Exhibit 10.15
RECEIVABLES SALE AGREEMENT
dated as of May 10, 2002,
AMONG
THE ORIGINATORS
NAMED HEREIN
AND
PDC FUNDING COMPANY, LLC,
as Buyer
RECEIVABLES SALE AGREEMENT
THIS RECEIVABLES SALE AGREEMENT, dated as May 10, 2002, is by
and among ▇▇▇▇▇▇▇▇▇ Dental Supply, Inc., a Minnesota corporation ("PDSI"),
▇▇▇▇▇▇▇ Veterinary Supply, Inc., a Minnesota corporation ("▇▇▇▇▇▇▇" and,
together with PDSI, the "Originators" and each, an "Originator") and PDC Funding
Company, LLC, a Minnesota limited liability company ("Buyer"). Unless defined
elsewhere herein, capitalized terms used in this Agreement shall have the
meanings assigned to such terms in Exhibit I hereto (or, if not defined in
Exhibit I hereto, the meaning assigned to such term in Exhibit I to the Purchase
Agreement).
PRELIMINARY STATEMENTS
Each Originator now owns, and from time to time hereafter will
own, Originated Receivables. Each Originator wishes to sell and assign
to Buyer, and Buyer wishes to purchase from such Originator, all of
such Originator's right, title and interest in and to certain of such
Originated Receivables, together with the Related Security and
Collections with respect thereto.
Each Originator and Buyer intend the transactions contemplated
hereby to be true sales of the Receivables from such Originator to
Buyer, providing Buyer with the full benefits of ownership of the
Receivables, and neither of the Originators nor Buyer intends these
transactions to be, or for any purpose to be characterized as, loans
from Buyer to any Originator.
Following each purchase of Receivables from the Originators,
Buyer will sell undivided interests therein and in the associated
Related Security and Collections pursuant to that certain Receivables
Purchase Agreement dated as of May 10, 2002 (as the same may from time
to time hereafter be amended, supplemented, restated or otherwise
modified, the "Purchase Agreement") among Buyer, the Servicer (as
defined therein), the Conduit (as defined therein), the financial
institutions from time to time party thereto as "Financial
Institutions" and Bank One, NA (Main Office Chicago), as agent for the
Conduit and Financial Institutions or any successor agent appointed
pursuant to the terms of the Purchase Agreement (in such capacity, the
"Agent").
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
RECEIVABLES SALE AGREEMENT
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASE
Section 1.1 Purchases of Receivables.
(a) Agreement to Sell and Purchase. (i) Upon the terms
and subject to the conditions set forth herein, each Originator may, at its
option from time to time, sell, assign, transfer and convey to Buyer, without
recourse (except to the extent expressly provided herein), and Buyer may, at its
option, purchase from such Originator, all of Originator's right, title and
interest in, to and under certain Originated Receivables owned by such
Originator, together, in each case, with all Related Security and Collections
with respect thereto. In connection with the payment of the Purchase Price for
any Receivables, Buyer may request that Originator selling such Receivables
deliver, and such Originator shall deliver, such approvals, opinions,
information, reports or documents as Buyer may reasonably request.
(ii) Not less than two Business Days prior to each
date on which any Originator proposes to sell Originated Receivables to Buyer,
such Originator shall deliver to Buyer (i) a notice that such Originator
proposes to sell to Buyer, on the specified Purchase Date, Originated
Receivables, and (ii) an executed Sale Assignment, to which shall be attached a
schedule of the Originated Receivables to be sold on such Purchase Date,
identified at least by contract number, Obligor and principal amount outstanding
as of such Purchase Date or any other date identified in such Sale Assignment.
Effective upon Buyer's acceptance of such Sale Assignment, such Originator does
hereby sell to Buyer without recourse (except to the extent expressly provided
herein), and Buyer does hereby purchase or acquire, from such Originator, all of
Originator's right, title and interest in and to the Originated Receivables
identified in such Sale Assignment. The schedule attached to the first Sale
Assignment delivered pursuant to this Section 1.1(a)(ii) shall be deemed to be
Schedule B to this Agreement (and this Agreement shall be deemed, automatically
and without further action by any Person, supplemented and modified thereby) and
each schedule attached to any Sale Assignment thereafter delivered pursuant to
this Section 1.1(a)(ii) shall be deemed to amend and supplement Schedule B
hereto. Buyer shall be obligated to pay the Purchase Price for the Receivables
purchased hereunder in accordance with Section 1.2.
(b) It is the intention of the parties hereto that
each Purchase of Receivables made hereunder shall constitute a sale, which sale
is absolute and irrevocable and provides Buyer with the full benefits of
ownership of the Receivables. Except for the Purchase Price Credits owed
pursuant to Section 1.3, each sale of Receivables hereunder is made without
recourse to any Originator; provided, however, that (i) each Originator shall be
liable to Buyer for all representations, warranties, covenants and indemnities
made by such Originator pursuant to the terms of the Transaction Documents to
which such Origina-
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RECEIVABLES SALE AGREEMENT
tor is a party, and (ii) such sale does not constitute and is not intended to
result in an assumption by Buyer or any assignee thereof of any obligation of
any Originator or any other Person arising in connection with the Receivables,
the related Contracts and/or other Related Security or any other obligations of
any Originator. In view of the intention of the parties hereto that the
Purchases of Receivables made hereunder shall constitute sales of such
Receivables rather than loans secured thereby, each Originator agrees that it
will, on or prior to the date hereof and in accordance with Section 4.1(e)(ii),
▇▇▇▇ its master data processing records relating to the Receivables with a
legend acceptable to Buyer and to the Agent (as Buyer's assignee), evidencing
that Buyer has purchased such Receivables as provided in this Agreement and to
note in its financial statements that its Receivables have been sold to Buyer.
Upon the request of Buyer or the Agent (as Buyer's assignee), each Originator
will execute and file such financing or continuation statements, or amendments
thereto or assignments thereof, and such other instruments or notices, as may be
necessary or appropriate to perfect and maintain the perfection of Buyer's
ownership interest in the Receivables and the Related Security and Collections
with respect thereto, or as Buyer or the Agent (as Buyer's assignee) may
reasonably request.
Section 1.2 Payment for the Purchase.
(a) The Purchase Price for any Purchase of Receivables
hereunder shall be payable in full by Buyer to the Originator of such
Receivables in accordance with Section 1.2(b), and shall be paid to such
Originator in the following manner:
(i) by delivery of immediately available
funds, to the extent of funds made available to Buyer in connection
with its subsequent sale of an interest in such Receivables to the
Purchasers under the Purchase Agreement or other cash on hand; and
(ii) the balance, by delivery of the
proceeds of a subordinated revolving loan from such Originator to Buyer
(a "Subordinated Loan") in an amount not to exceed the least of (A) the
remaining unpaid portion of such Purchase Price, (B) the maximum
Subordinated Loan that could be borrowed without rendering Buyer's Net
Worth less than the Required Capital Amount and (C) the maximum
Subordinated Loan that could be borrowed without rendering the Net
Value less than the aggregate outstanding principal balance of the
Subordinated Loans (including the Subordinated Loan proposed to be made
on such date). Each Originator is hereby authorized by Buyer to endorse
on the schedule attached to its Subordinated Note an appropriate
notation evidencing the date and amount of each advance thereunder, as
well as the date of each payment with respect thereto, provided that
the failure to make such notation shall not affect any obligation of
Buyer thereunder.
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RECEIVABLES SALE AGREEMENT
Subject to the limitations set forth in Section 1.2(a)(ii), each Originator
irrevocably agrees to advance each Subordinated Loan requested by Buyer on or
prior to the Termination Date. The Subordinated Loans shall be evidenced by, and
shall be payable in accordance with the terms and provisions of the Subordinated
Notes and shall be payable solely from funds which Buyer is not required under
the Purchase Agreement to set aside for the benefit of, or otherwise pay over
to, the Purchasers.
(b) The Purchase Price for each Receivable purchased
hereunder shall be due and payable in full by Buyer to the Originator of such
Receivable on the Purchase Date for such Receivable, provided that settlement of
the Purchase Price between Buyer and each Originator shall be effected on the
next occurring Settlement Date (or, if the Purchase Date is a Settlement Date,
on such Settlement Date). In addition, increases or decreases in the amount
owing under the Subordinated Notes made pursuant to Section 1.2(a) shall be
deemed to have occurred and shall be effective as of the next Settlement Date to
occur after such increase or decrease.
Section 1.3 Purchase Price Credit Adjustments. If on any day:
(a) the Outstanding Balance of a Receivable is:
(i) reduced as a result of any defective or
rejected or returned goods or services, any discount or any adjustment
or otherwise by the Originator of such Receivable (other than cash
Collections on account of the Receivables),
(ii) reduced or canceled as a result of a
setoff in respect of any claim by any Person (whether such claim arises
out of the same or a related transaction or an unrelated transaction),
or
(b) any of the representations and warranties set forth
in Article II are not true when made or deemed made with respect to any
Receivable, or
(c) the Related Equipment for any Receivable is
Repossessed and sold for less than the fair market value of such Related
Equipment,
then, in such event, Buyer shall be entitled to a credit (each, a "Purchase
Price Credit") against the Purchase Price otherwise payable hereunder to the
Originator of such Receivable equal to (i) in the case of clause (a) above, the
amount of such reduction or cancellation, (ii) in the case of clause (b) above,
the Outstanding Balance of such Receivable and in the case of clause (c) above,
the difference between the fair market value of the Repossessed Related
Equipment and the gross proceeds received upon the sale of such Repossessed
Related
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RECEIVABLES SALE AGREEMENT
Equipment. If such Purchase Price Credit exceeds the Purchase Price on any day,
then such Originator shall pay the remaining amount of such Purchase Price
Credit in cash immediately, provided that if the Termination Date has not
occurred, such Originator shall be allowed to deduct the remaining amount of
such Purchase Price Credit from any indebtedness owed to it under such
Originator's Subordinated Note.
Section 1.4 Payments and Computations, Etc. All amounts to be
paid or deposited by Buyer hereunder shall be paid or deposited in accordance
with the terms hereof on the day when due in immediately available funds to the
account of the applicable Originator as designated from time to time by such
Originator or as otherwise directed by such Originator. In the event that any
payment owed by any Person hereunder becomes due on a day that is not a Business
Day, then such payment shall be made on the next succeeding Business Day. If any
Person fails to pay any amount hereunder when due, such Person agrees to pay, on
demand, the Default Fee in respect thereof until paid in full; provided,
however, that such Default Fee shall not at any time exceed the maximum rate
permitted by applicable law. All computations of interest payable hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first but excluding the last day) elapsed.
Section 1.5 Transfer of Records.
(a) In connection with each Purchase of Receivables
hereunder, each Originator hereby sells, transfers, assigns and otherwise
conveys to Buyer all of such Originator's right and title to and interest in the
Records relating to all Receivables sold hereunder, without the need for any
further documentation in connection with the Purchase. In connection with such
transfer, each Originator hereby grants to each of Buyer, the Agent and the
Servicer an irrevocable, non-exclusive license to use, without royalty or
payment of any kind, all software used by such Originator to account for its
Receivables, to the extent necessary to administer such Receivables, whether
such software is owned by such Originator or is owned by others and used by such
Originator under license agreements with respect thereto, provided that should
the consent of any licensor of such software be required for the grant of the
license described herein, to be effective, such Originator hereby agrees that
upon the request of Buyer (or Buyer's assignee), such Originator will use its
reasonable efforts to obtain the consent of such third-party licensor. The
license granted hereby shall be irrevocable until the indefeasible payment in
full of the Aggregate Unpaids, and shall terminate on the date this Agreement
terminates in accordance with its terms.
(b) Each Originator (i) shall take such action
requested by Buyer and/or the Agent (as Buyer's assignee), from time to time
hereafter, that may be necessary or appropriate to ensure that Buyer and its
assigns under the Purchase Agreement have an enforceable ownership interest in
the Records relating to the Receivables purchased from such Originator
hereunder, and (ii) shall use its reasonable efforts to ensure that Buyer, the
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RECEIVABLES SALE AGREEMENT
Agent and the Servicer each has an enforceable right (whether by license or
sublicense or otherwise) to use all of the computer software used to account for
the Receivables and/or to recreate such Records.
Section 1.6 Characterization. If, notwithstanding the
intention of the parties expressed in Section 1.1(b), any sale by any Originator
to Buyer of Receivables hereunder shall be characterized as a secured loan and
not a sale or such sale shall for any reason be ineffective or unenforceable,
then this Agreement shall be deemed to constitute a security agreement under the
UCC and other applicable law. For this purpose and without being in derogation
of the parties' intention that the sale of Receivables hereunder shall
constitute a true sale thereof, each Originator hereby grants to Buyer a duly
perfected security interest in all of such Originator's right, title and
interest in, to and under all Receivables now existing and hereafter arising,
all Collections and Related Security with respect thereto, each Lock-Box, P.O.
Box and Collection Account, all other rights and payments relating to such
Originator's Receivables and all proceeds of the foregoing to secure the prompt
and complete payment of a loan deemed to have been made in an amount equal to
the aggregate Purchase Price of the Receivables together with all other
obligations of such Originator hereunder, which security interest shall be prior
to all other Adverse Claims thereto. Buyer and its assigns shall have, in
addition to the rights and remedies which they may have under this Agreement,
all other rights and remedies provided to a secured creditor under the UCC and
other applicable law, which rights and remedies shall be cumulative.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Originator.
Each Originator hereby represents and warrants to Buyer on the date hereof and
on the date of each Purchase that:
(a) Corporate Existence and Power. Such Originator is
a corporation, duly organized and validly existing and in good standing under
the laws of its state of incorporation. Each such Originator is duly qualified
to do business and is in good standing as a foreign corporation, and has and
holds all corporate power and all governmental licenses, authorizations,
consents and approvals required to carry on its business in each jurisdiction in
which its business is conducted, except where the failure to be so qualified or
to have and hold such governmental licenses, authorizations, consents and
approvals could not reasonably be expected to have a Material Adverse Effect.
(b) Power and Authority; Due Authorization, Execution
and Delivery. The execution and delivery by such Originator of this Agreement
and each other Transaction Document to which it is a party, and the performance
of its obligations
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RECEIVABLES SALE AGREEMENT
hereunder and thereunder and such Originator's use of the proceeds of each
Purchase from such Originator made hereunder, are within its corporate powers
and authority, and have been duly authorized by all necessary corporate action
on its part. This Agreement and each other Transaction Document to which such
Originator is a party has been duly executed and delivered by such Originator.
(c) No Conflict. The execution and delivery by such Originator
of this Agreement and each other Transaction Document to which it is a party,
and the performance of its obligations hereunder and thereunder do not
contravene or violate (i) its certificate or articles of incorporation or
by-laws (or equivalent organizational documents) or any shareholder agreements,
voting trusts or similar arrangements applicable to any of its authorized
shares, (ii) any law, rule or regulation applicable to it, (iii) any
restrictions under any agreement, contract or instrument to which it is a party
or by which it or any of its property is bound, or (iv) any order, writ,
judgment, award, injunction or decree binding on or affecting it or its
property, and do not result in the creation or imposition of any Adverse Claim
on assets of such Originator or its Subsidiaries (except as created hereunder).
No transaction contemplated hereby requires compliance with any bulk sales act
or similar law.
(d) Governmental Authorization. Other than the filing of the
financing statements required hereunder, no authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution and delivery by such
Originator of this Agreement and each other Transaction Document to which it is
a party and the performance of its obligations hereunder and thereunder.
(e) Actions, Suits. There are no actions, suits or proceedings
pending, or to the best of such Originator's knowledge, threatened, against or
affecting such Originator, or any of its properties, in or before any court,
arbitrator or other body, that could reasonably be expected to have a Material
Adverse Effect. Such Originator is not in default with respect to any order of
any court, arbitrator or governmental body.
(f) Binding Effect. This Agreement and each other Transaction
Document to which such Originator is a party constitute the legal, valid and
binding obligations of such Originator enforceable against such Originator in
accordance with their respective terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(g) Accuracy of Information. All information heretofore
furnished by such Originator or any of its Affiliates to Buyer (or its assigns)
for purposes of or in connection with this Agreement, any of the other
Transaction Documents or any
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RECEIVABLES SALE AGREEMENT
transaction contemplated hereby or thereby is, and all such information
hereafter furnished by such Originator or any of its Affiliates to Buyer (or its
assigns) will be, true and accurate in every material respect on the date such
information is stated or certified and does not and will not contain any
material misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein not materially misleading.
(h) Use of Proceeds. No proceeds of any Purchase hereunder
will be used (i) for a purpose that violates, or would be inconsistent with, any
law, rule or regulation applicable to such Originator or (ii) to acquire any
security in any transaction which is subject to Section 12, 13 or 14 of the
Securities Exchange Act of 1934, as amended.
(i) Good Title. Immediately prior to each Purchase hereunder,
such Originator (i) is the legal and beneficial owner of the Receivables to be
sold by such Originator hereunder, and (ii) is the legal and beneficial owner of
the Related Security with respect thereto or possesses a valid and perfected
security interest therein, in each case, free and clear of any Adverse Claim,
except as created by the Transaction Documents. There have been duly filed all
financing statements or other similar instruments or documents necessary under
the UCC (or any comparable law) of all appropriate jurisdictions to perfect such
Originator's ownership interest in each Receivable, its Collections and the
Related Security.
(j) Perfection. This Agreement, together with the filing of
the financing statements contemplated hereby and the executed Sale Assignments,
is effective to transfer to Buyer (and Buyer shall acquire from such Originator)
(i) legal and equitable title to, with the right to sell and encumber, each
Receivable existing or hereafter arising, together with the Collections with
respect thereto, and (ii) all of such Originator's right, title and interest in
the Related Security associated with each Receivable, in each case, free and
clear of any Adverse Claim, except as created by the Transactions Documents.
There have been duly filed all financing statements or other similar instruments
or documents necessary under the UCC (or any comparable law) of all appropriate
jurisdictions to perfect Buyer's ownership interest in the Receivables, the
Related Security and the Collections.
(k) Jurisdiction of Organization; Places of Business; etc.
Exhibit II correctly sets forth such Originator's legal name, jurisdiction of
organization, Federal Employer's Identification Number and State Organizational
Identification Number. Such Originator's principal places of business and chief
executive office and the offices where it keeps all of its Records are located
at the address(es) listed on Exhibit II or such other locations of which Buyer
has been notified in accordance with Section 4.2(a) in jurisdictions where all
action required by Section 4.1(g) or Section 7.3(a) has been taken and
completed. Such Originator has not, within the period of one year prior to the
date hereof, (i) changed the location of its principal place of business or
chief executive office or,
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RECEIVABLES SALE AGREEMENT
except as set forth on Exhibit II, its organizational structure, (ii) changed
its legal name, (iii) except as set forth on Exhibit II, become a "new debtor"
(within the meaning of Section 9-102(a)(56) of the UCC in effect in the State of
Minnesota) or (iv) changed its jurisdiction of organization. Such Originator is
a "registered organization" (within the meaning of Section 9-102 of the UCC as
in effect in the State of Minnesota).
(l) Collections. The conditions and requirements set forth in
Section 4.1(i) have at all times been satisfied and duly performed. The names
and addresses of all Collection Banks, together with the account numbers of the
Collection Accounts at each Collection Bank and the post office box number of
each Lock-Box or P.O. Box, are listed on Exhibit III. Such Originator has not
granted any Person, other than Buyer (and its assigns) dominion and control or
"control" (within the meaning of Section 9-104 of the UCC of all applicable
jurisdictions) of any Lock-Box, P.O. Box or Collection Account, or the right to
take dominion and control or "control" (within the meaning of Section 9-104 of
the UCC of all applicable jurisdictions) of any such Lock-Box, P.O. Box or
Collection Account at a future time or upon the occurrence of a future event.
Such Originator has taken all steps necessary to ensure that Buyer (or its
assigns) has "control" (within the meaning of Section 9-104 of the UCC of all
applicable jurisdictions) over all Collection Accounts. Such Originator has the
ability to identify, within one Business Day of deposit, all amounts that are
deposited to any First-Tier Account as constituting Collections or
non-Collections.
(m) Material Adverse Effect. Since January 26, 2002, no event
has occurred that would have a Material Adverse Effect.
(n) Names. In the past five (5) years, such Originator has not
used any corporate or other names, trade names or assumed names other than as
listed on Exhibit II.
(o) Ownership of Buyer. PDCo owns 100% of the issued and
outstanding membership units of Buyer, free and clear of any Adverse Claim. Such
membership units are validly issued, fully paid and nonassessable, and there are
no options, warrants or other rights to acquire securities of Buyer.
(p) Not a Holding Company or an Investment Company. Such
Originator is not a "holding company" or a "subsidiary holding company" of a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended, or any successor statute. Such Originator is not and, after
giving effect to the transactions contemplated hereby, will not be required to
be registered as, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or any successor statute.
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RECEIVABLES SALE AGREEMENT
(q) Compliance with Law. Such Originator has complied in all
respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, except where the
failure to so comply could not reasonably be expected to have a Material Adverse
Effect. Each Receivable, together with any Contract related thereto, does not
contravene any laws, rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to truth in lending, fair
credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy), and no part of such Contract is in violation
of any such law, rule or regulation.
(r) Compliance with Credit and Collection Policies. Such
Originator has complied in all material respects with such Originator's Credit
and Collection Policy with regard to each Receivable and any related Contract,
and has not made any material change to such Credit and Collection Policy,
except such material change as to which Buyer (or its assigns) has been notified
in accordance with Section 4.1(a)(vii).
(s) Payments to Originator. With respect to each Receivable
transferred to Buyer by such Originator hereunder, the Purchase Price received
by such Originator constitutes reasonably equivalent value in consideration
therefor and such transfer was not made for or on account of an antecedent debt.
No transfer by such Originator of any Receivable hereunder is or may be voidable
under any section of the Federal Bankruptcy Code.
(t) Enforceability of Contracts. Each Contract with respect to
each Receivable sold by such Originator hereunder is effective to create, and
has created, a legal, valid and binding obligation of the related Obligor to pay
the Outstanding Balance of the Receivable created thereunder and any accrued
interest thereon, enforceable against the Obligor in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors' rights
generally and by general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
(u) Eligible Receivables. Each Receivable sold by such
Originator hereunder and included at any time in the Net Receivables Balance as
an Eligible Receivable was, on its Purchase Date, an Eligible Receivable.
(v) Accounting. The manner in which such Originator accounts
for the transactions contemplated by this Agreement does not jeopardize the
characterization of the transactions contemplated herein as being true sales.
(w) No Adverse Selection. To the extent that such Originator
has retained Originated Receivables that would be Eligible Receivables but which
have not been
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transferred to Buyer hereunder, such Originator has not selected those
Originated receivables to be transferred hereunder in any manner that materially
adversely affects Buyer.
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 Conditions Precedent to Purchase. The initial
Purchase under this Agreement is subject to the conditions precedent that (a)
Buyer shall have received on or before the date of such Purchase those documents
listed on Schedule A and (b) all of the conditions precedent to the initial
Incremental Purchase under the Purchase Agreement shall have been satisfied or
waived in accordance with the terms thereof.
Section 3.2 Conditions Precedent to Subsequent Payments. Buyer's
obligation to pay for Receivables on any Purchase Date shall be subject to the
further conditions precedent that (a) the Facility Termination Date shall not
have occurred; (b) Buyer (or its assigns) shall have received the notice
required pursuant to Section 1.1(a)(ii), an executed Sale Assignment and such
other approvals, opinions or documents as it may reasonably request and (c) on
the Purchase Date for such Receivables, the following statements shall be true
(and acceptance of the proceeds by any Originator of any payment for such
Receivable shall be deemed a representation and warranty by such Originator that
such statements are then true):
(i) the representations and warranties of such
Originator set forth in Article II are true and correct on and as of such
Purchase Date (and after giving effect to the Purchase consummated thereon)
as though made on and as of such date; and
(ii) no event has occurred and is continuing that will
constitute a Termination Event or a Potential Termination Event.
Notwithstanding the foregoing conditions precedent, upon payment of the Purchase
Price for any Receivable (whether by payment of cash, through an increase in the
amounts outstanding under the Subordinated Notes and/or by offset of amounts
owed to Buyer), title to such Receivable and the Related Security and
Collections with respect thereto shall vest in Buyer, whether or not the
conditions precedent to Buyer's obligation to pay for such Receivable were in
fact satisfied. The failure of any Originator to satisfy any of the foregoing
conditions precedent, however, shall give rise to a right of Buyer to rescind
the related purchase and direct such Originator to pay to Buyer an amount equal
to the Purchase Price that shall have been paid with respect to any Receivables
related thereto.
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RECEIVABLES SALE AGREEMENT
ARTICLE IV
COVENANTS
Section 4.1 Affirmative Covenants of the Originators. Until the
date on which this Agreement terminates in accordance with its terms, each
Originator hereby covenants as set forth below:
(a) Financial Reporting. Such Originator will maintain,
for itself and each of its Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish to Buyer (and its assigns):
(i) Annual Reporting. Within 90 days after the
close of each of its fiscal years, audited, unqualified consolidated
financial statements (which shall include balance sheets, statements of
income and retained earnings and a statement of cash flows) for PDCo and
its consolidated Subsidiaries for such fiscal year certified in a manner
acceptable to Buyer (or its assigns) by independent public accountants
acceptable to Buyer (or its assigns). Delivery within the time period
specified above of PDCo's annual report on Form 10-K for such fiscal year
(together with PDCo's annual report to shareholders, if any, prepared
pursuant to Rule 14a-3 under the Securities Exchange Act of 1934, as
amended) prepared in accordance with the requirements therefor and filed
with the Securities and Exchange Commission, shall be deemed to satisfy the
requirements of this Section 4.1(a)(i), provided, that the report of the
independent public accounts contained therein is acceptable to the Agent.
(ii) Quarterly Reporting. Within 45 days after
the close of the first three (3) quarterly periods of each of its fiscal
years, balance sheets of PDCo as at the close of each such period and
statements of income and retained earnings and a statement of cash flows
for PDCo for the period from the beginning of such fiscal year to the end
of such quarter, all certified by its chief financial officer. Delivery
within the time period specified above of PDCo's quarterly report on Form
10-Q for such fiscal quarter prepared in accordance with the requirements
therefor and filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section 4.1(a)(ii).
(iii) Compliance Certificate. Together with the
financial statements required hereunder, a compliance certificate in
substantially the form of Exhibit IV signed by such Originator's Authorized
Officer and dated the date of such annual financial statement or such
quarterly financial statement, as the case may be.
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RECEIVABLES SALE AGREEMENT
(iv) Shareholder Statements and Reports.
Promptly upon the furnishing thereof to the shareholders of PDCo or such
Originator, copies of all financial statements, reports and proxy
statements so furnished.
(v) S.E.C. Filings. Promptly upon the filing
thereof, copies of all registration statements and annual, quarterly,
monthly or other regular reports which PDCo or such Originator or any of
their respective Subsidiaries files with the Securities and Exchange
Commission.
(vi) Copies of Notices. Promptly upon its
receipt of any notice, request for consent, financial statements,
certification, report or other communication under or in connection with
any Transaction Document from any Person other than Buyer, the Agent or the
Conduit, copies of the same.
(vii) Change in Credit and Collection Policies.
At least thirty (30) days prior to the effectiveness of any material change
in or material amendment to such Originator's Credit and Collection Policy,
a copy of such Originator's Credit and Collection Policy then in effect and
a notice (A) indicating such change or amendment, and (B) if such proposed
change or amendment would be reasonably likely to adversely affect the
collectibility of the Receivables of such Originator or decrease the credit
quality of any newly created Receivables of such Originator, requesting
Buyer's consent thereto.
(viii) Other Information. Promptly, from time to
time, such other information, documents, records or reports relating to the
Receivables or the condition or operations, financial or otherwise, of such
Originator as Buyer (or its assigns) may from time to time reasonably
request in order to protect the interests of Buyer (and its assigns) under
or as contemplated by this Agreement.
(b) Notices. Such Originator will notify the Buyer (or its
assigns) in writing of any of the following promptly upon learning of the
occurrence thereof, describing the same and, if applicable, the steps being
taken with respect thereto:
(i) Termination Events or Potential Termination
Events. The occurrence of each Termination Event and each Potential
Termination Event, by a statement of an Authorized Officer of such
Originator.
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RECEIVABLES SALE AGREEMENT
(ii) Judgment and Proceedings. (1) The entry of
any judgment or decree against such Originator or any of its Subsidiaries
if the aggregate amount of all judgments and decrees then outstanding
exceeds $1,000,000, and (2) the institution of any litigation, arbitration
proceeding or governmental proceeding against such Originator that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(iii) Material Adverse Effect. The occurrence of
any event or condition that has had, or could reasonably be expected to
have, a Material Adverse Effect.
(iv) Defaults Under Other Agreements. The
occurrence of a default or an event of default under any other financing
arrangement pursuant to which such Originator is a debtor or an obligor.
(v) Downgrade of PDCo or an Originator. Any
downgrade in the rating of any Indebtedness of PDCo or any Originator by
Standard & Poor's Ratings Services or by ▇▇▇▇▇'▇ Investors Service, Inc.,
setting forth the Indebtedness affected and the nature of such change.
(c) Compliance with Laws and Preservation of Corporate
Existence. Such Originator will comply in all respects with all applicable
laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject, except where the failure to so comply
could not reasonably be expected to have a Material Adverse Effect. Such
Originator will preserve and maintain its corporate existence, rights,
franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified in good standing as a foreign corporation in
each jurisdiction where its business is conducted, except where the failure
to so preserve and maintain any such rights, franchises or privileges or to
so qualify could not reasonably be expected to have a Material Adverse
Effect.
(d) Audits. Such Originator will furnish to Buyer (or
its assigns) from time to time such information with respect to it and the
Receivables as Buyer (or its assigns) may reasonably request. Such
Originator will, from time to time during regular business hours as
requested by Buyer (or its assigns), upon reasonable notice and at the sole
cost of such Originator, permit Buyer (or its assigns) or their respective
agents or representatives, (i) to examine and make copies of and abstracts
from all Records in the possession or under the control of such Originator
relating to the Receivables of such Originator and the Related Security,
including, without limitation, the related Contracts, and
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RECEIVABLES SALE AGREEMENT
(ii) to visit the offices and properties of such Originator for the purpose of
examining such materials described in clause (i) above, and to discuss matters
relating to such Originator's financial condition or the Receivables of such
Originator and the Related Security or such Originator's performance under any
of the Transaction Documents or such Originator's performance under the
Contracts and, in each case, with any of the officers or employees of such
Originator having knowledge of such matters.
(e) Keeping and Marking of Records and Books.
(i) Such Originator will maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing Receivables in the event of the
destruction of the originals thereof), and keep and maintain all documents,
books, records and other information reasonably necessary or advisable for
the collection of all Receivables (including, without limitation, records
adequate to permit the immediate identification of each new Receivable and
all Collections of and adjustments to each existing Receivable). Such
Originator will give Buyer (or its assigns) notice of any material change
in the administrative and operating procedures referred to in the previous
sentence.
(ii) Such Originator will (A) on or prior to the
date hereof, ▇▇▇▇ its master data processing records and other books and
records relating to the Receivables of such Originator with a legend,
acceptable to Buyer (or its assigns), describing Buyer's ownership
interests in the Receivables and further describing the Purchaser Interests
of the Agent (on behalf of the Purchasers) under the Purchase Agreement and
(B) upon the request of Buyer (or its assigns), (x) ▇▇▇▇ each Contract with
a legend describing Buyer's ownership interests in the Receivables of such
Originator and further describing the Purchaser Interests of the Agent (on
behalf of the Purchasers) and (y) deliver to Buyer (or its assigns) all
Contracts (including, without limitation, all multiple originals of any
such Contract) relating to the Receivables.
(f) Compliance with Contracts and Credit and Collection
Policies. Such Originator will timely and fully (i) perform and comply with
all provisions, covenants and other promises required to be observed by it
under the Contracts related to the Receivables of such Originator and (ii)
comply in all respects with the Credit and Collection Policy in regard to
each Receivable and the related Contract.
(g) Ownership. Such Originator will take all necessary
action to establish and maintain, irrevocably in Buyer, (A) legal and equitable
title to the Receivables
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RECEIVABLES SALE AGREEMENT
of such Originator and the Collections and (B) all of such Originator's right,
title and interest in the Related Security associated with the Receivables of
such Originator, in each case, free and clear of any Adverse Claims other than
Adverse Claims in favor of Buyer (and its assigns) (including, without
limitation, the filing of all financing statements or other similar instruments
or documents necessary under the UCC (or any comparable law) of all appropriate
jurisdictions to perfect Buyer's interest in such Receivables, Related Security
and Collections and such other action to perfect, protect or more fully evidence
the interest of Buyer as Buyer (or its assigns) may reasonably request).
(h) Purchasers' Reliance. Each Originator acknowledges that
the Agent and the Purchasers are entering into the transactions contemplated by
the Purchase Agreement in reliance upon Buyer's identity as a legal entity that
is separate from such Originator and any Affiliates thereof. Therefore, from and
after the date of execution and delivery of this Agreement, such Originator will
take all reasonable steps including, without limitation, all steps that Buyer or
any assignee of Buyer may from time to time reasonably request to maintain
Buyer's identity as a separate legal entity and to make it manifest to third
parties that Buyer is an entity with assets and liabilities distinct from those
of such Originator and any Affiliates thereof and not just a division of such
Originator or any such Affiliate. Without limiting the generality of the
foregoing and in addition to the other covenants set forth herein, such
Originator (i) will not hold itself out to third parties as liable for the debts
of Buyer nor purport to own the Receivables and other assets acquired by Buyer,
(ii) will take all other actions necessary on its part to ensure that Buyer is
at all times in compliance with the covenants set forth in Section 7.1(i) of the
Purchase Agreement and (iii) will cause all tax liabilities arising in
connection with the transactions contemplated herein or otherwise to be
allocated between such Originator and Buyer on an arm's-length basis and in a
manner consistent with the procedures set forth in U.S. Treasury Regulations
"1.1502-33(d) and 1.1552-1.
(i) Collections. Such Originator will cause (1) all items
from all P.O. Boxes to be processed and deposited into a Collection Account
within 1 Business Day after receipt in a P.O. Box, all ACH Receipts to be
deposited immediately to a Collection Account and all proceeds from all
Lock-Boxes to be directly deposited by a Collection Bank into a Collection
Account, (2) all Collections deposited to any First-Tier Account to be
electronically swept or otherwise transferred to the Second-Tier Account within
1 Business Day after deposit to such First-Tier Account, and (3) each Lock-Box,
P.O. Box and Collection Account to be subject at all times to a Collection
Account Agreement that is in full force and effect. In the event any payments
relating to Receivables are remitted directly to such Originator or any
Affiliate of such Originator, such Originator will remit such payments (or will
cause all such payments to be remitted) directly to a Collection Bank for
deposit into a Collection Account within one (1) Business Day following receipt
thereof and, at all times prior to such remittance, such Originator will itself
hold such payments or, if applicable, will cause such payments to be held, in
trust for the exclusive benefit of Buyer
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RECEIVABLES SALE AGREEMENT
and its assigns. Such Originator will transfer exclusive ownership, dominion and
control (including "control" within the meaning of Section 9-104 of the UCC of
all applicable jurisdictions) of each Lock-Box, P.O. Box and Collection Account
to Buyer and will not grant the right to take dominion and control or grant
"control" (within the meaning of Section 9-104 of the UCC of all applicable
jurisdictions) of any Lock-Box, P.O. Box or Collection Account at a future time
or upon the occurrence of a future event to any Person, except to Buyer (or its
assigns) as contemplated by this Agreement and the Purchase Agreement.
(j) Taxes. Such Originator will file all tax returns and
reports required by law to be filed by it and promptly pay all taxes and
governmental charges at any time owing. Such Originator will pay when due any
taxes payable in connection with the Receivables of such Originator, exclusive
of taxes on or measured by income or gross receipts of Buyer and its assigns.
(k) Insurance. Such Originator will maintain in effect, or
cause to be maintained in effect, at such Originator's own expense, such
casualty and liability insurance as such Originator deems appropriate in its
good faith business judgment. Buyer and the Agent, for the benefit of the
Purchasers, shall be named as additional insureds with respect to all such
liability insurance maintained by such Originator. Such Originator will pay, or
cause to be paid, the premiums therefor and deliver to Buyer and the Agent
evidence satisfactory to Buyer and the Agent of such insurance coverage. Copies
of each policy shall be furnished to Buyer, the Agent and any Purchaser in
certificated form upon Buyer's, the Agent's or such Purchaser's request.
Section 4.2 Negative Covenants of the Originators. Until the date on
which this Agreement terminates in accordance with its terms, each Originator
hereby covenants that:
(a) Name Change, Jurisdiction of Organization, Offices and
Books of Account. Such Originator will not change its name, jurisdiction of
organization, identity, corporate or other organizational structure (within the
meaning of Sections 9-503 and/or 9-507 of the UCC of all applicable
jurisdictions) or relocate its chief executive office, principal place of
business or any office where Records are kept unless it shall have: (i) given
Buyer (or its assigns) at least forty-five(45) days' prior written notice
thereof and (ii) delivered to Buyer (or its assigns) all financing statements,
instruments and other documents requested by Buyer (or its assigns) in
connection with such change or relocation acceptable to the Agent.
(b) Change in Payment Instructions to Obligors. Such
Originator will not add or terminate any bank as a Collection Bank, or make any
change in the instructions to Obligors regarding payments to be made to any Lock
Box, P.O. Box or
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RECEIVABLES SALE AGREEMENT
Collection Account, unless Buyer (or its assigns) shall have received, at least
ten (10) days before the proposed effective date therefor, (i) written notice of
such addition, termination or change and (ii) with respect to the addition of a
Collection Bank or a Collection Account, P.O. Box or Lock-Box, an executed
Collection Account Agreement with respect to the new Collection Account or
Lock-Box or P.O. Box; provided, however, that such Originator may make changes
in instructions to Obligors regarding payments if such new instructions require
such Obligor to make payments to another existing Collection Account.
(c) Modifications to Contracts and Credit and Collection
Policy. Such Originator will not make any change to its Credit and Collection
Policy that could adversely affect the collectibility of the Receivables of such
Originator, or decrease the credit quality of any newly created Receivables of
such Originator. Except as otherwise permitted in its capacity as sub-Servicer
pursuant to Article VIII of the Purchase Agreement, such Originator will not
extend, amend or otherwise modify the terms of any Receivable or the Contract
related thereto other than in accordance with such Originator's Credit and
Collection Policy.
(d) Sales, Liens. Such Originator will not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option with
respect to, or create or suffer to exist any Adverse Claim upon (including,
without limitation, the filing of any financing statement) or with respect to,
any Receivable of such Originator or any Related Security or Collections, or
upon or with respect to the Contract under which any Receivable of such
Originator arises, or any Lock-Box, P.O. Box or Collection Account, or assign
any right to receive income with respect thereto (other than, in each case, the
creation of the interests therein in favor of Buyer provided for herein), and
such Originator will defend the right, title and interest of Buyer in, to and
under any of the foregoing property, against all claims of third parties
claiming through or under such Originator. Such Originator shall not create or
suffer to exist any mortgage, pledge, security interest, encumbrance, lien,
charge or other similar arrangement on any of its inventory the financing or
lease of which gives rise to any Receivable of such Originator.
(e) No Adverse Selection. To the extent that such Originator
has retained Originated Receivables that would be Eligible Receivables but which
have not been transferred to Buyer hereunder, such Originator will not select
those Originated Receivables to be transferred hereunder in any manner that
materially adversely affects Buyer.
(f) Accounting for Purchase. Such Originator will not, and
will not permit any Affiliate to, account for or treat (whether in financial
statements or otherwise) the transactions contemplated hereby in any manner
other than the sale of the Receivables of such Originator and the Related
Security by such Originator to Buyer or in any other respect account for or
treat the transactions contemplated hereby in any manner other than as a sale of
the Receivables of such Originator and the Related Security by such
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RECEIVABLES SALE AGREEMENT
Originator to Buyer except to the extent that such transactions are not
recognized on account of consolidated financial reporting in accordance with
GAAP.
(g) Collections. Such Originator will not deposit or
otherwise credit, or cause or permit to be so deposited or credited, to the
Second-Tier Account, cash or cash proceeds other than Collections. Such
Originator will not deposit or otherwise credit, or cause or permit to be so
deposited or credited, any Collections or proceeds thereof to any lock-box
account or to any other account not covered by a Collection Account Agreement.
ARTICLE V
TERMINATION EVENTS
Section 5.1 Termination Events. The occurrence of any one or more of
the following events shall constitute a "Termination Event":
(a) Originator shall fail (i) to make any payment or deposit
required hereunder when due, or (ii) to perform or observe any term, covenant or
agreement hereunder (other than as referred to in clause (i) of this paragraph
(a)) or any other Transaction Document to which it is a party and such failure
shall continue for seven (7) consecutive Business Days.
(b) Any representation, warranty, certification or statement
made by any Originator in this Agreement, any other Transaction Document to
which it is a party or in any other document delivered pursuant hereto or
thereto shall prove to have been incorrect in any material respect when made or
deemed made.
(c) Failure of any Originator to pay any Indebtedness when
due in excess of $1,000,000; or the default by such Originator in the
performance of any term, provision or condition contained in any agreement under
which any such Indebtedness was created or is governed, the effect of which is
to cause, or to permit the holder or holders of such Indebtedness to cause, such
Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of such Originator shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to
the date of maturity thereof.
(d) (i) Any Originator or any of its Subsidiaries shall
generally not pay its debts as such debts become due or shall admit in writing
its inability to pay its debts generally or shall make a general assignment for
the benefit of creditors; or (ii) any proceeding shall be instituted by or
against any Originator or any of its Subsidiaries seeking to adjudicate it
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry
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RECEIVABLES SALE AGREEMENT
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 and, solely in
the case of a proceeding instituted against (and not by) such Originator, such
proceeding is not dismissed within 60 days; or (iii) any Originator or any of
its Subsidiaries shall take any corporate action to authorize any of the actions
set forth in the foregoing clauses (i) or (ii) of this subsection (d).
(e) A Change of Control shall occur.
(f) One or more final judgments for the payment of money in
an amount in excess of $1,000,000, individually or in the aggregate, shall be
entered against any Originator on claims not covered by insurance or as to which
the insurance carrier has denied its responsibility, and such judgment shall
continue unsatisfied and in effect for fifteen (15) consecutive days without a
stay of execution.
Section 5.2 Remedies. Upon the occurrence and during the continuation
of a Termination Event, Buyer may take any of the following actions: (i) declare
the Termination Date to have occurred, whereupon the Termination Date shall
forthwith occur, without demand, protest or further notice of any kind, all of
which are hereby expressly waived by each Originator; provided, however, that
upon the occurrence of a Termination Event described in Section 5.1(d), or of an
actual or deemed entry of an order for relief with respect to any Originator
under the Federal Bankruptcy Code or under any other applicable bankruptcy,
insolvency, arrangement, moratorium or similar laws of any other jurisdiction
(foreign or domestic), the Termination Date shall automatically occur, without
demand, protest or any notice of any kind, all of which are hereby expressly
waived by each Originator and (ii) to the fullest extent permitted by applicable
law, declare that the Default Fee shall accrue with respect to any amounts then
due and owing by each Originator to Buyer. The aforementioned rights and
remedies shall be without limitation and shall be in addition to all other
rights and remedies of Buyer and its assigns otherwise available under any other
provision of this Agreement, by operation of law, at equity or otherwise, all of
which are hereby expressly preserved, including, without limitation, all rights
and remedies provided under the UCC, all of which rights shall be cumulative.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnities by the Originators. Without limiting any other
rights that Buyer may have hereunder or under applicable law, each Originator
hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns (and
their respective Affiliates), officers, directors, agents and employees (each an
"Indemnified Party") from and against any and all damages, losses, claims,
taxes, liabilities, costs, expenses and for all other amounts payable, including
reasonable attorneys' fees (which attorneys may be employees of Buyer or any
such assign) and disbursements (all of the foregoing being
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RECEIVABLES SALE AGREEMENT
collectively referred to as "Indemnified Amounts") awarded against or incurred
by any of them arising out of or as a result of this Agreement or the
acquisition, either directly or indirectly, by Buyer of an interest in the
Receivables of such Originator, excluding, however:
(x) Indemnified Amounts to the extent a final judgment of a
court of competent jurisdiction holds that such Indemnified Amounts
resulted from gross negligence or willful misconduct on the part of the
Indemnified Party seeking indemnification;
(y) Indemnified Amounts to the extent the same includes
losses in respect of Receivables that are uncollectible on account of the
insolvency, bankruptcy or lack of creditworthiness of the related Obligor;
or
(z) taxes imposed by the jurisdiction in which such
Indemnified Party's principal executive office is located, on or measured
by the overall net income of such Indemnified Party to the extent that the
computation of such taxes is consistent with the characterization for
income tax purposes of the acquisition by the Purchasers of Purchaser
Interests under the Purchase Agreement as a loan or loans by the Purchasers
to Buyer secured by, among other things, the Receivables, the Related
Security and the Collections;
provided, however, that nothing contained in this sentence shall limit the
liability of any Originator or limit the recourse of Buyer to any Originator for
amounts otherwise specifically provided to be paid by such Originator under the
terms of this Agreement. Without limiting the generality of the foregoing
indemnification, each Originator shall indemnify Buyer for Indemnified Amounts
(including, without limitation, losses in respect of uncollectible receivables,
regardless of whether reimbursement therefor would constitute recourse to
Originator) relating to or resulting from:
(i) any representation or warranty made by such
Originator (or any officers of such Originator) under or in connection with
this Agreement, any other Transaction Document or any other information or
report delivered by such Originator pursuant hereto or thereto that shall
have been false or incorrect when made or deemed made;
(ii) the failure by such Originator, to comply with any
applicable law, rule or regulation with respect to any Receivable or
Contract related thereto, or the nonconformity of any Receivable or
Contract included therein with any such applicable law, rule or regulation
or any failure of such Originator to keep or perform any of its
obligations, express or implied, with respect to any Contract;
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RECEIVABLES SALE AGREEMENT
(iii) any failure of such Originator to perform its
duties, covenants or other obligations in accordance with the provisions of
this Agreement or any other Transaction Document;
(iv) any products liability, personal injury or
damage, suit or other similar claim arising out of or in connection with
merchandise, insurance or services that are the subject of any Contract or
any Receivable;
(v) any dispute, claim, offset or defense (other
than discharge in bankruptcy of the Obligor) of the Obligor to the payment
of any Receivable of such Originator (including, without limitation, a
defense based on such Receivable or the related Contract not being a legal,
valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the sale of
the merchandise or service related to such Receivable or the furnishing or
failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables of
such Originator at any time with other funds;
(vii) any investigation, litigation or proceeding
related to or arising from this Agreement or any other Transaction
Document, the transactions contemplated hereby, the use of the proceeds of
any Purchase, the ownership of the Receivables of such Originator or any
other investigation, litigation or proceeding relating to such Originator
in which any Indemnified Party becomes involved as a result of any of the
transactions contemplated hereby;
(viii) any inability to litigate any claim against any
Obligor in respect of any Receivable of such Originator as a result of such
Obligor being immune from civil and commercial law and suit on the grounds
of sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in
Section 5.1(d);
(x) any failure to vest and maintain vested in
Buyer, or to transfer to Buyer, legal and equitable title to, and ownership
of, the Receivables of such Originator and the Collections, and all of such
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RECEIVABLES SALE AGREEMENT
Originator's right, title and interest in the Related Security associated
with the Receivables of such Originator, in each case, free and clear of
any Adverse Claim;
(xi) the failure to have filed, or any delay in
filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivable of such Originator and the Related Security and
Collections with respect thereto, and the proceeds of any thereof, whether
at the time of the Purchase or at any subsequent time;
(xii) any action or omission by such Originator which
reduces or impairs the rights of Buyer with respect to any Receivable of
such Originator or the value of any such Receivable;
(xiii) any attempt by any Person to void the Purchase
hereunder under statutory provisions or common law or equitable action;
(xiv) the failure of any Receivable of such Originator
included in the calculation of the Net Receivables Balance as an Eligible
Receivable to be an Eligible Receivable at the time so included; and
(xv) the Hedging Obligations.
Section 6.2 Other Costs and Expenses. Each Originator shall be jointly
and severally liable for, and shall reimburse Buyer on demand for, all costs and
out-of-pocket expenses in connection with the preparation, negotiation,
arrangement, execution, delivery and administration of this Agreement, the
transactions contemplated hereby and the other documents to be delivered
hereunder. Each Originator shall reimburse Buyer on demand for any and all costs
and expenses of Buyer, if any, including reasonable counsel fees and expenses,
in connection with the enforcement of this Agreement and the other documents
delivered hereunder and in connection with any restructuring or workout of this
Agreement or such documents, or the administration of this Agreement following a
Termination Event.
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RECEIVABLES SALE AGREEMENT
ARTICLE VII
MISCELLANEOUS
Section 7.1 Waivers and Amendments.
(a) No failure or delay on the part of Buyer (or its assigns)
in exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other further exercise thereof or the exercise of
any other power, right or remedy. The rights and remedies herein provided shall
be cumulative and nonexclusive of any rights or remedies provided by law. Any
waiver of this Agreement shall be effective only in the specific instance and
for the specific purpose for which given.
(b) No provision of this Agreement may be amended,
supplemented, modified or waived except in writing signed by each Originator and
Buyer and, to the extent required under the Purchase Agreement, the Agent and
the Financial Institutions or the Required Financial Institutions.
Section 7.2 Notices. All communications and notices provided for
hereunder shall be in writing (including bank wire, telecopy or electronic
facsimile transmission or similar writing) and shall be given to the other
parties hereto at their respective addresses or telecopy numbers set forth on
the signature pages hereof or at such other address or telecopy number as such
Person may hereafter specify for the purpose of notice to each of the other
parties hereto. Each such notice or other communication shall be effective (i)
if given by telecopy, upon the receipt thereof, (ii) if given by mail, three (3)
Business Days after the time such communication is deposited in the mail with
first class postage prepaid or (iii) if given by any other means, when received
at the address specified in this Section 7.2.
Section 7.3 Protection of Ownership Interests of Buyer.
(a) Each Originator agrees that from time to time, at its
expense, it will promptly execute and deliver all instruments and documents, and
take all actions, that may be necessary or desirable, or that Buyer (or its
assigns) may request, to perfect, protect or more fully evidence the interest of
Buyer hereunder and the Purchaser Interests, or to enable Buyer (or its assigns)
to exercise and enforce their rights and remedies hereunder. Without limiting
the foregoing, each Originator will, upon the request of Buyer (or its assigns),
file such financing or continuation statements, or amendments thereto or
assignments thereof, and execute and file such other instruments and documents,
that may be necessary or desirable, or that Buyer (or its assigns) may
reasonably request, to perfect, protect or evidence such interest of Buyer (or
such Purchaser Interests). At any time, Buyer may, at the applicable
Originator's sole cost and expense, direct such Originator to notify the
24
RECEIVABLES SALE AGREEMENT
Obligors of Receivables of such Originator of the ownership interests of Buyer
under this Agreement and may also direct that payments of all amounts due or
that become due under any or all Receivables be made directly to Buyer or its
designee.
(b) If any Originator fails to perform any of its
obligations hereunder, Buyer (or its assigns) may (but shall not be required to)
perform, or cause performance of, such obligations, and Buyer's (or such
assigns') costs and expenses incurred in connection therewith shall be payable
by the Originators as provided in Section 6.2. Each Originator irrevocably
authorizes Buyer (and its assigns) at any time and from time to time in the sole
and absolute discretion of Buyer (or its assigns), and appoints Buyer (and its
assigns) as its attorney(ies)-in-fact, to act on behalf of such Originator (i)
to authorize and/or execute on behalf of such Originator as debtor and to file
financing or continuation statements (and amendments thereto and assignments
thereof) necessary or desirable in Buyer's (or its assigns') sole and absolute
discretion to perfect and to maintain the perfection and priority of the
interest of Buyer in the Receivables and (ii) to file a carbon, photographic or
other reproduction of this Agreement or any financing statement with respect to
the Receivables as a financing statement in such offices as Buyer (or its
assigns) in their sole and absolute discretion deem necessary or desirable to
perfect and to maintain the perfection and priority of Buyer's interests in the
Receivables. This appointment is coupled with an interest and is irrevocable.
The authorization by each Originator set forth in the second sentence of this
Section 7.3(b) is intended to meet all requirements for authorization by a
debtor under Article 9 of any applicable enactment of the UCC, including without
limitation, Section 9-509 thereof.
Section 7.4 Confidentiality.
(a) Each Originator shall maintain and shall cause each of
its employees and officers to maintain the confidentiality of this Agreement and
the other confidential or proprietary information with respect to the Agent and
each Purchaser and their respective businesses obtained by it or them in
connection with the structuring, negotiating and execution of the transactions
contemplated herein, except that such Originator and its officers and employees
may disclose such information to such Originator's external accountants and
attorneys and as required by any applicable law or order of any judicial or
administrative proceeding.
(b) Anything herein to the contrary notwithstanding, each
Originator hereby consents to the disclosure of any nonpublic information with
respect to it (i) to Buyer, the Agent, the Financial Institutions or the Conduit
by each other, (ii) by Buyer, the Agent or the Purchasers to any prospective or
actual assignee or participant of any of them and (iii) by the Agent or any
Purchaser to any rating agency, Funding Source, Commercial Paper dealer or
provider of a surety, guaranty or credit or liquidity enhancement to any Company
or any entity organized for the purpose of purchasing, or
25
RECEIVABLES SALE AGREEMENT
making loans secured by, financial assets for which Bank One acts as the
administrative agent and to any officers, directors, employees, outside
accountants and attorneys of any of the foregoing, provided each such Person is
informed of, and agrees to maintain the confidential nature of, such
information. In addition, the Purchasers and the Agent may disclose any such
nonpublic information pursuant to any law, rule, regulation, direction, request
or order of any judicial, administrative or regulatory authority or proceedings
(whether or not having the force or effect of law).
(c) Buyer shall maintain and shall cause each of its
employees and officers to maintain the confidentiality of this Agreement and the
other confidential or proprietary information with respect to each Originator,
the Obligors and their respective businesses obtained by it in connection with
the due diligence evaluations, structuring, negotiating and execution of the
Transaction Documents, and the consummation of the transactions contemplated
herein and any other activities of Buyer arising from or related to the
transactions contemplated herein provided, however, that each of Buyer and its
employees and officers shall be permitted to disclose such confidential or
proprietary information: (i) to the Agent and the other Purchasers, (ii) to any
prospective or actual assignee or participant of the Agent or the other
Purchasers, (iii) to any rating agency, Funding Source, provider of a surety,
guaranty or credit or liquidity enhancement to Conduit, (iv) to any officers,
directors, employees, outside accountants and attorneys of any of the foregoing,
and (v) to the extent required pursuant to any applicable law, rule, regulation,
direction, request or order of any judicial, administrative or regulatory
authority or proceedings with competent jurisdiction (whether or not having the
force or effect of law) so long as such required disclosure is made under seal
to the extent permitted by applicable law or by rule of court or other
applicable body.
Section 7.5 Bankruptcy Petition. (a) Each Originator and Buyer each
hereby covenants and agrees that, prior to the date that is one year and one day
after the payment in full of all outstanding senior indebtedness of any Funding
Source that is a special purpose bankruptcy remote entity or of the Conduit, it
will not institute against, or join any other Person in instituting against, any
such entity or the Conduit any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States.
(b) Each Originator covenants and agrees that, prior to the
date that is one year ad one day after the payment in full of all outstanding
obligations of Buyer under the Purchase Agreement, it will not institute
against, or join any other Person in instituting against, Buyer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States.
26
RECEIVABLES SALE AGREEMENT
Section 7.6 Limitation of Liability. Except with respect to any claim
arising out of the willful misconduct or gross negligence of the Conduit, the
Agent or any Financial Institution, no claim may be made by any Originator or
any other Person against the Conduit, the Agent or any Financial Institution or
their respective Affiliates, directors, officers, employees, attorneys or agents
for any special, indirect, consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or any act, omission
or event occurring in connection therewith; and each Originator hereby waives,
releases, and agrees not to ▇▇▇ upon any claim for any such damages, whether or
not accrued and whether or not known or suspected to exist in its favor.
Section 7.7 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
Section 7.8 CONSENT TO JURISDICTION. EACH ORIGINATOR HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED
BY SUCH ORIGINATOR PURSUANT TO THIS AGREEMENT AND EACH ORIGINATOR HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF BUYER (OR ITS ASSIGNS) TO BRING
PROCEEDINGS AGAINST ANY ORIGINATOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ANY ORIGINATOR AGAINST BUYER (OR ITS ASSIGNS) OR ANY
AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT
EXECUTED BY SUCH ORIGINATOR PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN
A COURT IN CHICAGO, ILLINOIS.
Section 7.9 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY
27
RECEIVABLES SALE AGREEMENT
ORIGINATOR PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER
OR THEREUNDER.
Section 7.10 Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction Document
contain the final and complete integration of all prior expressions by the
parties hereto with respect to the subject matter hereof and shall constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the
benefit of each Originator and Buyer, and their respective successors and
permitted assigns (including any trustee in bankruptcy). No Originator may
assign any of its rights and obligations hereunder or any interest herein
without the prior written consent of Buyer. Buyer may assign at any time its
rights and obligations hereunder and interests herein to any other Person
without the consent of any Originator. Without limiting the foregoing, each
Originator acknowledges that Buyer, pursuant to the Purchase Agreement, may
assign to the Agent, for the benefit of the Purchasers, its rights, remedies,
powers and privileges hereunder and that the Agent may further assign such
rights, remedies, powers and privileges to the extent permitted in the Purchase
Agreement. Each Originator agrees that the Agent, as the assignee of Buyer,
shall, subject to the terms of the Purchase Agreement, have the right to enforce
this Agreement and to exercise directly all of Buyer's rights and remedies under
this Agreement (including, without limitation, the right to give or withhold any
consents or approvals of Buyer to be given or withheld hereunder) and each
Originator agrees to cooperate fully with the Agent in the exercise of such
rights and remedies. This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms and shall remain
in full force and effect until terminated in accordance with its terms;
provided, however, that the rights and remedies with respect to (i) any breach
of any representation and warranty made by the Originators pursuant to Article
II; (ii) the indemnification and payment provisions of Article VI; and (iii)
Section 7.5 shall be continuing and shall survive any termination of this
Agreement.
Section 7.11 Counterparts; Severability; Section References. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same Agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Unless otherwise expressly
28
RECEIVABLES SALE AGREEMENT
indicated, all references herein to "Article," "Section," "Schedule" or
"Exhibit" shall mean articles and sections of, and schedules and exhibits to,
this Agreement.
Section 7.12 Subordination. Each Originator shall have the right to
receive, and Buyer shall make, any and all payments relating to any
indebtedness, obligation or claim such Originator may from time to time hold or
otherwise have against Buyer or any assets or properties of Buyer, whether
arising hereunder or otherwise existing, provided that, after giving effect to
any such payment, the aggregate Outstanding Balance of Receivables owned by
Buyer at such time exceeds the sum of (a) the Aggregate Unpaids under the
Purchase Agreement, plus (b) the aggregate outstanding principal balance of the
Subordinated Loans. Each Originator hereby agrees that at any time during which
the condition set forth in the proviso of the immediately preceding sentence
shall not be satisfied, such Originator shall be subordinate in right of payment
to the prior payment of any indebtedness or obligation of Buyer owing to the
Agent or any Purchaser under the Purchase Agreement.
(Signature Page Follows)
29
RECEIVABLES SALE AGREEMENT
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.
▇▇▇▇▇▇▇▇▇ DENTAL SUPPLY, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ VETERINARY SUPPLY, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President, Treasurer and Chief Financial
Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PDC FUNDING COMPANY, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
30
RECEIVABLES SALES AGREEMENT
Exhibit I
Definitions
As used in this Agreement and the Exhibits, Schedules and
Annexes thereto, capitalized terms have the meanings set forth in this Exhibit I
(such meanings to be equally applicable to the singular and plural forms
thereof). If a capitalized term is used in this Agreement, or any Exhibit,
Schedule or Annex thereto, and not otherwise defined therein or in this Exhibit
I, such term shall have the meaning assigned thereto in Exhibit I to the
Purchase Agreement.
"Agent" has the meaning set forth in the Preliminary
Statements to this Agreement.
"Agreement" means this Receivables Sale Agreement, as the same
may be amended, restated, supplemented or otherwise modified from time to time.
"Buyer" has the meaning set forth in the preamble to this
Agreement.
"Calculation Period" means each Fiscal Month or portion
thereof which elapses during the term of this Agreement; provided, that the
first Calculation Period shall commence on the date of the initial Purchase
hereunder and end on the last day of the Fiscal Month ending thereafter and the
final Calculation Period shall terminate on the Termination Date.
"Change of Control" means PDCo shall cease to own, directly or
indirectly, 100% of the outstanding capital stock of any Originator.
"Credit and Collection Policy" means each Originator's credit
and collection policies and practices relating to Contracts and Receivables
existing on the date hereof and summarized in Exhibit V, as modified from time
to time in accordance with the Agreement.
"Default Fee" means a per annum rate of interest equal to the
sum of (i) the Prime Rate, plus (ii) 2% per annum.
"Dilutions" means, at any time, the aggregate amount of
reductions or cancellations described in Section 1.3(a) of this Agreement.
"Discount Factor" means a percentage calculated to provide
Buyer with a reasonable return on its investment in the Receivables of any
Originator after taking account of (i) the time value of money based upon the
anticipated dates of collection of the
RECEIVABLES SALES AGREEMENT
Receivables of such Originator and the cost to Buyer of financing its investment
in such Receivables during such period and (ii) the risk of nonpayment by the
Obligors. The Originator of such Receivables and Buyer may agree from time to
time to change the Discount Factor based on changes in one or more of the items
affecting the calculation thereof, provided that any change to the Discount
Factor shall take effect as of the commencement of a Calculation Period, shall
apply only prospectively and shall not affect the Purchase Price payment made
prior to the Calculation Period during which such Originator and Buyer agree to
make such change.
"Initial Cutoff Date" has the meaning set forth in Section
1.2(a).
"Material Adverse Effect" means a material adverse effect on
(i) the financial condition or operations of any Originator and its
Subsidiaries, (ii) the ability of any Originator to perform its obligations
under the Agreement or any other Transaction Document, (iii) the legality,
validity or enforceability of the Agreement or any other Transaction Document,
(iv) any Originator's, Buyer's, the Agent's or any Purchaser's interest in the
Receivables generally or in any significant portion of the Receivables, the
Related Security or Collections with respect thereto, or (v) the collectibility
of the Receivables generally or of any material portion of the Receivables.
"Net Value" means, as of any date of determination, an amount
equal to the sum of (i) the aggregate Outstanding Balance of the Receivables at
such time, minus (ii) the sum of (A) the Aggregate Capital outstanding at such
time, plus (B) the Credit Enhancement.
"Net Worth" means, as of the last Business Day of each
Calculation Period preceding any date of determination, the excess, if any, of
(a) the aggregate Outstanding Balance of the Receivables at such time, over (b)
the sum of (i) the Aggregate Capital outstanding at such time, plus (ii) the
aggregate outstanding principal balance of the Subordinated Loans (including any
Subordinated Loan proposed to be made on the date of determination).
"Originated Receivable" means all indebtedness and other
obligations owed to an Originator (at the time it arises, and before giving
effect to any transfer or conveyance under this Agreement) or Buyer (after
giving effect to the transfers under this Agreement) or in which an Originator
or Buyer has a security interest or other interest, including, without
limitation, any indebtedness, obligation or interest constituting an account,
chattel paper, instrument or general intangible, arising in connection with the
sale, licensing or financing of goods or the rendering of services by an
Originator and further includes, without limitation, the obligation to pay any
Finance Charges with respect thereto. Indebtedness and other rights and
obligations arising from any one transaction, including, without limitation,
indebtedness and other rights and obligations represented by an individual
invoice, shall constitute an Originated Receivable separate from an Originated
Exh. I-2
RECEIVABLES SALES AGREEMENT
Receivable consisting of the indebtedness and other rights and obligations
arising from any other transaction; provided, further, that any indebtedness,
rights or obligations referred to in the immediately preceding sentence shall be
an Originated Receivable regardless or whether the account debtor or the
Originator of such Originated Receivable treats such indebtedness, rights or
obligations as a separate payment obligation.
"Originator" has the meaning set forth in the preamble to this
Agreement.
"Potential Termination Event" means an event which, with the
passage of time or the giving of notice, or both, would constitute a Termination
Event.
"Purchase" means a purchase of Originated Receivables pursuant
to Section 1.1(a) of this Agreement by Buyer from any Originator of such
Originated Receivables and the Related Security and Collections related thereto,
together with all related rights in connection therewith.
"Purchase Agreement" has the meaning set forth in the
Preliminary Statements to this Agreement.
"Purchase Date" means any Business Day selected by an
Originator and notified to Buyer in accordance with Section 1.1(a) of this
Agreement on which a Purchase is to occur.
"Purchase Price" means, with respect to any Purchase from any
Originator hereunder, the aggregate price to be paid by Buyer to such Originator
for such Purchase in accordance with Section 1.2 for the Receivables of such
Originator, Collections and Related Security being sold to Buyer, which price
shall equal on any date (i) the product of (x) the Outstanding Balance of such
Receivables on such date, multiplied by (y) one minus the Discount Factor in
effect on such date, minus (ii) any Purchase Price Credits to be credited
against the Purchase Price otherwise payable to such Originator in accordance
with Section 1.3.
"Purchase Price Credit" has the meaning set forth in Section
1.3.
"Receivable" means, at any time, each and every Originated
Receivable that has been identified for sale to the Buyer in any Sale Assignment
(including all schedules thereto) delivered pursuant to Section 1.1(a)(ii) of
this Agreement.
"Related Security" means, with respect to any Receivable of
any Originator:
(i) all of such Originator's interest in the
Related Equipment or other inventory and goods (including returned or
Exh. I-3
RECEIVABLES SALES AGREEMENT
repossessed inventory or goods), if any, the sale, licensing or
financing of which by such Originator gave rise to such Receivable, and
all insurance contracts with respect thereto,
(ii) all other security interests or liens and
property subject thereto from time to time, if any, purporting to
secure payment of such Receivable, whether pursuant to the Contract
related to such Receivable or otherwise, together with all financing
statements and security agreements describing any collateral securing
such Receivable,
(iii) all guaranties, letters of credit,
insurance, "supporting obligations" (within the meaning of Section
9-102(a) of the UCC of all applicable jurisdictions) and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivable whether pursuant to
the Contract related to such Receivable or otherwise,
(iv) all service contracts and other contracts
and agreements associated with such Receivable,
(v) all Records related to such Receivable,
(vi) all of such Originator's right, title and
interest in each Lock-Box, P.O. Box and each Collection Account, and
any and all agreements related thereto, and
(vii) all proceeds of any of the foregoing.
"Required Capital Amount" means, as of any date of
determination, an amount equal to the sum of (i) the twenty-four month rolling
average of Dilutions, plus (ii) the result obtained in the foregoing clause (i)
of this definition, multiplied by 10%.
"Sale Assignment" means a sale assignment substantially in the
form of Exhibit VII.
"Settlement Date" means, with respect to each Calculation
Period, the date that is the 19/th/ calendar day (or, if such day is not a
Business Day, then the first Business Day thereafter) of the month following
such Calculation Period.
"Subordinated Loan" has the meaning set forth in Section
1.2(a).
Exh. I-4
RECEIVABLES SALES AGREEMENT
"Subordinated Note" means a promissory note in substantially
the form of Exhibit VI hereto as more fully described in Section 1.2, as the
same may be amended, restated, supplemented or otherwise modified from time to
time.
"Termination Date" means the earliest to occur of (i) the
Facility Termination Date, (ii) the Business Day immediately prior to the
occurrence of a Termination Event set forth in Section 5.1(d), (iii) the
Business Day specified in a written notice from Buyer to Originator following
the occurrence of any other Termination Event, and (iv) the date which is 5
Business Days after Buyer's receipt of written notice from Originator that it
wishes to terminate the facility evidenced by this Agreement.
"Termination Event" has the meaning set forth in Section 5.1
of the Agreement.
"Transaction Documents" means, collectively, this Agreement,
each Collection Account Agreement, each Sale Assignment, the Subordinated Notes
and all other instruments, documents and agreements executed and delivered in
connection herewith.
All accounting terms not specifically defined herein shall be
construed in accordance with GAAP. All terms used in Article 9 of the UCC in the
State of Illinois, and not specifically defined herein, are used herein as
defined in such Article 9.
Exh. I-5