Fourth Amended and Restated Receivables Sale Agreement Dated as of September 28, 2006 among Crompton & Knowles Receivables Corporation, as the Seller, Chemtura Corporation, as the Initial Collection Agent, ABN AMRO Bank N.V., as the Agent and the...
Fourth
Amended and Restated Receivables Sale Agreement
Dated
as of September 28, 2006
among
Crompton
& ▇▇▇▇▇▇▇ Receivables Corporation,
as
the Seller,
Chemtura
Corporation,
as
the Initial Collection Agent,
ABN
AMRO Bank N.V.,
as
the Agent and the Amsterdam Purchaser Agent,
Wachovia
Bank, National Association,
as
the VFCC Purchaser Agent and LC Issuer
Calyon
New York Branch,
as
the Atlantic Purchaser Agent
the
other Purchaser Agents from time to time party hereto
the
Related Bank Purchasers from time to time party hereto,
and
Amsterdam
Funding Corporation
Atlantic
Asset Securitization LLC
Variable
Funding Capital Company, LLC and
the
other Conduit Purchasers from time to time party hereto
Table
of Contents
|
Article I
|
Purchases
from Seller, Letters of Credit and Settlements
|
|
Section 1.1.
|
Sales
|
|
Section 1.2.
|
Letters
of Credit
|
|
Section 1.3.
|
Interim
Liquidations.
|
|
Section 1.4.
|
Discount
Rates and Tranche Periods.
|
|
Section 1.5.
|
Fees
and Other Costs and Expenses
|
|
Section 1.6.
|
Computation
of Effective Receivable Interest; Deemed Collection
|
|
Section 1.7.
|
Reduction
in Commitments
|
|
Section 1.8.
|
Repurchases.
|
|
Section 1.9.
|
Assignment
of Purchase Agreements.
|
|
Section 1.10.
|
Extension
of Termination Date
|
|
Section 1.11.
|
Grant
of Security Interest
|
|
Article II
|
Sales
to and from Conduit Purchasers; Allocations
|
|
Section 2.1.
|
Required
Purchases from Conduit Purchaser
|
|
Section 2.2.
|
Purchases
by a Conduit Purchaser
|
|
Section 2.3.
|
Allocations
and Distributions
|
|
Section 2.4.
|
Release
of Excess Cash Collateral
|
|
Article III
|
Administration
and Collections
|
|
Section 3.1.
|
Appointment
of Collection Agent
|
|
Section 3.2.
|
Duties
of Collection Agent
|
|
Section 3.3.
|
Reports
|
|
Section 3.4.
|
Lock-Box
Arrangements
|
|
Section 3.5.
|
Enforcement
Rights
|
|
Section 3.6.
|
Collection
Agent Fee
|
|
Section 3.7.
|
Responsibilities
of the Seller
|
|
Section 3.8.
|
Actions
by Seller
|
|
Section 3.9.
|
Indemnities
by the Collection Agent.
|
|
Article IV
|
Representations
and Warranties
|
|
Section 4.1.
|
Representations
and Warranties
|
|
|
|
|
Article V
|
Covenants
|
|
Section 5.1.
|
Covenants
of the Seller
|
|
Article VI
|
Indemnification
|
|
Section 6.1.
|
Indemnities
by the Seller
|
|
Section 6.2.
|
Increased
Cost and Reduced Return
|
|
Section 6.3.
|
Other
Costs and Expenses
|
|
Section 6.4.
|
Withholding
Taxes
|
|
Section 6.5.
|
Payments
and Allocations
|
|
Article VII
|
Conditions
Precedent
|
|
Section 7.1.
|
Conditions
to Closing
|
|
Section 7.2.
|
Conditions
to Each Purchase
|
|
Article VIII
|
The
Agent
|
|
Section 8.1.
|
Appointment
and Authorization
|
|
Section 8.2.
|
Delegation
of Duties
|
|
Section 8.3.
|
Exculpatory
Provisions
|
|
Section 8.4.
|
Reliance
by Agent
|
|
Section 8.5.
|
Assumed
Payments
|
|
Section 8.6.
|
Notice
of Termination Events
|
|
Section 8.7.
|
Non-Reliance
on Agent, Purchaser Agents and Other Purchasers
|
|
Section 8.8.
|
Agents
and Affiliates.
|
|
Section 8.9.
|
Indemnification
|
|
Section 8.10.
|
Successor
Agent.
|
|
Article IX
|
Miscellaneous
|
|
Section 9.1.
|
Termination
|
|
Section 9.2.
|
Notices
|
|
Section 9.3.
|
Payments
and Computations
|
|
Section 9.4.
|
Sharing
of Recoveries
|
|
Section 9.5.
|
Right
of Setoff
|
|
Section 9.6.
|
Amendments
|
|
Section 9.7.
|
Waivers
|
|
Section 9.8.
|
Successors
and Assigns; Participations; Assignments
|
|
Section 9.9.
|
Intended
Tax Characterization
|
|
Section 9.10.
|
Waiver
of Confidentiality
|
|
Section 9.11.
|
Confidentiality
of Agreement
|
|
Section 9.12.
|
Agreement
Not to Petition.
|
|
Section 9.13.
|
Excess
Funds
|
|
Section 9.14.
|
No
Recourse
|
|
Section 9.15.
|
Limitation
of Liability
|
|
Section 9.16.
|
Headings;
Counterparts.
|
|
Section 9.17.
|
Cumulative
Rights and Severability.
|
|
Section 9.18.
|
Governing
Law; Submission to Jurisdiction
|
|
Section 9.19.
|
Waiver
of Trial by Jury
|
|
Section 9.20.
|
Entire
Agreement.
|
|
Section
9.21.
|
Original
Sale Agreement
|
Signature
|
Schedules
|
Description
|
|
Schedule I
|
Definitions
|
|
Schedule II
|
Related
Bank Purchasers and Commitments of Related Bank
Purchasers
|
|
Exhibits
|
Description
|
|
Exhibit A
|
Form
of Incremental Purchase Request
|
|
Exhibit B
|
Form
of Notification of Assignment from the Related Bank Purchasers to
Amsterdam
|
|
Exhibit C-1
|
Form
of Monthly Report
|
|
Exhibit C-2
|
Form
of Weekly Report
|
|
Exhibit C-3
|
Form
of Daily Report
|
|
Exhibit D
|
Addresses
and Names of Seller and Originator
|
|
Exhibit E
|
Subsidiaries
|
|
Exhibit F
|
Lock-Boxes
and Lock-Box Banks
|
|
Exhibit G
|
Form
of Lock-Box Letter
|
|
Exhibit H
|
[Reserved]
|
|
Exhibit I
|
Credit
and Collection Policy
|
Fourth
Amended and Restated
This
Fourth Amended and Restated Receivables Sale Agreement, dated
as
of September 28, 2006 (this “Agreement”),
among
Crompton & ▇▇▇▇▇▇▇ Receivables Corporation, a Delaware corporation, as
Seller (the “Seller”),
Chemtura Corporation (f/k/a Crompton Corporation), a Delaware corporation,
as
the initial Collection Agent (the “Initial
Collection Agent”),
and,
together with any successor thereto, the “Collection
Agent”),
ABN
AMRO Bank N.V., as agent for the Purchaser Group to which Amsterdam is a party
and the Purchasers (the “Agent”),
Calyon
New York Branch (“Calyon”),
as the
Purchaser Agent for the Purchaser Group to which Atlantic is a party, Wachovia
Bank, National Association (“Wachovia”),
as
Letter of Credit issuer (in such capacity, the “LC
Issuer”)
and as
Purchaser Agent for the Purchaser Group to which VFCC is a party, the other
Purchaser Agents from time to time party hereto, the related bank purchasers
party hereto (the “Related
Bank Purchasers”),
Amsterdam Funding Corporation (“Amsterdam”),
as a
Conduit Purchaser, Atlantic Asset Securitization LLC (“Atlantic”),
as a
Conduit Purchaser, Variable Funding Capital Company, LLC (“VFCC”),
as a
Conduit Purchaser and the other Conduit Purchasers from time to time party
hereto. Certain capitalized terms used herein, and certain rules of
construction, are defined in Schedule I.
Preliminary
Statement
Reference
is made to the Third Amended and Restated Receivables Sale Agreement dated
as of
March 2, 2006 (as amended prior to the date hereof, the “Original
Sale Agreement”),
among
the parties hereto (other than the LC Issuer). The Seller has requested that
a
sub-facility for standby letters of credit be added to the facility evidenced
by
the Original Sale Agreement. This Agreement amends and replaces in its entirety
the Original Sale Agreement, and from and after the date hereof, all references
to the Original Sale Agreement in any Transaction Document or in any other
instrument or document shall, without more, be deemed to refer to this
Agreement.
Now,
Therefore, in
consideration of the mutual agreements contained herein and the other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
Article I
Purchases
from Seller, Letters of Credit and Settlements
Section 1.1.Sales.
f
(a)
Sold
Interest; Seller Interest.
Subject
to the terms and conditions hereof, the Seller may, from time to time before
the
Termination Date, sell to the Conduit Purchasers, or, only if a Conduit
Purchaser declines to make the applicable purchase, ratably to the Related
Bank
Purchasers for such Conduit Purchaser, an undivided percentage ownership
interest in the Receivables and all related Collections. Any such purchase
(a
“Purchase”)
shall
be made by each relevant Purchaser remitting funds to the Seller, through its
Purchaser Agent, pursuant to Section 1.1(c) or by the Collection Agent
remitting Collections to the Seller pursuant to Section 1.1(d). The
aggregate percentage ownership interest so acquired by a Purchaser in the
Receivables and related Collections (its “Purchase
Interest”)
shall
equal at any time the following quotient:
|
I
|
+
|
PRP
|
|
▇▇▇
|
where:
|
I
|
=
|
the
outstanding Investment of such Purchaser at such time;
|
|
|
▇▇▇
|
=
|
the
Eligible Receivables Balance at such time; and
|
|
|
PRP
|
=
|
the
Purchaser Reserve Percentage at such
time.
|
Except
during a Liquidation Period for a Purchaser, such Purchaser’s Purchase Interest
will change whenever its Investment, its Purchaser Reserve Percentage or the
Eligible Receivables Balance changes. During a Liquidation Period for a
Purchaser, its Purchase Interest shall remain constant at the percentage in
effect as of the day immediately preceding the beginning of such Liquidation
Period, except for redeterminations to reflect Investment acquired from or
transferred to another Purchaser hereunder or under the Transfer Agreement.
The
sum of all Purchasers’ Purchase Interests at any time is referred to herein as
the “Sold
Interest”,
which
at any time is the aggregate percentage ownership interest then held by the
Purchasers in the Receivables and Collections. All right, title and interest
in
the Receivables and related Collections not constituting part of the Sold
Interest shall constitute the “Seller
Interest”.
On each
day hereafter on which Collections are received, the Collection Agent shall
allocate such Collections ratably to the Sold Interest and to the Seller
Interest. Collections allocated to the Sold Interest shall hereinafter be
referred to as “Purchaser
Collections,”
and
Collections allocated to the Seller Interest shall hereinafter be referred
to as
“Seller
Collections.”
(b)
Conduit
Purchasers Purchase Option and Other Purchasers’
Commitments.
Subject
to Section 1.1(d) concerning Reinvestment Purchases, at no time will the
Conduit Purchasers have any obligation to make a Purchase. Each Related Bank
Purchaser severally hereby agrees, subject to Section 7.2 and the other
terms and conditions hereof, to make Purchases before the Termination Date,
based on the applicable Purchaser Group’s Ratable Share of each Purchase (and in
the case of each Related Bank Purchaser, the Commitment Percentage of its
Purchaser Group’s Ratable Shares of such Purchase) by the Related Bank
Purchasers, to the extent its Investment would not thereby exceed its
Commitment, the Aggregate Investment would not thereby exceed the Purchase
Limit, and the aggregate Credit Exposure would not thereby exceed the Aggregate
Commitments. Each Purchaser’s first Purchase, and each additional Purchase by
such Purchaser not made solely from Purchaser Collections pursuant to
Section 1.1(d), is referred to herein as an “Incremental
Purchase.”
Each
Purchase made by a Purchaser with the proceeds of Purchaser Collections which
does not increase the outstanding Investment of such Purchaser, is referred
to
herein as a “Reinvestment
Purchase.”
All
Purchases hereunder shall be made ratably by each Purchaser Group in accordance
with the Commitment of such Purchaser Group.
(c)
Incremental
Purchases.
In
order to request an Incremental Purchase from a Purchaser, the Seller must
provide to the Agent and each Purchaser Agent an irrevocable written request
(including by telecopier or other facsimile communication) substantially in
the
form of Exhibit A, by 10:00 a.m. (Chicago time) three Business Days
before the requested date (the “Purchase
Date”)
of such
Purchase, specifying the requested Purchase Date (which must be a Business
Day)
and the requested amount (the “Purchase
Amount”)
of such
Purchase, which must be in a minimum amount of $1,000,000 and multiples thereof
(or, if less, an amount equal to the Maximum Incremental Purchase Amount).
All
Incremental Purchases must be requested ratably from all Conduit Purchasers
unless, upon such request, a Conduit Purchaser, in its sole discretion,
determines not to make its Ratable Share of the requested Incremental Purchase,
in which case the Seller will automatically be deemed to have requested such
Incremental Purchase from the Related Bank Purchasers of such Conduit Purchaser.
Each Purchaser Agent shall promptly notify the related Purchasers from which
a
Purchase is requested of the contents of such request. If a Conduit Purchaser
determines, in its sole discretion, to make the requested Purchase, such Conduit
Purchaser shall transfer to the applicable Purchaser Agent’s Account the amount
of such Incremental Purchase on the requested Purchase Date. If a Conduit
Purchaser refuses to make a requested Purchase the Seller shall automatically
be
deemed to have requested the Incremental Purchase from the Related Bank
Purchasers of such Conduit Purchaser, subject to Section 7.2 and the other
terms and conditions hereof, each Related Bank Purchaser shall transfer its
Ratable Share of the requested Purchase Amount into the applicable Purchaser
Agent’s Account by no later than 12:00 noon (Chicago time) on the Purchase Date.
Each Purchaser Agent shall transfer to the Seller Account the proceeds of any
Incremental Purchase to the extent of funds actually received by such Purchaser
Agent in such Purchaser Agent’s Account.
(d)
Reinvestment
Purchases.
Unless
a Conduit Purchaser has provided to the Agent, its Purchaser Agent, the Seller
and the Collection Agent a notice still in effect that it no longer wishes
to
make Reinvestment Purchases (in which case, such Conduit Purchaser’s
Reinvestment Purchases, but not those of its Related Bank Purchasers, shall
cease), at any time before the Termination Date when no Interim Liquidation
is
in effect, on each day that any Purchaser Collections are received by the
Collection Agent, a Purchaser’s Purchase Interest in such Purchaser Collections
shall automatically be used to make a Reinvestment Purchase by such Purchaser,
but only to the extent such Reinvestment Purchase would not cause the
Purchaser’s Investment to increase above the amount of such Investment at the
start of the day plus any Incremental Purchases made by the Purchaser on that
day. A Conduit Purchaser may revoke any notice provided under the first sentence
of this Section 1.1(d) by notifying the Agent, its Purchaser Agent, the
Seller and the Collection Agent that it will make Reinvestment
Purchases.
Section 1.2. Letters
of Credit.
(a)
Issuance
and Modification.
Subject
to the terms and conditions hereof, the Seller may, from time to time before
the
Termination Date, request that the LC Issuer issue Letters of Credit, and the
LC
Issuer hereby agrees to issue each Letter of Credit and to renew, extend,
increase, decrease or otherwise modify each such Letter of Credit (“Modify,”
and each
such action a “Modification”),
from
time to time upon the request of the Seller prior to the Termination Date;
provided
that
no
Letter of Credit shall be issued or Modified by the LC Issuer if: (i) after
giving effect thereto, the
aggregate Credit Exposure would exceed the Aggregate Commitment, (ii) after
giving effect thereto, the
LC
Obligations would exceed the LC Sublimit, (iii) after giving effect
thereto, the
Effective Receivable Interest (as most recently computed or recomputed by the
Collection Agent in a Periodic Report and expressed as a percentage) would
exceed 100.0% at any time; (iv) the face amount of such Letter of Credit is
less
than $1,000,000; (v) such Letter of Credit has an original expiry date more
than
one year after the later of (A) its date of issuance, and (B) the date of its
most recent Modification; or (vi) the LC Issuer has received written notice
that
a Termination Event or Potential Termination Event exists and is
continuing.
(b)
Letter
of Credit Requests.
The
Seller shall give the LC Issuer and the Purchaser Agents reasonable prior notice
of the proposed date of issuance or Modification of each Letter of Credit (and
in no event shall such notice be given later than 12:00 noon (Chicago time)
three Business Days prior to such issuance or Modification), by delivering
a
copy of the Letter of Credit Request provided to it under the Purchase
Agreement, together with a transmittal letter in substantially the form of
Exhibit H hereto, duly completed by the Seller. The issuance or Modification
by
the LC Issuer of any Letter of Credit shall, in addition to the conditions
precedent set forth in Article VII, be subject to the conditions precedent
that
such Letter of Credit shall be reasonably satisfactory to the LC Issuer and
that
the Seller shall have executed and delivered such application agreement and/or
such other instruments and agreements relating to such Letter of Credit as
the
LC Issuer shall have reasonably requested (each, an “LC
Application”).
In no
event shall the LC Issuer be obligated to issue a Modification if, on the
proposed date of such Modification, the LC Issuer would not be obligated to
issue a new Letter of Credit if requested or if the beneficiary does not consent
to the proposed terms of the Modification. In the event of any conflict between
the terms of this Agreement and the terms of any LC Application, the terms
of
this Agreement shall control.
(c)
Reimbursement
by Seller;
Interest; Pledge of Seller Interest.
Upon
receipt from the beneficiary of any Letter of Credit of any demand for payment
under such Letter of Credit, the LC Issuer shall notify the Purchaser Agents
and
the Seller as to the amount to be paid by the LC Issuer as a result of such
demand and the proposed payment date (the “LC
Payment Date”).
The
responsibility of the LC Issuer to the Seller shall be only to determine that
the documents (including each demand for payment) delivered under each Letter
of
Credit in connection with such presentment shall be in conformity in all
material respects with such Letter of Credit. The Seller shall be irrevocably
and unconditionally obligated to reimburse the LC Issuer on or before the
applicable LC Payment Date for any amounts to be paid by the LC Issuer upon
any
drawing under any Letter of Credit, without presentment, demand, protest or
other formalities of any kind, either from cash on hand or, subject to the
terms
and conditions hereof, with the proceeds of a Purchase (and, in the event that
the Seller does not have sufficient cash on hand to make any such reimbursement,
the Seller hereby irrevocably and unconditionally commits that it will request
a
Purchase on the terms and conditions specified in this Agreement); provided
that
the Seller shall not hereby be precluded from asserting any claim for direct
(but not consequential) damages suffered by the Seller to the extent, but only
to the extent, caused by (i) the willful misconduct or gross negligence of
the
LC Issuer or (ii) the LC Issuer’s failure to pay under any Letter of Credit
issued by it after the presentation to it of a request strictly complying with
the terms and conditions of such Letter of Credit. All such amounts paid by
the
LC Issuer and remaining unpaid by the Seller (whether from cash on hand or
with
the proceeds of a Purchase made in accordance with this Agreement) shall bear
interest (“Interest”),
payable on each Settlement Date in arrears out of Seller Collections, for each
day until paid at a rate per annum equal to the Default Rate. Regardless of
whether the applicable LC Payment Date has occurred, the Purchaser Agents are
hereby irrevocably directed to pay the proceeds of each Purchase made while
any
Reimbursement Obligation remains outstanding directly to the LC Issuer until
all
such Reimbursement Obligations, together with all accrued and unpaid interest
and LC Fees thereon, are paid in full. The Seller’s Reimbursement Obligations,
and the Seller’s obligation to pay Interest pursuant to this Section 1.2(c),
shall be secured by a pledge of the Seller Interest.
(d)
Obligations
Absolute.
The
Seller’s obligations under this Section 1.2 shall be absolute and unconditional
under any and all circumstances and irrespective of (i) any lack of validity
or
enforceability of such Letter of Credit, this Agreement, or any other agreement
or instrument relating thereto; (ii) the
existence of any claim, counterclaim, set-off, defense or other right that
the
Seller or any Originator may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the applicable LC Issuer or any other
person, whether in connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction; (iii) any
draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
(provided that such draft, demand, certificate or other document presented
pursuant to such Letter of Credit appears on its face to comply with the terms
thereof) or any statement therein being untrue or inaccurate in any respect;
or
any loss or delay in the transmission or otherwise of any document required
in
order to make a drawing under such Letter of Credit; (iv) any
payment by the LC Issuer under such Letter of Credit against presentation of
a
draft or certificate that does not strictly comply with the terms of such Letter
of Credit (provided that such draft, demand, certificate or other document
presented pursuant to such Letter of Credit appears on its face to comply with
the terms thereof); or any payment made by the LC Issuer under such Letter
of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under the Bankruptcy Code of the United States, or any other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally; (v) any
exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to the departure from any guarantee, for
all
or any of the obligations of the Seller or any Originator in respect of any
Letter of Credit; or (vi) any
other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute
a
defense available to, or a discharge of, the Seller of the applicable
Originator, provided that the Seller shall not hereby be precluded from
asserting any claim for direct (but not consequential) damages suffered by
the
Seller to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of the LC Issuer or (ii) the LC Issuer’s failure
to pay under any Letter of Credit issued by it after the presentation to it
of a
request strictly complying with the terms and conditions of such Letter of
Credit. The Seller
shall
promptly examine a copy of each Letter of Credit and each amendment thereto
that
is delivered to it, and, in the event of any claim of noncompliance with
Seller’s instructions or other irregularity, the Seller will immediately
(and
in
any event within 5 Business Days) notify
the LC Issuer. The Seller shall be conclusively deemed to have waived any such
claim against the LC Issuer and its correspondents unless such notice is given
as aforesaid.
(e)
Actions
of the LC Issuer.
With
respect to any actions taken or omitted in the absence of gross negligence
or
willful misconduct, the LC Issuer shall be entitled to rely, and shall be fully
protected in relying, upon any Letter of Credit, draft, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document believed by it
to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the LC Issuer.
(f)
Participations.
By the
issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing
the amount thereof) and without any further action on the part of the LC Issuer
or the Related Bank Purchasers, the LC Issuer hereby grants to each Related
Bank
Purchaser, and each Related Bank Purchaser hereby acquires from the LC Issuer,
a
participation in such Letter of Credit equal to such Related Bank Purchaser’s
Percentage of the aggregate amount available to be drawn under such Letter
of
Credit. In consideration and in furtherance of the foregoing, each Related
Bank
Purchaser hereby absolutely and unconditionally agrees to pay to the LC Issuer,
such Related Bank Purchaser’s Percentage of each draw honored by the LC Issuer
pursuant to a Letter of Credit and not reimbursed by the Seller on the date
due
as provided in Section 1.2(c), or of any reimbursement payment required to
be
refunded to the Seller for any reason. Each Related Bank Purchaser acknowledges
and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Letter of Credit is absolute and unconditional and
shall
not be affected by any circumstance whatsoever, including any amendment, renewal
or extension of any Letter of Credit or the occurrence and continuance of a
Termination Event or Collection Agent Replacement Event or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. The Related Bank
Purchasers shall be entitled to receive their ratable shares of any LC Fees
and
Interest actually collected by the LC Issuer, but in no event shall they be
entitled to share in any other fees, commissions, charges or expenses payable
to
the LC Issuer.
(g)
LC
Issuer Agreements.
Promptly after the occurrence thereof, the LC Issuer shall report to each of
the
Purchaser Agents: (i) the date and amount of each issuance, extension,
amendment, renewal and cancellation of a Letter of Credit, (ii) the date and
amount of each draw honored under a Letter of Credit, and (iii) the date and
amount of each failure by the Seller to reimburse a Reimbursement Obligation
required to be reimbursed to the LC Issuer. The LC Issuer shall invoice the
Seller for LC Fees no later than the 15th
day of
each month hereafter and shall disburse each Related Bank Purchaser’s share of
LC Fees and Interest received by the LC Issuer within one (1) Business Day
after
the LC Issuer’s receipt thereof.
(h)
Cash-Collateralization
of LC Obligations.
On the
Termination Date, the Seller shall be and become thereby unconditionally
obligated, without any further notice, act or demand, to pay to the LC Issuer,
an amount equal to all Reimbursement Obligations then outstanding, together
with
accrued and unpaid Interest and L/C Fees thereon, and to deposit into the Letter
of Credit Collateral Account an amount equal to the Aggregate Face Amount
Outstanding, together with an amount equal to the L/C Fees that will accrue
thereon through the expiry date of each Letter of Credit. The LC Issuer may
at
any time or from time to time after funds are deposited in the Letter of Credit
Collateral Account, apply such funds to the payment of draws under outstanding
Letter of Credit and any other amounts as shall from time to time have become
due and payable by Seller to the LC Issuer under the Transaction Documents.
After all of the LC Obligations have been indefeasibly paid in full and the
obligation of the LC Issuer to issue Letter of Credit has been terminated,
any
funds remaining in the Letter of Credit Collateral Account shall be returned
by
the LC Issuer to the Seller or paid to whomever may be legally entitled thereto
at such time.
Section 1.3.
Interim
Liquidations.
(a)
Optional.
The
Seller may at any time direct that Reinvestment Purchases cease and that an
Interim Liquidation commence for all Purchasers by giving the Agent, the LC
Issuer, each Purchaser Agent and the Collection Agent at least three Business
Days’ written (including telecopy or other facsimile communication) notice
specifying the date on which the Interim Liquidation shall commence and, if
desired, when such Interim Liquidation shall cease before the Termination Date
(identified as a specific date or as when the Aggregate Investment is reduced
to
a specified amount). If the Seller does not so specify the date on which an
Interim Liquidation shall cease, it may cause such Interim Liquidation to cease
at any time before the Termination Date, subject to Section 1.3(b) below,
by notifying the Agent, the LC Issuer, each Purchaser Agent and the Collection
Agent in writing (including by telecopy or other facsimile communication) at
least three Business Days before the date on which it desires such Interim
Liquidation to cease.
(b)
Mandatory.
If, at
any time before the Termination Date, any condition in Section 7.2 is not
fulfilled, the Seller shall immediately notify the Agent, the LC Issuer, each
Purchaser Agent and the Collection Agent, whereupon Reinvestment Purchases
shall
cease and an Interim Liquidation shall commence, which shall only cease upon
the
Seller confirming to the Agent that the conditions in Section 7.2 are
fulfilled.
Section 1.4.
Discount
Rates and Tranche Periods.
(a) Each Conduit Purchaser’s Investment will accrue Funding Charges for
each day on which it is outstanding. On each Settlement Date the Seller shall
pay to each Purchaser Agent (for the benefit for the related Conduit Purchaser)
an aggregate amount equal to all accrued and unpaid Funding Charges in respect
of such Investment for the immediately preceding Discount Period. Each Purchaser
Agent shall allocate the Investment of the related Conduit Purchaser to one
or
more Tranche Periods in its sole discretion.
(b)
All
Investments of the Related Bank Purchasers shall be allocated to one or more
Tranches reflecting the Discount Rates at which such Investment accrues Discount
and the Tranche Periods for which such Discount Rates apply. In each request
for
an Incremental Purchase from a Related Bank Purchaser and three Business Days
before the expiration of any Tranche Period applicable to any Related Bank
Purchaser’s Investment, the Seller may request the Tranche Period(s) to be
applicable to such Investment and the Discount Rate(s) applicable thereto.
All
Investment of the Related Bank Purchasers may accrue Discount at either the
Eurodollar Rate or the Prime Rate, in all cases as established for each Tranche
Period applicable to such Investment. Each Tranche shall be in the minimum
amount of $1,000,000 and in multiples thereof or, in the case of Discount
accruing at the Prime Rate, in any amount of Investment that otherwise has
not
been allocated to another Tranche Period. Any Investment of the Related Bank
Purchasers not allocated to a Tranche Period shall be a Prime Tranche. During
the pendency of a Termination Event, the applicable Purchaser Agent may
reallocate any outstanding Investment of the Related Bank Purchasers to a Prime
Tranche. All Discount accrued on the Investment of the Related Bank Purchasers
during a Tranche Period shall be payable by the Seller on the last day of such
Tranche Period or, for a Eurodollar Tranche with a Tranche Period of more than
three months, 90 days after the commencement, and on the last day, of such
Tranche Period.
(c)
If,
by
the time required in Section 1.4(b), the Seller fails to select a Discount
Rate or Tranche Period for any Investment of any Related Bank Purchaser, such
amount of Investment shall automatically accrue Discount at the Prime Rate
for a
three Business Day Tranche Period. Any Investment purchased from a Conduit
Purchaser pursuant to a Transfer Agreement shall accrue Discount at the Prime
Rate and have an initial Tranche Period of three Business Days.
(d)
If
a
Purchaser Agent or any Related Bank Purchaser determines (i) that maintenance
of
any Eurodollar Tranche would violate any applicable law or regulation, (ii)
that
deposits of a type and maturity appropriate to match fund any of such Related
Bank Purchaser’s Eurodollar Tranches are not available or (iii) that the
maintenance of any Eurodollar Tranche will not adequately and fairly reflect
the
cost of such Related Bank Purchaser of funding Eurodollar Tranches, then such
Purchaser Agent, upon the direction of such Purchaser, shall suspend the
availability of, and terminate any outstanding, Eurodollar Tranche so affected.
All Investment allocated to any such terminated Eurodollar Tranche shall be
reallocated to a Prime Rate Tranche.
Section 1.5.
Fees
and Other Costs and Expenses.
(a) The Seller shall pay to each Purchaser Agent for the benefit of the
members of its Purchaser Group in such proportions as they may have agreed,
the
fees specified in the Fee Letter. The Seller shall also pay to the LC Issuer
the
facing fee specified in the Fee Letter (the “Facing
Fee”).
(b)
If
the
amount of Investment allocated to any CP or Eurodollar Tranche is reduced before
the last day of its Tranche Period, or if a requested Incremental Purchase
at
the Eurodollar Rate does not take place on its scheduled Purchase Date, the
Seller shall pay the Early Payment Fee to each Purchaser that had its Investment
so reduced or scheduled Purchase not made.
Section 1.6.
Computation
of Effective Receivable Interest; Deemed Collection.
(a)
General.
The
Effective Receivable Interest (and the portions thereof comprising the Sold
Interest and the Pledged Interest) shall be computed as of the last day of
each
Reporting Period (after giving effect to any payments to be made on the next
succeeding Settlement Date pursuant to this Agreement) and on the Termination
Date. In
addition, (i)
if,
on any Business Day prior to the Termination Date, the Seller desires the
Purchasers to make an Incremental Purchase or desires the LC Issuer to issue,
increase or extend a Letter of Credit and the Effective Receivable Interest
as
reflected on the most recent Periodic Report delivered to the Agent and the
Purchaser Agents would exceed 100.0% after giving effect to such proposed
Incremental Purchase, Letter of Credit issuance or Letter of Credit increase,
the Seller may provide to the Agent and the Purchaser Agents, not later than
delivery of the notice for such Incremental Purchase pursuant to Section 1.1(c),
a written recomputation of the Effective Receivable Interest reflecting the
proposed increase in Aggregate Investment or LC Obligations and changes since
the last day of the prior Settlement Period in the Eligible Receivables Balance
and Aggregate Reserves, in which case, the Effective Receivable Interest shall
be recomputed as of the date of such recomputation; and (ii) at any time, the
Agent or LC Issuer may reasonably require the Collection Agent to provide an
updated Periodic Report based on the information then available to Collection
Agent, for purposes of recomputing the Effective Receivable Interest or
demonstrating that the Credit Exposure does not exceed the Aggregate Commitments
as of any other date and that the LC Obligations do not exceed the LC Sublimit,
and the Collection Agent agrees to do so within three (3) Business Days after
its receipt of the Agent’s request. If, at any time, the sum of the Credit
Exposure plus the Aggregate Reserve is greater than the Eligible Receivables
Balance, the Seller shall pay ratably to each of the Purchaser Agents for its
respective Purchaser Group an amount of Purchaser Collections equal to such
Purchaser Group’s deficiency for application to reduce the Investments of the
Purchasers ratably in accordance with the principal amount of their respective
Investments, applied first
to such
Purchaser’s Prime Tranches and second
to the
other Tranches applicable to the Investment of such Purchaser with the shortest
remaining maturities unless otherwise specified by the Seller and next,
only if
the excess described above persists, the Seller shall pay to the LC Issuer,
in
order to Cash-Collateralize the LC Obligations, Seller Collections in an amount
necessary to eliminate such excess. In addition, if any at time, the LC
Obligations exceed the LC Sublimit, the Seller shall pay to the LC Issuer,
in
order to Cash-Collateralize the LC Obligations, Seller Collections in an amount
necessary to eliminate such excess.
(b)
Deemed
Collections.
If on
any day the outstanding balance of a Receivable is reduced or cancelled as
a
result of any defective or rejected goods or services, any cash discount or
adjustment (including any adjustment resulting from the application of any
special refund or other discounts or any reconciliation), any setoff or credit
(whether such claim or credit arises out of the same, a related, or an unrelated
transaction) or other similar reason not arising from the financial inability
of
the Obligor to pay undisputed indebtedness or the remittance of cash by such
Obligor, the Seller shall be deemed to have received on such day a Collection
on
such Receivable in the amount of such reduction or cancellation. If on any
day
any representation, warranty, covenant or other agreement of the Seller related
to a Receivable is not true or is not satisfied, the Seller shall be deemed
to
have received on such day a Collection in the amount of the outstanding balance
of such Receivable. All such Collections deemed received by the Seller under
this Section 1.6(b) (“Deemed
Collections”)
shall
be remitted by the Seller to the Collection Agent in accordance with
Section 5.1(i).
(c)
Adjustment
to Sold Interest.
At any
time before the Termination Date that the Seller is deemed to have received
any
Deemed Collection deriving from a Receivable that is otherwise reported as
an
Eligible Receivable, so long as no Liquidation Period then exists, the Seller
may satisfy its obligation to deliver such amount to the Collection Agent by
instead notifying the Agent that each of the Sold Interest and the Seller
Interest should be recalculated by decreasing the Eligible Receivables Balance
by the amount of such Deemed Collections, so long as such adjustment does not
cause the Effective Receivable Interest to exceed 100.0%.
(d)
Payment
Assumption.
Unless
an Obligor otherwise specifies or another application is required by contract
or
law, any payment received by the Seller from any Obligor shall be applied as
a
Collection of Receivables of such Obligor (starting with the oldest such
Receivable) and remitted to the Collection Agent as such.
Section 1.7.
Reduction
in Commitments.
The
Seller may, upon thirty days’ notice to the Agent and each Purchaser Agent,
reduce the Aggregate Commitment in increments of $1,000,000, so long as the
Aggregate Commitment at all times equals at least the Credit Exposure. Each
such
reduction in the Aggregate Commitment shall reduce the Commitment of each
Purchaser Group in accordance with its Ratable Share and the Commitment of
each
Related Bank Purchaser with a Purchaser Group in accordance with its Commitment
Percentage and shall ratably reduce the Purchase Limit so that the Aggregate
Commitment remains equal to 102% of the Purchase Limit.
Section 1.8.
Repurchases.
(a)
Optional.
At any
time that the Aggregate Investment is less than 10% of the Aggregate Commitment
in effect on the date hereof, the Seller may, upon thirty days’ notice to the
Agent, repurchase the entire Sold Interest from the Purchasers at a price equal
to the outstanding Matured Aggregate Investment and all other amounts then
owed
hereunder and Cash-Collateralize all LC Obligations in an amount equal to 100.0%
of the amount thereof.
(b)
Mandatory.
If at
any time before the Termination Date, the Effective Receivable Interest exceeds
100.0%, unless the Seller remedies the situation by satisfying its obligations
under Section 1.6(a), any Purchaser may direct that all Purchasers ratably
reassign to the Seller, without recourse, representation or warranty, a portion
of the Purchase Interest of each Purchaser so that the Effective Receivable
Interest does not exceed 100.0%. The Seller shall purchase such reassigned
Purchase Interests at a purchase price equal to the Matured Value of the
Investment so reassigned by each Purchaser.
Section 1.9.
Assignment
of Purchase Agreements.
(a) The
Seller hereby assigns and otherwise transfers to the Agent (for the benefit
of
the Agent, the LC Issuer, each Purchaser Agent, each Purchaser and any other
Person to whom any amount is owed hereunder), all of the Seller’s right, title
and interest in, to and under each Purchase Agreement. The Seller shall execute,
file and record all financing statements, continuation statements and other
documents required to perfect or protect such assignment. This assignment
includes (a) all monies due and to become due to the Seller from each
Originator or the Parent under or in connection with each Purchase Agreement
(including fees, expenses, costs, indemnities and damages for the breach of
any
obligation or representation related to such agreement) and (b) all rights,
remedies, powers, privileges and claims of the Seller against each Originator
or
the Parent under or in connection with each Purchase Agreement. All provisions
of each Purchase Agreement shall inure to the benefit of, and may be relied
upon
by, the Agent, the LC Issuer, each Purchaser Agent, each Purchaser and each
such
other Person. At any time that a Termination Event has occurred and is
continuing, the Agent shall have the sole right to enforce the Seller’s rights
and remedies under each Purchase Agreement to the same extent as the Seller
could absent this assignment, but without any obligation on the part of the
Agent, any Purchaser Agent, the LC Issuer, any Purchaser or any other such
Person to perform any of the obligations of the Seller under each Purchase
Agreement (or any of the promissory notes executed thereunder). All amounts
distributed to the Seller under each Purchase Agreement from Receivables sold
to
the Seller thereunder shall constitute Collections hereunder and shall be
applied in accordance herewith.
(b)
The
Seller hereby irrevocably authorizes the Agent, on behalf of the Purchasers
and
the LC Issuer, at any time, and from time to time, to file in any filing office
in any jurisdiction any initial financing statements and amendments thereto
that
describe either all of the Seller’s assets or the Collateral, as collateral, and
hereby ratifies the filing of any initial financing statements or amendments
thereto filed by the Agent on behalf of the Purchasers and the LC Issuer that
describe all of the Seller’s assets or the Collateral, as collateral which were
filed prior to the execution of this Agreement.
Section 1.10.
Extension
of Termination Date.
The
Seller may advise the LC Issuer, the Related Bank Purchasers and each Purchaser
Agent in writing of its desire to extend the Termination Date for an additional
period, provided
(i) such request is made not more than 120 days prior to, and not less than
90 days prior to, the then current Termination Date, and (ii) not more than
one such request for the extension of the Termination Date may be made in any
one calendar year. In the event that the LC Issuer and the Related Bank
Purchasers are agreeable to such extension, they shall notify the Agent and
the
Agent shall so notify the Seller in writing (it being understood that the LC
Issuer and the Related Bank Purchasers may accept or decline such a request
in
their sole discretion and on such terms as they may elect) not less than 45
days
prior to the Termination Date, and the Seller, the LC Issuer and the Related
Bank Purchasers shall enter into such documents as the LC Issuer or the Related
Bank Purchasers may deem necessary or appropriate to reflect such extension,
and
all reasonable costs and expenses incurred by the LC Issuer and Related Bank
Purchasers in connection therewith (including reasonable attorneys’ fees) shall
be paid by the Seller. The LC Issuer and the Related Bank Purchasers shall
be
deemed to have refused to grant the requested extension in the event the Agent
shall fail to so notify the Seller of their agreement to such an
extension.
Section 1.11.
Grant
of Security Interest.
To
secure payment of the Investment, Discount, LC Fees and other fees described
in
the Fee Letter, Facing Fees, LC Obligations, Indemnified Losses, and all
other
amounts payable and obligations of the Seller under the Transaction Documents,
whether now existing or hereafter arising, absolute or contingent, the Seller
hereby grants to the Agent (for the benefit of the Purchasers and the LC
Issuer)
a security interest in all of the Seller’s right, title and interest in, to and
under all existing and hereafter acquired right, title and interest in, to
and
under the Receivables, the Collections, the Lock-Box Accounts, each Purchase
Agreement, and all proceeds of the foregoing (collectively, the “Collateral”).
From
and after the Termination Date, the Agent, on behalf of the Purchasers and
the
LC Issuer, shall have, in addition to the rights and remedies it may have
under
this Agreement, all other rights and remedies provided to a secured creditor
after default under the Uniform Commercial Code and other applicable law,
which
rights and remedies shall be cumulative.
Article II
Sales
to and from Conduit Purchasers; Allocations
Section 2.1.
Required
Purchases from a Conduit Purchaser. (a) Each
Conduit Purchaser may, at any time, sell to its Related Bank Purchasers pursuant
to the relevant Transfer Agreement any percentage designated by such Conduit
Purchaser of such Conduit Purchaser’s Investment and its related Conduit
Purchaser Settlement (each, a “Put”).
(b)Any
portion of any Investment of a Conduit Purchaser and related Conduit Purchaser
Settlement purchased by a Related Bank Purchaser shall be considered part
of
such Related Bank Purchaser’s Investment and related Conduit Purchaser
Settlement from the date of the relevant Put. Immediately upon any purchase
by a
Related Bank Purchaser of any portion of the relevant Conduit Purchaser’s
Investment, the Seller shall pay to the relevant Purchaser Agent (for the
ratable benefit of each such Purchaser) an amount equal to the sum of (i)
the
Assigned Settlement and (ii) all unpaid Discount owed to such Conduit Purchaser
(whether or not then due) to the end of each applicable Tranche Period to
which
any Investment being Put has been allocated, (iii) all accrued but unpaid
fees
(whether or not then due) payable to such Conduit Purchaser in connection
herewith at the time of such purchase and (iv) all accrued and unpaid costs,
expenses and indemnities due to such Conduit Purchaser from the Seller in
connection herewith.
Section 2.2.
Purchases
by a Conduit Purchaser. Each
Conduit Purchaser may at any time deliver to its Purchaser Agent and each
of its
Related Bank Purchasers a notification of assignment in substantially the
form
of Exhibit B. If a Conduit Purchaser delivers such notice, each of its
Related Bank Purchasers shall sell to such Conduit Purchaser and such Conduit
Purchaser shall purchase in full from each such Related Bank Purchasers,
the
Investment of such Related Bank Purchasers on the last day of the relevant
Tranche Periods, at a purchase price equal to such Investment plus accrued
and
unpaid Discount thereon. Any sale from any Related Bank Purchaser to the
relevant Conduit Purchaser pursuant to this Section 2.2 shall be without
recourse, representation or warranty except for the representation and warranty
that the Investment sold by such Related Bank Purchaser is free and clear
of any
Adverse Claim created or granted by such Related Bank Purchaser and that
such
Related Bank Purchaser has not suffered a Bankruptcy Event.
Section 2.3.
Allocations
and Distributions.
As
provided in Section 1.1(a), on each day hereafter on which Collections are
received, the Collection Agent shall allocate such Collections to the Sold
Interest and to the Seller Interest.
(a)
Purchaser
Collections Prior to the Termination Date or an Interim
Liquidation.
On the
Business Day following each Deposit Date occurring prior to the Termination
Date
(unless an Interim Liquidation is in effect), the Collection Agent shall
set
aside from Purchaser Collections the amounts necessary to make all distributions
to the Agent, the Purchaser Agents, the Purchasers and the Collection Agent
required by this Section 2.3(a) with respect to the next succeeding
Settlement Date. On each Settlement Date prior to the Termination Date (unless
an Interim Liquidation is in effect), all Purchaser Collections so set aside
during the preceding Settlement Period shall be applied where applicable
by the
Collection Agent (or, if the Agent is then in control of any Purchaser
Collections, by the Agent) in the following order:
(i)
first,
to
payment of all out-of-pocket expenses due and payable to the Agent (other
than
in its capacity as a Purchaser Agent);
(ii)
second,
ratably
to the Agent and each Purchaser Agent, to payment of all fees and other amounts
not described in clause (i) above due to the Agent and such Purchaser
Agents;
(iii)
third,
ratably
to each Purchaser Group, to payment of all Funding Charges and Discount (without
duplication) due and payable to such Purchaser Group on such date;
(iv)
fourth,
ratably
to each Purchaser Group, to payment of any reduction of their respective
Investments required by Section 1.6(a);
(v)
fifth,
ratably
to each Purchaser Group, to payment of all other amounts due and payable
to such
Purchaser Group under the Transaction Documents;
(vi)
sixth,
to
the
Collection Agent, to payment of the Collection Agent Fee due and payable
on such
date; and
(vii)
seventh,
to
the
Seller.
On
the
last day of each Tranche Period for a Eurodollar Tranche or Prime Tranche,
the
Collection Agent (or, if the Agent is then in control of any Purchaser
Collections, the Agent) shall pay Discount due and payable to such Related
Bank
Purchasers from accounts set aside for such purpose pursuant to
Section 3.2(a).
(b)
Purchaser
Collections after the Termination Date and during Interim Liquidations.
On
each
day during any Interim Liquidation and on each day on and after the Termination
Date, the Collection Agent shall set aside and hold in trust solely for the
account of each Purchaser Agent, for the benefit of the Agent and the
Purchasers, (or deliver to each Purchaser Agent, if so instructed pursuant
to
Section 3.2(a)) the Sold Interest in all Purchaser Collections received on
such day and such Purchaser Collections shall be allocated in the following
order:
(i)
first,
to
the
Agent until all out-of-pocket expenses owed to the Agent (other than in its
capacity as a Purchaser Agent) have been paid in full;
(ii)
second,
ratably
to the Agent and each Purchaser Agent until all other amounts owed to the
Agent
and the Purchaser Agents have been paid in full;
(iii)
third,
to
each
Purchaser Group until all amounts owed to such Purchaser Group have been
paid in
full;
(iv)
fourth,
to
any
other Person (other than the Seller, the Collection Agent or an Originator)
to
whom any amounts are owed under the Transaction Documents until all such
amounts
have been paid in full; and
(v)
fifth,
to the
Collection Agent until all amounts owed to the Collection Agent under the
Agreement have been paid in full;
(vi)
sixth,
solely
if
the Termination Date has occurred, to the LC Issuer, in payment of any accrued
and unpaid Interest, LC Fees or other amounts that are then due and owing
or to
be held as additional cash collateral for the LC Obligations until they are
fully Cash-Collateralized; and
(vii)
seventh,
to
the
Seller.
On
the
last day of each Tranche Period (unless otherwise instructed by the Agent
pursuant to Section 3.2(a)), the Collection Agent shall deposit into the
Agent’s Account, from such set aside Collections, all amounts allocated to such
Tranche Period and all Tranche Periods that ended before such date that are
due
in accordance with clause (ii) above. No distributions shall be made to pay
amounts under clauses (iii) - (vi) until sufficient Collections have been
set
aside to pay all amounts described in clauses (i) and (ii) that may become
payable for all outstanding Tranche Periods. All distributions by the Agent
or
any Purchaser Agent shall be made ratably within each priority level in
accordance with the respective amounts then due each Person included in such
level unless otherwise agreed by all Purchaser Agents.
(c)
Seller
Collections prior to the Termination Date.
On each
Settlement Date prior to the Termination Date: (i) the Collection Agent shall
pay to the LC Issuer, Seller Collections in an amount equal to all accrued
and
unpaid Interest, LC Fees and Facing Fee, if any, then due and owing pursuant
to
the Fee Letter and the amount of any cash collateral required pursuant to
Section 1.6(a), and (ii) any remaining
Seller
Collections shall be allocated by the Seller in the following
order:
(x)
first,
to
purchase additional Receivables under the Purchaser Agreements, such that
after
giving effect thereto, the Eligible Receivables Balance is greater than or
equal
to the Eligible Receivables Balance immediately prior to receipt of such
Seller
Collections,
(y)
second,
to
reduction of any accrued and unpaid interest or principal under the Subordinated
Notes, and
(z)
third,
to the
Seller, for any purpose not inconsistent with the Transaction
Documents
unless a
Collection Agent Termination Event exists and is continuing or any notice
in the
form attached to a Lock-Box Letter has been delivered, in which case Seller
Collections described in this clause third
shall
be
held in trust by the Seller for the LC Issuer (or, if the Seller or one of
its
affiliates is not then acting as the Collection Agent, such Seller Collections
shall be retained and held in trust by the Collection Agent for the LC Issuer)
until the next Settlement Date in a segregated account which is subject to
a
first priority perfected security interest in favor of the Agent, for the
benefit of the LC Issuer and the Related Bank Purchasers.
(d)
Seller
Collections after the Termination Date.
On each
day on or after the Termination Date on
which
any Seller Collections are received, such Seller Collections shall be held
in
trust by the Collection Agent for the LC Issuer until the next Settlement Date
in a segregated account which is subject to a first priority perfected security
interest in favor of the Agent, for the benefit of the LC Issuer and the
Related
Bank Purchasers. On each Settlement Date on or after the Termination Date,
the
Collection Agent shall pay all Seller Collections to the LC Issuer for
application in the following order:
(i)
first, to
any
accrued and unpaid Interest;
(ii)
second,
to
any
accrued and unpaid LC Fees and Facing Fees (it being understood that the
LC
Issuer may take up to one Business Day to distribute each Related Bank
Purchaser’s share of any amounts applied to accrued LC Fees);
(iii)
third,
to
Cash-Collateralize the LC Obligations in respect of all Letters of Credit
then
outstanding, beginning with the Letter of Credit with the earliest expiration
date;
(iv)
fourth,
to
the
Agent, for allocation in accordance with Section 2.3(b); and
(v)
fifth,
once
all
amounts owing to the Agent, the Purchaser Agents, the Purchasers and LC Issuer
have been paid in full or fully Cash-Collateralized, to the Seller.
Section 2.4.
Release
of Excess Cash Collateral.
If on
any Settlement Date prior to the Termination Date, the balances in the Letter
of
Credit Collateral Account exceed the amount required by this Agreement, unless
a
Termination Event, a Collection Agent Replacement Event or an event which,
with
the passage of time, the giving of notice, or both, would constitute a
Termination Event or Collection Agent Replacement Event, shall exist and
be
continuing, the LC Issuer shall release the excess cash collateral to
Seller.
In
addition, promptly after reduction of all LC Obligations to zero, the LC
Issuer
shall release all cash collateral to Seller.
Article III
Administration
and Collections
Section 3.1.
Appointment
of Collection Agent.
(a) The
servicing, administering and collecting of the Receivables shall be conducted
by
a Person (the “Collection
Agent”)
designated to so act on behalf of the Purchasers and the LC Issuer under
this
Article III. As the Initial Collection Agent, the Parent is hereby designated
as, and agrees to perform the duties and obligations of, the Collection Agent.
The Parent acknowledges that the Agent, the LC Issuer and each Purchaser
have
relied on the Parent’s agreement to act as Collection Agent (and the agreement
of any of the sub-collection agents to so act) in making the decision to
execute
and deliver this Agreement and agrees that it will not voluntarily resign
as
Collection Agent unless the Collection Agent is prohibited from continuing
to
serve in such capacity by applicable law. At any time after the occurrence
of a
Collection Agent Replacement Event, the Agent may designate a new Collection
Agent to succeed the Parent (or any successor Collection Agent).
(b)
The
Parent may, and if requested by the Agent shall, delegate its duties and
obligations as Collection Agent to an Affiliate (acting as a sub-collection
agent). Notwithstanding such delegation, the Parent shall remain primarily
liable for the performance of the duties and obligations so delegated, and
the
Agent, the LC Issuer, each Purchaser Agent and each Purchaser shall have
the
right to look solely to the Parent for such performance. The Agent (with
the
consent of each Purchaser Agent) may at any time after the occurrence of
a
Collection Agent Replacement Event remove or replace any sub-collection
agent.
(c)
If
replaced, the Collection Agent agrees it will terminate, and will cause each
existing sub-collection agent to terminate, its collection activities in
a
manner requested by the Agent to facilitate the transition to a new Collection
Agent. The Collection Agent shall cooperate with and assist any new Collection
Agent (including providing access to, and transferring, all Records and allowing
the new Collection Agent to use all licenses, hardware or software necessary
or
desirable to collect the Receivables). The Parent irrevocably agrees to act
(if
requested to do so) as the data-processing agent for any new Collection Agent
in
substantially the same manner as the Parent conducted such data-processing
functions while it acted as the Collection Agent; provided,
however,
that
the Parent receives a then market rate compensation for providing such
services.
Section 3.2.
Duties
of Collection Agent.
(a) The
Collection Agent shall take, or cause to be taken, all action necessary or
advisable to collect each Receivable in accordance with this Agreement, the
Credit and Collection Policy and all applicable laws, rules and regulations
using the skill and attention the Collection Agent exercises in collecting
other
receivables or obligations owed solely to it. The Collection Agent shall,
in
accordance herewith, set aside all Collections to which a Purchaser or the
LC
Issuer is entitled. If so instructed by the Agent, the Collection Agent shall
transfer to the Agent or the LC Issuer, as applicable, the amount of Collections
to which the Agent, the Purchaser Agents, the LC Issuer and the Purchasers
are
entitled by the Business Day following receipt and identification thereof.
Each
party hereto hereby appoints the Collection Agent to enforce such Person’s
rights and interests in the Receivables, but (notwithstanding any other
provision in any Transaction Document) the Agent shall at all times after
the
occurrence of a Collection Agent Replacement Event have the sole right to
direct
the Collection Agent to commence or settle any legal action to enforce
collection of any Receivable.
(b)
If
no
Termination Event exists and the Collection Agent determines that such action
is
appropriate in order to maximize the Collections, the Collection Agent may,
in
accordance with the Credit and Collection Policy, extend the maturity of
any
Receivable (but no such extension shall be for a period more than thirty
(30)
days) or adjust the outstanding balance of any Receivable. Any such extension
or
adjustment shall not alter the status of a Receivable as a Defaulted Receivable
or Delinquent Receivable or limit any rights of the Agent, any Purchaser
Agent
or the Purchasers hereunder. If a Termination Event exists, the Collection
Agent
may make such extensions or adjustments only with the prior consent of the
Agent
and the Instructing Group.
(c)
The
Collection Agent shall turn over to the Seller (i) prior to the Termination
Date, all Collections in excess of the Effective Receivable Interest, less
all
reasonable third party out-of-pocket costs and expenses of the Collection
Agent
for collecting the Receivables and (ii) the collections of and records for
any indebtedness owed to the Seller that is not a Receivable. The Collection
Agent shall have no obligation to remit any such funds or records to the
Seller
until the Collection Agent receives evidence (satisfactory to the Agent)
that
the Seller is entitled to such items. The Collection Agent has no obligations
concerning indebtedness that is not a Receivable other than to deliver the
Collections and records for such indebtedness to the Seller when required
by
this Section 3.2(c).
Section 3.3.
Reports.
On or
before each Reporting Date, the Collection Agent shall deliver to the Agent
a
Periodic Report reflecting information as of the close of business of the
Collection Agent for the immediately preceding Reporting Period.
Section 3.4.
Lock-Box
Arrangements.
The
Agent or the Instructing Group is hereby authorized, or, upon the instruction
of
any of the Purchaser Agents, obligated, to give notice at any time after
the
occurrence of a Collection Agent Replacement Event to any or all Lock-Box
Banks
that the Agent is exercising its rights under the Lock-Box Letters and to
take
all actions permitted under the Lock-Box Letters. The Seller agrees to take
any
action requested by the Agent to facilitate the foregoing. After the Agent
takes
any such action under the Lock-Box Letters, the Seller shall immediately
deliver
to the Agent any Collections received by the Seller. If the Agent takes control
of any Lock-Box Account, the Agent shall distribute Collections it receives
in
accordance herewith and shall deliver to the Collection Agent, for distribution
under Section 3.2, all amounts other than Collections it receives from such
Lock-Box Account.
Section 3.5.
Enforcement
Rights.
(a) The Agent or the Instructing Group may, at any time after the
occurrence of a Collection Agent Replacement Event, direct the Obligors and
the
Lock-Box Banks to make all payments on the Receivables directly to the Agent
or
its designee. The Agent may, and the Seller shall at the Agent’s request,
withhold the identity of the Purchasers from the Obligors and Lock-Box Banks.
Upon the Agent’s request (with the consent or at the direction of the
Instructing Group)
after
the occurrence of a Collection Agent Replacement Event, the Seller (at the
Seller’s expense) shall (i) give notice to each Obligor of the Conduit
Purchasers’ ownership of the Sold Interest and direct that payments on
Receivables be made directly to the Agent or its designee, (ii) assemble
for the Agent all Records and collateral security for the Receivables and
transfer to the Agent (or its designee), or license to the Agent (or its
designee) the use of, all software then used by the Collection Agent to collect
the Receivables and (iii) segregate in a manner acceptable to the Agent all
Collections the Seller receives and, promptly upon receipt, remit such
Collections in the form received, duly endorsed or with duly executed
instruments of transfer, to the Agent or its designee on behalf of the Purchaser
Agents and the Purchasers.
(b)
After
the
occurrence of a Collection Agent Replacement Event, Seller hereby irrevocably
appoints the Agent as its attorney-in-fact coupled with an interest, with
full
power of substitution and with full authority in the place of the Seller,
to
take any and all steps deemed desirable by the Agent (with the consent or
at the
direction of the Instructing Group), in the name and on behalf of the Seller
to
(i) collect any amounts due under any Receivable, including endorsing the
name
of the Seller on checks and other instruments representing Collections and
enforcing such Receivables, and (ii) exercise any and all of the Seller’s rights
and remedies under each Purchase Agreement. The Agent’s powers under this
Section 3.5(b) shall not subject the Agent to any liability if any action
taken by it (except for any action taken pursuant thereto that constitutes
gross
negligence or willful misconduct) proves to be inadequate or invalid, nor
shall
such powers confer any obligation whatsoever upon the Agent.
(c)
None
of
the Agent, the Purchaser Agents, the LC Issuer nor any Purchaser shall have
any
obligation to take or consent to any action to realize upon any Receivable
or to
enforce any rights or remedies related thereto.
Section 3.6.
Collection
Agent Fee.
On or
before each Settlement Date, the Seller shall pay to the Collection Agent
a fee
for the immediately preceding calendar month as compensation for its services
as
Collection Agent (the “Collection
Agent Fee”)
equal
to (a) at all times the Parent or an Affiliate of any Originator is the
Collection Agent, such consideration as is acceptable to it, the receipt
and
sufficiency of which is hereby acknowledged, and (b) at all times any other
Person is the Collection Agent, a reasonable amount agreed upon by the Agent
and
the new Collection Agent on an arm’s-length basis reflecting rates and terms
prevailing in the market at such time. The Collection Agent may only apply
to
payment of the Collection Agent Fee the portion of the Collections in excess
of
the Effective Receivable Interest or Purchaser Collections that fund
Reinvestment Purchases. The Agent may, with the consent of the Instructing
Group, pay the Collection Agent Fee to the Collection Agent from Purchaser
Collections. The Seller shall be obligated to reimburse any such payment
to the
extent required by Section 2.3.
Section 3.7.
Responsibilities
of the Seller.
The
Seller shall, or shall cause each Originator to, pay when due all Taxes payable
in connection with the Receivables or their creation or satisfaction. The
Seller
shall, and shall cause each Originator to, perform all of its obligations
under
agreements related to the Receivables to the same extent as if interests
in the
Receivables had not been transferred hereunder or, in the case of each
Originator, under each Purchase Agreement. The Agent’s, the LC Issuer’s, any
Purchaser Agent’s or any Purchaser’s exercise of any rights hereunder shall not
relieve the Seller or any Originator from such obligations. None of the Agent,
the LC Issuer, any Purchaser Agent or any Purchaser shall have any obligation
to
perform any obligation of the Seller or of any Originator or any other
obligation or liability in connection with the Receivables.
Section 3.8.
Actions
by Seller.
The
Seller shall defend and indemnify the Agent, the LC Issuer, each Purchaser
Agent
and each Purchaser against all costs, expenses, claims and liabilities for
any
action taken by the Seller, any Originator or any other Affiliate of the
Seller
or of such Originator (whether acting as Collection Agent or otherwise) related
to any Receivable (other than with respect to the credit risk of an Obligor
and
for which reimbursement would constitute recourse for uncollectible
Receivables), or arising out of any alleged failure of compliance of any
Receivable with the provisions of any law or regulation. If any goods related
to
a Receivable are repossessed, the Seller agrees to resell, or to have the
applicable Originator or another Affiliate resell, such goods in a commercially
reasonable manner for the account of the Agent and remit, or have remitted,
to
the Agent the Purchasers’ and the LC Issuer’s share in the gross sale proceeds
thereof net of any out-of-pocket expenses and any equity of redemption of
the
Obligor thereon. Any such moneys collected by the Seller or the applicable
Originator or other Affiliate of the Seller pursuant to this Section 3.8
shall be segregated and held in trust for the Agent and remitted to the Agent’s
Account within two Business Days after receipt and identification thereof
as
part of the Effective Receivable Interest in Collections for application
as
provided herein.
Section 3.9.
Indemnities
by the Collection Agent.
Without
limiting any other rights any Person may have hereunder or under applicable
law,
the Collection Agent hereby indemnifies and holds harmless the Agent, the
LC
Issuer, each Purchaser Agent and each Purchaser and their respective officers,
directors, agents and employees (each an “Indemnified
Party”)
from
and against any and all damages, losses, claims, liabilities, penalties,
Taxes,
costs and expenses (including attorneys’ fees and court costs) (all of the
foregoing collectively, the “Indemnified
Losses”)
at any
time imposed on or incurred by any Indemnified Party arising out of or otherwise
relating to:
(i)
any
written representation or warranty made by the Collection Agent (or any employee
or agent of the Collection Agent) in this Agreement, any other Transaction
Document, any Periodic Report or any other information or report delivered
by
the Collection Agent pursuant hereto, which shall have been false or incorrect
in any material respect when made;
(ii)
the
failure by the Collection Agent to comply with any applicable law, rule or
regulation related to any Receivable, or the nonconformity of any Receivable
with any such applicable law, rule or regulation;
(iii)
any
loss
of a perfected security interest (or in the priority of such security interest)
as a result of any commingling by the Collection Agent of funds to which
the
Agent, the LC Issuer, any Purchaser Agent or any Purchaser is entitled hereunder
with any other funds; or
(iv)
any
failure of the Collection Agent, to perform its duties or obligations in
accordance with the provisions of this Agreement or any other Transaction
Document to which the Collection Agent is a party;
whether
arising by reason of the acts to be performed by the Collection Agent hereunder
or otherwise, excluding only Indemnified Losses to the extent (a) such
Indemnified Losses resulted solely from negligence or willful misconduct
of the
Indemnified Party seeking indemnification, (b) solely due to the credit
risk of the Obligor and for which reimbursement would constitute recourse
to the
Collection Agent for uncollectible Receivables, (c) such Indemnified Losses
include Taxes on, or measured by, the overall net income of the Agent, the
LC
Issuer, any Purchaser Agent or any Purchaser computed in accordance with
the
Intended Tax Characterization, or (d) the applicable Originator is the
plaintiff and the Indemnified Party is the defendant unless such Indemnified
Party prevails in such legal action; provided,
however,
that
nothing contained in this sentence shall limit the liability of the Collection
Agent or limit the recourse of the Agent, the LC Issuer, any Purchaser Agent
and
each Purchaser to the Collection Agent for any amounts otherwise specifically
provided to be paid by the Collection Agent hereunder.
Article IV
Representations
and Warranties
Section 4.1.
Representations
and Warranties.
The
Seller represents and warrants to the Agent, the LC Issuer, each Purchaser
Agent
and each Purchaser that:
(a)
Corporate
Existence and Power.
Each of
the Seller and each Originator is either a corporation or limited liability
company duly organized, validly existing and in good standing under the laws
of
its state of organization and has all corporate or organizational power and
authority and all governmental licenses, authorizations, consents and approvals
required to carry on its business in each jurisdiction in which its business
is
now conducted, except where failure to obtain such license, authorization,
consent or approval would not have a material adverse effect on (i) its
ability to perform its obligations under, or the enforceability of, any
Transaction Document, (ii) its business or financial condition,
(iii) the interests of the Agent, any Purchaser Agent, the LC Issuer or any
Purchaser under any Transaction Document or (iv) the enforceability or
collectibility of any Receivable.
(b)
Corporate
or Organizational Authorization and No Contravention.
The
execution, delivery and performance by each of the Seller and each Originator
of
each Transaction Document to which it is a party (i) are within its
corporate or organizational powers, as applicable, (ii) have been duly
authorized by all necessary corporate or organizational action, as applicable,
(iii) do not contravene or constitute a default under (A) any
applicable law, rule or regulation, (B) its or any Subsidiary’s charter,
by-laws or operating agreement, as applicable or (C) any agreement, order
or other instrument to which it or any Subsidiary is a party or its property
is
subject and (iv) will not result in any Adverse Claim on any Receivable or
Collection or give cause for the acceleration of any indebtedness of the
Seller,
any Originator or any Subsidiary.
(c)
Conduct
of Business.
The
Seller will perform, and will cause each Originator to perform, all actions
necessary to remain duly organized, validly existing and in good standing
in its
jurisdiction of organization and to maintain all requisite authority to conduct
its business in each jurisdiction in which it conducts business.
(d)
Binding
Effect. Each
Transaction Document to which the Seller or any Originator is a party
constitutes the legal, valid and binding obligation of such Person enforceable
against that Person in accordance with its terms, except as limited by
bankruptcy, insolvency, or other similar laws of general application relating
to
or affecting the enforcement of creditors’ rights generally and subject to
general principles of equity.
(e)
Perfection
of Ownership Interest.
Immediately preceding its sale of Receivables to the Seller, each Originator
was
the owner of, and effectively sold, such Receivables to the Seller, free
and
clear of any Adverse Claim. The Seller owns the Receivables free of any Adverse
Claim other than the interests of the Purchasers and the LC Issuer (through
the
Agent) therein that are created hereby, and each Purchaser shall at all times
have a valid undivided percentage ownership interest (through the Agent)
which
shall be a first priority perfected security interest for purposes of Article
9
of the applicable Uniform Commercial Code, in the Receivables and Collections
(subject to, in the case of Collections, the limitations on perfection of
a
security interest in proceeds set forth in the applicable Uniform Commercial
Code) to the extent of its Purchase Interest then in effect. The Agent, on
behalf of the Purchasers and the LC Issuer has a first priority perfected
security interest in the Collateral.
(f)
Accuracy
of Information.
All
written information furnished by the Seller, any Originator or any Affiliate
of
any such Person to the Agent, any Purchaser Agent or any Purchaser in connection
with any Transaction Document, or any transaction contemplated thereby, is
true
and accurate in all material respects (and is not incomplete by omitting
any
information necessary to prevent such information from being materially
misleading), in each case on the date the statement was made and in light
of the
circumstances under which the statements were made or the information was
furnished.
(g)
No
Actions, Suits.
There
are no actions, suits or other proceedings (including matters relating to
environmental liability) pending or threatened against or affecting the Seller,
any Originator or any Subsidiary, or any of their respective properties,
that
(i) if adversely determined (individually or in the aggregate), may have a
material adverse effect on the financial condition of the Seller, any Originator
or any Subsidiary or on the collectibility of the Receivables or
(ii) involve any Transaction Document or any transaction contemplated
thereby. None of the Seller, any Originator or any Subsidiary is in default
of
any contractual obligation or in violation of any order, rule or regulation
of
any Governmental Authority, which default or violation may have a material
adverse effect upon (i) the financial condition of the Seller, the
Originators and the Subsidiaries taken as a whole or (ii) the
collectibility of the Receivables.
(h)
No
Material Adverse Change. Since
December 31, 2005, there has been no material adverse change in the
collectibility of the Receivables or the Seller’s, any Originator’s or any
Subsidiary’s (i) financial condition or (ii) ability to perform its
obligations under any Transaction Document.
(i)
Accuracy
of Exhibits; Lock-Box Arrangements. All
information on Exhibits E-G (listing offices and names of the Seller and
each
Originator and where they maintain Records; the Subsidiaries; and Lock Boxes)
is
true and complete, subject to any changes permitted by, and notified to the
Agent in accordance with, Article V. The Seller has delivered a copy of all
Lock-Box Agreements to the Agent. The Seller has not granted any interest
in any
Lock-Box or Lock-Box Account to any Person other than the Agent and, upon
delivery to a Lock-Box Bank of the related Lock-Box Letter, the Agent will
have
exclusive ownership and control of the Lock-Box Account at such Lock-Box
Bank.
(j)
Sales
by each Originator.
Each
sale or other transfer by each Originator to the Seller of an interest in
Receivables and their Collections has been made in accordance with the terms
of
the applicable Purchase Agreement, including the payment by the Seller to
each
Originator of the purchase price described in such Purchase Agreement. Each
such
sale or other transfer has been made for “reasonably
equivalent value”
(as such
term is used in Section 548 of the Bankruptcy Code) and not for or on
account of “antecedent
debt”
(as such
term is used in Section 547 of the Bankruptcy Code) owed by such Originator
to the Seller.
Article V
Covenants
Section 5.1.
Covenants
of the Seller.
The
Seller hereby covenants and agrees to comply with the following covenants
and
agreements, unless the Agent (with the consent of the Instructing Group)
shall
otherwise consent:
(a)
Financial
Reporting.
The
Seller will, and will cause each Originator and each Subsidiary to, maintain
a
system of accounting established and administered in accordance with GAAP
and
will furnish to the Agent and each Purchaser Agent:
(i)
Annual
Financial Statements. Within
120 days after each fiscal year of (A) the Parent, copies of the Parent’s
consolidated annual audited financial statements (including a consolidated
balance sheet, consolidated statement of income and retained earnings and
statement of cash flows, with related footnotes) certified by independent
certified public accountants of nationally recognized standing or other firm
of
independent certified public accountants satisfactory to the Agent and prepared
on a consolidated basis in conformity with GAAP, and (B) for the Seller and
each
Originator, the annual balance sheet for such Person (and, additionally for
the
Seller, an annual profit and loss statement) certified by a Designated Financial
Officer thereof, in each case prepared on a consolidated basis in conformity
with GAAP as of the close of such fiscal year for the year then
ended;
(ii)
Quarterly
Financial Statements. Within
60 days after each (except the last) fiscal quarter of each fiscal year of
(A) the Parent, copies of its unaudited financial statements (including at
least a consolidated balance sheet as of the close of such quarter and
statements of earnings and sources and applications of funds for the period
from
the beginning of the fiscal year to the close of such quarter) certified
by a
Designated Financial Officer and prepared in a manner consistent with the
financial statements described in part (A) of clause (i) of this
Section 5.l(a) and (B) the Seller and each Originator, the quarterly
balance sheet for such Person (and, additionally for the Seller, a profit
and
loss statement) for the period from the beginning of such fiscal year to
the
close of such quarter, in each case certified by a Designated Financial Officer
thereof and prepared in a manner consistent with part (B) of clause (i) of
Section 5.1(a);
(iii)
Public
Reports.
Promptly
upon becoming available, a copy of each report or proxy statement filed by
the
Parent with the Securities Exchange Commission or any securities
exchange;
(iv)
Chemtura
Credit Agreement Certificate.
A copy
of the financial information, certificates and other documentation described
in
Section 5.01(i) of the Chemtura Credit Agreement, delivered as and when
required by such Section 5.01; and
(v)
Other
Information.
With
reasonable promptness, such other information (including non-financial
information) as may be requested by the Agent, any Purchaser Agent or any
Purchaser (with a copy of such request to the Agent).
(b) Notices.
Immediately upon becoming aware of any of the following the Seller will notify
the Agent and each Purchaser Agent and provide a description of:
(i)
Potential
Termination Events.
The
occurrence of any Potential Termination Event;
(ii)
Representations
and Warranties.
The
failure of any representation or warranty herein to be true (when made or
at any
time thereafter) in any material respect;
(iii)
Downgrading.
The
downgrading, withdrawal or suspension of any rating by any rating agency
of any
indebtedness of the Parent;
(iv)
Litigation.
The
institution of any litigation, arbitration proceeding or governmental proceeding
reasonably likely to be material to the Seller, any Subsidiary or the
collectibility or quality of the Receivables;
(v)
Judgments.
The
entry of any judgment or decree against the Seller, any Originator or any
Subsidiary if the aggregate amount of all judgments then outstanding against
the
Seller, the Originators and the Subsidiaries exceeds $1,000,000; or
(vi)
Changes
in Business. Any
change in, or proposed change in, the character of the Seller’s or any
Originator’s business that could impair the collectibility or quality of any
Receivable.
If
the
Agent receives such a notice, the Agent shall promptly give notice thereof
to
each Purchaser Agent.
(c)
Conduct
of Business. The
Seller will perform, and will cause each Originator and Subsidiary to perform,
all actions necessary to remain duly incorporated, validly existing and in
good
standing in its jurisdiction of incorporation and to maintain all requisite
authority to conduct its business in each jurisdiction in which it conducts
business.
(d)
Compliance
with Laws. The
Seller will comply, and will cause each Originator and Subsidiary to comply,
with all laws, regulations, judgments and other directions or orders imposed
by
any Governmental Authority to which such Person or any Receivable or Collection
may be subject.
(e)
Furnishing
Information and Inspection of Records. The
Seller will furnish to the Agent, the LC Issuer, each Purchaser Agent and
the
Purchasers such information concerning the Receivables as the Agent, any
such
Purchaser Agent or Purchaser may reasonably request. The Seller will, and
will
cause each Originator to, permit, at any time during regular business hours,
the
Agent, any Purchaser Agent or any Purchaser (or any representatives thereof),
once per year or at any time after the occurrence of a Termination Event
(at the
expense of the Seller) or at any other time (at the expense of the Agent
or such
Purchaser (as applicable)) (i) to examine and make copies of all Records,
(ii) to visit the offices and properties of the Seller for the purpose of
examining the Records and (iii) to discuss matters relating hereto with any
of the Seller’s or any Originator’s officers, directors, employees or
independent public accountants having knowledge of such matters. The Agent
may
at any time have an independent public accounting firm conduct an audit of
the
Records or make test verifications of the Receivables and Collections. Such
procedures shall be at the expense of the Seller if (i) conducted no more
frequently than once per calendar year prior to the occurrence of a Termination
Event, or (ii) conducted at any time following the occurrence of a Termination
Event.
(f)
Keeping
Records. (i) The
Seller will, and will cause each Originator to, have and maintain
(A) administrative and operating procedures (including an ability to
recreate Records if originals are destroyed), (B) adequate facilities,
personnel and equipment and (C) all Records and other information necessary
or advisable for collecting the Receivables (including Records adequate to
permit the immediate identification of each new Receivable and all Collections
of, and adjustments to, each existing Receivable). The Seller will give the
Agent, the LC Issuer and each Purchaser Agent prior notice of any material
change in such administrative and operating procedures.
(ii)
The
Seller will, (A) at all times from and after the date hereof, clearly and
conspicuously ▇▇▇▇ its computer and master data processing books and records
with a legend describing the Agent’s, the LC Issuer’s each Purchaser Agent’s and
the Purchasers’ interest therein and (B) upon the request of the Agent, at
any time during which a Daily Reporting Period is in effect, so ▇▇▇▇ each
contract relating to a Receivable and deliver to the Agent all such contracts
(including all multiple originals of such contracts), with any appropriate
endorsement or assignment, or segregate (from all other receivables then
owned
or being serviced by the Seller) the Receivables and all contracts relating
to
each Receivable and hold in trust and safely keep such contracts so legended
in
separate filing cabinets or other suitable containers at such locations as
the
Agent may specify.
(g)
Perfection.
(i) The
Seller will, and will cause each Originator to, at its expense, promptly
execute
and deliver all instruments and documents and take all action necessary or
requested by the Agent (including the execution and filing of financing or
continuation statements, amendments thereto or assignments thereof) to enable
the Agent on behalf of the Purchaser Agents and the Purchasers to exercise
and
enforce all its rights hereunder and to vest and maintain vested in the Agent
on
behalf of the Purchaser Agents, the LC Issuer and the Purchasers a valid,
first
priority perfected security interest in the Receivables, the Collections,
the
Lock-Box Accounts, the Purchase Agreements, and proceeds thereof free and
clear
of any Adverse Claim (and a perfected ownership interest in the Receivables
and
Collections to the extent of the Sold Interest). The Agent will be permitted
to
authenticate a “record” and to sign and file any continuation statements,
amendments thereto and assignments thereof without the Seller’s
signature.
(ii)
The
Seller will, and will cause each Originator to, only change its name,
jurisdiction of organization, identity or corporate structure or relocate
its
chief executive office or the Records following thirty (30) days advance
notice to the Agent and the delivery to the Agent and each Purchaser Agent
of
all financing statements, instruments and other documents (including direction
letters) requested by the Agent.
(iii)
The
Seller and each Originator will at all times maintain its jurisdiction of
organization within a state of the United States (other than in the states
of
Florida, Maryland and Tennessee) in which Article 9 of the UCC is in
effect. If the Seller or any Originator moves its jurisdiction of organization
to a location that imposes Taxes, fees or other charges to perfect the Agent’s
and the Purchasers’ interests hereunder or the Seller’s interests under the
Purchase Agreements, the Seller will pay all such amounts and any other costs
and expenses incurred in order to maintain the enforceability of the Transaction
Documents, the Sold Interest and the interests of the Agent, the Purchaser
Agents and the Purchasers in the Receivables and Collections.
(h)
Performance
of Duties. The
Seller will perform, and will cause each Originator and Subsidiary and the
Collection Agent (if an Affiliate) to perform, its respective duties or
obligations in accordance with the provisions of each of the Transaction
Documents. The Seller (at its expense) will, and will cause each Originator
to,
(i) fully and timely perform in all material respects all agreements required
to
be observed by it in connection with each Receivable, (ii) comply in all
material respects with the Credit and Collection Policy, and (iii) refrain
from
any action that may impair the rights of the Agent, the Purchaser Agents,
the LC
Issuer or the Purchasers in the Receivables or Collections.
(i)
Payments
on Receivables, Accounts. The
Seller will, and will cause each Originator to, at all times instruct all
Obligors to deliver payments on the Receivables to a Lock-Box Account. If
any
such payments or other Collections are received by the Seller or any Originator,
it shall hold such payments in trust for the benefit of the Agent, the Purchaser
Agents and the Purchasers and promptly (but in any event within two Business
Days after receipt and identification thereof) remit such funds into a Lock-Box
Account. The Seller will cause each Lock-Box Bank to comply with the terms
of
each applicable Lock-Box Letter. The Seller will not permit the funds of
any
Affiliate to be deposited into any Lock-Box Account. If such funds are
nevertheless deposited into any Lock-Box Account, the Seller will promptly
identify such funds for segregation. The Seller will not, and will not permit
any Collection Agent or other Person to, commingle Collections or other funds
to
which the Agent, any Purchaser Agent or any Purchaser is entitled with any
other
funds. The Seller shall only add, and shall only permit an Originator to
add, a
Lock-Box Bank, Lock-Box, or Lock-Box Account to those listed on Exhibit F
if the Agent has received notice of such addition, a copy of any new Lock-Box
Agreement and an executed and acknowledged copy of a Lock-Box Letter
substantially in the form of Exhibit G (with such changes as are acceptable
to the Agent) from any new Lock-Box Bank. The Seller shall only terminate
a
Lock-Box Bank or Lock-Box, or close a Lock-Box Account, upon 30 days advance
notice to the Agent.
(j)
Sales
and Adverse Claims Relating to Receivables. Except
as
otherwise provided herein, the Seller will not, and will not permit any
Originator to, (by operation of law or otherwise) dispose of or otherwise
transfer, or create or suffer to exist any Adverse Claim upon, any Receivable
or
any proceeds thereof.
(k)
Extension
or Amendment of Receivables. Except
as
otherwise permitted in Section 3.2(b), and subject to Section 1.6, the
Seller will not, and will not permit any Originator to, extend, amend, rescind
or cancel any Receivable.
(l)
Change
in Business or Credit and Collection Policy. The
Seller will not, and will not permit any Originator to, make any material
change
in the character of its business or in its Credit and Collection
Policy.
(m)
Accounting
for Sale. Except
as
provided in Section 9.9, the Seller will not, and will not permit any
Originator to, account for, or otherwise treat, the transactions contemplated
by
the Transaction Documents other than as a sale or other absolute transfer
of
Receivables or inconsistent with the Agent’s ownership interest in the
Receivables and Collections.
(n)
Mergers,
Consolidations and Acquisitions The
Seller shall not merge into or consolidate with any other Person, or permit
any
other Person to merge into or consolidate with it, or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or
substantially all of the assets of any other Person (whether directly by
purchase, lease or other acquisition of all or substantially all of the assets
of such Person or indirectly by purchase or other acquisition of all or
substantially all of the capital stock of such other Person) other than the
acquisition of the Receivables and Related Security (as defined in the Purchase
Agreement) pursuant
to the Purchase Agreement.
(o)
Other
Business.
The
Seller shall not: (i) engage in any business other than the transactions
contemplated by the Transaction Documents, (ii) create, incur or permit to
exist
any Debt of any kind (or cause or permit to be issued for its account any
letters of credit or bankers’ acceptances) other than pursuant to this Agreement
or the Subordinated Notes, or (iii) form any Subsidiary or make any investments
in any other Person; provided,
however,
that the
Seller may 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.).
(p)
Nonconsolidation.
The
Seller shall operate in such a manner that the separate corporate existence
of
the Seller and each Originator and Affiliate thereof would not be disregarded
in
the event of the bankruptcy or insolvency of any Originator and Affiliate
thereof and, without limiting the generality of the foregoing:
(i)
the
Seller shall not engage in any activity other than those activities expressly
permitted under the Seller’s organizational documents and the Transaction
Documents, nor will the Seller enter into any agreement other than this
Agreement, the other Transaction Documents to which it is a party and, with
the
prior written consent of the Agent, any other agreement necessary to carryout
more effectively the provisions and purposes hereof or thereof;
(ii)
the
Seller shall maintain a business office separate from that of each of the
Originators and the Affiliates thereof;
(iii)
the
Seller shall cause the financial statements and books and records of the
Seller
and the Originator to reflect the separate corporate existence of the
Seller;
(iv)
the
Seller shall except as otherwise expressly permitted hereunder, under the
other
Transaction Documents and under the Seller’s organizational documents, the
Seller shall not permit any Originator or Affiliate thereof to (A) pay the
Seller’s expenses, (B) guarantee the Seller’s obligations, or (C) advance funds
to the Seller for the payment of expenses or otherwise; and
(v)
the
Seller will not act as agent for any Originator or Affiliate, but instead
will
present itself to the public as a corporation separate from each such Person
and
independently engaged in the business of purchasing and financing
Receivables.
Article VI
Indemnification
Section 6.1.
Indemnities
by the Seller.
Without
limiting any other rights any Person may have hereunder or under applicable
law,
the Seller hereby indemnifies and holds harmless, on an after-Tax basis,
the
Agent, each Purchaser Agent, the LC Issuer and each Purchaser and their
respective officers, directors, agents and employees (each an “Indemnified
Party”)
from
and against any and all damages, losses, claims, liabilities, penalties,
Taxes,
costs and expenses (including attorneys’ fees and court costs) (all of the
foregoing collectively, the “Indemnified
Losses”)
at any
time imposed on or incurred by any Indemnified Party arising out of or otherwise
relating to any Transaction Document, the transactions contemplated thereby
or
the acquisition of any portion of the Sold Interest, or any action taken
or
omitted by any of the Indemnified Parties (including any action taken by
the
Agent as attorney-in-fact for the Seller pursuant to Section 3.5(b)),
whether arising by reason of the acts to be performed by the Seller hereunder
or
otherwise, excluding only Indemnified Losses to the extent (a) a final
judgment of a court of competent jurisdiction holds such Indemnified Losses
resulted solely from gross negligence or willful misconduct of the Indemnified
Party seeking indemnification, (b) solely due to the credit risk of the
Obligor and for which reimbursement would constitute recourse to the Seller
or
the Collection Agent for uncollectible Receivables, (c) such Indemnified
Losses include Taxes on, or measured by, the overall net income of the Agent,
the LC Issuer, any Purchaser Agent or any Purchaser computed in accordance
with
the Intended Tax Characterization, or (d) such Indemnified Losses arise from
the
LC Issuer’s failure to pay under any Letter of Credit after the presentation to
it of a request strictly complying with the terms and conditions of such
Letter
of Credit; provided,
however,
that
nothing contained in this sentence shall limit the liability of the Seller
or
the Collection Agent or limit the recourse of the Agent, the LC Issuer and
each
Purchaser to the Seller or the Collection Agent for any amounts otherwise
specifically provided to be paid by the Seller or the Collection Agent
hereunder. Without limiting the foregoing indemnification, but subject to
the
limitations set forth in clauses (a), (b), (c) and (d) of the previous
sentence, the Seller shall indemnify each Indemnified Party for Indemnified
Losses (including losses in respect of uncollectible Receivables, regardless
for
these specific matters whether reimbursement therefor would constitute recourse
to the Seller or the Collection Agent) relating to or resulting
from:
(i)
any
representation or warranty made by the Seller, any Originator or the Collection
Agent (or any employee or agent of the Seller, any Originator or the Collection
Agent) under or in connection with this Agreement, any Periodic Report or
any
other information or report delivered by the Seller, any Originator or the
Collection Agent pursuant hereto, which shall have been false or incorrect
in
any material respect when made or deemed made;
(ii)
the
failure by the Seller, any Originator, or the Collection Agent to comply
with
any applicable law, rule or regulation related to any Receivable, or the
nonconformity of any Receivable with any such applicable law, rule or
regulation;
(iii)
the
failure of the Seller to vest and maintain vested in the Agent, for the benefit
of the Purchaser Agents, the LC Issuer and the Purchasers, a perfected ownership
or security interest in the Sold Interest, the Pledged Interests and the
other
property conveyed pursuant to Section 1.11, free and clear of any Adverse
Claim;
(iv)
any
commingling of funds to which the Agent, any Purchaser Agent or any Purchaser
is
entitled hereunder with any other funds;
(v)
any
failure of a Lock-Box Bank to comply with the terms of the applicable Lock-Box
Letter;
(vi)
any
dispute, claim, offset or defense (other than discharge in bankruptcy of
the
Obligor) of the Obligor to the payment of any Receivable, or any other claim
resulting from the sale or lease of goods or the rendering of services related
to such Receivable or the furnishing or failure to furnish any such goods
or
services or other similar claim or defense not arising from the financial
inability of any Obligor to pay undisputed indebtedness;
(vii)
any
failure of the Seller or any Originator, or any Affiliate of any thereof,
to
perform its duties or obligations in accordance with the provisions of this
Agreement or any other Transaction Document to which such Person is a party
(as
a Collection Agent or otherwise);
(viii)
any
action taken by the Agent as attorney-in-fact for the Seller pursuant to
Section 3.5(b);
(ix)
any
environmental liability claim, products liability claim or personal injury
or
property damage suit or other similar or related claim or action of whatever
sort, arising out of or in connection with any Receivable or any other suit,
claim or action of whatever sort relating to any of the Transaction Documents;
or
(x)
the
LC
Issuer’s issuance of any Letter of Credit which specifies that the term
“Beneficiary” included therein includes any successor by operation of law of the
named Beneficiary, but which Letter of Credit does not require that any drawing
by any such successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to the LC Issuer, evidencing the appointment of such successor
Beneficiary.
Section 6.2.
Increased
Cost and Reduced Return.
By way
of clarification, and not of limitation, of Section 6.1, if the adoption of
any applicable law, rule, regulation or accounting principle, or any change
therein, or any change in the interpretation or administration thereof by
any
Governmental Authority or Accounting Authority charged with the interpretation
or administration thereof, or compliance by any Funding Source, the Agent,
the
LC Issuer, any Purchaser Agent or any Purchaser (collectively, the “Funding
Parties”)
with
any request or directive (whether or not having the force of law) of any
such
Governmental Authority or Accounting Authority (a “Regulatory
Change”)
(a) subjects any Funding Party to any charge or withholding on or in
connection with a Funding Agreement or this Agreement (collectively, the
“Funding
Documents”)
or any
Receivable, (b) changes the basis of taxation of payments to any of the
Funding Parties of any amounts payable under any of the Funding Documents
(except for changes in the rate of Tax on the overall net income of such
Funding
Party), (c) imposes, modifies or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or any credit extended by, any of the
Funding Parties, (d) has the effect of reducing the rate of return on such
Funding Party’s capital to a level below that which such Funding Party could
have achieved but for such adoption, change or compliance (taking into
consideration such Funding Party’s policies concerning capital adequacy) or
(e) imposes any other condition, and the result of any of the foregoing is
(x) to impose a cost on, or increase the cost to, any Funding Party of its
commitment under any Funding Document or of purchasing, maintaining or funding
any interest acquired under any Funding Document, (y) to reduce the amount
of any sum received or receivable by, or to reduce the rate of return of,
any
Funding Party under any Funding Document or (z) to require any payment
calculated by reference to the amount of interests held or amounts received
by
it hereunder, then, upon demand by the Agent or the applicable Purchaser
Agent,
the Seller shall pay to the Agent, (with respect to amounts owed to it) or
the
applicable Purchaser Agent (with respect to amounts owed to it or any Purchaser
in its Purchaser Group) for the account of the Person such additional amounts
as
will compensate the Agent, such Purchaser Agent or such Purchaser (or, in
the
case of any Conduit Purchaser, will enable such Conduit Purchaser to compensate
any Funding Source) for such increased cost or reduction. Each Funding Party
agrees that on the occurrence of any event giving rise to the operation of
this
Section 6.2 with respect to such Funding Party, it will, if requested by
the Seller, use reasonable efforts (subject to overall policy considerations
of
such Funding Party) to designate another office for any credit accommodation
affected by such event, provided
that
such designation is made on such terms that such Funding Party and its office
suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of such
Section.
Section 6.3.
Other
Costs and Expenses.
Also by
way of clarification, and not of limitation, of Section 6.1, the Seller
shall pay to the Agent (with respect to amounts owed to it), the LC Issuer
(with
respect to amounts owed to it) or the applicable Purchaser Agent (with respect
to amounts owed to it or any Purchaser in its Purchaser Group) on demand
all
costs and expenses in connection with (a) the preparation, execution,
delivery and administration (including amendments of any provision) of the
Transaction Documents, (b) the sale of the Sold Interest or pledge of the
Pledged Interests, (c) the perfection of the Agent’s rights on behalf of
the Purchaser Agents, the LC Issuer and the Purchasers in the Receivables
and
Collections, (d) the enforcement by the Agent, the LC issuer, any Purchaser
Agent or the Purchasers of the obligations of the Seller under the Transaction
Documents or of any Obligor under a Receivable and (e) the maintenance by
the Agent of the Lock-Boxes and Lock-Box Accounts, including fees, costs
and
expenses of legal counsel for the Agent, the LC Issuer and each Purchaser
Agent
relating to any of the foregoing or to advising the Agent, any Purchaser
Agent
and any Funding Source about its rights and remedies under any Transaction
Document or any related Funding Agreement and all costs and expenses (including
counsel fees and expenses) of the Agent, the LC Issuer, each Purchaser Agent,
each Purchaser and each Funding Source in connection with the enforcement
of the
Transaction Documents or any Funding Agreement and in connection with the
administration of the Transaction Documents following a Termination Event.
The
Seller shall reimburse each Conduit Purchaser for any amounts each Conduit
Purchaser must pay to any Funding Source pursuant to any Funding Agreement
on
account of any Tax. The Seller shall reimburse each Conduit Purchaser on
demand
for all other costs and expenses incurred by each Conduit Purchaser or any
shareholder of each Conduit Purchaser in connection with the Transaction
Documents or the transactions contemplated thereby, including an allocated
portion of the cost of auditing each Conduit Purchaser’s books by certified
public accountants, the cost of the Ratings and an allocated portion of the
fees
and out-of-pocket expenses of counsel of the Agent, each Conduit Purchaser
or
any shareholder, or administrator, of each Conduit Purchaser for advice relating
to each Conduit Purchaser’s operation.
Section 6.4.
Withholding
Taxes.
(a) All payments made by the Seller hereunder shall be made without
withholding for or on account of any present or future taxes (other than
overall
net income taxes on the recipient). If any such withholding is so required
and
the effected Purchaser has delivered the forms set forth in Section 6.4(b),
the Seller shall make the withholding, pay the amount withheld to the
appropriate authority before penalties attach thereto or interest accrues
thereon and pay such additional amount as may be necessary to ensure that
the
net amount actually received by each Purchaser, the LC Issuer, each Purchaser
Agent and the Agent free and clear of such taxes (including such taxes on
such
additional amount) is equal to the amount that such Purchaser, the LC Issuer,
such Purchaser Agent or the Agent (as the case may be) would have received
had
such withholding not been made. If the Agent, the LC Issuer, any Purchaser
Agent
or any Purchaser pays any such taxes, penalties or interest the Seller shall
reimburse the Agent, the LC Issuer, such Purchaser Agent or such Purchaser
for
that payment on demand. If the Seller pays any such taxes, penalties or
interest, it shall deliver official tax receipts evidencing that payment
or
certified copies thereof to the related Purchaser Agent on whose account
such
withholding was made (with a copy to the Agent if not the recipient of the
original) on or before the thirtieth day after payment.
(b)
Before
the first date on which any amount is payable hereunder for the account of
any
Purchaser not incorporated under the laws of the USA such Purchaser shall
deliver to the Seller and the Agent each two (2) duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI (or successor
applicable form) certifying that such Purchaser is entitled to receive payments
hereunder without deduction or withholding of any United States federal income
taxes. Each such Purchaser shall replace or update such forms when necessary
to
maintain any applicable exemption and as requested by the Agent or the
Seller.
Section 6.5.
Payments
and Allocations.
If any
Person seeks compensation pursuant to this Article VI, such Person shall
deliver to the Seller and the Agent a certificate setting forth the amount
due
to such Person, a description of the circumstance giving rise thereto and
the
basis of the calculations of such amount, which certificate shall be conclusive
absent demonstrable error. The Seller shall pay to the Agent (with respect
to
amounts owed to it), the LC Issuer (with respect to amounts owed to it) or
the
applicable Purchaser Agent (with respect to amounts owed to it or any Purchaser
in its Purchaser Group), (for the account of such Person) the amount shown
as
due on any such certificate within 10 Business Days after receipt of the
notice.
Article VII
Conditions
Precedent
Section 7.1.
Conditions
to Closing.
This
Agreement shall become effective on the first date all conditions in this
Section 7.1 are satisfied. On or before such date, the Seller shall deliver
to the Agent, each Purchase Agent and the LC Issuer the following documents
in
form, substance and quantity acceptable to the Agent, each Purchaser Agent
and
the LC Issuer, as applicable:
(a)
an
amendment and restatement of (i) each Purchase Agreement and (ii) the Fee
Letter, in each case, duly executed by each of the parties thereto;
and
(b)
opinions
of counsel to each of the Originators and the Seller, in form and substance
reasonably acceptable to the Agent, the Purchaser Agents and the LC
Issuer.
Section 7.2.
Conditions
to Each Credit Event.
The
obligation of each Purchaser to make any Purchase and of the LC Issuer to
issue
or Modify any Letter of Credit, and the right of the Seller to request or
accept
any Purchase or Letter of Credit, are subject to the conditions (and each
Credit
Event shall be deemed to evidence the Seller’s representation and warranty that
clauses (a)-(e) of this Section 7.2 have been satisfied) that on the date
of such Credit Event before and after giving effect to such Credit
Event:
(a)
no
Potential Termination Event shall then exist or shall occur as a result of
such
Credit Event;
(b)
the
Termination Date has not occurred;
(c)
before
and after giving effect to such Credit Event (and, in the event of a Purchase,
after giving effect to the application of the proceeds of such Purchase)
or to
the issuance of such, (i) the aggregate Credit Exposure shall not exceed
the
Aggregate Commitment, (ii) the LC Obligations do not exceed the LC Sublimit,
and
(iii) the Effective Receivable Interest shall not exceed 100%;
(d)
the
representations and warranties in Section 4.1 are true and correct in all
material respects on and as of such date (except to the extent such
representations and warranties relate solely to an earlier date and then
as of
such earlier date); and
(e)
each
of
the Seller and each Originator is in full compliance with the Transaction
Documents (including all covenants and agreements in
Article V).
Nothing
in this Section 7.2 limits the obligations (including those in
Section 2.1) of each Related Bank Purchaser to its related Conduit
Purchaser (including the Transfer Agreement).
Article VIII
The
Agent
Section 8.1.
Appointment
and Authorization.
Each
Purchaser, the LC Issuer and each Purchaser Agent hereby irrevocably designates
and appoints ABN AMRO Bank N.V. as the “Agent”
hereunder and authorizes the Agent to take such actions and to exercise such
powers as are delegated to the Agent hereby and to exercise such other powers
as
are reasonably incidental thereto. The Agent shall hold, in its name, for
the
benefit of each Purchaser, the LC Issuer, the Purchase Interest of such
Purchaser and the Pledged Interest of the LC Issuer. The Agent shall not
have
any duties other than those expressly set forth herein or any fiduciary
relationship with any Purchaser or the LC Issuer, and no implied obligations
or
liabilities shall be read into this Agreement, or otherwise exist, against
the
Agent. The Agent does not assume, nor shall it be deemed to have assumed,
any
obligation to, or relationship of trust or agency with, the Seller.
Notwithstanding any provision of this Agreement or any other Transaction
Document, in no event shall the Agent ever be required to take any action
which
exposes the Agent to personal liability or which is contrary to the provision
of
any Transaction Document or applicable law.
(b)
Each
Purchaser hereby irrevocably designates and appoints the respective institution
identified on the applicable signature page hereto (as applicable) as its
Purchaser Agent hereunder, and each authorizes such Purchaser Agent to take
such
action on its behalf under the provisions of this Agreement and to exercise
such
powers and perform such duties as are expressly delegated to such Purchaser
Agent by the terms of this Agreement, if any, together with such other powers
as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Purchaser Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Purchaser or other Purchaser Agent, the LC Issuer or
the
Agent, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of such Purchaser Agent shall be read
into this Agreement or otherwise exist against such Purchaser
Agent.
Section 8.2.
Delegation
of Duties.
The
Agent may execute any of its duties through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining
to such
duties. The Agent shall not be responsible for the negligence or misconduct
of
any agents or attorneys-in-fact selected by it with reasonable
care.
Section 8.3.
Exculpatory
Provisions.
None of
the Agent, the LC Issuer, any Purchaser Agent or any of their respective
directors, officers, agents or employees shall be liable for any action taken
or
omitted (i) with the consent or at the direction of the Instructing Group
or
(ii) in the absence of such Person’s gross negligence or willful
misconduct. Neither the Agent nor any Purchaser Agent shall be responsible
to
any Purchaser, the LC Issuer or other Person for (i) any recitals,
representations, warranties or other statements made by the Seller, any
Originator or any of their Affiliates, (ii) the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Transaction
Document, (iii) any failure of the Seller, any Originator or any of their
Affiliates to perform any obligation or (iv) the satisfaction of any
condition specified in Article VII. Neither the Agent nor any Purchaser
Agent shall have any obligation to any Purchaser or the LC Issuer 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, any Originator or any of their Affiliates.
Section 8.4.
Reliance
by Agent.
Each
Purchaser Agent and the Agent shall in all cases be entitled to rely, and
shall
be fully protected in relying, upon any document, 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 Agent. Each Purchaser Agent and the 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, and assurance of its indemnification, as it deems
appropriate.
(b)
The
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
Purchaser Agents, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all Purchasers, the Agent, the LC
Issuer
and the Purchaser Agents.
(c)
For
each
Purchaser Group, the Required Related Bank Purchasers for such Purchaser
Group,
shall be required to request or direct the applicable Purchaser Agent to
take
action, or refrain from taking action, under this Agreement on behalf of
such
Purchasers. Such Purchaser Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in accordance
with a
request of the Required Related Bank Purchasers for such Purchaser Group,
and
such request and any action taken or failure to act pursuant thereto shall
be
binding upon all of such Purchaser Agent’s Purchasers.
(d)
Unless
otherwise advised in writing by a Purchaser Agent or by any Purchaser on
whose
behalf such Purchaser Agent is purportedly acting, each party to this Agreement
may assume that (i) such Purchaser Agent is acting for the benefit of each
of the Purchasers in respect of which such Purchaser Agent is identified
as
being the “Purchaser
Agent”
in the
definition of “Purchaser
Agent”
hereto,
as well as for the benefit of each assignee or other transferee from any
such
Person, and (ii) each action taken by such Purchaser Agent has been duly
authorized and approved by all necessary action on the part of the Purchasers
on
whose behalf it is purportedly acting. Each initial Purchaser (or, with the
consent of all other Purchasers then existing, any other Purchasers) shall
have
the right to designate a new Purchaser Agent (which may be itself) to act
on its
behalf and on behalf of its assignees and transferees for purposes of this
Agreement by giving to the Agent written notice thereof signed by such
Purchaser(s) and the newly designated Purchaser Agent. Such notice shall
be
effective when receipt thereof is acknowledged by the Agent, which
acknowledgment the Agent shall not unreasonably delay giving, and thereafter
the
party named as such therein shall be Purchaser Agent for such Purchaser under
this Agreement. Each Purchaser Agent and its Purchaser(s) shall agree amongst
themselves as to the circumstances and procedures for removal and resignation
of
such Purchaser Agent.
Section 8.5.
Assumed
Payments.
Unless
the Agent shall have received notice from the applicable Purchaser Agent
before
the date of any Put or of any Incremental Purchase that the applicable Purchaser
Group will not make available to the Agent the amount it is scheduled to
remit
as part of such Put or Incremental Purchase, the Agent may assume such Purchaser
Group has made such amount available to the Agent when due (an “Assumed
Payment”)
and, in
reliance upon such assumption, the Agent may (but shall have no obligation
to)
make available such amount to the appropriate Person. If and to the extent
that
any Purchaser shall not have made its Assumed Payment available to the Agent,
such Purchaser (and the Seller in the case of any Incremental Purchase) hereby
agrees to pay the Agent forthwith on demand such unpaid portion of such Assumed
Payment up to the amount of funds actually paid by the Agent, together with
interest thereon for each day from the date of such payment by the Agent
until
the date the requisite amount is repaid to the Agent, at a rate per annum
equal
to the Federal Funds Rate plus 2%.
Section 8.6.
Notice
of Termination Events.
Neither
any Purchaser Agent nor the Agent shall be deemed to have knowledge or notice
of
the occurrence of any Potential Termination Event unless the Agent or such
Purchaser Agent has received notice from any Purchaser, the LC Issuer, any
Purchaser Agent, the Collection Agent or the Seller stating that a Potential
Termination Event has occurred hereunder and describing such Potential
Termination Event. In the event that the Agent receives such a notice, it
shall
promptly give notice thereof to the LC Issuer and each Purchaser Agent whereupon
each Purchaser Agent shall promptly give notice thereof to its Purchasers.
In
the event that the LC Issuer or a Purchaser Agent receives such a notice
(other
than from the Agent), it shall promptly give notice thereof to the Agent.
The
Agent shall take such action concerning a Potential Termination Event as
may be
directed by the Instructing Group (or, if required for such action, the LC
Issuer and all of the Purchasers), but until the Agent receives such directions,
the Agent may (but shall not be obligated to) take such action, or refrain
from
taking such action, as the Agent deems advisable and in the best interests
of
the Purchasers, the LC Issuer and the Purchaser Agents.
Section 8.7.
Non-Reliance
on Agent, Purchaser Agents and Other Purchasers.
Each of
the Purchasers and the LC Issuer expressly acknowledges that none of the
Agent,
the Purchaser Agents or 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 Agent or any Purchaser Agent hereafter
taken, including any review of the affairs of the Seller or any Originator,
shall be deemed to constitute any representation or warranty by the Agent
or
such Purchaser Agent, as applicable. Each of the Purchasers and the LC Issuer
represents and warrants to the Agent and the Purchaser Agents that,
independently and without reliance upon the Agent, Purchaser Agents or any
other
Purchaser and based on such documents and information as it has deemed
appropriate, it has made and will continue to make its own appraisal of and
investigation into the business, operations, property, prospects, financial
and
other conditions and creditworthiness of the Seller, 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 Agent shall not have any duty or
responsibility to provide any Purchaser Agent, the LC Issuer or any Purchaser
with any information concerning the Seller, any Originator or any of their
Affiliates that comes into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
Section 8.8.
Agents
and Affiliates.
Each of
the Purchaser Agents, the Purchasers, the LC Issuer and the Agent and their
respective Affiliates may extend credit to, accept deposits from and generally
engage in any kind of business with the Seller, any Originator or any of
their
Affiliates and, in its roles as a Purchaser Agent and Related Bank Purchaser,
ABN AMRO may exercise or refrain from exercising its rights and powers as
if it
were not the Agent. In
their
capacity as Purchasers hereunder, each of the Purchaser Agents and the 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 Purchaser Agents and the Agent in their individual
capacities.
Section 8.9.
Indemnification.
Each
Purchaser Group shall indemnify and hold harmless the Agent, the LC Issuer
and
the officers, directors, employees, representatives and agents of each of
he
foregoing (to the extent not reimbursed by the Seller or any Originator and
without limiting the obligation of the Seller or any Originator to do so),
ratably in accordance with its Ratable Share from and against any and all
liabilities, obligations, losses, damages, penalties, judgments, settlements,
costs, expenses and disbursements of any kind whatsoever (including in
connection with any investigative or threatened proceeding, whether or not
the
Agent, the LC Issuer or such Person shall be designated a party thereto)
that
may at any time be imposed on, incurred by or asserted against the Agent,
the LC
Issuer 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 Agent,
the LC Issuer or such Person as finally determined by a court of competent
jurisdiction).
Section 8.10.
Successor
Agent.
The
Agent may, upon at least five (5) days notice to the Seller, each Purchaser
Agent, the LC Issuer and each Purchaser, resign as Agent. Such resignation
shall
not become effective until a successor agent is appointed by the Instructing
Group and has accepted such appointment. Upon such acceptance of its appointment
as Agent hereunder by a successor Agent, such successor Agent shall succeed
to
and become vested with all the rights and duties of the retiring Agent, and
the
retiring Agent shall be discharged from its duties and obligations under
the
Transaction Documents. After any retiring Agent’s resignation hereunder, the
provisions of Article VI and this Article VIII shall inure to its benefit
as to
any actions taken or omitted to be taken by it while it was the
Agent.
Article IX
Miscellaneous
Section 9.1.
Termination.
Each
Conduit Purchaser shall cease to be a party hereto when the Termination Date
has
occurred, such Conduit Purchaser holds no Investment and all amounts payable
to
it hereunder have been indefeasibly paid in full. This Agreement shall terminate
following the Termination Date when no Credit Exposure is held by a Purchaser
or
the LC Issuer and all other amounts payable hereunder have been indefeasibly
paid in full, but the rights and remedies of the Agent, the LC Issuer, each
Purchaser Agent and each Purchaser concerning any representation, warranty
or
covenant made, or deemed to be made, by the Seller and under Article VI and
Section 8.9 shall survive such termination.
Section 9.2.
Notices.
Unless
otherwise specified, all notices and other communications hereunder shall
be in
writing (including by telecopier or other facsimile communication), given
to the
appropriate Person at its address or telecopy number set forth on the signature
pages hereof or at such other address or telecopy number as such Person may
specify, and effective when received at the address specified by such Person.
Each party hereto, however, authorizes the Agent, the LC Issuer and each
Purchaser Agent to act on telephone notices of Purchases, Letters of Credit,
Puts, and Discount Rate and Tranche Period selections from any person the
Agent,
the LC Issuer or such Purchaser Agent in good faith believes to be acting
on
behalf of the relevant party and, at the Agent’s, the LC Issuer’s or such
Purchaser Agent’s option, to tape record any such telephone conversation. Each
party hereto agrees to deliver promptly to the Agent, the LC Issuer and each
Purchaser Agent a confirmation of each telephone notice given or received
by
such party (signed by an authorized officer of such party), but the
absence of such confirmation shall not affect the validity of the telephone
notice. The Agent’s, the LC Issuer’s or such Purchaser Agent’s records of all
such conversations shall be deemed correct and, if the confirmation of a
conversation differs in any material respect from the action taken by the
Agent,
the LC Issuer or such Purchaser Agent, the records of the Agent, the LC Issuer
or such Purchaser Agent shall govern absent manifest error. The number of
days
for any advance notice required hereunder may be waived (orally or in writing)
by the Person receiving such notice and, in the case of notices to the Agent,
the LC Issuer or a Purchaser Agent, the consent of each Person to which the
Agent, the LC Issuer or such Purchaser Agent is required to forward such
notice.
Section 9.3.
Payments
and Computations.
Notwithstanding anything herein to the contrary, any amounts to be paid or
transferred by the Seller or the Collection Agent to, or for the benefit
of, the
LC Issuer, any Purchaser or any other Person shall be paid or transferred
to the
Agent, the LC Issuer or appropriate Purchaser Agent (for the benefit of such
Purchaser or other Person). The obligations of the Seller and the Collection
Agent to make payments hereunder are absolute, unconditional and irrevocable,
and shall be paid without regard to any claim, counterclaim, setoff, defense
or
other right. The Agent, the LC Issuer or appropriate Purchaser Agent shall
promptly (and, if reasonably practicable, on the day it receives such amounts)
forward each such amount to the Person entitled thereto and such Person shall
apply the amount in accordance herewith. All amounts to be paid or deposited
hereunder shall be paid or transferred on the day when due in immediately
available Dollars (and, if due from the Seller or Collection Agent, by
11:00 a.m. (Chicago time), with amounts received after such time being
deemed paid on the Business Day following such receipt). The Seller hereby
authorizes the Agent to debit the Seller Account for application to any amounts
owed by the Seller hereunder. The Seller shall, to the extent permitted by
law,
pay to the Agent, the LC Issuer or the appropriate Purchaser Agent upon demand,
for the account of the applicable Person, interest on all amounts not paid
or
transferred by the Seller or the Collection Agent when due hereunder at a
rate
equal to the Prime Rate plus 2%, calculated from the date any such amount
became
due until the date paid in full. Any payment or other transfer of funds
scheduled to be made on a day that is not a Business Day shall be made on
the
next Business Day, and any Discount Rate or interest rate accruing on such
amount to be paid or transferred shall continue to accrue to such next Business
Day. All computations of interest, fees, and Discount shall be calculated
for
the actual days elapsed based on (i) a 360 day year for Funding Charges and
for
Discount calculated on the basis of the Eurodollar Rate, or (ii) a 365 or
366
day year as applicable for Discount calculated on the basis of the Prime
Rate.
Section 9.4.
Sharing
of Recoveries.
Each
Purchaser and the LC Issuer agrees that if it receives any recovery, through
set-off, judicial action or otherwise, on any amount payable or recoverable
hereunder in a greater proportion than should have been received hereunder
or
otherwise inconsistent with the provisions hereof, then the recipient of
such
recovery shall purchase for cash an interest in amounts owing to the other
applicable Purchasers (as return of Investment or otherwise), without
representation or warranty except for the representation and warranty that
such
interest is being sold by each such other Purchaser or the LC Issuer, as
the
case may be, free and clear of any Adverse Claim created or granted by such
other Purchaser, in the amount necessary to create proportional participation
by
the applicable Purchasers in such recovery (as if such recovery were distributed
pursuant to Section 2.3). If all or any portion of such amount is
thereafter recovered from the recipient, such purchase shall be rescinded
and
the purchase price restored to the extent of such recovery, but without
interest.
Section 9.5.
Right
of Setoff.
During
a Termination Event, each Purchaser is hereby authorized (in addition to
any
other rights it may have) to setoff, appropriate and apply (without presentment,
demand, protest or other notice which are hereby expressly waived) any deposits
and any other indebtedness held or owing by such Purchaser (including by
any
branches or agencies of such Purchaser) to, or for the account of, the Seller
against amounts owing by the Seller hereunder (even if contingent or
unmatured).
Section 9.6.
Amendments.
Except
as otherwise expressly provided herein, no amendment or waiver hereof shall
be
effective unless signed by the Seller, the Agent and the Instructing Group.
In
addition, no amendment hereof shall (a) without the consent of all the
Purchasers, (i) extend the Termination Date or the date of any payment or
transfer of Collections by the Seller to the Collection Agent or by the
Collection Agent to the Agent, the LC Issuer or any Purchaser Agent,
(ii) reduce the rate or extend the time of payment of Discount for any
Eurodollar Tranche or Prime Tranche, (iii) reduce or extend the time of
payment of any fee payable to the Related Bank Purchasers, (iv) except as
provided herein, release, transfer or modify any Related Bank Purchaser’s
Purchase Interest or change any Commitment, (v) amend the definition of
Required Related Bank Purchasers, Instructing Group, Termination Event, Loss
Reserve, Dilution Reserve, Notice of Difference Reserve, Discount Reserve,
or
any defined term used in any such definition, or Section 1.1, 1.2, 1.4,
1.6, 1.8(a), 2.1, 2.2, 2.3, 7.2 or 9.6, Article VI, or any obligation of
any Originator thereunder, (vi) consent to the assignment or transfer by
the Seller or the Originator of any interest in the Receivables other than
transfers under the Transaction Documents or permit any Originator to transfer
any of its obligations under any Transaction Document except as expressly
contemplated by the terms of the Transaction Documents, or (vii) amend any
defined term relevant to the restrictions in clauses (i) through (vi) in a
manner which would circumvent the intention of such restrictions, (b) without
the consent of the LC Issuer, waive, amend or otherwise modify any provision
hereof if the effect thereof is to affect the indemnities to, or the rights
or
duties of, the LC Issuer or to reduce any fee or other amount payable to
the LC
Issuer by any Person, or (c) without the consent of the Agent and each
affected Purchaser Agent, amend any provision hereof if
the
effect thereof is to affect the indemnities to, or the rights or duties of,
the
Agent or any Purchaser Agent or to reduce any fee payable for the Agent’s or
such Purchaser Agent’s own account.
Notwithstanding the foregoing, the amount of any fee or other payment due
and
payable from the Seller or the Collection Agent to the Agent (for its own
account), the LC Issuer (for its own account), any Purchaser Agent or any
Purchaser may be changed or otherwise adjusted solely with the consent of
the
Seller and the party to which such payment is payable. Any amendment hereof
shall apply to each Purchaser equally and shall be binding upon the Seller,
the
Purchaser Agents, the LC Issuer, the Purchasers and the Agent.
Section 9.7.
Waivers.
No
failure or delay of the Agent, the LC Issuer, any Purchaser Agent or any
Purchaser in exercising any power, right, privilege or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any
such power, right, privilege or remedy preclude any other or further exercise
thereof or the exercise of any other power, right, privilege or remedy. Any
waiver hereof shall be effective only in the specific instance and for the
specific purpose for which such waiver was given. After any waiver, the Seller,
the LC Issuer, the Purchasers, the Purchaser Agents and the Agent shall be
restored to their former position and rights and any Potential Termination
Event
waived shall be deemed to be cured and not continuing, but no such waiver
shall
extend to (or impair any right consequent upon) any subsequent or other
Potential Termination Event. Any additional Discount or Interest that has
accrued after a Termination Event before the execution of a waiver thereof,
solely as a result of the occurrence of such Termination Event, may be waived
by
(x) in the case of Discount, the Agent or related Purchaser Agent at the
direction of the Purchaser entitled thereto or, in the case of Discount owing
to
the Related Bank Purchasers in any Purchaser Group, of the Required Related
Bank
Purchasers for such Purchaser Group, or (y) in the case of Interest, the
LC
Issuer or the Agent at the direction of the LC Issuer.
Section 9.8.
Successors
and Assigns; Participations; Assignments.
(a)
Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Except as otherwise provided
herein, the Seller may not assign or transfer any of its rights or delegate
any
of its duties without the prior consent of the Agent, the Purchaser Agents,
the
LC Issuer and the Purchasers.
(b)
Participations.
Any
Purchaser may sell to one or more Persons (each a “Participant”)
participating interests in the interests of such Purchaser hereunder and
under
the Transfer Agreement. The Seller shall be required to consent in writing
to
any such sale if as a result thereof the Seller would be required to pay
compensation pursuant to Section 6.2. Such Purchaser shall remain solely
responsible for performing its obligations hereunder, and the Seller, the
LC
Issuer, each Purchaser Agent and the Agent shall continue to deal solely
and
directly with such Purchaser in connection with such Purchaser’s rights and
obligations hereunder and under the Transfer Agreement. Each Participant
shall
be entitled to the benefits of Article VI and shall have the right of setoff
through its participation in amounts owing hereunder and under the Transfer
Agreement to the same extent as if it were a Purchaser hereunder and under
the
Transfer Agreement, which right of setoff is subject to such Participant’s
obligation to share with the Purchasers as provided in Section 9.4. A
Purchaser shall not agree with a Participant to restrict such Purchaser’s right
to agree to any amendment hereto or to the Transfer Agreement, except amendments
described in clause (a) of Section 9.6.
(c)
Assignments
by Related Bank Purchasers. Any
Related Bank Purchaser may assign to one or more Persons (“Purchasing
Related Bank Purchasers”),
acceptable to the applicable Purchaser Agent in its sole discretion and the
LC
Issuer in its sole discretion (which consent shall not be unreasonably
withheld), any portion of its Commitment as a Related Bank Purchaser hereunder
and under its Transfer Agreement and Purchase Interest pursuant to a supplement
hereto and to its Transfer Agreement (a “Transfer
Supplement”)
in form
satisfactory to the Agent and LC Issuer executed by each such Purchasing
Related
Bank Purchaser, such selling Related Bank Purchaser and the applicable Purchaser
Agent. The Seller shall be required to consent in writing to any such assignment
if as a result thereof the Seller would be required to pay compensation pursuant
to Section 6.2. Any such assignment by a Related Bank Purchaser must be for
an
amount of at least Fifteen Million Dollars. Any partial assignment shall
be an
assignment of an identical percentage of such selling Related Bank Purchaser’s
Investment and its Commitment as a Related Bank Purchaser hereunder and under
its Transfer Agreement. Upon the execution and delivery to the applicable
Purchaser Agent of the Transfer Supplement, consent thereto by the Seller
(if
applicable) and the LC Issuer, and payment by the Purchasing Related Bank
Purchaser to the selling Related Bank Purchaser of the agreed purchase price,
such selling Related Bank Purchaser shall be released from its obligations
hereunder and under its Transfer Agreement to the extent of such assignment
and
such Purchasing Related Bank Purchaser shall for all purposes be a Related
Bank
Purchaser party hereto and shall have all the rights and obligations of a
Related Bank Purchaser hereunder and under the Transfer Agreement to the
same
extent as if it were an original party hereto and to its Transfer Agreement
with
a Commitment as a Related Bank Purchaser, an Investment and any related Assigned
Conduit Purchaser Settlement described in the Transfer Supplement.
(d)
Replaceable
Related Bank Purchasers.
If any
Related Bank Purchaser (a “Replaceable
Related Bank Purchaser”)
shall
(i) petition the Seller for any amounts under Section 6.2 or suspend
the availability of Eurodollar Tranches pursuant to Section 1.4(d) or
(ii) cease to have a short-term debt rating of “A-1”
by
S&P and “P-1”
by
▇▇▇▇▇’▇, the Seller or applicable Conduit Purchaser may designate a replacement
financial institution (a “Replacement
Related Bank Purchaser”)
acceptable to the applicable Purchaser Agent, the LC Issuer and the applicable
Conduit Purchaser, in its sole discretion, to which such Replaceable Related
Bank Purchaser shall, subject to its receipt of an amount equal to its
Investment, any related Assigned Conduit Purchaser Settlement, and accrued
Discount and fees thereon and all amounts payable under Section 6.2,
promptly assign all of its rights, obligations and Related Bank Purchaser
Commitment hereunder and under the Transfer Agreement, together with all
of its
Purchase Interest, and any related Assigned Conduit Purchaser Settlement,
to the
Replacement Related Bank Purchaser in accordance with Section 9.8(c). The
Seller acknowledges and agrees that for so long as the commercial paper notes
of
VFCC are rated A-1+ by S&P, any Replacement Related Bank Purchaser for VFCC
must have a short-term debt rating of A-1+ for S&P.
(e)
Assignment
by Conduit Purchasers. Each
party hereto agrees and consents (i) to each Conduit Purchaser’s
assignment, participation, grant of security interests in or other transfers
of
any portion of, or any of its beneficial interest in, the Purchase Interest
and
the related Assigned Settlement and (ii) to the complete assignment by such
Conduit Purchaser of all of its rights and obligations hereunder to any Person
reasonably acceptable to such Purchaser Agent, and upon such assignment such
Conduit Purchaser shall be released from all obligations and duties hereunder;
provided,
however,
unless
such assignment is made pursuant to Section 2.1 hereof that a Conduit
Purchaser may not, without the prior consent of its Related Bank Purchaser,
transfer any of its rights hereunder or under the related Transfer Agreement
to
cause its Related Bank Purchaser to purchase the Purchaser Interest of such
Conduit Purchaser and the Assigned Settlement unless the assignee (i) is a
corporation or limited liability company whose principal business is the
purchase of assets similar to the Receivables, (ii) has the related
Purchaser Agent as its administrative agent and (iii) issues commercial
paper with credit ratings of at least A-1
by
S&P (if rated by S&P) and P-1 by ▇▇▇▇▇’▇ (if rated by ▇▇▇▇▇’▇). Each
Conduit Purchaser shall notify the Seller prior to any such assignment and
shall
promptly notify each party hereto of any such assignment. Upon such an
assignment of any portion of a Conduit Purchaser’s Purchase Interest and the
related Assigned Settlement, the assignee shall have all of the rights of
such
Conduit Purchaser hereunder relate to such Purchase Interest and related
Assigned Settlement.
(f)
Opinions
of Counsel.
If
required by the Agent or to maintain the Ratings, each Transfer Supplement
must
be accompanied by an opinion of counsel of the assignee as to such matters
as
the Agent or such Purchaser Agent may reasonably request.
Section 9.9.
Intended
Tax Characterization.
It is
the intention of the parties hereto that, for the purposes of all Taxes,
the
transactions contemplated hereby shall be treated either as loans by the
Purchasers (through the Agent) to the Seller secured by the Receivables,
or the
issuance by the LC Issuer of letters of credit as to which the reimbursement
obligation is secured by the Receivables (the “Intended
Tax Characterization”).
The
parties hereto agree to report and otherwise to act for the purposes of all
Taxes in a manner consistent with the Intended Tax Characterization.
Section 9.10.
Waiver
of Confidentiality.
The
Seller hereby consents to the disclosure of any nonpublic information relating
to the Seller, any Affiliate or the Transaction Documents (a) among the Agent,
the LC Issuer, the Purchaser Agents, the Purchasers and any provider of credit
enhancement or liquidity enhancement to any Purchaser, and (b) by the Agent,
the
LC Issuer, the Purchaser Agents, the Purchasers or any provider of credit
enhancement or liquidity enhancement to any Purchaser, to (i) any
prospective or actual assignee or participant, (ii) any rating agency,
surety, guarantor or credit or liquidity enhancer to the Agent, the LC Issuer,
any Purchaser Agent or any Purchaser, (iii) any entity organized to
purchase, or make loans secured by, financial assets for which any Purchaser
Agent provides managerial services or acts as an administrative agent,
(iv) any Conduit Purchaser’s administrator, management company, referral
agents, issuing agents or depositaries or CP Dealers, (v) any officers,
directors, members, managers, employees or outside accountants, auditors,
attorneys or advisors of any of the foregoing, and (vi) Governmental
Authorities with appropriate jurisdiction.
Section 9.11.
Confidentiality
of Agreement.
Unless
otherwise consented to by the Agent, the LC Issuer and each Purchaser Agent,
the
Seller hereby will not disclose the contents of any Transaction Document,
or any
other confidential or proprietary information furnished by the Agent, the
LC
Issuer, the Purchaser Agents or any Purchaser, to any Person other than
(i) to its auditors and attorneys, Affiliates, officers, directors,
members, managers, employees, outside accountants or as required by applicable
law or (ii) Governmental Authorities with appropriate jurisdiction. Nothing
contained in this Section 9.11 shall preclude any Originator from
disclosing the existence of the facility set forth in the Transaction Documents
(but not the specific contents of any Transaction Documents) in the consolidated
financial statements of Chemtura Corporation. Notwithstanding any provision
in
the Transaction Documents to the contrary, each party to the transactions
contemplated by the Transaction Document (and each employee, representative,
or
other agent of each such party) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
and all materials of any kind (including opinions or other tax analyses)
that
are provided to such party relating to such tax treatment and tax
structure.
Section 9.12.
Agreement
Not to Petition.
Each
party hereto agrees, for the benefit of the holders of the privately or publicly
placed indebtedness for borrowed money for each Conduit Purchaser, not, prior
to
the date which is one (1) year and one (1) day after the payment in full
of all
such indebtedness, to acquiesce, petition or otherwise, directly or indirectly,
invoke, or cause such Conduit Purchaser to invoke, the process of any
Governmental Authority for the purpose of (a) commencing or sustaining a
case
against such Conduit Purchaser under any federal or state bankruptcy, insolvency
or similar law (including the Federal Bankruptcy Code), (b) appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official for such Conduit Purchaser, or any substantial part of its
property, or (c) ordering the winding up or liquidation of the affairs of
such
Conduit Purchaser. The provisions of this Section 9.12 shall survive
termination of this Agreement.
Section 9.13.
Excess
Funds.
Notwithstanding any provisions contained in this Agreement to the contrary,
no
Conduit Purchaser shall, nor shall be obligated to, pay any amount pursuant
to
this Agreement unless (i) such Conduit Purchaser has received funds which
may be used to make such payment and which funds are not required to repay
its
commercial paper notes when due and (ii) after giving effect to such payment,
either (x) such Conduit Purchaser could issue commercial paper notes to
refinance all of its outstanding commercial paper notes (assuming such
outstanding commercial paper notes matured at such time) in accordance with
the
program documents governing such Conduit Purchaser’s securitization program or
(y) all of such Conduit Purchaser’s commercial paper notes are paid in full. Any
amount which a Conduit Purchaser does not pay pursuant to the operation of
the
preceding sentence shall not constitute a claim (as defined in §101 of the
United States Bankruptcy Code) against or corporate obligation of such Conduit
Purchaser for any such insufficiency unless and until such Conduit Purchaser
satisfies the provisions of clauses (i) and (ii) above. This Section shall
survive the termination of this Agreement.
Section 9.14.
No
Recourse.
The
obligations of each Conduit Purchaser, its management company, its administrator
and its referral agents (each a “Program
Administrator”)
under
any Transaction Document or other document (each, a “Program
Document”)
to
which a Program Administrator is a party are solely the corporate obligations
of
such Program Administrator and no recourse shall be had for such obligations
against any Affiliate, director, officer, member, manager, employee, attorney
or
agent of any Program Administrator.
Section 9.15.
Limitation
of Liability.
No
Person shall make a claim against the Agent, the LC Issuer, any Purchaser
Agent
or any Purchaser (or their respective Affiliates, directors, officers, members,
managers, employees, attorneys or agents) for any special, indirect,
consequential or punitive damages under any claim for breach of contract
or
other theory of liability in connection with the Transaction Documents or
the
transactions contemplated thereby, and the Seller (for itself, the Collection
Agent and all other Persons claiming by or through the Seller) hereby waives
any
claim for any such damages.
Section 9.16.
Headings;
Counterparts.
Article
and Section Headings in this Agreement are for reference only and shall not
affect the construction of this Agreement. This Agreement may be executed
by
different parties on any number of counterparts, each of which shall constitute
an original and all of which, taken together, shall constitute one and the
same
agreement.
Section 9.17.
Cumulative
Rights and Severability.
All
rights and remedies of the Purchasers, Purchaser Agents and Agent hereunder
shall be cumulative and non-exclusive of any rights or remedies such Persons
have under law or otherwise. Any provision hereof that is prohibited or
unenforceable in any jurisdiction shall, in such jurisdiction, be ineffective
to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and without affecting such provision in any other
jurisdiction.
Section 9.18.
Governing
Law; Submission to Jurisdiction.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws (and not the law of conflicts) of the State of New York. The Seller
hereby
submits to the nonexclusive jurisdiction of the United States District Court
for
the Southern District of New York and of any New York state court sitting
in New
York, New York for purposes of all legal proceedings arising out of, or relating
to, the Transaction Documents or the transactions contemplated thereby. The
Seller hereby irrevocably waives, to the fullest extent permitted by law,
any
objection it may now or hereafter have to the venue of any such proceeding
and
any claim that any such proceeding has been brought in an inconvenient forum.
Nothing in this Section 9.18 shall affect the right of the Agent, the LC
Issuer, any Purchase Agent or any Purchaser to bring any action or proceeding
against the Seller or its property in the courts of other
jurisdictions.
Section 9.19.
Waiver
of Trial by Jury.
To the
extent permitted by applicable law, each party hereto irrevocably waives
all
right of trial by jury in any action, proceeding or counterclaim arising
out of,
or in connection with, any transaction document or any matter arising
thereunder.
Section 9.20.
Entire
Agreement.
The
Transaction Documents constitute the entire understanding of the parties
thereto
concerning the subject matter thereof. Any previous or contemporaneous
agreements, whether written or oral, concerning such matters are superseded
thereby.
Section
9.21. Original
Sale Agreement.
This
Agreement amends and replaces in its entirety the Original Sale Agreement.
Reference to this specific Agreement need not be made in any agreement,
document, instrument, letter, certificate, the Original Sale Agreement itself,
or any communication issued or made pursuant to or with respect to the Original
Sale Agreement, any reference to the Original Sale Agreement being sufficient
to
refer to the Original Sale Agreement as amended and restated
hereby.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed and delivered by
their
duly authorized officers as of the date hereof.
|
ABN
AMRO Bank N.V.,
as
the Agent
By:
__________________________________
Title:_________________________________
By:
__________________________________
Title:_________________________________
Address:
Structured
Finance,
Asset
Securitization
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Purchaser Agent
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
|
ABN
AMRO Bank N.V.,
as
the Related Bank Purchaser for Amsterdam and as the Amsterdam Purchaser
Agent
By:
__________________________________
Title:_________________________________
By:
__________________________________
Title:_________________________________
Address:
Structured
Finance,
Asset
Securitization
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Administrator-Amsterdam
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
Amsterdam
Funding Corporation
|
|
|
By:
|
|
|
Title:
|
|
|
Address: c/o
Global Securitization Services,
LLC
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
Wachovia
Bank, National Association, as
the LC Issuer, the Related Bank Purchaser for VFCC and as the VFCC
Purchaser Agent
|
|
|
By:
|
|
|
Title:
|
|
|
Address: ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
With
a copy (in the case of any matter relating to a Letter of Credit)
to:
Wachovia
Bank, National Association
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
6th
Floor, Mail Code NC 0601
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Conduit Operations
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Variable
Funding Capital Company, LLC
|
|
|
By:
|
Wachovia
Capital Markets, LLC, as
Attorney-in-Fact
|
|
By:
|
|
|
Title:
|
|
|
Address: Variable
Funding Capital Company
c/o
Wachovia Bank, National Association
▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇
TRW 10 NC 0610
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
Calyon
New York Branch, as
the Related Bank Purchaser for Atlantic and as the Atlantic Purchaser
Agent
|
|
|
By:
|
|
|
Title:
|
|
|
By:
|
|
|
Title:
|
|
|
Address: ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇ ▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
Atlantic
Asset Securitization LLC
|
|
|
By:
|
|
|
Title:
|
|
|
By:
|
|
|
Title:
|
|
|
Address: ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
Crompton
& ▇▇▇▇▇▇▇ Receivables
Corporation,
as
Seller
By:
__________________________________
Title:_________________________________
Address:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Treasurer
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Telecopy:
▇▇▇-▇▇▇-▇▇▇▇
|
Chemtura
Corporation (f/k/a Crompton Corporation), as
Initial Collection Agent
By:
__________________________________
Title:_________________________________
Address:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Treasurer
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Telecopy:
▇▇▇-▇▇▇-▇▇▇▇
|
|
Notices
sent to:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇’▇▇▇▇▇▇
With
a copy to:
Chemtura
Corporation
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Treasurer
|
Notices
sent to:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇’▇▇▇▇▇▇
With
a copy to:
Chemtura
Corporation
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Treasurer
|
Schedule I
Definitions
The
following terms have the meanings set forth, or referred to, below:
“ABN
AMRO”
means
ABN AMRO Bank N.V. in its individual capacity and not in its capacity as
the
Agent.
“Accounting
Authority”
means
any accounting board or authority (whether or not part of a government) which
is
responsible for the establishment or interpretation of national or international
accounting principles, in each case whether foreign or domestic.
“Adverse
Claim”
means,
for any asset or property of a Person, a lien, security interest, charge,
mortgage, pledge, hypothecation, assignment or encumbrance, or any other
right
or claim, in, of or on such asset or property in favor of any other Person,
except (i) those in favor of the Agent and (ii) liens for taxes,
assessments or charges of any Governmental Authority (other than Tax or ERISA
liens) and liens of landlords, carriers, warehousemen, mechanics and materialmen
imposed by law in the ordinary course of business, in each case (a) for
amounts not yet due or (b) which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with
GAAP.
“Affiliate”
means,
for any Person, any other Person which, directly or indirectly, is in control
of, is controlled by, or is under common control with such Person. For purposes
of this definition, “control”
means
the power, directly or indirectly, to cause the direction of the management
and
policies of a Person.
“Agent”
is
defined in the first paragraph hereof.
“Agent’s
Account”
means
the account designated to the Seller and the Purchasers by the
Agent.
“Aggregate
Commitment”
means
the aggregate of all Commitments of each Purchaser Group, as such amount
may be
reduced pursuant to Section 1.7.
“Aggregate
Face Amount Outstanding” means,
on
any date of determination, the aggregate undrawn amount of Letters of Credit
then outstanding.
“Aggregate
Investment”
means
the sum of the Investments of all Purchasers.
“Aggregate
Reserve”
means,
at any time at which such amount is calculated, the sum of the Loss Reserve,
Dilution Reserve, Notice of Difference Reserve and
Discount Reserve.
“Amsterdam”
is
defined in the first paragraph hereof.
“Assigned
Settlement”
means,
for each Related Bank Purchaser for any Put, the product of such Related
Bank
Purchaser’s Purchased Percentage and the amount of the Conduit Purchaser
Settlement being transferred pursuant to such Put.
“Atlantic”
is
defined in the first paragraph hereof.
“Bankruptcy
Event”
means,
for any Person, that (a) such Person makes a general assignment for the
benefit of creditors or any proceeding is instituted by or against such Person
seeking to adjudicate it bankrupt or insolvent, or seeking the 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 or other similar official
for
it or any substantial part of its property or (b) such Person takes any
corporate action to authorize any such action.
“Business
Day”
means
any day other than (a) a Saturday, Sunday or other day on which banks in
the
States of New York, Connecticut or Illinois are authorized or required to
close,
(b) a holiday on the Federal Reserve calendar and, (c) solely for matters
relating to a Eurodollar Tranche, a day on which dealings in Dollars are
not
carried on in the London interbank market.
“Cash-Collateralize”
means to
pledge and deposit into the Letter of Credit Collateral Account at Wachovia,
for
the ratable benefit of the LC Issuer and the Related Bank Purchasers, as
collateral for the LC Obligations, immediately available funds pursuant to
documentation in form and substance satisfactory to the Agent and the LC
Issuer.
“Charge-Off”
means
any Receivable that has or should have been (in accordance with the Credit
and
Collection Policy) charged off or written off by the Seller.
“Chemtura
Credit Agreement”
means
that certain Credit Agreement, dated as of July 1, 2005, among Chemtura
Corporation, various lending institutions, Citibank, N.A., as Agent, Bank
of
America, N.A., as Syndication Agent, and Citigroup Global Markets Inc. and
Banc
of America Securities LLC, as Joint Lead Arrangers.
“Collateral”
is
defined in Section 1.11.
“Collection”
means
any amount paid, or deemed paid, on a Receivable, including from the proceeds
of
collateral securing, or any guaranty of, such Receivable or by the Seller
under
Section 1.6(b).
“Collection
Agent” is
defined in Section 3.1(a).
“Collection
Agent Fee”
is
defined in Section 3.6.
“Collection
Agent Replacement Event”
means
the occurrence of any one or more of the following:
(a)any
failure by the Collection Agent to make any payment, transfer or deposit
required by any Transaction Document to be made by it which failure continues
unremedied for one Business Day;
(b)failure
on the part of the Collection Agent to observe or perform any covenant or
agreement contained in Sections 3.2 or 3.3 of this Agreement;
(c)failure
on the part of the Collection Agent to observe or perform any other covenant
or
agreement set forth in this Agreement or any other Transaction Document,
which
failure has a material adverse effect on any Purchaser or the LC Issuer and
continues unremedied for a period of 30 days after the earlier of (i) the
date on which written notice of the failure, requiring the same to be remedied,
shall have been given to the Collection Agent by any Purchaser or the LC
Issuer,
or to and (ii) the date on which the Collection Agent became aware of such
failure;
(d)the
Daily
Report shall fail to have been correct in any material respect when made
or
delivered or shall not have been delivered when required under the terms
hereof;
(e)the
Weekly Report shall fail to have been correct in any material respect when
made
or delivered or shall not have been delivered when required under the terms
hereof;
(f)the
Monthly Report shall fail to have been correct in any material respect when
made
or delivered, or shall not have been delivered when required under the terms
hereof, and such condition continues unremedied for a period of three Business
Days;
(g)any
written representation, warranty, certification or statement made by the
Collection Agent in, or pursuant to, any Transaction Document proves to have
been incorrect in any material adverse respect when made; or
(h)the
Collection Agent suffers a Bankruptcy Event; or
(i)for
purposes of Section 3.4 only, the occurrence of a Termination
Event.
“Commitment”
means,
for each Related Bank Purchaser, the amount set forth on Schedule II for
such Conduit Purchaser or in a Transfer Supplement, and for each Purchaser
Group, the amount set forth on Schedule II for such Purchaser Group, in each
case as adjusted in accordance with Sections 1.7 and 9.8.
“Commitment
Percentage”
means,
for each Related Bank Purchaser in a Purchaser Group, the Commitment for
such
Related Bank Purchaser divided by the total of all Commitments of all Related
Bank Purchasers in such Purchaser Group.
“Concentration
Limit”
means
with respect to any Obligor (i) with senior unsecured long-term
indebtedness rated A (or higher) by S&P and A2 (or higher) by Moody’s, an
amount not to exceed 6.0% of the Eligible Receivables Balance, (ii) with
senior unsecured long-term indebtedness rated at least BBB- but lower than
A by
S&P and at least Baa3 but lower than A2 by Moody’s, an amount not to exceed
4.0% of the Eligible Receivables Balance and (iii) with respect to all
other Obligors not covered in clauses (i) and (ii) and not then the subject
of a
Special Limit, an amount not to exceed 2.0% of the Eligible Receivables
Balance.
“Conduit
Purchaser”
means
each Person party to this Agreement and listed as such on Schedule II
hereto and each other Person that becomes a Conduit Purchaser pursuant to
a
Transfer Supplement.
“Conduit
Purchaser Investment Percentage”
means a
fraction, expressed as a decimal, obtained by dividing the Investment of
a
Conduit Purchaser by the Investment of all Purchasers.
“Conduit
Purchaser Settlement”
means
the sum of all claims and rights to payment pursuant to Section 1.6 or 1.8
or any other provision owed to a Conduit Purchaser (or owed to the Agent
or
Purchaser Agent or the Collection Agent for the benefit of a Conduit Purchaser)
by the Seller that, if paid, would be applied to reduce Investment.
“CP
Dealer”
means,
at any time for each Conduit Purchaser, each Person such Conduit Purchaser
then
engages as a placement agent or commercial paper dealer.
“CP
Rate”
means,
for any Conduit Purchaser for any CP Tranche Period, a rate per annum equal
to
(a) the weighted average of the rates at which commercial paper notes
having a term equal to such CP Tranche Period may be sold by any CP Dealer
selected by such Conduit Purchaser, as agreed between each such CP Dealer
and
such Conduit Purchaser, plus (b) on or after the occurrence of a
Termination Event, 2%. If such rate is a discount rate, the CP Rate shall
be the
rate resulting from such Conduit Purchaser’s converting such discount rate to an
interest-bearing equivalent rate. If such Conduit Purchaser determines that
due
to disruptions in the commercial paper market that it is unable to issue
commercial paper, then the CP Rate shall be the Prime Rate for so long as
such
condition shall continue. The CP Rate shall include all costs and expenses
to
each Conduit Purchaser of issuing the related commercial paper notes, including
all dealer commissions and note issuance costs in connection
therewith.
“Credit
and Collection Policy”
means
each Originator’s credit and collection policy and practices relating to
Receivables attached hereto as Exhibit I.
“Credit
Event”
means
the issuance of a Letter of Credit or the making of a Purchase under this
Agreement.
“Credit
Exposure” means
at
any time, the sum of the Aggregate Investment plus the LC Obligations. In
computing the Credit Exposure in connection with a Purchase, the proceeds
of
which will be used to refinance a draw under a Letter of Credit, the Seller
need
not count both the Reimbursement Obligations and the amount that the Purchasers
will pay to the Seller on account of such Purchase or the amount of any LC
Obligations that are fully Cash-Collateralized.
“Daily
Reporting Period”
means,
any period during which (i) the senior unsecured long-term debt of the Parent
is
rated less than BB- by S&P or Ba3 by Moody’s (or either such rating is
suspended or withdrawn) or (ii) a Financial Covenant Grace Period
exists.
“Deemed
Collections” is
defined in Section 1.6(b).
“Default
Rate”
means
(a) as to Interest owing to the LC Issuer, a rate
per
annum
equal to the sum of the Prime Rate applicable to VFCC’s Purchaser Group plus 200
basis points (2.00%), and
(b)
as to Interest owing to any Purchaser, a rate per
annum
equal to the sum of the Prime Rate applicable to its Purchaser Group plus
200
basis points (2.00%).
“Default
Ratio”
means,
at any time, the ratio of (a) the then aggregate outstanding balance of all
Defaulted Receivables (minus Charge-Offs) to (b) the then aggregate
outstanding balance of all Receivables (minus Charge-Offs).
“Defaulted
Receivable”
means
any Receivable (a) on which any amount is unpaid more than 90 days past its
original due date, or (b) the Obligor on which has suffered a Bankruptcy
Event.
“Delinquency
Ratio”
means,
at any time, the ratio of (a) the then aggregate outstanding balance of all
Delinquent Receivables to (b) the then aggregate outstanding balance of all
Receivables.
“Delinquent
Receivable”
means
any Receivable (other than a Charge-Off or Defaulted Receivable) on which
any
amount is unpaid more than 60 days past its original due date.
“Deposit
Date”
means
each day on which any Collections are deposited in any Lock-Box Account or
on
which the Collection Agent receives any Collections.
“Designated
Financial Officer”
means
each of Chief Financial Officer, Treasurer and Assistant Treasurer.
“Dilution”
means,
for any calendar month, the amount Deemed Collections deemed to be received
during such calendar month pursuant to Section 1.6(b), except for any
amount that would otherwise constitute Dilution that is described in the
definition of Notice of Difference.
“Dilution
Horizon Ratio”
means,
for each calendar month, a fraction (expressed as a ratio) the numerator
of
which is the aggregate amount of Receivables generated by the Originators
during
the most recent three calendar month period and the denominator of which
is the
Eligible Receivables Balance as of the last day of such calendar
month.
“Dilution
Ratio”
means, for
each
calendar month, a fraction (expressed as a ratio) the numerator of which
is the
amount of Dilution for such calendar month, and the denominator of which
is the
aggregate amount of Receivables generated by the Originators during the third
calendar month ended immediately prior to such calendar month.
“Dilution
Reserve”
means at
any time the product of (aa) the product of (A) the sum of (i) the Dilution
Reserve Stress Factor, times the average Dilution Ratio for the most recent
12
calendar months, plus (ii) the product of (x) the excess (if any) of the
highest
Dilution Ratio for the most recent 12 calendar months and the average Dilution
Ratio for the same 12 calendar months and (y) the quotient of the highest
Dilution Ratio for the most recent 12 calendar months divided by the average
Dilution Ratio for the same 12 calendar months, and (B) the Dilution Horizon
Ratio for the most recently completed calendar month, and (bb) the Eligible
Receivables Balance.
“Dilution
Reserve Stress Factor”
shall
mean 2.25.
“Discount”
means,
for any Tranche Period, (a) the product of (i) the Discount Rate for such
Tranche Period, (ii) the total amount of Investment allocated to the Tranche
Period, and (iii) the number of days elapsed during the Tranche Period divided
by (b) 360 days.
“Discount
Period”
means,
with respect to any Settlement Date or the Termination Date, the period from
and
including the preceding Settlement Date (or if none, the date that the first
Incremental Purchase is made hereunder) to but not including such Settlement
Date or Termination Date, as applicable.
“Discount
Rate”
means,
for any Tranche Period, the CP Rate, the Eurodollar Rate or the Prime Rate,
as
applicable.
“Discount
Reserve”
means,
at any time, the product of (a) 1.5 multiplied by (b) the rate
announced by ABN AMRO as its “Prime
Rate” (which
may not be its best or lowest rate) plus 100 basis points (1.00%) multiplied
by
(c) Aggregate Investment multiplied by (d) a fraction, the numerator
of which is the average Turnover Rate as of the last day of the last three
calendar months and the denominator of which is 360.
“Dollar”
and
“$”
means
lawful currency of the United States of America.
“Early
Payment Fee”
means,
if any Investment of a Purchaser allocated (or, in the case of a requested
Purchase not made by the Related Bank Purchasers for any reason other than
their
default, scheduled to be allocated) to a Tranche Period for a CP Tranche
or
Eurodollar Tranche is reduced or terminated before the last day of such Tranche
Period (the amount of Investment so reduced or terminated being referred
to as
the “Prepaid
Amount”),
the cost
to the relevant Purchaser of terminating or reducing such Tranche, which
(a) for
a CP Tranche means any compensation payable in prepaying the related commercial
paper or, if not prepaid, any shortfall between the amount that will be
available to the applicable Conduit Purchaser on the maturity date of the
related commercial paper from reinvesting the Prepaid Amount in Permitted
Investments and the Face Amount of such commercial paper and (b) for a
Eurodollar Tranche will be determined based on the difference between the
LIBOR
applicable to such Tranche and the LIBOR applicable for a period equal to
the
remaining maturity of the Tranche on the date the Prepaid Amount is
received.
“Effective
Receivable Interest” means,
on
any date of determination, an undivided percentage interest in all then
outstanding Receivables and all related Collections equal to the percentage
computed pursuant to the following formula:
|
ACE
|
+
|
APRP
|
|
|
▇▇▇
|
where:
|
ACE=
|
the
Credit Exposure as of the last day of the Calculation Period then
most
recently ended, plus
the amount of any Incremental Purchases since such date, plus
the amount of any Letter of Credit issuances or increases since
such date,
minus
the excess, if any, of Purchaser Collections received by the Seller
or the
Collection Agent since such date over the aggregate amount of Reinvestment
Purchases made since such date, and minus
cash in the Letter of Credit Cash Collateral Account;
|
|
▇▇▇=
|
the
Eligible Receivables Balance as of the most recent periodic date
of
recomputation pursuant to Section
1.6(a);
and
|
|
APRP=
|
the
aggregate of the Purchaser Reserve Percentages at such
time.
|
“Eligible
Receivable”
means,
at any time, any Receivable:
(i)
the
Obligor of which (a) is a resident of, or organized under the laws of, or
with
its chief executive office in, the USA; provided,
however,
that not
more than 10% of Eligible Receivables in the aggregate at any time may consist
of Receivables due from Obligors which are not residents of, or organized
under
the laws of, or with chief executive offices in, the USA (each, an “Eligible
Foreign Receivable”)
if the
applicable Obligor under each such Eligible Foreign Receivable (1) is a resident
of a country that (x) is a member of the Organization of Economic
Cooperation and
Development and (y) has a short-term country risk rating of not less than
A-3 by S&P and P-3 by Moody’s, and (2) all payments of such Receivables are
required to be made in US dollars into a Lock-Box Account; provided
that all
other terms hereof shall apply to such Eligible Foreign Receivables and
provided
further
that any
Purchaser Agent may remove or discontinue the allowance for Eligible Foreign
Receivables set forth in this clause (a) upon not less than three Business
Days
prior written notice to the Seller, Collection Agent and Agent in the sole
discretion of such Purchaser Agent; (b) is not an Affiliate of any Originator;
(c) is not a government or a governmental subdivision or agency; (d) has
not
suffered a Bankruptcy Event; (e) is a customer of the Originator in good
standing; (f) is not the Obligor of Receivables 25% or more of which are
Defaulted Receivables; and (g) is not Honeywell International Inc. or any
of its
Affiliates.
(ii)
which
is
stated to be due and payable within 90 days after the invoice therefor;
provided,
however,
that not
more than 15% of the Eligible Receivables Balance (other than the portion
of the
Eligible Receivables Balance represented by Eligible Foreign Receivables)
at any
time may consist of Receivables which are stated to be due and payable within
91
to 180 days after invoice therefor, provided
that
any
Purchaser Agent may remove or discontinue this allowance for Receivables
due
within 91 to 180 days after the invoice thereafter set forth in this subsection
(ii) from the criteria for Eligible Receivables upon not less than three
Business Days prior written notice to the Seller, Collection Agent and Agent
in
the sole discretion of such Purchaser Agent;
(iii)
which
is
not a Defaulted Receivable or a Charge-Off;
(iv)
which
is
an “account”
or
“payment intangible” within the meaning of Section 9-102(a) of the UCC of
all applicable jurisdictions;
(v)
which
is
denominated and payable only in Dollars in the USA and is non-interest bearing;
provided
that a
Receivable shall not be deemed to be interest bearing solely as a result
of the
Seller’s lawful imposition of an interest or other charge on any Receivable that
remains unpaid for some specified period of time;
(vi)
which
arises under a contract that is in full force and effect and constitutes
the
legal, valid and binding obligation of the related Obligor enforceable against
such Obligor in accordance with its terms subject to no offset, counterclaim,
defense or other Adverse Claim, and is not an executory contract or unexpired
lease within the meaning of Section 365 of the Bankruptcy
Code;
(vii)
which
arises under a contract that (a) contains an obligation to pay a specified
sum
of money and is subject to no contingencies and (b) does not contain a
confidentiality provision that purports to restrict any Purchaser’s exercise of
rights under this Agreement, including, without limitation, the right to
review
such contract;
(viii)
which
does not, in whole or in part, contravene any law, rule or regulation applicable
thereto (including, without limitation, those relating to usury, truth in
lending, fair credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy); and
(ix)
which
satisfies all applicable requirements of the Credit and Collection Policy
and
was generated in the ordinary course of each Originator’s business from the sale
of goods or provision of services to a related Obligor solely by each
Originator.
“Eligible
Receivables Balance”
means,
at any time, (a) the aggregate outstanding principal balance of all
Eligible Receivables less (b) an amount equal to the sum of (1) the portion
of the aggregate outstanding principal balance of Eligible Receivables which
exceed the Concentration Limit or the Special Limit plus (2) the dollar amounts
of the Tax Liability Amount plus (3) any interest finance charges or late
fees
that would otherwise constitute a portion of each Eligible Receivable.
“Eurodollar
Rate”
means,
for any Tranche Period for a Eurodollar Tranche, the sum of (a) LIBOR for
such
Tranche Period divided by 1 minus the “Reserve
Requirement”
plus (b)
the amount specified in the Fee Letter plus (c) during the continuance of
any Financial Covenant Grace Period and on or after the occurrence of a
Termination Event, the amount specified in the Fee Letter; where “Reserve
Requirement”
means,
for any Tranche Period for a Eurodollar Tranche, the maximum reserve requirement
imposed during such Tranche Period on “eurocurrency
liabilities”
as
currently defined in Regulation D of the Board of Governors of the Federal
Reserve System.
“Face
Amount”
means
the face amount of any commercial paper issued by a Conduit Purchaser on
a
discount basis or, if not issued on a discount basis, the principal amount
of
such note and interest scheduled to accrue thereon to its stated
maturity.
“Facing
Fee” is
defined in Section 1.5(a).
“Federal
Funds Rate”
means,
with respect to each Purchaser Group, for any day the greater of (i) the
highest rate per annum as determined by the applicable Purchaser Agent at
which
overnight Federal funds are offered to such Purchaser Agent for such day
by
major banks in the interbank market, and (ii) if such Purchaser Agent is
borrowing overnight funds from a Federal Reserve Bank that day, the highest
rate
per annum at which such overnight borrowings are made on that day. Each
determination of the Federal Funds Rate by a Purchaser Agent shall be conclusive
and binding on the Seller except in the case of manifest error.
“Fee
Letter”
means
the amended and restated letter agreement dated as of the date hereof among
the
Seller, the Agent, the Purchaser Agents and the Conduit Purchasers, as amended,
restated, modified or supplemented from time to time.
“Financial
Covenant Grace Period”
means
any period commencing on the date on which a Potential Termination Event
described in clause (m) of the definition of Termination Event first occurs
and ending on the date on which such Potential Termination Event ceases to
exist
or has been waived.
“Funding
Agreement”
means
any agreement or instrument executed by a Conduit Purchaser and executed
by or
in favor of any Funding Source or executed by any Funding Source at the request
of such Conduit Purchaser.
“Funding
Charges”
means,
for any Conduit Purchaser for any day, the product of (i) the per annum
rate (inclusive of dealer fees and commissions) paid or payable by such Conduit
Purchaser in respect of commercial paper notes on such day that are allocated,
in whole or in part, to fund or maintain its Investment for such day, as
determined by its Purchaser Agent and other interest and costs allocated
by or
on behalf of such Conduit Purchaser to fund or maintain its Investment
associated with the funding by the Conduit of small or odd lot amounts that
are
not funded with commercial paper notes and (ii) such Conduit Purchaser
Investment as of the end of such day and (iii) 1/360.
“Funding
Parties”
has the
meaning set forth in Section 6.2.
“Funding
Source”
means
for a Conduit Purchaser any insurance company, bank or other financial
institution providing liquidity, back-up purchase or credit support for such
Conduit Purchaser.
“GAAP”
means
generally accepted accounting principles in the USA, applied on a consistent
basis.
“Governmental
Authority”
means
any (a) Federal, state, municipal or other governmental entity, board,
bureau, agency or instrumentality, (b) administrative or regulatory
authority (including any central bank or similar authority) or (c) court,
judicial authority or arbitrator, in each case, whether foreign or
domestic.
“Incremental
Purchase”
is
defined in Section 1.1(b).
“Initial
Collection Agent”
is
defined in the first paragraph hereof.
“Instructing
Group”
means
Purchaser Agents representing Purchaser Groups with at least 50% of the
Commitments of all Purchaser Groups.
“Intended
Tax Characterization” is
defined in Section 9.9.
“Interest”
is
defined in Section 1.2(c).
“Interim
Liquidation”
means
any time before the Termination Date during which no Reinvestment Purchases
are
made by any Purchaser, as established pursuant to Section 1.3.
“Investment”
means,
for each Purchaser (or Purchaser Group), (a) the sum of (i) all
Incremental Purchases by such Purchaser (or Purchaser Group) and (ii) the
aggregate amount of any payments or exchanges made by, or on behalf of, such
Purchaser (or Purchaser Group) to any other Purchaser in its Purchaser Group
under Article II minus (b) all Collections, amounts received from other
Purchasers under Article II, and other amounts received or exchanged and,
in
each case, applied by the Agent or such Purchaser (or Purchaser Group) to
reduce
such Purchaser’s Investment. A Purchaser’s Investment shall be restored to the
extent any amounts so received or exchanged and applied are rescinded or
must be
returned for any reason.
“LC
Application”
has the
meaning set forth in Section 1.2(b).
“LC
Fee”
has the
meaning set forth in the Fee Letter.
“LC
Issuer”
means
Wachovia Bank, National Association, and its successors.
“LC
Obligations”
means,
at any time, the sum, without duplication, of (a) the Aggregate Face Amount
Outstanding at such time plus (b) the aggregate unpaid amount at such time
of
all Reimbursement Obligations.
“LC
Payment Date”
is
defined in Section 1.2(c).
“LC
Percentage”
means,
on any date of determination, the ratio (expressed as a percentage) of (a)
the
sum of (i) the Aggregate Face Amount Outstanding, plus (ii) any outstanding
Reimbursement Obligations, to (b) the Purchase Limit.
“LC
Sublimit”
means
the lesser of (a) $100,000,000, and (b) the Aggregate Commitments.
“Letter
of Credit” means
a
stand-by letter of credit issued by Wachovia in Dollars for the account of
the
Seller at the request of an Originator with an expiry date not to exceed
one
year from the later of (i) its date of issuance, and (ii) the date of its
most
recent Modification).
“Letter
of Credit Collateral Account”
means a
segregated cash collateral account at Wachovia in the LC Issuer’s name
established at any time after the date of this Agreement at the LC Issuer’s
request that is under the exclusive control of the LC Issuer (for the ratable
benefit of the LC Issuer and the Related Bank Purchasers).
“Letter
of Credit Request”
is
defined in the Purchase Agreements.
“LIBOR”
means,
for any Tranche Period for a Eurodollar Tranche or other time period, the
rate
per annum (rounded upwards, if necessary, to the next higher one
hundred-thousandth of a percentage point) for deposits in Dollars for a period
equal to such Tranche Period or other period, which appears on Page BBAM
on
the
Bloomberg Terminal (“Page
BBAM”)
(or
any
successor page or successor service that displays the British Bankers’
Association Interest Settlement Rates for Dollar deposits) as of 11:00 a.m.
(London, England time) two Business Days before the commencement of such
Tranche
Period or other period. If for any Tranche Period for a Eurodollar Tranche
no
such displayed rate is available (or, for any other period, if such displayed
rate is not available or the need to calculate LIBOR is not notified to the
Agent at least 3 Business Days before the commencement of the period for
which
it is to be determined), the Agent shall determine such rate based on the
rates
ABN AMRO is offered deposits of such duration in the London interbank
market.
“Limited
Guaranty”
means
the Second Amended and Restated Limited Guaranty, dated the date hereof,
from
the Parent in favor of the Agent for the benefit of the Agent, the Purchaser
Agents, the LC Issuer and the Purchasers.
“Liquidation
Period”
means,
for each Conduit Purchaser, all times when such Conduit Purchaser is not
making
Reinvestment Purchases pursuant to Section 1.1(d) and, for all Purchasers,
all times (x) during an Interim Liquidation and (y) on and after the Termination
Date.
“Lock-Box”
means
each post office box or bank box listed on Exhibit F, as revised pursuant
to Section 5.1(i).
“Lock-Box
Account”
means
each account maintained by the Collection Agent at a Lock-Box Bank for the
purpose of receiving or concentrating Collections.
“Lock-Box
Agreement”
means
each agreement between the Collection Agent and a Lock-Box Bank concerning
a
Lock-Box Account.
“Lock-Box
Bank”
means
each bank listed on Exhibit F, as revised pursuant to
Section 5.1(i).
“Lock-Box
Letter”
means a
letter in substantially the form of Exhibit G (or otherwise acceptable to
the Agent) from the Seller and the Collection Agent to each Lock-Box Bank,
acknowledged and accepted by such Lock-Box Bank and the Agent.
“Loss
Horizon Ratio”
means,
for each calendar month, a fraction (expressed as a ratio) the numerator
of
which is the aggregate amount of Receivables generated by the Originators
during
the most recent four calendar month period and the denominator of which is
the
Eligible Receivables Balance as of the last day of such calendar
month.
“Loss
Proxy”
means,
for each calendar month, a fraction (expressed as a ratio) the numerator
of
which is equal to the sum of (i) the outstanding balance of Receivables
which are unpaid at least 61 and not more than 90 days past the due date
of such
Receivables as of the last day of such calendar months plus (ii) the
outstanding balance of all Receivables which became Charge-Offs during such
calendar month together with all Receivables deemed uncollectible by an
Originator during such calendar month plus (iii) the outstanding balance of
all Receivables the Obligor of which suffered a Bankruptcy Event during such
calendar month, and the denominator of which is the aggregate amount of
Receivables generated by the Originators during the most recent calendar
month
that is three months prior to the calendar month of calculation. For the
purposes of calculating the Loss Proxy in part (i) of the numerator above,
for
Chemtura Corporation and Chemtura USA Corporation only, the Loss Proxy for
the
61 to 90 days past due Receivables is to be calculated as the amount of
receivables that are 31 to 90 days past due multiplied by 50% for such periods
during which the exact data for 61 to 90 days past due Receivables is not
available.
“Loss
Reserve” shall
equal (i) the greater of (A) 12.0% and (B) the product of (x) the
Loss Reserve Stress Factor, (y) the highest rolling three-month average
Loss Proxy during the most recent 12 calendar months, and (z) the Loss
Horizon Ratio as of the most recently completed calendar month, multiplied
by
(ii) the Eligible Receivables Balance.
“Loss
Reserve Stress Factor”
shall be
2.25.
“Loss-to-Liquidation
Ratio”
means,
for any period, the ratio of the outstanding balance of Charge-Offs to the
aggregate amount of Collections during such period.
“Matured
Aggregate Investment”
means,
at any time, the Matured Value of the total Investments of all Purchasers
then
outstanding.
“Matured
Value”
means,
of any Investment, the sum of such Investment and all unpaid Discount, fees
and
other amounts scheduled to become due (whether or not then due) on such
Investment during all Tranche Periods to which any portion of such Investment
has been allocated.
“Maximum
Incremental Purchase Amount”
means,
at any time, the difference between (i) the lesser of the Purchase Limit
and the
Aggregate Commitment, and (ii) the Credit Exposure then
outstanding.
“Modification”
and
“Modify”
are
defined in Section 1.2(a).
“Monthly
Reporting Period”
means,
any period which is not a Weekly Reporting Period or a Daily Reporting
Period.
“Moody’s”
means
▇▇▇▇▇’▇ Investors Service, Inc.
“Notice
of Difference” means,
for any Settlement Period the aggregate amount accrued for prospective Dilution
as of the last day of such Settlement Period under the Notice of Difference
Policy attached as Appendix 3 to the Credit and Collection Policy less any
such
amount for which a credit memo has been issued pursuant to the Credit and
Collection Policy.
“Notice
of Difference Reserve”
means an
amount equal to the product of (i) 1.5 and (ii) the highest Notice of Difference
experienced for any of the last twelve calendar months.
“Obligor”
means,
for any Receivable, each Person obligated to pay such Receivable and each
guarantor of such obligation.
“Originators”
means
each of Chemtura USA Corporation (f/k/a Crompton Manufacturing Company, Inc.
(as
successor by merger to Crompton Sales Company, Inc.)), Chemtura Corporation
(f/k/a/ Crompton Corporation), Great Lakes Chemical Corporation and Bio-Lab,
Inc.
“Parent” means
Chemtura Corporation (f/k/a Crompton Corporation), a Delaware
corporation.
“Percentage”
means,
for each Related Bank Purchaser, the ratio (expressed as a percentage) of
its
Commitment to the Aggregate Commitment.
“Periodic
Report”
means,
for any Reporting Date, (i) during any Monthly Reporting Period, a report
(a
“Monthly
Report”)
reflecting the information as of the close of business of the Collection
Agent
for the immediately preceding calendar month, containing the information
described on Exhibit C-1 (with such modifications or additional information
as
requested by the Agent or the Instructing Group), (ii) during any Weekly
Reporting Period, a report (a “Weekly
Report”)
reflecting the information as of the close of business of the Collection
Agent
for the immediately preceding calendar week, containing the information
described on Exhibit C-2 (with such modifications or additional information
as
requested by the Agent or the Instructing Group) and (iii) during any Daily
Reporting Period, a report (a “Daily
Report”)
reflecting the information as of the close of business of the Collection
Agent
for the second preceding calendar day, containing the information described
on
Exhibit C-3 (with such modifications or additional information as requested
by
the Agent or the Instructing Group).
“Permitted
Investments”
means
(a) evidences of indebtedness, maturing within thirty (30) days after the
date of purchase thereof, issued by, or guaranteed by the full faith and
credit
of, the federal government of the USA, (b) repurchase agreements with
banking institutions or broker-dealers the short-term unsecured obligations
of
which is rated at least “A-1”
(or the
equivalent) by S&P and at least “P-1” (or the equivalent) by Moody’s
registered under the Securities Exchange Act of 1934 which are fully secured
by
obligations of the kind specified in clause (a), (c) money market funds
(i) rated not lower than the highest rating category from Moody’s and “AAA
m” or “AAAm-g,” from S&P or (ii) which are otherwise acceptable to the
Rating Agencies or (d) commercial paper issued by any corporation
incorporated under the laws of the USA and rated at least “A-1”
(or the
equivalent) by S&P and at least “P-1” (or the equivalent) by
Moody’s.
“Person”
means an
individual, partnership, corporation, association, joint venture, Governmental
Authority or other entity of any kind.
“Pledged
Interest” means,
on
any date of determination on which an LC Obligation is outstanding, an undivided
percentage interest in all then outstanding Receivables and related Collections
equal to the percentage computed pursuant to the following formula:
|
LCO
|
+
|
RP
|
|
ER
|
where:
|
LCO
|
=
|
the
LC Obligations on such date;
|
|
ER
|
=
|
the
Eligible Receivables Balance at such time; and
|
|
RP
|
=
|
the
Reserve Percentage at such time.
|
provided,
however,
at all
times after the Termination Date, that the Effective Receivable Interest
shall
equal 100.0%.
“Potential
Termination Event”
means
any Termination Event or any event or condition that with the lapse of time
or
giving of notice, or both, would constitute a Termination Event.
“Prime
Rate”
means,
with respect to each Purchaser Group, (A) for any period, the daily average
during such period of the greater of (i) the floating commercial loan rate
per
annum of the applicable Purchaser Agent (which rate is a reference rate and
does
not necessarily represent the lowest or best rate actually charged to any
customer by such Purchaser Agent) announced from time to time as its prime
rate
or equivalent for Dollar loans in the USA, changing as and when said rate
changes and (ii) the Federal Funds Rate plus 0.75% plus (B) on or after the
occurrence of a Termination Event, the amount set forth in the Fee
Letter.
“Purchase”
is
defined in Section 1.1(a).
“Purchase
Agreement”
means
the Receivables Purchase Agreement dated as of December 11, 1998, among the
Seller and each Originator, as amended, modified or supplemented from time
to
time.
“Purchase
Amount”
is
defined in Section 1.1(c).
“Purchase
Date”
is
defined in Section 1.1(c).
“Purchase
Interest”
means,
for a Purchaser, the percentage ownership interest in the Receivables and
Collections held by such Purchaser, calculated when and as described in
Section 1.1(a).
“Purchase
Limit”
means
$275,000,000.
“Purchased
Percentage”
means,
for any Put, for each Related Bank Purchaser in a Purchaser Group, the
percentage obtained by dividing its Commitment by the Commitments of all
Related
Bank Purchasers in such Purchaser Group.
“Purchaser
Agent”
means
each entity as an agent for Purchaser Group, as specified from time to time
herein.
“Purchaser
Collections”
is
defined in Section 1.1(a).
“Purchaser
Group”
means,
for each Conduit Purchaser, such Conduit Purchaser, its Related Bank Purchasers
(if any), and the Purchasers party to its Transfer Agreement.
“Purchaser
Reserve Percentage”
means,
for each Purchaser, the Reserve Percentage multiplied by a fraction, the
numerator of which is such Purchaser’s outstanding Investment and the
denominator of which is the Aggregate Investment.
“Purchasers”
means
each Conduit Purchaser and the Related Bank Purchasers.
“Put”
is
defined in Section 2.l(a).
“Ratable
Share”
means,
for each Purchaser Group, such Purchaser Group’s Commitment divided by the
aggregate Commitment of all Purchaser Groups.
“Rating
Agency”
means
Moody’s, S&P and any other rating agency a Conduit Purchaser chooses to rate
its commercial paper notes.
“Ratings”
means,
for any Conduit Purchaser, the ratings by the Rating Agencies of such Conduit
Purchaser of the indebtedness for borrowed money of such Conduit
Purchaser.
“Receivable”
means
each obligation of an Obligor to pay for merchandise sold or services rendered
by any Originator and includes such Originator’s rights to payment of any
interest or finance charges and in the merchandise (including returned goods)
and contracts relating to such Receivable, all security interests, guaranties
and property securing or supporting payment of such Receivable, all Records
and
all proceeds of the foregoing. During any Interim Liquidation and on and
after
the Termination Date, the term “Receivable”
shall
only include receivables existing on the date such Interim Liquidation commenced
or Termination Date occurred, as applicable. Deemed Collections shall reduce
the
outstanding balance of Receivables hereunder, so that (x) any Receivable
that
has its outstanding balance deemed collected shall cease to be a Receivable
hereunder after the Collection Agent receives payment of such Deemed Collections
under Section 1.6(b)
or (y)
if such Deemed Collection is received before the Termination Date, an adjustment
to the Sold Interest and Seller Interest permitted by Section 1.6(c) is
made.
“Receivable
Interest”
means a
Purchase Interest or a Pledged Interest.
“Receivable
Purchase Facility”
means
any receivables purchase agreement, loan agreement or other similar contractual
arrangement to which the Conduit Purchasers are a party relating to the
transfer, purchase or financing of receivables or other assets.
“Records”
means,
for any Receivable, all contracts, books, records and other documents or
information (including computer programs, tapes, disks, software and related
property and rights) relating to such Receivable or the related
Obligor.
“Reimbursement
Obligations”
means,
at any time, the aggregate of all obligations of the Seller then outstanding
under Section 1.2(c) to reimburse the LC Issuer for amounts paid by the LC
Issuer in respect of any one or more drawings under Letter of
Credit.
“Reinvestment
Purchase”
is
defined in Section 1.1(b).
“Related
Bank Purchasers” means
the
Persons listed as such (and their respective Commitments) for each Conduit
Purchaser as listed on Schedule II hereto and each other Person that becomes
a
Related Bank Purchaser pursuant to a Transfer Supplement.
“Reporting
Date”
means,
(i) during any Monthly Reporting Period, the 20th day of each calendar month,
(ii) during any Weekly Reporting Period, Tuesday of each calendar week and
(iii)
during any Daily Reporting Period, each calendar day.
“Reporting
Period”
means, a
Daily Reporting Period, Weekly Reporting Period and Monthly Reporting Period,
as
applicable.
“Required
Related Bank Purchasers”
means
Related Bank Purchasers having Related Bank Purchaser Commitments in excess
of
66-2/3% of the Commitment of all Related Bank Purchasers.
“Reserve
Percentage” means,
at any time, the quotient obtained by dividing (a) the Aggregate Reserve
by (b)
the Eligible Receivables Balance.
“Seller”
is
defined in the first paragraph hereof.
“Seller
Account”
means
the Seller’s account number ▇▇▇-▇-▇▇▇▇▇▇ at The Chase Manhattan Bank, New York,
New York or such other account designated by the Seller to the Agent with
at
least ten (10) days prior notice.
“Seller
Collections”
is
defined in Section 1.1(a).
“Seller
Interest”
is
defined in Section 1.1(a).
“Settlement
Date”
means
the 20th day of each calendar month (or, if such day is not a Business Day,
the
next succeeding Business Day).
“Sold
Interest” is
defined in Section 1.1(a).
“Special
Limit”
means,
with respect to ▇▇▇▇▇▇▇▇▇.▇▇▇ (the internet-enabled marketing service business
of Univar USA), an amount not to exceed 4% of the aggregate outstanding balance
of all Eligible Receivables, provided,
however,
(i) ▇▇▇▇▇▇▇▇▇.▇▇▇ (the
internet-enabled marketing service business of Univar USA), is a direct or
indirect Subsidiary of Univar N.V., and (ii) that any Purchaser Agent may
remove or discontinue such Special Limit upon three Business Days prior written
notice to the Seller, the Agent and such other Purchaser Agent in the sole
discretion of the Purchaser Agent.
“S&P”
means
Standard & Poor’s Ratings Group.
“Standby
Letter of Credit”
means an
irrevocable standby Letter of Credit for the account of an Originator and
for
the benefit of any holder of obligations of an Originator or its Affiliates
incurred in the ordinary course of business.
“Subordinated
Notes”
means
each buyer note issued by the Seller to the applicable Originator under the
Purchase Agreement.
“Subsidiary”
means
any Person of which at least a majority of the voting stock (or equivalent
equity interests) is owned or controlled by the Seller or any Originator
or by
one or more other Subsidiaries of the Seller or such Originator. The
Subsidiaries of the Parent on the date hereof are listed on
Exhibit E.
“Tax
Liability Amount”
means at
any date the amount carried in the Originator’s records representing the
obligation to pay or reimburse all sales taxes, value added taxes or similar
taxes payable with respect to Eligible Receivables and any interest, penalties
or other charges with respect thereto.
“Taxes”
means
all taxes, charges, fees, levies or other assessments (including income,
gross
receipts, profits, withholding, excise, property, sales, use, license,
occupation and franchise taxes and including any related interest, penalties
or
other additions) imposed by any jurisdiction or taxing authority (whether
foreign or domestic).
“Termination
Date”
means
the earliest of (a) the date of the occurrence of a Termination Event
described in clause (e) of the definition of Termination Event, (b) the
date designated by the Agent or the Instructing Group to the Seller at any
time
after the occurrence of any other Termination Event, (c) the Business Day
designated by the Seller with no less than five (5) Business Days prior notice
to the Agent and (d) March 2, 2009.
“Termination
Event”
means
the occurrence of any one or more of the following:
(a)
any
representation, warranty, certification or statement made by the Seller or
any
Originator in, or pursuant to, any Transaction Document proves to have been
incorrect in any material respect when made; or
(b)
the
Collection Agent, any Originator or the Seller fails to make any payment
or
other transfer of funds hereunder when due (including any payments under
Section 1.6(a)); or
(c)
the
Seller fails to observe or perform any covenant or agreement contained in
Sections 5.1(b), 5.1(e), 5.1(g), 5.1(i), 5.1(j) or 5.1(n) of this Agreement
or any Originator fails to perform any covenant or agreement in
Sections 6.1(d), 6.1(f), 6.1(i), 6.1(j), 6.1(k), 6.2(b) or 6.3 of each
Purchase Agreement; or
(d)
the
Seller or the Collection Agent (or any sub-collection agent) fails to observe
or
perform any other term, covenant or agreement under any Transaction Document,
and such failure remains unremedied for thirty days; or
(e)
the
Seller, any Originator or any Subsidiary suffers a Bankruptcy Event;
or
(f)
the
average of the Delinquency Ratios as of the end of each of the most recent
three
calendar months exceeds 5.0%, the average of the Default Ratios as of the
end of
each of the most recent three calendar months exceeds 5.0%, the Dilution
Ratio
at the end of any calendar month measured for the three month calendar period
then ending exceeds 6.0% or the Loss-to-Liquidation Ratio at the end of any
calendar month measured for the three month calendar period then ending exceeds
1.0%; or
(g)
(i) the
Seller, any Originator or any Affiliate, directly or indirectly, disaffirms
or
contests the validity or enforceability of any Transaction Document or
(ii) any Transaction Document fails to be the enforceable obligation of the
Seller or any Affiliate party thereto; or
(h)
the
Seller or any Subsidiary (A) generally does not pay its debts as such debts
become due or admits in writing its inability to pay its debts generally
or
(B) fails to pay any of its indebtedness (except in aggregate principal
amount of less than $1,000,000 or indebtedness under the Chemtura Credit
Agreement) or defaults in the performance of any provision of any agreement
under which such indebtedness was created or is governed and such default
permits such indebtedness to be declared due and payable or to be required
to be
prepaid before the scheduled maturity thereof; or
(i) any
event
occurs or condition exists which constitutes an Event of Default (as defined
in
the Chemtura Credit Agreement) under the Chemtura Credit Agreement; provided,
however,
that
such Event of Default under the Chemtura Credit Agreement shall not constitute
a
Termination Event hereunder until the earlier to occur of (x) the 91st
day
after
the date on which such Event of Default arises under the Chemtura Credit
Agreement so long as such Event of Default is then continuing and (y) the
acceleration by the Lenders thereunder of the obligations under the Chemtura
Credit Agreement ; or
(j)
the
average of the Turnover Rates for each of the most recent three calendar
months
exceeds 90 days; or
(k)
a
Collection Agent Replacement Event has occurred and is continuing with respect
to the Initial Collection Agent; or
(l)
the
Parent shall fail to own and control, directly or indirectly, 100.0% of the
outstanding voting stock of the Seller and each Originator; or
(m)
the
Parent shall fail to comply with any covenant set forth in Section 5.03 of
the Chemtura Credit Agreement (as such Chemtura Credit Agreement is in effect
as
of July 1, 2005, without regard to any subsequent amendment, supplement,
waiver or termination thereof or any defined terms contained therein, in
each
case unless consented to by the Agent at the direction of the Instructing
Group); provided,
however,
that the
Parent’s failure to comply with such Sections of the Chemtura Credit Agreement
shall not constitute a Termination Event hereunder until the earliest to
occur
of (x) the 91st day after the date on which such failure to comply constitutes
an Event of Default under the Chemtura Credit Agreement so long as such Event
of
Default is then continuing and (y) the acceleration by the Lenders thereunder
of
the obligations under the Chemtura Credit Agreement.
Notwithstanding
the foregoing, a failure of a representation or warranty or breach of any
covenant described in clause (a), (c) or (d) above related to a Receivable
shall
not constitute a Termination Event if the Seller has been deemed to have
collected such Receivable pursuant to Section 1.6(b) so that such
Receivable is no longer considered to be outstanding
or,
before the Termination Date, has adjusted the Sold Interest and Seller Interest
as provided in Section 1.6(c) so that such Receivable is no longer
considered to be outstanding
“Tranche”
means a
portion of the Investment of a Conduit Purchaser or of the Related Bank
Purchasers allocated to a Tranche Period pursuant to Section 1.4. A Tranche
is a (i) CP Tranche, (ii) Eurodollar Tranche or (iii) Prime Tranche depending
whether Discount accrues during its Tranche Period based on a (i) CP Rate,
(ii)
Eurodollar Rate, or (iii) Prime Rate.
“Tranche
Period”
means a
period of days ending on a Business Day selected by each Purchase Agent pursuant
to Section 1.4, which (i) for a CP Tranche shall not exceed 270 days, (ii)
for a LIBOR Tranche shall not exceed 180 days, and (iii) for a Prime Tranche
shall not be less than 2 days and shall not exceed 30 days.
“Transaction
Documents”
means
this Agreement, the Fee Letter, the Limited Guaranty, the Purchase Agreements,
the Subordinated Notes, the LC Applications, and all other documents,
instruments and agreements executed or furnished in connection herewith and
therewith.
“Transfer
Agreement”
means
each transfer, liquidity or asset purchase agreement entered into among a
Conduit Purchaser, its Purchaser Agent and its Related Bank Purchasers in
connection with this Agreement.
“Transfer
Supplement” is
defined in Section 9.8.
“Turnover
Rate”
means,
for any period for which it is calculated, the product, expressed in days,
of
(1) the outstanding balance of all Receivables at the beginning of such period
divided by (2) the average daily Collections (other than Deemed Collections)
during such period.
“UCC”
means,
for any state, the Uniform Commercial Code as in effect in such
state.
“USA”
means
the United States of America (including all states and political subdivisions
thereof).
“Unused
Aggregate Commitment”
means,
at any time, the difference between the Aggregate Commitment then in effect
and
the outstanding Credit Exposure.
“Unused
Commitment”
means,
for any Committed Purchaser at any time, the difference between its Commitment
and its Investment then outstanding.
“VFCC”
is
defined in the first paragraph hereof.
“Weekly
Reporting Period”
means,
any period during which the senior unsecured long-term debt of the Parent
is
rated less than BB+ by S&P or Ba1 by Moody’s (or either such rating is
suspended or withdrawn) and which is not a Daily Reporting Period.
The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms. Unless otherwise inconsistent with the
terms
of this Agreement, all accounting terms used herein shall be interpreted,
and
all accounting determinations hereunder shall be made, in accordance with
GAAP.
Amounts to be calculated hereunder shall be continuously recalculated at
the
time any information relevant to such calculation
change.