EXHIBIT 10.3
PURCHASE AND SALE AGREEMENT
Dated as of June 5, 1998
among
THE ORIGINATORS NAMED HEREIN,
FIRST BRANDS FUNDING INC.
and
FIRST BRANDS CORPORATION
individually and as the initial Servicer
TABLE OF CONTENTS
PAGE
ARTICLE I AGREEMENT TO PURCHASE AND SELL;........................................................2
1.1 Agreement To Purchase and Sell.........................................................2
1.2 Timing of Purchases....................................................................3
1.3 Consideration for Purchases............................................................3
1.4 Purchase and Sale Termination Date.....................................................3
1.5 Intention of the Parties...............................................................3
ARTICLE II CALCULATION OF PURCHASE PRICE..........................................................4
2.1 Calculation of Purchase Price..........................................................4
ARTICLE III PAYMENT OF PURCHASE PRICE..............................................................5
3.1 Initial Purchase Price Payment.........................................................5
3.2 Subsequent Purchase Price Payments.....................................................5
3.3 Settlement as to Specific Receivables and
Dilution...............................................................................6
3.4 Reconveyance of Receivables............................................................7
ARTICLE IV CONDITIONS OF PURCHASES................................................................7
4.1 Conditions Precedent to Initial Purchase...............................................7
4.2 Certification as to Representations and
Warranties.............................................................................9
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE
ORIGINATORS............................................................................9
5.1 Organization and Good Standing.........................................................9
5.2 Due Qualification......................................................................9
5.3 Power and Authority; Due Authorization.................................................9
5.4 Valid Sale; Binding Obligations.......................................................10
5.5 No Violation..........................................................................10
5.6 Proceedings...........................................................................10
5.7 Bulk Sales Acts.......................................................................10
5.8 Government Approvals..................................................................11
5.9 Financial Condition...................................................................11
5.10 Licenses, Contingent Liabilities, and Labor
Controversies.........................................................................11
5.11 Margin Regulations....................................................................11
5.12 Quality of Title......................................................................11
5.13 Accuracy of Information...............................................................12
5.14 Offices...............................................................................12
5.15 Trade Names...........................................................................12
5.16 Taxes.................................................................................12
5.17 Compliance with Applicable Laws.......................................................13
5.18 Reliance on Separate Legal Identity...................................................13
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ARTICLE VI COVENANTS OF FIRST BRANDS AND THE
ORIGINATORS ..........................................................................13
6.1 Affirmative Covenants.................................................................13
6.2 Reporting Requirements................................................................15
6.3 Negative Covenants....................................................................15
6.4 Lock-box Banks. .....................................................................16
6.5 Accounting for Purchases. ...........................................................16
6.6 Transaction Documents. ..............................................................17
ARTICLE VII ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES............................................................17
7.1 Rights of the Company.................................................................17
7.2 Responsibilities of Each Originator...................................................17
7.3 Further Action Evidencing Purchases...................................................18
7.4 Application of Collections............................................................18
ARTICLE VIII PURCHASE AND SALE TERMINATION EVENTS..................................................19
8.1 Purchase and Sale Termination Events..................................................19
8.2 Remedies 19
ARTICLE IX INDEMNIFICATION.......................................................................20
9.1 Indemnities by First Brands and the
Originators...........................................................................20
ARTICLE X MISCELLANEOUS.........................................................................22
10.1 Amendments, etc.......................................................................22
10.2 Notices, etc..........................................................................22
10.3 No Waiver; Cumulative Remedies........................................................23
10.4 Binding Effect; Assignability.........................................................23
10.5 Governing Law.........................................................................23
10.6 Costs, Expenses and Taxes.............................................................23
10.7 Submission to Jurisdiction............................................................24
10.8 Waiver of Jury Trial..................................................................24
10.9 Captions and Cross References; Incorporation by
Reference.............................................................................24
10.10 Execution in Counterparts.............................................................24
10.11 Acknowledgment and Agreement..........................................................25
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EXHIBIT A - Form of Purchase Report
EXHIBIT B - Form of Company Note
EXHIBIT C - Form of Originator Assignment Certificate
EXHIBIT D - Proceedings
EXHIBIT E - Office Locations
EXHIBIT F - Trade Names
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of June 5,
1998, is among FIRST BRANDS CORPORATION, a Delaware corporation ("First
Brands"), individually and as the initial Servicer, HIMOLENE INCORPORATED
("Himolene"), a Delaware corporation, A&M PRODUCTS INC. ("A&M"), a Texas
corporation (First Brands, Himolene and A&M are herein collectively called the
"Originators" and individually called an "Originator"), and FIRST BRANDS FUNDING
INC., a Delaware corporation (the "Company").
Definitions
Unless otherwise indicated, certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I to the Receivables Purchase
Agreement of even date herewith (as the same may be amended, supplemented or
otherwise modified from time to time, the "Receivables Purchase Agreement")
among First Brands, the Company, Market Street Funding Corp., as Issuer ("the
Issuer") and PNC Bank, National Association. All references herein to months are
to calendar months unless otherwise expressly indicated.
Background
1. The Company is a special purpose corporation, all of the issued and
outstanding shares of which are owned by First Brands.
2. The Originators generate Receivables in the ordinary course of their
respective businesses.
3. The Originators, in order to finance their respective businesses, wish to
sell Receivables to the Company, and the Company is willing, on the terms and
subject to the conditions set forth herein, to purchase Receivables from the
Originators.
4. Each Originator and the Company intends this transaction to be a true
sale of Receivables by each Originator to the Company providing the Company with
the full benefits of ownership of the Receivables and each Originator and the
Company do not intend the transactions hereunder to be, or for any purpose to
be, characterized as a loan from the Company to any Originator.
5. The Company intends to sell the Purchased Interest in the Receivables
pursuant to the Receivables Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
AGREEMENT TO PURCHASE AND SELL
1.1 Agreement To Purchase and Sell. On the terms and subject to the
conditions set forth in this Agreement (including Article V), each Originator,
severally and for itself alone, agrees to sell to the Company, and the Company
agrees to purchase from such Originator, from time to time on or after the
Initial Closing Date, but before the Purchase and Sale Termination Date, all of
such Originator's right, title and interest in and to:
(a) each Receivable of such Originator that existed and was owing to
such Originator as at the closing of such Originator's business on June 5,
1998 of (the "Cut-off Date");
(b) each Receivable created by such Originator from and including the
Cut-off Date to and including the Purchase and Sale Termination Date;
(c) all rights to, but not the obligations under, all Related Security;
(d) all monies due or to become due with respect to any of the
foregoing;
(e) all books and records related to any of the foregoing; and
(f) all collections and other proceeds of any of the foregoing (as
defined in the applicable UCC) that are or were received by such Originator
on or after Cut-off Date, including, without limitation, all funds which
either are received by such Originator, the Company or Servicer from or on
behalf of the Obligors in payment of any amounts owed (including, without
limitation, invoice price, finance charges, interest and all other charges)
in respect of Receivables, or are applied to such amounts owed by the
Obligors (including, without limitation, insurance payments that an
Originator or Servicer applies in the ordinary course of its business to
amounts owed in respect of any Receivable and net proceeds of sale or other
disposition of repossessed goods or other collateral or property of the
Obligors or any other parties directly or indirectly liable for
payment of such Receivables).
All purchases hereunder shall be made without recourse, but shall be made
pursuant to, and in reliance upon, the representations, warranties and covenants
of each Originator set forth in this Agreement and each other Transaction
Document. No obligation or liability to any Obligor on any Receivable is
intended to be assumed by the Company hereunder, and any such assumption is
expressly disclaimed. The Company's foregoing commitment to purchase Receivables
and the proceeds and rights described in clauses (c) through (f) (collectively,
the "Related Rights") is herein called the "Purchase Facility."
1.2 Timing of Purchases.
(a) Initial Closing Date Purchases. Each Originator's entire right,
title and interest in (i) each Receivable that existed and was owing to
such Originator as at the Cut-off Date, (ii) all Receivables created by
such Originator from and including the Cut-off Date, to and including the
Closing Date, and (iii) all Related Rights automatically shall be deemed to
have been sold to the Company on the Closing Date.
(b) Regular Purchases. After the Closing Date, until the Purchase and
Sale Termination Date, each Receivable (and the Related Rights) created by
each Originator shall be deemed to have been sold to the Company
immediately (and without further action) upon the creation of such
Receivable.
1.3 Consideration for Purchases. On the terms and subject to the conditions
set forth in this Agreement, the Company agrees to make Purchase Price payments
to the respective Originators in accordance with Article III.
1.4 Purchase and Sale Termination Date. The "Purchase and Sale Termination
Date" shall be the earliest to occur of (a) the date of the termination of this
Agreement pursuant to Section 8.2 and (b) the Payment Date immediately following
the day on which the Originators shall have given notice to the Company at or
prior to 10:00 a.m. (New York City time) that the Originators desire to
terminate this Agreement.
1.5 Intention of the Parties. It is the express intent of the parties hereto
that the transfers of the Receivables and Related Rights by each Originator to
the Company, as contemplated by this Agreement be, and be treated as sales, and
not as secured loans secured by the Receivables and Related Rights. If, however,
notwithstanding the intent of the parties, such
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transactions are deemed to be loans, such Originator hereby grants to the
Company a first priority security interest in all of such Originator's right,
title and interest in and to the Receivables and the Related Rights now existing
and hereafter created, all monies due or to become due and all amounts received
with respect thereto, and all proceeds thereof, to secure all of such
Originator's obligations hereunder.
ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1 Calculation of Purchase Price. On each Monthly Settlement Date, the
Servicer shall deliver to the Company, the Administrator and each Originator a
report in substantially the form of Exhibit A (each such report being herein
called a "Purchase Report") with respect to the matters set forth therein and
the Company's purchases of Receivables from each Originator
(a) that are to be made on the Closing Date (in the case of the Purchase
Report to be delivered on the Closing Date), or
(b) that were made during the period commencing on the Monthly
Settlement Date immediately preceding such Monthly Settlement Date to (but
not including) such Monthly Settlement Date (in the case of each subsequent
Purchase Report).
The "Purchase Price" (to be paid to each Originator in accordance with the terms
of Article III) for the Receivables and the Related Rights that are purchased
hereunder from such Originator shall be determined in accordance with the
following formula:
PP = OB X FMVD
where:
PP = Purchase Price for each Receivable as calculated on the
relevant Payment Date.
OB = the Outstanding Balance of such Receivable.
FMVD = Fair Market Value Discount, as measured on such Payment
Date, which is equal to the quotient (expressed as
percentage) of (a) one divided by (b) the sum of (i) one,
plus (ii) the product of (A) the Prime Rate on such
Payment Date plus .25% and (B) a fraction, the numerator
of which is the Days' Sales Outstanding (calculated as
of the last day of the calendar month next preceding
such
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Payment Date) and the denominator of which is 365.
"Payment Date" means (i) the Closing Date and (ii) each Business Day
thereafter that Originator is open for business.
"Prime Rate" means a per annum rate equal to the "Prime Rate" as
published in the "Money Rates" section of The Wall Street Journal or such
other publication as determined by the Administrator in its sole discretion.
ARTICLE III
PAYMENT OF PURCHASE PRICE
3.1 Initial Purchase Price Payment. On the terms and subject to the
conditions set forth in this Agreement, the Company agrees to pay to each
Originator the Purchase Price for the purchase to be made from such Originator
on the Closing Date partially in cash (in an amount to be agreed between the
Company and such Originator and set forth in the initial Purchase Report) and
partially by issuing a promissory note in the form of Exhibit B to such
Originator with an initial principal balance equal to the remaining Purchase
Price (each such promissory note, as it may be amended, supplemented, indorsed
or otherwise modified from time to time, together with all promissory notes
issued from time to time in substitution therefor or renewal thereof in
accordance with the Transaction Documents, being herein called a "Company
Note").
3.2 Subsequent Purchase Price Payments. On each Payment Date falling after
the Closing Date, on the terms and subject to the conditions set forth in this
Agreement, the Company shall pay to each Originator the Purchase Price for the
Receivables generated by such Originator during the immediately preceding month
as follows:
(a) First, the Purchase Price shall be paid in cash to the extent the
Company has cash available therefor; and
(b) Second, to the extent any portion of the Purchase Price remains
unpaid, the principal amount outstanding under the Company Note issued to
such Originator shall be increased by an amount equal to such remaining
Purchase Price.
Servicer shall make all appropriate record keeping entries with respect to
Company Notes or otherwise to reflect the foregoing payments and Servicer's
books and records shall constitute rebuttable presumptive evidence of the
principal
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amount of and accrued interest on any Company Note at any time. Furthermore,
Servicer shall hold the Company Notes for the benefit of the Originators. Each
Originator hereby irrevocably authorizes Servicer to ▇▇▇▇ the Company Notes
"CANCELLED" and to return such Company Notes to the Company upon the final
payment thereof after the occurrence of the Purchase and Sale Termination Date.
3.3 Settlement as to Specific Receivables and Dilution
(a) If on the day of purchase of any Receivable from Originator
hereunder, any of the representations or warranties set forth in Section
5.12 of such Originator is not true with respect to such Receivable or as a
result of any action or inaction of such Originator, on any day any of such
representations or warranties set forth in Section 5.12 is no longer true
with respect to such a Receivable, then the Purchase Price with respect to
such Receivables shall be reduced by an amount equal to the Outstanding
Balance of such Receivable and shall be accounted to Originator as provided
in subsection (c) below; provided, that if the Company thereafter receives
payment on account of Collections due with respect to such Receivable, the
Company promptly shall deliver such funds to Originator.
(b) If, on any day, the Outstanding Balance of any Receivable purchased
hereunder is reduced or adjusted as a result of any defective, rejected,
returned goods or services, or any discount or other adjustment made by
Originator, the Company or Servicer or any setoff or dispute between such
Originator or the Servicer and an Obligor as indicated on the books of the
Company (or, for periods prior to the Closing Date, the books of such
Originator), then the Purchase Price, with respect to such Receivable shall
be reduced by the amount of such net reduction and shall be accounted to
such Originator as provided in subsection (c) below.
(c) Any reduction in the Purchase Price of any Receivable pursuant to
subsection (a) or (b) above shall be applied as a credit for the account of
the Company against the Purchase Price of Receivables subsequently
purchased by the Company from such Originator hereunder; provided, however
if there have been no purchases of Receivables from such Originator (or
insufficiently large purchases of Receivables) to create a Purchase Price
sufficient to so apply such credit against, the amount of such credit
(i) shall be paid in cash to the Company by such Originator
in the manner and for application as described in the following
proviso, or
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(ii) shall be deemed to be a payment under, and shall
be deducted from the principal amount outstanding under, the
Company Note payable to such Originator;
provided, further, that at any time (y) when a Termination Event or Unmatured
Termination Event exists under the Receivables Purchase Agreement or (z) on or
after the Purchase and Sale Termination Date, the amount of any such credit
shall be paid by such Originator to the Company by deposit in immediately
available funds into the relevant Lock-Box Account for application by Servicer
to the same extent as if Collections of the applicable Receivable in such amount
had actually been received on such date.
(d) Each Purchase Report (other than the Purchase Report delivered on
the Closing Date) shall include, in respect of the Receivables previously
generated by each Originator, a calculation of the aggregate reductions
described in subsection (a) or (b) relating to such Receivables since the
last Purchase Report delivered hereunder, as indicated on the books of the
Company (or, for such period prior to the Closing Date, the books of
Originator).
3.4 Reconveyance of Receivables. In the event that Originator has paid to
the Company the full Outstanding Balance of any Receivable pursuant to Section
3.3, the Company shall reconvey such Receivable to such Originator, without
representation or warranty, but free and clear of all liens created by the
Company.
ARTICLE IV
CONDITIONS OF PURCHASES
4.1 Conditions Precedent to Initial Purchase. The initial purchase hereunder
is subject to the condition precedent that Servicer (on the Company's behalf)
shall have received, on or before the Closing Date, the following, each (unless
otherwise indicated) dated the Closing Date, and each in form and substance
satisfactory to Servicer (acting on the Company's behalf):
(a) An Originator Assignment Certificate in the form of Exhibit C from
each Originator, duly completed, executed and delivered by such Originator;
(b) A copy of the resolutions of the Board of Directors of each
Originator approving the Transaction
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Documents to be delivered by it and the transactions contemplated hereby
and thereby, certified by the respective Secretary or Assistant Secretary
of each Originator;
(c) Good standing certificates for each Originator issued as of a recent
date acceptable to Servicer by the Secretary of State of the jurisdiction
of such Originator's incorporation and the jurisdiction where such
Originator's chief executive office is located;
(d) A certificate of the Secretary or Assistant Secretary of each
Originator certifying the names and true signatures of the officers
authorized on such Person's behalf to sign the Transaction Documents to be
delivered by it (on which certificate Servicer and the Company may
conclusively rely until such time as Servicer shall receive from such
Person a revised certificate meeting the requirements of this
subsection (d));
(e) The certificate or articles of incorporation or other organizational
document of each Originator, duly certified by the Secretary of State of
the jurisdiction of such Originator's incorporation as of a recent date
acceptable to Servicer, together with a copy of the by-laws of such
Originator, each duly certified by the Secretary or an Assistant Secretary
of such Originator;
(f) Originals of the proper financing statements (Form UCC-1) that have
been duly executed and name each Originator as the assignor and the Company
as the assignee (and the Issuer), as assignee of the Company) of the
Receivables generated by such Originator as may be necessary or, in
Servicer's or the Administrator's opinion, desirable under the UCC of all
appropriate jurisdictions to perfect the Company's ownership interest in
all Receivables and such other rights, accounts, instruments and moneys
(including, without limitation, Related Security) in which an ownership or
security interest may be assigned to it hereunder;
(g) A written search report from a Person satisfactory to Servicer
listing all effective financing statements that name any Originator as
debtor or assignor and that are filed in the jurisdictions in which filings
were made pursuant to the foregoing subsection (f), together with copies of
such financing statements (none of which, except for those described in the
foregoing subsection (f), shall cover any Receivable or any Related Rights)
which is to be sold to the Company hereunder, and tax and judgment lien
search reports from a Person satisfactory to Servicer showing no evidence
of such liens filed against any Originator;
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(h) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the
Originators, in form and substance satisfactory to Servicer and the
Administrator;
(i) A Company Note in favor of each Originator, duly executed by the
Company; and
(j) A certificate from an officer of each Originator to the effect that
Servicer and each Originator have placed on the most recent, and have taken
all steps reasonably necessary to ensure that there shall be placed on each
subsequent, data processing report that it generates which are of the type
that a proposed purchaser or lender would use to evaluate the Receivables,
the following legend (or the substantive equivalent thereof): "THE
RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO FIRST BRANDS FUNDING INC.,
PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF JUNE 5,1998, AMONG
FIRST BRANDS CORPORATION, THE ORIGINATORS NAMED THEREIN AND FIRST BRANDS
FUNDING INC.; AND UNDIVIDED, FRACTIONAL OWNERSHIP INTERESTS IN THE
RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO MARKET STREET FUNDING
CORPORATION PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF JUNE
5,1998, AMONG FIRST BRANDS FUNDING INC., FIRST BRANDS CORPORATION, MARKET
STREET FUNDING CORPORATION AND PNC BANK, NATIONAL ASSOCIATION, AS
ADMINISTRATOR."
4.2 Certification as to Representations and Warranties. Each Originator, by
accepting the Purchase Price related to each purchase of Receivables generated
by such Originator, shall be deemed to have certified that the representations
and warranties contained in Article V are true and correct on and as of such
day, with the same effect as though made on and as of such day.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
In order to induce the Company to enter into this Agreement and to make
purchases hereunder, each Originator hereby makes with respect to itself, and
First Brands, jointly and severally, with each Originator makes with respect to
such Originator, the representations and warranties set forth in this Article V.
5.1 Organization and Good Standing. Such Originator has been duly organized
and is validly existing as a corporation in good standing under the laws of the
state of its incorporation, with power and authority to own its properties and
to conduct its business as such properties are presently owned and such business
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is presently conducted.
5.2 Due Qualification. Such Originator is duly licensed or qualified to do
business as a foreign corporation in good standing in the jurisdiction where its
chief executive office is located and in all other jurisdictions in which (a)
the ownership or lease of its property or the conduct of its business requires
such licensing or qualification and (b) the failure to be so licensed or
qualified would be reasonably likely to have a Material Adverse Effect.
5.3 Power and Authority; Due Authorization. Such Originator has (a) all
necessary power, authority and legal right (i) to execute and deliver, and
perform its obligations under, each Transaction Document to which it is a party
and (ii) to generate, own, sell and assign Receivables on the terms and subject
to the conditions herein and therein provided; and (b) duly authorized such
execution and delivery and such sale and assignment and the performance of such
obligations by all necessary corporate action.
5.4 Valid Sale; Binding Obligations. Each sale made by such Originator
pursuant to this Agreement shall constitute a valid sale, transfer, and
assignment of Receivables to the Company, enforceable against creditors of, and
purchasers from, such Originator; and this Agreement constitutes, and each other
Transaction Document to be signed by such Originator, when duly executed and
delivered, will constitute, a legal, valid, and binding obligation of such
Originator, enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
5.5 No Violation. The consummation of the transactions contemplated by this
Agreement and the other Transaction Documents and the fulfillment of the terms
hereof or thereof, will not (a) conflict with, result in any breach of any of
the terms and provisions of, or constitute (with or without notice or lapse of
time) a default under (i) such Originator's articles or certificate of
incorporation or by-laws, or (ii) any indenture, loan agreement, mortgage, deed
of trust, or other agreement or instrument to which it is a party or by which it
is bound, (b) result in the creation or imposition of any Adverse Claim upon any
of its properties pursuant to the terms of any such indenture, loan agreement,
mortgage, deed of trust, or other agreement or instrument, other than the
Transaction Documents, or (c) violate any law or any order, rule, or regulation
applicable to it of any court or of any state or foreign regulatory body,
administrative agency, or other governmental instrumentality
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having jurisdiction over it or any of its properties.
5.6 Proceedings. Except as set forth in Exhibit D, there is no action, suit,
proceeding or investigation pending before any court, regulatory body,
arbitrator, administrative agency, or other tribunal or governmental
instrumentality (a) asserting the invalidity of any Transaction Document, (b)
seeking to prevent the issuance of such Originator's Originator Assignment
Certificate or the consummation of any of the transactions contemplated by any
Transaction Document, or (c) seeking any determination or ruling that is
reasonably likely to have a Material Adverse Effect.
5.7 Bulk Sales Acts. No transaction contemplated hereby requires compliance
with, or will be subject to avoidance under, any bulk sales act or similar law.
5.8 Government Approvals. Except for the filing of the UCC financing
statements referred to in Article IV, all of which, at the time required in
Article IV, shall have been duly made and shall be in full force and effect, no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for such Originator's
due execution, delivery and performance of any Transaction Document to which it
is a party.
5.9 Financial Condition.
(a) Material Adverse Change. Since December 31, 1997, no event has
occurred that has had, or is reasonably likely to have, a Material Adverse
Effect.
(b) Solvent. On the date hereof, and on the date of each purchase
hereunder (both before and after giving effect to such purchase), such
Originator shall be Solvent.
5.10 Licenses, Contingent Liabilities, and Labor Controversies.
(a) Such Originator has not failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the ownership
of its properties or to the conduct of its business, which violation or
failure to obtain would be reasonably likely to have a Material Adverse
Effect.
(b) There are no labor controversies pending against such Originator
that have had (or are reasonably likely to have) a Material Adverse Effect.
5.11 Margin Regulations. No use of any funds acquired by
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such Originator under this Agreement will conflict with or contravene any
of Regulations G, T, U and X promulgated by the F.R.S. Board from time to time.
5.12 Quality of Title.
(a) Each Receivable of such Originator (together with the Related Rights
with respect to such Receivable) which is to be sold to the Company
hereunder is or shall be owned by such Originator, free and clear of any
Adverse Claim, except as provided herein and in the Receivables Purchase
Agreement. Whenever the Company makes a purchase hereunder, it shall have
acquired and shall continue to have maintained a valid and perfected
ownership interest (free and clear of any Adverse Claim) in all Receivables
generated by such Originator and all Collections related thereto, and in
such Originator's entire right, title and interest in and to the Related
Rights with respect thereto.
(b) No effective financing statement or other instrument similar in
effect covering any Receivable generated by such Originator or any Related
Rights is on file in any recording office except such as may be filed in
favor of the Company or the Originators, as the case may be, in accordance
with this Agreement or in favor of the Issuer in accordance with the
Receivables Purchase Agreement.
(c) Unless otherwise identified to the Company on the date of the
purchase hereunder, each Receivable purchased thereunder is on the date of
purchase an Eligible Receivable.
5.13 Accuracy of Information. All factual written information heretofore or
contemporaneously furnished (and prepared) by such Originator to the Company or
the Administrator for purposes of or in connection with any Transaction Document
or any transaction contemplated hereby or thereby is, and all other such factual
written information hereafter furnished (and prepared) by such Originator to the
Company or the Administrator pursuant to or in connection with any Transaction
Document will be, true and accurate in every material respect on the date as of
which such information is dated or certified.
5.14 Offices. Such Originator's principal place of business and chief
executive office is located at the address set forth under such Originator's
signature hereto, and the offices where such Originator keeps all its books,
records and documents evidencing its Receivables, the related Contracts and all
other agreements related to such Receivables are located at the addresses
specified in Exhibit E (or at such other locations, notified to Servicer and the
Administrator in accordance with
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Section 6.1(f), in jurisdictions where all action required by Section 7.3 has
been taken and completed).
5.15 Trade Names. Such Originator does not use any trade name other than its
actual corporate name and the trade names set forth in Exhibit F. From and after
the date that fell five (5) years before the date hereof, except as set forth in
Exhibit F, such Originator has not been known by any legal name other than its
corporate name as of the date hereof, nor has such Originator been the subject
of any merger or other corporate reorganization.
5.16 Taxes. Such Originator has filed all tax returns and reports required
by law to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books.
5.17 Compliance with Applicable Laws. Such Originator is in compliance with
the requirements of all applicable laws, rules, regulations, and orders of all
governmental authorities, a breach of any of which, individually or in the
aggregate, would be reasonably likely to have a Material Adverse Effect.
5.18 Reliance on Separate Legal Identity. Such Originator acknowledges that
the Issuer and the Administrator are entering into the Receivables Purchase
Agreement in reliance upon the Company's identity as a legal entity separate
from any Originator.
ARTICLE VI
COVENANTS OF FIRST BRANDS AND THE ORIGINATORS
6.1 Affirmative Covenants. From the date hereof until the first day
following the Purchase and Sale Termination Date, each Originator will, unless
the Administrator and the Company shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material respects with all
applicable laws, rules, regulations and orders with respect to the
Receivables generated by it and the Contracts and other agreements related
thereto except where the failure to so comply would not materially and
adversely affect the collectibility of such Receivables or the rights of
the Company hereunder.
(b) Preservation of Corporate Existence. Preserve and maintain its
corporate existence, rights, franchises and
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privileges in the jurisdiction of its incorporation, and qualify
and remain qualified in good standing as a foreign corporation
in each jurisdiction where the failure to preserve and maintain
such existence, rights, franchises, privileges and qualification
would be reasonably likely to have a Material Adverse Effect.
(c) Receivables Reviews. (i) At any time and from time to time during
regular business hours, and upon reasonable prior notice permit the Company
or the Administrator, or their respective agents, or representatives, (A)
to examine and make copies of and abstracts from all books, records and
documents (including, without limitation, computer tapes and disks) in
possession or under the control of such Originator relating to Receivables,
including, without limitation, the related Contracts and purchase orders
and other agreements related thereto, and (B) to visit the offices and
properties of such Originator for the purpose of examining such materials
described in clause (i)(A) next above, and to discuss matters relating to
Receivables originated by it or the performance hereunder with any of the
officers or employees of such Originator having knowledge of such matters,
and (ii) without limiting the foregoing clause (i) above, from time to time
on request of the Administrator, permit certified public accountants or
other auditors acceptable to the Company and Administrator to conduct, at
the Company's expense, a review of such Originator's books and records with
respect to such Receivables.
(d) Keeping of Records and Books of Account. Maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing Receivables it generates in the
event of the destruction of the originals thereof), and keep and maintain
all documents, books, records and other information reasonably necessary or
advisable for the collection of such Receivables (including, without
limitation, records adequate to permit the daily identification of each new
Receivable and all Collections of and adjustments to each existing
Receivable).
(e) Performance and Compliance with Receivables and Contracts. Timely
and fully perform and comply with all provisions, covenants and other
promises required to be observed by it under the Contracts and all other
agreements related to the Receivables that it generates.
(f) Location of Records. Keep its principal place of business and chief
executive office, and the offices where it keeps its records concerning or
related to Receivables,
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at the address(es) referred to in Exhibit E or, upon 30 days' prior written
notice to the Company and the Administrator, at such other locations in
jurisdictions where all action required by Section 7.3 shall have been
taken and completed.
(g) Credit and Collection Policies. Comply in all material respects with
its Credit and Collection Policy in connection with the Receivables that it
generates and all Contracts and other agreements related thereto.
(h) Post Office Boxes. Within 30 days after the date hereof, deliver to
Servicer (on behalf of the Company) a certificate from an authorized
officer of such Originator to the effect that (i) the name of the renter of
all post office boxes into which Collections may from time to time be
mailed have been changed to the name of the Company (unless such post
office boxes are in the name of the relevant Lock-box Banks) and (ii) all
relevant postmasters have been notified that each of Servicer and the
Administrator are authorized to collect mail delivered to such post office
boxes (unless such post office boxes are in the name of the relevant
Lock-box Banks).
6.2 Reporting Requirements. From the date hereof until the first day
following the Purchase and Sale Termination Date, each Originator will, unless
Servicer (on behalf of the Company) shall otherwise consent in writing, furnish
to the Company and the Administrator:
(a) Purchase and Sale Termination Events. As soon as possible after
knowledge of the occurrence of, and in any event within three Business Days
after knowledge of the occurrence of each Purchase and Sale Termination
Event or each Unmatured Purchase and Sale Termination Event in respect of
such Originator, the statement of the chief financial officer or chief
accounting officer of such Originator describing such Purchase and Sale
Termination Event or Unmatured Purchase and Sale Termination Event and the
action that such Originator proposes to take with respect thereto, in each
case in reasonable detail;
(b) Proceedings. As soon as possible and in any event within three
Business Days after such Originator otherwise has knowledge thereof,
written notice of (i) litigation, investigation or proceeding of the type
described in Section 5.6 not previously disclosed to the Company and (ii)
all material adverse developments that have occurred with respect to any
previously disclosed litigation, proceedings and investigations; and
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(c) Other. Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables or the conditions
or operations, financial or otherwise, of such Originator as the Company,
Purchaser or the Administrator may from time to time reasonably request in
order to protect the interests of the Company, Purchaser or the
Administrator under or as contemplated by the Transaction Documents.
6.3 Negative Covenants. From the date hereof until the date following the
Purchase and Sale Termination Date, each Originator agrees that, unless Servicer
(on behalf of the Company) shall otherwise consent in writing, it shall not:
(a) Sales, Liens, Etc. Except as otherwise provided herein or in any
other Transaction Document, sell, assign (by operation of law or otherwise)
or otherwise dispose of, or create or suffer to exist any Adverse Claim
upon or with respect to, any Receivable or related Contract or Related
Security, or any interest therein, or any Collections thereon, or assign
any right to receive income in respect thereof.
(b) Extension or Amendment of Receivables. Except as otherwise permitted
in Section 4.2(a) of the Receivables Purchase Agreement, extend, amend or
otherwise modify the terms of any Receivable in any material respect
generated by it, or amend, modify or waive, in any material respect, any
term or condition of any Contract related thereto (which term or condition
relates to payments under, or the enforcement of, such Contract).
(c) Change in Business or Credit and Collection Policy. Make any change
in the character of its business or materially alter its Credit and
Collection Policy, which change would, in either case, materially change
the credit standing required of particular Obligors or potential Obligors
or impair, in any material respect, the collectibility of the Receivables
generated by it.
(d) Receivables Not to be Evidenced by Promissory Notes or Chattel
Paper. Take any action to cause or permit any Receivable generated by it to
become evidenced by any "instrument" or "chattel paper" (as defined in the
applicable UCC).
(e) Mergers, Acquisitions, Sales, etc. (i) Be a party to any merger or
consolidation, except (A) a merger or consolidation involving First Brands
where First Brands is the surviving corporation, or (B) a merger or
consolidation among two or more Originators, or (ii) directly or
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indirectly sell, transfer, assign, convey or lease (A) whether in one or a
series of transactions, all or substantially all of its assets, except to
another Originator (including, without limitation, First Brands), or (B)
any Receivables or any interest therein (other than pursuant to this
Agreement); provided, however, that (i) First Brands may sell, transfer or
assign all the capital stock of Himolene or A&M and (ii) Himolene or A&M
may (A) sell, transfer or assign to any Person all or substantially all of
its assets or (B) be a party to a merger or consolidation with any Person
(including one where it is not the surviving corporation); provided,
further, that upon any such sale, tranfer, assignment or merger, Himolene
or A&M, as applicable (or any Person who is the surviving corporation of a
merger or consolidation with Himolene or A&M), shall cease to be an
Originator hereunder. First Brands hereby covenants and agrees that from
and after the occurrence of any sale, transfer, assignment or merger
pursuant this Section 6.3(e), First Brands does hereby assume all
obligations of Himolene or A&M, as applicable, arising under Section 3.3 of
this Agreement with respect to any Receivables originated by Himolene or
A&M.
6.4 Lock-box Banks. Make any changes in its instructions to Obligors
regarding Collections or add or terminate any Lock-box Bank unless the
requirements of paragraph 2 (g) of Exhibit IV of the Receivables Purchase
Agreement have been met.
6.5 Accounting for Purchases. Account for or treat (whether in financial
statements or otherwise) the transactions contemplated hereby in any manner
other than as sales of the Receivables and Related Rights by such Originator to
the Company.
6.6 Transaction Documents. Enter into, execute, deliver or otherwise become
bound by any agreement, instrument, document or other arrangement that restricts
the right of such Originator to amend, supplement, amend and restate or
otherwise modify, or to extend or renew, or to waive any right under, this
Agreement or any other Transaction Documents.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
7.1 Rights of the Company. Each Originator hereby authorizes the Company,
Servicer or their respective designees to take any and all steps in such
Originator's name necessary or desirable, in their respective determination, to
collect all
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amounts due under any and all Receivables, including, without limitation,
indorsing the name of such Originator on checks and other instruments
representing Collections and enforcing such Receivables and the provisions of
the related Contracts that concern payment and/or enforcement of rights to
payment.
7.2 Responsibilities of Each Originator. Anything herein to the contrary
notwithstanding:
(a) Collection Procedures. Each Originator agrees to direct its
respective Obligors to make payments of Receivables directly to a post
office box related to the relevant Lock-box Account at a Lock-box Bank.
Each Originator further agrees to transfer any Collections that it receives
directly to Servicer (for the Company's account) within one (1) Business
Day of receipt thereof, and agrees that all such Collections shall be
deemed to be received in trust for the Company and shall be maintained and
segregated separate and apart from all other funds and monies of such
Originator until transfer of such Collections to Servicer.
(b) Each Originator shall perform its obligations hereunder, and the
exercise by the Company or its designee of its rights hereunder shall not
relieve such Originator from such obligations.
(c) None of the Company, Servicer or the Administrator shall have any
obligation or liability to any Obligor or any other third Person with
respect to any Receivables, Contracts related thereto or any other related
agreements, nor shall the Company, Servicer, Issuer or the Administrator be
obligated to perform any of the obligations of any Originator thereunder.
(d) Each Originator hereby grants to Servicer an irrevocable power of
attorney, with full power of substitution, coupled with an interest, to
take in the name of such Originator all steps necessary or advisable to
indorse, negotiate or otherwise realize on any writing or other right of
any kind held or transmitted by such Originator or transmitted or received
by the Company (whether or not from such Originator) in connection with any
Receivable.
7.3 Further Action Evidencing Purchases. Each Originator agrees that from
time to time, at its expense, it will promptly execute and deliver all further
instruments and documents, and take all further action that Servicer may
reasonably request in order to perfect, protect or more fully evidence the
Receivables and Related Rights purchased by the Company hereunder, or to enable
the Company to exercise or
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enforce any of its rights hereunder or under any other Transaction Document.
Without limiting the generality of the foregoing, upon the request of Servicer,
each Originator will:
(a) execute and file such financing or continuation statements, or
amendments thereto or assignments thereof, and such other instruments or
notices, as may be necessary or appropriate; and
(b) ▇▇▇▇ the master data processing records that evidence or list (i)
such Receivables and (ii) related Contracts with the legend set forth in
Section 4.1(j).
Each Originator hereby authorizes the Company or its designee to file one or
more financing or continuation statements, and amendments thereto and
assignments thereof, relative to all or any of the Receivables and Related
Rights now existing or hereafter generated by such Originator. If any
Originator fails to perform any of its agreements or obligations under this
Agreement, the Company or its designee may (but shall not be required to) itself
perform, or cause performance of, such agreement or obligation, and the expenses
of the Company or its designee incurred in connection therewith shall be payable
by such non-performing Originator as provided in Section 9.1.
7.4 Application of Collections. Any payment by an Obligor in respect of any
indebtedness owed by it to any Originator shall, except as otherwise specified
by such Obligor or otherwise required by contract or law and unless otherwise
instructed by the Company or the Administrator, be applied as a Collection of
any Receivable or Receivables of such Obligor to the extent of any amounts then
due and payable thereunder before being applied to any other indebtedness of
such Obligor.
ARTICLE VIII
PURCHASE AND SALE TERMINATION EVENTS
8.1 Purchase and Sale Termination Events. Each of the following events or
occurrences described in this Section 8.1 shall constitute a "Purchase and Sale
Termination Event":
(a) A Termination Event (as defined in the Receivables Purchase
Agreement) shall have occurred and, in the case of a Termination Event
(other than one described in paragraph (f) of Exhibit V of the Receivables
Purchase Agreement), the Administrator, the Issuer shall have declared the
Facility Termination Date to have occurred; or
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(b) Any Originator shall fail to make any payment or deposit to be made
by it hereunder when due and such failure shall remain unremedied for two
(2) Business Days; or
(c) Any representation or warranty made or deemed to be made by any
Originator (or any of its officers) under or in connection with this
Agreement, any other Transaction Documents or any other information or
report delivered pursuant hereto or thereto shall prove to have been false
or incorrect in any material respect when made or deemed made; or
(d) Any Originator shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed and such failure shall remain unremedied for 30
calendar days after written notice thereof shall have been given by
Servicer to such Originator.
8.2 Remedies.
(a) Optional Termination. Upon the occurrence of a Purchase and Sale
Termination Event, the Company (and not Servicer) shall have the option by
notice to the Originators (with a copy to the Administrator) to declare the
Purchase and Sale Termination Date to have occurred.
(b) Remedies Cumulative. Upon any termination of the Purchase Facility
pursuant to this Section 8.2 (a), the Company shall have, in addition to
all other rights and remedies under this Agreement or otherwise, all other
rights and remedies provided under the UCC of each applicable jurisdiction
and other applicable laws, which rights shall be cumulative. Without
limiting the foregoing, the occurrence of the Purchase and Sale Termination
Date shall not deny the Company any remedy in addition to termination of
the Purchase Facility to which the Company may be otherwise appropriately
entitled, whether at law or equity.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnities by First Brands and the Originators. Without limiting any
other rights which the Company may have hereunder or under applicable law, each
Originator, severally and for itself alone, and First Brands, jointly and
severally with each Originator, hereby agrees to indemnify the Company and each
of its officers, directors, employees and Administrators (each of
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the foregoing Persons being individually called a "Purchase and Sale Indemnified
Party"), forthwith on demand, from and against any and all damages, losses,
claims, judgments, liabilities and related costs and expenses, including
reasonable attorneys' fees and disbursements (all of the foregoing being
collectively called "Purchase and Sale Indemnified Amounts") awarded against or
incurred by any of them arising out of or as a result of the failure of such
Originator to perform its obligations under this Agreement, any other
Transaction Document or arising out of the claims asserted against a Purchase
and Sale Indemnified Party relating to the transactions contemplated herein or
therein or the use of proceeds thereof or therefrom, excluding, however, (i)
Purchase and Sale Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such Purchase and Sale
Indemnified Party, (ii) any indemnification which has the effect of recourse for
non-payment of the Receivables to any indemnitor (except as otherwise
specifically provided under this Section 9.1) and (iii) any tax based upon or
measured by net income or gross receipts. Without limiting the foregoing, each
Originator, severally and for itself alone, and First Brands, jointly and
severally with each Originator, indemnifies each Purchase and Sale Indemnified
Party for Purchase and Sale Indemnified Amounts relating to or resulting from:
(a) the transfer by such Originator of an interest in any Receivable to
any Person other than the Company;
(b) the breach of any representation or warranty made by such Originator
(or any of its officers) under or in connection with this Agreement or any
other Transaction Document, or any information or report delivered by such
Originator pursuant hereto or thereto which shall have been false or
incorrect in any material respect when made or deemed made;
(c) the failure by such Originator to comply with any applicable law,
rule or regulation with respect to any Receivable generated by such
Originator or the related Contract, or the nonconformity of any Receivable
generated by such Originator or the related Contract with any such
applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an ownership
interest in the Receivables generated by such Originator free and clear of
any Adverse Claim, other than an Adverse Claim arising solely as a result
of an act of the Company, whether existing at the time of the purchase of
such Receivables or at any time thereafter;
(e) the failure to file, or any delay in filing, financing statements or
other similar instruments or
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documents under the UCC of any applicable jurisdiction or other applicable
laws with respect to any Receivables or purported Receivables generated
by such Originator, whether at the time of any purchase or at any
subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in
bankruptcy) of the Obligor to the payment of any Receivable or purported
Receivable generated by such Originator (including, without limitation, a
defense based on such Receivable's or the related Contract's not being a
legal, valid and binding obligation of such Obligor enforceable against it
in accordance with its terms), or any other claim resulting from the
services related to any such Receivable or the furnishing of or failure to
furnish such services;
(g) any product liability claim arising out of or in connection with
services that are the subject of any Receivable generated by such
Originator; and
(h) any tax or governmental fee or charge (other than any tax excluded
pursuant to clause (iii) in the proviso to the preceding sentence), all
interest and penalties thereon or with respect thereto, and all
out-of-pocket costs and expenses, including the reasonable fees and
expenses of counsel in defending against the same, which may arise by
reason of the purchase or ownership of the Receivables generated by such
Originator or any Related Security connected with any such Receivables.
If for any reason the indemnification provided above in this Section 9.1
is unavailable to a Purchase and Sale Indemnified Party or is insufficient to
hold such Purchase and Sale Indemnified Party harmless, then each of the
Originators, severally and for itself alone, and First Brands, jointly and
severally with each Originator, shall contribute to the amount paid or payable
by such Purchase and Sale Indemnified Party to the maximum extent permitted
under applicable law.
ARTICLE X
MISCELLANEOUS
10.1 Amendments, etc.
(a) The provisions of this Agreement may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing
and consented to by the Company, First Brands and the Originators (with
respect to an amendment) or by the Company (with respect to a waiver or
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consent by it).
(b) No failure or delay on the part of the Company, Servicer, any
Originator or any third party beneficiary in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to
or demand on the Company, Servicer, First Brands or any Originator in any
case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Company or Servicer under this
Agreement shall, except as may otherwise be stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
under this Agreement shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
(c) The Transaction Documents contain a final and complete integration
of all prior expressions by the parties hereto with respect to the subject
matter thereof and shall constitute the entire agreement among the parties
hereto with respect to the subject matter thereof, superseding all prior
oral or written understandings.
10.2 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 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, when received,
(ii) if sent by certified mail three (3) Business Days after having been
deposited in the mail, postage prepaid, and (iii) if transmitted by facsimile,
when sent, receipt confirmed by telephone or electronic means.
10.3 No Waiver; Cumulative Remedies. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. Without limiting
the foregoing, First Brands and each Originator hereby authorizes the Company,
at any time and from time to time, to the fullest extent permitted by law, to
setoff, against any obligations of such Originator to the Company arising in
connection with the Transaction Documents (including without limitation amounts
payable pursuant to Section 9.1) that are then due and payable or that are not
then due and payable but are accruing in respect of the then current Settlement
Period, any and all indebtedness at any time owing by the Company to or
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for the credit or the account of First Brands or any Originator.
10.4 Binding Effect; Assignability. This Agreement shall be binding upon and
inure to the benefit of the Company, First Brands and each Originator and their
respective successors and permitted assigns. No Originator may assign any of its
rights hereunder or any interest herein without the prior written consent of the
Company, except as otherwise herein specifically provided. This Agreement shall
create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until such
time as the parties hereto shall agree. The rights and remedies with respect to
any breach of any representation and warranty made by any Originator pursuant to
Article V and the indemnification and payment provisions of Article IX and
Section 10.6 shall be continuing and shall survive any termination of this
Agreement.
10.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CONNECTICUT (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF).
10.6 Costs, Expenses and Taxes. In addition to the obligations of the
Originators under Article IX, each Originator, severally and for itself alone,
and First Brands, jointly and severally with each Originator, agrees to pay on
demand:
(a) all reasonable costs and expenses in connection with the enforcement
of this Agreement, the Originator Assignment Certificates and the other
Transaction Documents; and
(b) all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of
this Agreement or the other Transaction Documents to be delivered
hereunder, and agrees to indemnify each Purchase and Sale Indemnified Party
against any liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.
10.7 Submission to Jurisdiction. EACH PARTY HERETO HEREBY IRREVOCABLY (a)
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF PENNSYLVANIA OR UNITED STATES
FEDERAL COURT SITTING IN PITTSBURGH, PENNSYLVANIA, OVER ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH STATE OR UNITED STATES FEDERAL COURT; (c)
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WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d)
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS
ADDRESS SPECIFIED IN SECTION 10.2; AND (e) AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS SECTION 10.7 SHALL AFFECT THE COMPANY'S RIGHT TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR
PROCEEDING AGAINST FIRST BRANDS, ANY ORIGINATOR OR ITS RESPECTIVE PROPERTY IN
THE COURTS OF ANY OTHER JURISDICTIONS.
10.8 Waiver of Jury Trial. EACH PARTY HERETO WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR
RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES
THAT (a) ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND (b) ANY PARTY HERETO (OR ANY ASSIGNEE OR THIRD PARTY
BENEFICIARY OF THIS AGREEMENT) MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER
PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
10.9 Captions and Cross References; Incorporation by Reference. The various
captions (including, without limitation, the table of contents) in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to any underscored Section or Exhibit are to such Section or Exhibit of this
Agreement, as the case may be. Appendix A and the Exhibits hereto are hereby
incorporated by reference into and made a part of this Agreement.
10.10 Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same Agreement.
10.11 Acknowledgment and Agreement. By execution
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below, First Brands and each other Originator expressly acknowledges and agrees
that all of the Company's rights, title, and interests in, to, and under this
Agreement (but not its obligations), shall be assigned by the Company pursuant
to the Receivables Purchase Agreement, and First Brands and each Originator
consents to such assignment. Each of the parties hereto acknowledges and agrees
that the Administrator and Purchaser are third party beneficiaries of the rights
of the Company arising hereunder and under the other Transaction Documents to
which First Brands or any Originator is a party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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.
FIRST BRANDS FUNDING INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
First Brands Funding Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST BRANDS CORPORATION,
as initial Servicer
By: /s/ ▇▇▇▇▇ ▇. Rod
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
P.O. Box 1911
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
ORIGINATORS:
FIRST BRANDS CORPORATION,
as initial Servicer
By: /s/ ▇▇▇▇▇ ▇. Rod
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
P.O. Box 1911
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
HIMOLENE INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
P.O. Box 1911
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
A&M PRODUCTS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
P.O. Box 1911
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇