) Audits. The Seller shall from time to time during regular business
hours but no more frequently than annually unless a Termination Event or
Unmatured Termination Event has occurred and is continuing, as reasonably
requested in advance (unless a Termination Event or Unmatured Termination Event
exists) by any Funding Agent permit such Funding Agent, or its agents or
representatives: (i) to examine and make copies of and abstracts from all books,
records and documents (including computer tapes and disks) in the possession or
under the control of the Seller relating to Receivables and the Related
Security, including the related Contracts, and (ii) to visit the offices and
properties of the Seller for the purpose of examining such materials described
in clause (i) of this Section 1(h), and to discuss matters relating to
Receivables and the Related Security or the Seller's or performance under the
Transaction Documents or under the Contracts with any of the officers,
employees, agents or contractors of the Seller having knowledge of such matters.
(i) Change in Lock-Box Banks, Lock-Box Accounts and Payment Instructions
to Obligors. The Seller shall not add or terminate any bank as a Lock-Box Bank
or any account as a Lock-Box Account from those listed in Schedule II to the
Agreement, or make any change in its instructions to Obligors regarding payments
to be made to the Seller or any Lock-Box Account (or related post office box),
unless the Collateral Agent shall have consented thereto in writing and the
Collateral Agent shall have received copies of all agreements and documents
(including Lock-Box Letters) that it may request in connection therewith.
(j) Deposits to Lock-Box Accounts, the Concentration Account and the
Collection Account. The Seller (or the Servicer on its behalf) shall: (i)
instruct all Obligors to make payments of all Pool Receivables to one or more
Lock-Box Accounts or to post office boxes to which only Lock-Box Banks have
access (and shall instruct the Lock-Box Banks to cause all items and amounts
relating to such Receivables received in such post office boxes to be removed
and deposited into a Lock-Box Account on a daily basis), and (ii) deposit, or
cause to be deposited, any Collections received by it into the Concentration
Account not later than one Business Day after receipt thereof. Each Lock-Box
Account shall be subject to a Lock-Box Letter and each of the Concentration
Account and the Collection Account shall at all times be subject to a
Concentration Account Agreement and a Collection Account Agreement,
respectively. The Seller will not deposit or otherwise credit, or cause or
permit to be so deposited or credited, to any Lock-Box Account, the
Concentration Account or the Collection Account cash or cash proceeds other than
Collections.
(k) Reporting Requirements. The Seller shall provide the following to
each Funding Agent:
(i) as soon as available and in any event within 120 days after the
end of each fiscal year of the Seller, (a) a copy of the annual report for
such year for the Seller containing unaudited financial statements for such
year certified as to accuracy by the chief financial officer or treasurer
of the Seller; and (b) a letter from a financial officer, treasurer or
accounting officer of the Seller certifying to the best knowledge of such
officer, that neither a Termination Event nor an Unmatured Termination
Event has occurred and is continuing at such time;
(ii) as soon as possible and in any event within five Business Days
after the Seller becomes aware of the occurrence of each Termination Event
or Unmatured Termination Event, a statement of a financial officer of the
Seller setting forth details of such Termination Event or Unmatured
Termination Event and the action that the Seller has taken and proposes to
take with respect thereto;
(iii) at least thirty days before any change in the Seller's name
or any other change requiring the amendment of UCC financing statements, a
notice setting forth such changes and the effective date thereof;
(iv) promptly after the filing or receiving thereof, copies of all
reports and notices that the Seller or any Affiliate files under ERISA with
the Internal Revenue Service, the Pension Benefit Guaranty Corporation or
the U.S. Department of Labor or that the Seller or any Affiliate receives
from any of the foregoing or from any multiemployer plan (within the
meaning of Section 4001(a)(3) of ERISA) to which the Seller or any of its
Affiliates is or was, within the preceding five years, a contributing
employer, in each case in respect of the assessment of withdrawal liability
or an event or condition that could, in the aggregate, result in the
imposition of liability on the Seller and/or any such Affiliate;
(v) promptly after the Seller obtains knowledge thereof, notice of
any: (A) material litigation, investigation or proceeding that may exist at
any time between the Seller and any Person or (B) material litigation or
proceeding relating to any Transaction Document; and
(vi) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of the Seller or any of
its Affiliates as any Funding Agent may from time to time reasonably
request.
(l) Certain Agreements. Without the prior written consent of the Funding
Agents, the Seller will not (and will not permit any Originator to) amend,
modify, waive, revoke or terminate any Transaction Document (including the
Purchase and Sale Agreement) to which it is a party or any provision of Seller's
certificate of formation or operating agreement.
(m) Reserved.
(n) Other Business. The Seller will not: (i) engage in any business other
than the transactions contemplated by the Transaction Documents; (ii) create,
incur or permit to exist any indebtedness of any kind (or cause or permit to be
issued for its account any letters of credit or bankers' acceptances) other than
pursuant to the Agreement or any applicable Company Notes; or (iii) form any
Subsidiary or make any investments in any other Person; provided, however, that
the Seller shall be permitted to incur minimal obligations to the extent
necessary for the day-to-day operations of the Seller (such as expenses for
stationery, audits, maintenance of legal status, etc.); provided, further, that
the Seller may enter into that certain lease agreement between itself and Ferm
Enterprises L.P., T/A Silverside ▇▇▇▇ Executive Center, as renewed from time to
time prior to the Closing Date, solely to the extent that the terms of such
lease agreement and obligations with respect to the Seller thereunder are
terminated on or prior to October 31, 2006 by the Seller, or the Servicer on its
behalf, in a manner reasonably satisfactory to the Funding Agents.
(o) Use of Seller's Share of Collections. The Seller shall apply its
share of Collections to make payments in the following order of priority: (i)
the payment of its expenses (including all obligations payable to the
Purchasers, the Funding Agents and the Collateral Agent under the Agreement and
under the Fee Letters); (ii) the payment of accrued and unpaid interest on any
applicable Company Notes; and (iii) other legal and valid purposes.
(p) Tangible Net Worth. The Seller will not permit its tangible net
worth, at any time, to be less than $10,000,000.
2. Covenants of the Servicer. Until the latest of the Facility
Termination Date, the date on which no Capital or Net Investment of or Discount
in respect of the Purchased Interest shall be outstanding, the date on which the
aggregate LC Stated Amount for each LC Bank shall have been cash collateralized
in full by deposit thereof into the applicable LC Collateral Account or the date
all other amounts owed by the Servicer under the Agreement to the Collateral
Agent, the Funding Agents, the Purchasers and any other Indemnified Party or
Affected Person shall be paid in full:
(a) Compliance with Laws, Etc. The Servicer shall comply in all material
respects with all applicable laws, rules, regulations and orders, and preserve
and maintain its existence, rights, franchises, qualifications and privileges,
except to the extent that the failure to do so would not be reasonably expected
to have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Servicer: (i) shall
keep the office where it keeps its records concerning the Receivables at the
address of the Servicer set forth under its name on the signature page to the
Agreement or, upon thirty days prior written notice to the Funding Agents, at
any other locations in jurisdictions where all actions reasonably requested by
the Funding Agents to protect and perfect the interest of the Collateral Agent
in the Receivables and related items (including the Pool Assets) have been taken
and completed and (ii) shall provide the Funding Agents with at least 30 days'
written notice before making any change in the Servicer's name or making any
other change in the Servicer's identity or organizational status (i.e., as a
Delaware corporation); each notice to the Funding Agents pursuant to this
sentence shall set forth the applicable change and the effective date thereof.
The Servicer will also maintain and implement administrative and operating
procedures (including an ability to recreate records evidencing Receivables and
related Contracts in the event of the destruction of the originals thereof), and
keep and maintain all documents, books, records, computer tapes and disks and
other information reasonably necessary or advisable for the collection of all
Receivables (including records adequate to permit the daily identification of
each Receivable and all Collections of and adjustments to each existing
Receivable).
(c) Performance and Compliance with Contracts and Credit and Collection
Policy. The Servicer shall comply in all material respects with the applicable
Credit and Collection Policies with regard to each Receivable and the related
Contract.
(d) Ownership Interest, Etc. Except with regard to Receivables
repurchased pursuant to Section 1.2(f) of the Agreement, the Servicer shall, at
its expense, take all action necessary or desirable to establish and maintain a
valid and enforceable undivided percentage ownership or security interest, to
the extent of the Purchased Interest, in the Pool Receivables, the Related
Security and Collections with respect thereto, and a first priority perfected
security interest in the Pool Assets, in each case free and clear of any Adverse
Claim, in favor of the Collateral Agent for the benefit of the Purchasers,
including taking such action to perfect, protect or more fully evidence the
interest of the Collateral Agent for the benefit of the Purchasers as any
Funding Agent, may reasonably request.
(e) Extension or Amendment of Receivables. Except as provided in the
Agreement, the Servicer shall not extend the maturity or adjust the Outstanding
Balance or otherwise modify the terms of any Pool Receivable, or amend, modify
or waive any term or condition of any related Contract.
(f) Change in Credit and Collection Policy. The Servicer shall not make
any material change in the character of its business or in the Credit and
Collection Policy, or any change in the Credit and Collection Policy that would
materially and adversely affect the collectability of the Receivables Pool or
the enforceability of any related Contract or the ability of the Servicer to
perform its obligations under any related Contract or under the Agreement.
(g) Audits. The Servicer shall from time to time during regular business
hours but no more frequently than annually unless a Termination Event or
Unmatured Termination Event has occurred and is continuing, as reasonably
requested in advance (unless a Termination Event or Unmatured Termination Event
exists) by any Funding Agent permit such Funding Agent, or its agents or
representatives: (i) to examine and make copies of and abstracts from all books,
records and documents (including computer tapes and disks) in the possession or
under the control of the Servicer relating to Pool Receivables and the Related
Security, including the related Contracts, and (ii) to visit the offices and
properties of the Servicer for the purpose of examining such materials described
in clause (i) of this Section 2(g) above, and to discuss matters relating to
Pool Receivables and the Related Security or the Servicer's or performance under
the Transaction Documents or under the Contracts with any of the officers,
employees, agents or contractors of the Servicer having knowledge of such
matters.
(h) Change in Lock-Box Banks, Lock-Box Accounts and Payment Instructions
to Obligors. The Servicer shall not add or terminate any bank as a Lock-Box
Bank or any account as a Lock-Box Account from those listed in Schedule II to
the Agreement, or make any change in its instructions to Obligors regarding
payments to be made to the Servicer or any Lock-Box Account (or related post
office box), unless the Collateral Agent shall have consented thereto in writing
and the Collateral Agent shall have received copies of all agreements and
documents (including Lock-Box Letters) that it may request in connection
therewith.
(i) Deposits to Lock-Box Accounts, the Concentration Account and the
Collection Account. The Servicer shall: (i) instruct all Obligors to make
payments of all Pool Receivables to one or more Lock-Box Accounts or to post
office boxes to which only Lock-Box Banks have access (and shall instruct the
Lock-Box Banks to cause all items and amounts relating to such Receivables
received in such post office boxes to be removed and deposited into a Lock-Box
Account on a daily basis), and (ii) deposit, or cause to be deposited, any
Collections received by it into the Concentration Account not later than one
Business Day after receipt thereof. Each Lock-Box Account shall be subject to a
Lock-Box Letter and each of the Concentration Account and the Collection Account
shall at all times be subject to a Concentration Account Agreement and a
Collection Account Agreement, respectively. USS will not deposit or otherwise
credit, or cause or permit to be so deposited or credited, to any Lock-Box
Account, the Concentration Account or the Collection Account cash or cash
proceeds other than Collections.
(j) Reporting Requirements. The Servicer shall provide the following to
each Funding Agent:
(i) as soon as available and in any event within 120 days after the
end of each fiscal year of the Servicer, (a) a consolidated balance sheet
of USS and its Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income and changes in financial position
for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on and certified by
PricewaterhouseCoopers or other independent public accountants of
nationally recognized standing; and (b) a letter from a financial officer,
treasurer or accounting officer of USS certifying to the best knowledge of
such officer, that neither a Termination Event nor an Unmatured Termination
Event has occurred and is continuing at such time;
(ii) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of USS, a
consolidated balance sheet of USS and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income and changes
in financial position for such quarter and for the portion of USS's fiscal
year ended at the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and the
corresponding portion of USS's previous fiscal year;
(iii) as soon as available and in any event not later than 5
Business Days after the last day of each calendar month a Monthly Report as
of the last day of such calendar month in the form attached hereto as Annex
B or, following the occurrence of a Termination Event, within five Business
Days of a request by any Funding Agent, a Monthly Report for such periods
as is specified by such Funding Agent (including on a semi-monthly, weekly
or daily basis);
(iv) as soon as possible and in any event within five Business Days
after the Servicer becomes aware of the occurrence of each Termination
Event or Unmatured Termination Event, a statement of a financial officer of
the Servicer setting forth details of such Termination Event or Unmatured
Termination Event and the action that the Servicer has taken and proposes
to take with respect thereto;
(v) at least thirty days before any change in Servicer's name, a
notice setting forth such changes and the effective date thereof;
(vi) as soon as available and in any event within 90 days after the
end of each fiscal year of the Servicer (commencing with the fiscal year
ending in December 2006), the Servicer shall, at the Servicer's expense,
permit the Collateral Agent to conduct a review and agreed upon procedures
(satisfactory in scope and substance to the Collateral Agent and performed
by representatives of the Collateral Agent pursuant to agreed upon
procedures in scope and substance reasonably satisfactory to the Collateral
Agent) of the Servicer's collection, operating and reporting systems, the
Credit and Collection Policy of the Originator, historical receivables data
and accounts, including, without limitation, a review of the Servicer's
operating location(s), and the results of such review and agreed upon
procedures shall be reasonably satisfactory to the Collateral Agent and
each Funding Agent-it being understood that the scope of, and procedures
followed in, each such review and agreed upon procedures shall be
substantially similar to those employed during the immediately preceding
audit (commencing with the review and audit performed for the year ended
December 31, 2005), with such reasonable modifications as required by the
Collateral Agent or any Funding Agent to (a) address any change in the
character of the Receivables Pool or (b) address other changes to similar
agreed upon procedures employed in facilities similar to this facility to
which the Collateral Agent or any Funding Agent are a party; and
(vii) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of the Servicer or any of
its Affiliates as any Funding Agent may from time to time reasonably
request.
Information required to be delivered pursuant to clauses (i) and (ii) of
this Section 2(j) shall be deemed to have been delivered on the date on which
the Servicer provides notice to the Funding Agents that such information has
been posted on the Servicer's website at ▇▇▇.▇▇▇.▇▇▇, at
▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice and
accessible by the Funding Agents without charge; provided that (i) such notice
may be included in a certificate delivered pursuant to this Section 2(j) and
(ii) the Servicer shall deliver paper copies of the information referred to in
clauses (i) and (ii) of this Section 2(j) to any Funding Agent that requests
such delivery.
(k) Termination of Seller Lease Agreement. The Servicer shall (or shall
cause the Seller to), on or prior to October 31, 2006, terminate that certain
lease agreement between the Seller and Ferm Enterprises L.P., T/A Silverside
▇▇▇▇ Executive Center, as renewed from time to time prior to the Closing Date,
in a manner reasonably satisfactory to the Funding Agents.
3. Separate Existence. Each of the Seller and USS hereby acknowledges
that the Purchasers and the Funding Agents are entering into the transactions
contemplated by the Agreement and the other Transaction Documents in reliance
upon the Seller's identity as a legal entity separate from USS. Therefore, from
and after the date hereof, each of the Seller and USS shall take all steps
specifically required by the Agreement or reasonably requested by any Funding
Agent to continue the Seller's identity as a separate legal entity and to make
it apparent to third persons that the Seller is an entity with assets and
liabilities distinct from those of USS and any other Person, and is not a
division of USS, its Affiliates or any other Person. Without limiting the
generality of the foregoing and in addition to and consistent with the other
covenants set forth herein, each of the Seller and USS shall take such actions
as shall be required in order that:
(a) The Seller will be a limited purpose limited liability company whose
primary activities are restricted in its certificate of formation to: (i)
purchasing or otherwise acquiring from the Originators, owning, holding,
granting security interests or selling interests in Pool Assets, (ii) entering
into agreements for the selling and servicing of the Receivables Pool, and (iii)
conducting such other activities as it deems necessary or appropriate to carry
out its primary activities;
(b) The Seller shall not engage in any business or activity, or incur any
indebtedness or liability, other than as expressly permitted by the Transaction
Documents;
(c) At least one member of the Seller's Board of Directors (each, an
"Independent Director") shall be an individual who is not a direct, indirect or
beneficial stockholder, officer, director, employee, affiliate, associate or
supplier of USS or any of its Affiliates. The certificate of formation of the
Seller provides that: (i) the Seller's Board of Directors shall not approve, or
take any other action to cause the filing of, a voluntary bankruptcy petition
with respect to the Seller unless the Independent Director shall approve the
taking of such action in writing before the taking of such action, and (ii) such
provision cannot be amended without the prior written consent of the Independent
Director;
(d) The Independent Director shall not at any time serve as a trustee in
bankruptcy for the Seller, USS or any Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be compensated
from the Seller's funds for services provided to the Seller. The Seller will not
engage any agents other than its attorneys, auditors and other professionals,
and a servicer and any other agent contemplated by the Transaction Documents for
the Receivables Pool, which servicer will be fully compensated for its services
by payment of the Servicing Fee, and a manager, which manager will be fully
compensated from the Seller's funds;
(f) The Seller will contract with the Servicer to perform for the Seller
all operations required on a daily basis to service the Receivables Pool. The
Seller will pay the Servicer the Servicing Fee pursuant to the Agreement. The
Seller will not incur any material indirect or overhead expenses for items
shared with USS (or any other Affiliate thereof) that are not reflected in the
Servicing Fee. To the extent, if any, that the Seller (or any Affiliate thereof)
shares items of expenses not reflected in the Servicing Fee or the manager's
fee, such as legal, auditing and other professional services, such expenses will
be allocated to the extent practical on the basis of actual use or the value of
services rendered, and otherwise on a basis reasonably related to the actual use
or the value of services rendered; it being understood that USS shall pay all
expenses relating to the preparation, negotiation, execution and delivery of the
Transaction Documents, including legal, agency and other fees;
(g) The Seller's operating expenses will not be paid by USS or any other
Affiliate thereof;
(h) All of the Seller's business correspondence and other communications
shall be conducted in the Seller's own name and on its own separate stationery;
(i) The Seller's books and records will be maintained separately from
those of USS and any other Affiliate thereof;
(j) All financial statements of USS or any Affiliate thereof that are
consolidated to include Seller will contain detailed notes clearly stating that:
(i) a special purpose entity exists as a Subsidiary of USS, and (ii) the
Originators have sold receivables and other related assets to such special
purpose Subsidiary that, in turn, has sold undivided interests therein to
certain financial institutions and other entities;
(k) The Seller's assets will be maintained in a manner that facilitates
their identification and segregation from those of USS or any Affiliate thereof;
(l) The Seller will observe all company formalities in its dealings with
USS or any Affiliate thereof, and funds or other assets of the Seller will not
be commingled with those of USS or any Affiliate thereof except as permitted by
the Agreement in connection with servicing the Pool Receivables. The Seller
shall not maintain joint bank accounts or other depository accounts to which USS
or any Affiliate thereof (other than USS in its capacity as initial Servicer)
has independent access. The Seller is not named, and has not entered into any
agreement to be named, directly or indirectly, as a direct or contingent
beneficiary or loss payee on any insurance policy with respect to any loss
relating to the property of USS or any Subsidiary or other Affiliate of USS. The
Seller will pay to the appropriate Affiliate the marginal increase or, in the
absence of such increase, the market amount of its portion of the premium
payable with respect to any insurance policy that covers the Seller and such
Affiliate;
(m) The Seller will maintain arm's-length relationships with USS (and any
Affiliate thereof). Any Person that renders or otherwise furnishes services to
the Seller will be compensated by the Seller at market rates for such services
it renders or otherwise furnishes to the Seller. Neither the Seller nor USS will
be or will hold itself out to be responsible for the debts of the other or the
decisions or actions respecting the daily business and affairs of the other. The
Seller and USS will promptly correct any known misrepresentation with respect to
the foregoing, and they will not operate or purport to operate as an integrated
single economic unit with respect to each other or in their dealing with any
other entity; and
(n) USS shall not pay the salaries of Seller's employees, if any.
EXHIBIT V
TERMINATION EVENTS
Each of the following shall be a "Termination Event":
(a) (i) the Seller or the Servicer shall fail to make when due any payment
or deposit to be made by it under the Agreement and such failure shall continue
unremedied for one Business Day after the earlier of such Person's knowledge or
receipt of written notice thereof from the Collateral Agent, any Purchaser or
any Funding Agent, or (ii) the Seller, the Servicer or any Originator shall fail
to perform or observe any other term, covenant or agreement under the Agreement
or any other Transaction Document and, solely to the extent capable of cure,
such failure shall continue for 30 days after the earlier of such Person's
knowledge or receipt of written notice thereof from the Collateral Agent, any
Purchaser or any Funding Agent;
(b) the Servicer (or any Affiliate thereof) shall fail to transfer to any
successor Servicer when required any rights pursuant to the Agreement that the
Servicer (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, the
Servicer or any Originator (or any of their respective officers) under or in
connection with the Agreement or any other Transaction Document, or any
information or report delivered by the Seller, the Servicer or any Originator
pursuant to the Agreement or any other Transaction Document, shall prove to have
been incorrect or untrue in any material respect when made or deemed made or
delivered;
(d) the Seller or the Servicer shall fail to deliver the Monthly Report
pursuant to the Agreement, and such failure shall remain unremedied for 3
Business Days after notice thereof from any Purchaser or Funding Agent;
(e) the Agreement or any Funded Purchase or reinvestment or issuance of a
Letter of Credit pursuant to the Agreement shall for any reason: (i) cease to
create, or the Purchased Interest shall for any reason cease to be, a valid and
enforceable perfected undivided percentage ownership or security interest to the
extent of the Purchased Interest in the Pool Receivables, the Related Security
and Collections with respect thereto, free and clear of any Adverse Claim, or
(ii) cease to create, or the interest of the Collateral Agent for the benefit of
the Purchasers with respect to such Pool Assets shall cease to be, a valid and
enforceable first priority perfected security interest, free and clear of any
Adverse Claim;
(f) the Seller, USS or any Originator shall generally not pay its debts
as such debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Seller, USS
or any Originator seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including the entry of an
order for relief against, or the appointment of a receiver, trustee, custodian
or other similar official for, it or for any substantial part of its property)
shall occur; or the Seller shall take any action to authorize any of the
foregoing actions described in this paragraph;
(g) (i) the (A) Default Ratio shall exceed 5.0%, (B) the Dilution Ratio
shall exceed 7.0%, or (C) the Delinquency Ratio shall exceed 7.0% or (ii) the
average for three consecutive calendar months (eliminating the effects caused by
any Obligor that became a Designated Obligor during that three-month period)
of: (A) the Default Ratio shall exceed 3.0%, (B) the Dilution Ratio shall exceed
6.0%, or (C) the Delinquency Ratio shall exceed 5.0%;
(h) the Purchased Interest shall exceed 100% and such condition shall
continue unremedied for 2 (two) Business Days following the date that the Seller
(or the Servicer on its behalf) is required to deliver any applicable Monthly
Report;
(i) either: (i) the Internal Revenue Service shall file a notice of lien
asserting a claim or claims of $100,000 or more in the aggregate (or any lesser
amount, if in the opinion of any Funding Agent such claim or claims could be
reasonably expected to materially and adversely affect the Collateral Agent's
interest in the Pool Receivables or any other Pool Assets) pursuant to the
Internal Revenue Code with regard to any of the assets of the Seller or any
Originator, or (ii) the Pension Benefit Guaranty Corporation shall file a notice
of lien asserting a claim pursuant to ERISA with regard to any assets of the
Seller or any Originator;
(j) a Change in Control shall occur;
(k) USS or any of its Subsidiaries (other than the Seller) shall fail to
pay any principal of or premium or interest on any of its Debt that is
outstanding in a principal amount of at least $45,000,000 in the aggregate when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement, mortgage,
indenture or instrument relating to such Debt; and
(l) any other event or circumstance shall occur (i) which could reasonably
be expected to have a Material Adverse Effect on the collectability of the Pool
Receivables or (ii) which could reasonably be expected to have a Material
Adverse Effect on the Seller's or the Servicer's ability to collect the
Receivables or otherwise perform their respective obligations under the
Agreement and the other Transaction Documents to which each is a party.
EXHIBIT VI
FORM OF ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of [______ __,
____], is among U. S. STEEL RECEIVABLES LLC (the "Seller"), [________], as
purchaser (the "[_____] CP Conduit Purchaser"), [________], as the related
committed purchaser (the "[______] Committed Purchaser" and together with the
Conduit Purchaser, the "[_____] Purchasers"), and [________], as agent for the
Purchasers (the "[______] Funding Agent" and together with the Purchasers, the
"[_______] Purchaser Group").
BACKGROUND
The Seller and various others are parties to a certain Second Amended and
Restated Receivables Purchase Agreement dated as of September 27, 2006 (as
amended through the date hereof, the "Receivables Purchase Agreement").
Capitalized terms used and not otherwise defined herein have the respective
meaning assigned to such terms in the Receivables Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. This letter constitutes an Assumption Agreement pursuant to
Section 1.14 of the Receivables Purchase Agreement. The Seller desires [the
[_____] Purchasers] [the [______] Committed Purchaser] to [become Purchasers
under] [increase its existing Commitment under] the Receivables Purchase
Agreement and upon the terms and subject to the conditions set forth in the
Receivables Purchase Agreement, the [________] Purchasers agree to [become
Purchasers thereunder] [increase its Commitment in an amount equal to the amount
set forth as the "Commitment" under the signature of such [______] Committed
Purchaser hereto].
Seller hereby represents and warrants to the [________] Purchasers as of
the date hereof, as follows:
(i) the representations and warranties of the Seller contained in Exhibit
III of the Receivables Purchase Agreement are correct on and as of such dates as
though made on and as of such dates and shall be deemed to have been made on
such dates;
(ii) no Termination Event or Unmatured Termination Event has occurred and
is continuing, or would result from such transfer; and
(iii) the Facility Termination Date has not occurred.
SECTION 2. Upon execution and delivery of this Agreement by the Seller and
each member of the [______] Purchaser Group, satisfaction of the other
conditions to assignment specified in the Receivables Purchase Agreement
(including the consent of the Funding Agents, if required) and receipt by the
Funding Agents of counterparts of this Agreement (whether by facsimile or
otherwise) executed by each of the parties hereto, [the [_____] Purchasers shall
become a party to, and have the rights and obligations of Purchasers under, the
Receivables Purchase Agreement] [the [______] Committed Purchaser shall increase
its Commitment in the amount set forth as the "Commitment" under the signature
of the [______] Committed Purchaser, hereto].
SECTION 3. Each party hereto hereby covenants and agrees that it will not
institute against, or join any other Person in instituting against, any CP
Conduit Purchaser, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, for one year and one day after the latest maturing
Notes issued by such CP Conduit Purchaser is paid in full. The covenant
contained in this paragraph shall survive any termination of the Receivables
Purchase Agreement.
SECTION 4. THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Agreement may not be amended, supplemented or waived
except pursuant to a writing signed by the party to be charged. This Agreement
may be executed in counterparts, and by the different parties on different
counterparts, each of which shall constitute an original, but all together shall
constitute one and the same agreement.
(continued on following page)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
[___________], as a Conduit Purchaser
By:
Name Printed:
Title:
[Address]
[___________], as a Committed Purchaser
By:
Name Printed:
Title:
[Address]
[Commitment]
[_____________], as Funding Agent
for [_________]
By:
Name Printed:
Title:
[Address]
U. S. STEEL RECEIVABLES LLC, as Seller
By:
Name Printed:
Title:
Consented and Agreed:
[THE FUNDING AGENTS]
EXHIBIT VII
FORM OF TRANSFER SUPPLEMENT
with respect to
U. S. Steel Receivables LLC
Second Amended and Restated Receivables Purchase Agreement
Dated as of [_______ __, 20__]
Section 1.
Commitment assigned: $_________
Assignor's remaining Commitment: $_________
Net Investment allocable to Commitment assigned: $_________
Assignor's remaining Net Investment: $_________
Discount (if any) allocable to
Net Investment assigned: $_________
Discount(if any) allocable to Assignor's
remaining Net Investment: $_________
Section 2.
Effective Date of this Transfer Supplement: [__________]
Upon execution and delivery of this Transfer Supplement by transferee and
transferor and the satisfaction of the other conditions to assignment specified
in Section 6.3(d) of the Second Amended and Receivables Purchase Agreement dated
as of September 27, 2006 among U. S. Steel Receivables LLC, as Seller, United
States Steel Corporation, as initial Servicer, The Bank of Nova Scotia, as
Collateral Agent, and various other parties (as amended, supplemented or
otherwise modified through the date hereof, the "Agreement"), from and after the
effective date heretofore set forth, the transferee shall become a party to, and
have the rights and obligations of a Committed Purchaser under the Agreement.
ASSIGNOR: [_________], as a Committed
Purchaser
By:
Name:
Title:
ASSIGNEE: [_________], as a Committed
Purchaser
By:
Name:
Title:
[Address]
Accepted as of date first above
written:
[___________], as Funding Agent for
the [______] Purchaser Group
By:
Name:
Title: