INTER-CITY PRODUCTS CORPORATION (USA)
CERTIFICATE PURCHASE AGREEMENT
(Series 1996-1, Class B)
dated as of July 25, 1996
among
INTER-CITY PRODUCTS RECEIVABLES COMPANY, L.P.,
INTER-CITY PRODUCTS CORPORATION (USA)
AS THE INITIAL SERVICER,
and
ARGOS FUNDING CORP.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
PURCHASE AND SALE OF CERTIFICATE
SECTION 2.1 The Purchase; Percentages. . . . . . . . . . . . . . . . . 3
ARTICLE III
YIELD PROTECTION, ETC.
SECTION 3.1 Yield Protection . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3.2 Illegality; Unavailability . . . . . . . . . . . . . . . . 4
SECTION 3.3 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.4 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.5 Early Termination Fee . . . . . . . . . . . . . . . . . . . 6
SECTION 3.6 Mandatory Reduction of Invested Amount. . . . . . . . . . . 6
ARTICLE IV
OTHER PAYMENT TERMS
SECTION 4.1 Time and Method of Payment . . . . . . . . . . . . . . . . 7
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 Transferor . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.2 ICP. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5.3 Purchaser. . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VI
CONDITIONS
SECTION 6.1 Conditions to Purchase . . . . . . . . . . . . . . . . . . 9
SECTION 6.2 Payment of Expenses . . . . . . . . . . . . . . . . . . . .13
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ARTICLE VII
COVENANTS
SECTION 7.1 Affirmative Covenants. . . . . . . . . . . . . . . . . . .13
SECTION 7.2 Transfers. . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 7.3 Procedures Letter and Report . . . . . . . . . . . . . . .14
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 8.2 No Waiver; Remedies. . . . . . . . . . . . . . . . . . . .15
SECTION 8.3 Successors and Assigns; Assignments. . . . . . . . . . . .16
SECTION 8.4 Survival of Agreement. . . . . . . . . . . . . . . . . . .18
SECTION 8.5 Expenses; Indemnification. . . . . . . . . . . . . . . . .18
SECTION 8.6 Entire Agreement . . . . . . . . . . . . . . . . . . . . .20
SECTION 8.7 Notices. . . . . . . . . . . . . . . . . . . . . . . . . .20
SECTION 8.8 No Third-Party Beneficiaries . . . . . . . . . . . . . . .20
SECTION 8.9 Severability of Provisions . . . . . . . . . . . . . . . .20
SECTION 8.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . .20
SECTION 8.11 Governing Law . . . . . . . . . . . . . . . . . . . . . .21
SECTION 8.12 Tax Characterization. . . . . . . . . . . . . . . . . . .21
SECTION 8.13 No Proceedings. . . . . . . . . . . . . . . . . . . . . .21
SCHEDULE
SCHEDULE I Stated Amounts and Percentages
EXHIBITS
EXHIBIT A Form of Pooling and Servicing Agreement
EXHIBIT B Form of Receivables Purchase Agreement
EXHIBIT C Form of Series 1996-1 Supplement
EXHIBIT D Form of Assignment Agreement
APPENDIX
APPENDIX X Index of Additional Defined Terms
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This CERTIFICATE PURCHASE AGREEMENT, dated as of July 25, 1996
(this "Agreement"), is made among INTER-CITY PRODUCTS RECEIVABLES
COMPANY, L.P., a Tennessee limited partnership ("Transferor"), INTER-
CITY PRODUCTS CORPORATION (USA), a Delaware corporation ("ICP",
"Servicer" or "Initial Servicer"), and ARGOS FUNDING CORP. (together
with its permitted assigns, the "Purchaser").
BACKGROUND
1. Transferor will enter into (a) a Pooling and Servicing
Agreement substantially in the form of Exhibit A (the "Pooling
Agreement") with Initial Servicer, as initial Servicer, and, LaSalle
National Bank, a national banking association, as trustee (in that
capacity, together with any successors in that capacity, the
"Trustee"), (b) a Receivables Purchase Agreement substantially in the
form of Exhibit B and (c) a Series 1996-1 Supplement to the Pooling
Agreement substantially in the form of Exhibit C (the "Supplement").
2. Pursuant to the Pooling Agreement and the Supplement,
Transferor will obtain the Series 1996-1, Class B Certificate in the
principal amount of $10,000,000 (the "Certificate"), which will
represent a fractional undivided beneficial interest in the assets of
the Inter-City Products Receivables Master Trust (the "Trust"), a trust
to be organized pursuant to the Pooling Agreement. Initial Servicer
has joined in this Agreement to confirm certain representations,
warranties and covenants for the benefit of the Purchaser.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Capitalized terms used and not
otherwise defined herein have the meanings assigned to them in the
Supplement or, if not defined in the Supplement, in Appendix A to the
Pooling Agreement. An index of terms defined directly in this
Agreement is attached as Appendix X.
ARTICLE II
PURCHASE AND SALE OF CERTIFICATE
SECTION 2.1 The Purchase; Percentages. On the date hereof,
the Transferor will issue and sell to the Purchaser and, subject to the
terms and
conditions of this Agreement, the Pooling Agreement and the Supplement,
the Purchaser will purchase (such purchase being a "Purchase") from the
Transferor the Certificate for a purchase price equal to 99.45% of the
principal amount of such Certificate.
For purposes of this Agreement, (i) "Class Percentage" means
the percentage equivalent (carried out to twelve decimal places) of a
fraction, the numerator of which is the Stated Amount of the
Purchaser's Certificate and the denominator of which is the sum of the
Stated Amounts of all Class B Certificates and (ii) "Series Percentage"
means the percentage equivalent (carried out to twelve decimal places)
of a fraction, the numerator of which is the Stated Amount of the
Purchaser's Certificate and the denominator of which is the sum of the
Stated Amounts for all of the Series 1996-1 Certificates. The Class
Percentages and Series Percentages of the Purchaser are set forth
opposite its name on Schedule I.
ARTICLE III
YIELD PROTECTION, ETC.
SECTION 3.1 Yield Protection. (a) Notwithstanding any other
provision herein, if, after the date hereof, either:
(i) any law, rule or regulation (including any imposition or
increase of reserve requirements) or any interpretation or
administration of any law, rule or regulation by any
Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
(ii) the compliance by the Purchaser with any guideline or
request from any central bank or other Governmental Authority
or quasi-governmental authority exercising control over banks
or financial institutions generally (whether or not having the
force of law),
shall subject the Purchaser to the imposition or modification of any
reserve (including any imposed by the Federal Reserve Board), special
deposit or similar requirement (including a reserve, special deposit or
similar requirement that takes the form of a tax) against assets of,
deposits with or for the account of, or credit extended by, the
Purchaser or the office from time to time that it designates to the
Transferor as the office through which it makes and maintains its
Purchase (its "LIBOR Office") or impose any other condition on the
Purchaser affecting the Certificate or its obligations hereunder, and
as a result of either of the foregoing there shall be any increase in
the cost to the Purchaser of agreeing to make or
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making, funding or maintaining its Purchase, or there shall be a
reduction in the amount received or receivable by the Purchaser or its
LIBOR Office, then, upon written notice from the Purchaser to
Transferor and Servicer (with a copy to the Trustee), signed by an
officer of the Purchaser with knowledge of and responsibility for such
matters, and setting forth in reasonable detail the calculation used to
arrive at the amounts, additional amounts sufficient to indemnify the
Purchaser against the increased cost or reduction in amounts received
or receivable shall constitute "Additional Amounts" for purposes of the
Supplement, and the Purchaser shall be entitled to receive these
additional amounts solely from amounts allocated thereto and paid
pursuant to the Supplement.
(b) If the Purchaser shall reasonably determine that the
adoption after the date hereof of any law, rule or regulation regarding
capital adequacy or capital maintenance, or any change after the date
hereof in any of the foregoing or in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by the Purchaser, any of its lending offices or
its holding company with any new or revised request or directive
regarding capital adequacy or capital maintenance (whether or not
having the force of law) of any such Governmental Authority, central
bank or comparable agency, has or would have the effect of reducing the
rate of return on the Purchaser's capital or the capital of its holding
company as a consequence of this Agreement or the Purchase made by the
Purchaser pursuant hereto to a level below what the Purchaser or its
holding company could have achieved but for the adoption, change or
compliance (taking into consideration the Purchaser's policies, and the
policies of its holding company, with respect to capital adequacy),
then, upon written notice from the Purchaser to Transferor and Servicer
(with a copy to the Trustee), signed by an officer of the Purchaser
with knowledge of and responsibility for such matters, and setting
forth in reasonable detail the calculation used to arrive at the
amounts, any additional amounts as will compensate the Purchaser or its
holding company for the reduction shall constitute "Additional Amounts"
for purposes of the Supplement, and the Purchaser shall be entitled to
receive these additional amounts solely from amounts allocated thereto
and paid pursuant to the Supplement.
(c) A Purchaser shall promptly notify Transferor and Servicer
in writing of any event of which it has knowledge occurring after the
date hereof that will entitle it to compensation pursuant to this
section. A certificate of the Purchaser, signed by an officer of the
Purchaser with knowledge of and responsibility for such matters, and
setting forth in reasonable detail the calculation used to arrive at
the amounts necessary to compensate the Purchaser or its holding
company as specified in subsection (a) or (b), as the case may be,
shall be delivered to Transferor and Servicer and shall be conclusive
absent manifest error.
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(d) Failure on the part of the Purchaser to demand
compensation for any amounts as specified in subsection (a) or (b) with
respect to any period shall not constitute a waiver of its right to
demand compensation with respect to that period or any other period.
The protection of this section shall be available to the Purchaser
regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change
or condition that shall have occurred or been imposed.
SECTION 3.2 Illegality; Unavailability. (a) In the event that
on any date the Purchaser shall have determined (which determination
shall be final and conclusive and binding upon all parties) that the
making or continuation of its Purchase has become unlawful by
compliance by the Purchaser in good faith with any law, governmental
rule, regulation or order or has become impossible as a result of a
contingency occurring after the date hereof that materially and
adversely affects its interbank eurodollar market, then, and in any
such event, the Purchaser shall promptly give notice (by telephone
confirmed in writing) to Transferor and Servicer of that determination.
The obligation of the affected Purchaser to make or maintain its
Purchase as a Eurodollar Tranche during any such period shall be
terminated at the earlier of the termination of the Interest Period
then in effect for the Eurodollar Tranche or when required by law, and
Transferor shall, no later than the time specified for the termination,
convert the Purchase into an ABR Tranche.
(b) If, prior to the beginning of any Distribution Period, the
Purchaser shall have determined (which determination shall be final and
conclusive and binding upon all parties) that: (i) Dollar deposits in
the relevant amount and for the Distribution Period are not available
in the relevant interbank eurodollar market or (ii) by reason of
circumstances affecting the interbank eurodollar market, that adequate
and fair means do not exist for ascertaining the LIBOR rate applicable
to the Eurodollar Tranche, then the Purchaser shall promptly give
notice of this determination to Transferor, Servicer and the Purchaser.
Thereafter, and continuing until the Purchaser shall notify Transferor
and Servicer that the circumstances giving rise to this determination
no longer exist, (x) the Eurodollar Tranche will, on the last day of
the applicable Distribution Period, convert into an ABR Tranche, and
(y) the right of Transferor to request a Eurodollar Tranche shall be
suspended.
SECTION 3.3 Indemnity. (a) If the Purchaser shall incur any
losses, expenses or liabilities (including any interest paid to lenders
of funds borrowed by it to fund its Purchase of the Certificate as a
Eurodollar Tranche and any loss sustained in connection with the re-
deployment of such funds) as a result of (i) the failure of the
Purchase to be made on the date hereof (other than any such failure
resulting from the Purchaser's default in the performance of its
obligations hereunder) or (ii) any repayment of the Certificate on a
date that is other than the
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last day of the Distribution Period applicable thereto, then, upon
written notice (which notice shall be signed by an officer of the
Purchaser with knowledge of and responsibility for such matters and
shall set forth in reasonable detail the basis for requesting the
amounts) from the Purchaser to Transferor and Servicer, additional
amounts sufficient to indemnify the Purchaser against the losses,
expenses and liabilities, but not for any lost profits associated
therewith, shall constitute "Additional Amounts" for purposes of the
Supplement, and the Purchaser shall be entitled to receive these
additional amounts, solely from amounts allocated thereto and paid
pursuant to the Supplement.
SECTION 3.4 Taxes. (a) Any and all payments made to the
Purchaser under the Certificate shall be made free and clear of and
without deduction for any and all present or future taxes, levies,
imposts, duties, charges, fees, deductions or withholdings of any
nature and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed, excluding taxes
imposed by the jurisdiction in which the Purchaser's principal office
(and/or the office where it books its investment in the Certificate) is
located on all or part of the net income, profits or gains of the
Purchaser (whether worldwide, or only insofar as such income, profits
or gains are considered to arise in or to relate to a particular
jurisdiction, or otherwise) (all the nonexcluded taxes, levies,
imposts, charges, deductions, withholdings and liabilities being
hereinafter referred to as "Taxes"). If Trustee is required by law to
deduct or withhold any Taxes from or in respect of any sum payable
hereunder or under any Certificate to the Purchaser, then the sum
payable shall be increased by the amount necessary to yield to the
Purchaser (after payment of all Taxes) an amount equal to the sum it
would have received had no such deductions or withholdings been made,
and the additional amount shall constitute "Additional Amounts" for
purposes of the Supplement, and the Purchaser shall be entitled to
receive these additional amounts, solely from amounts allocated thereto
and paid pursuant to the Supplement.
(b) Whenever any Taxes are paid by Trustee pursuant to
subsection (a), as promptly as possible thereafter Servicer shall send
to the Purchaser the original or a certified copy of an original
official receipt showing payment thereof (if any) or any other evidence
of the payment as may be available to Servicer through the exercise of
its reasonable efforts. If Trustee fails to pay any Taxes when due to
the appropriate taxing authority or fails to remit to the Purchaser the
required receipts or other required documentary evidence, the Purchaser
shall be entitled to receive, solely from amounts allocated with
respect thereto and paid pursuant to the Supplement, additional amounts
necessary to indemnify it for any incremental taxes, interest or
penalties that may become payable by the Purchaser as a result of any
such failure, and the amounts shall constitute "Additional Amounts" for
purposes of the Supplement, and the Purchaser shall be entitled to
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receive these additional amounts, solely from amounts allocated thereto
and paid pursuant to the Supplement.
(c) On or before the date any Assignee becomes a party to this
Agreement (and, so long as it may properly do so, periodically
thereafter, as requested by Servicer, to keep forms up to date), if
such Assignee is not a United States person (as defined in section
7701(a)(30) of the Internal Revenue Code), it shall deliver to Trustee
any certificates, documents or other evidence that shall be required by
the Internal Revenue Code or Treasury Regulations issued pursuant
thereto to establish that, assuming the Certificates are properly
characterized as indebtedness for Federal income tax purposes, it is
exempt from existing United States Federal withholding (including
backup withholding) requirements, including (i) two original copies of
Internal Revenue Service Form 1001 or Form 4224 or successor applicable
form, properly completed and duly executed by the Assignee certifying
that it is entitled to receive payments under this Agreement or any
Certificate without deduction or withholding of any United States
Federal income taxes, and (ii) an original copy of Internal Revenue
Service Form W-8 or W-9 or applicable successor form, properly
completed and duly executed; provided, that if any Assignee does not
comply with this subsection (c), amounts payable to such Assignee under
this Section 3.4 shall be limited to amounts that would have been
payable under this section if such Assignee had so complied.
SECTION 3.5 Early Termination Fee. If for any reason all or
any portion of the Invested Amount of Class B Certificates is reduced
at any time before July 1, 2001, the Purchaser shall be entitled to
receive from Collections a fee (an "Early Termination Fee") equal to
the product of (A) the amount of such reduction in the Invested Amount
of such Purchaser's Class B Certificate multiplied by (B) the number of
months or partial months from the date of such reduction until the
Expected Final Payment Date multiplied by (C) 0.30%. The Early
Termination Fee shall be payable on the date such reduction is effected
and shall constitute "Additional Amounts" for purposes of the
Supplement, and the Purchaser shall be entitled to receive these
additional amounts, solely from amounts allocated thereto and paid
pursuant to the Supplement.
SECTION 3.6 Mandatory Reduction of Invested Amount. During the
Amortization Period or Early Amortization Period, Transferor shall
notify the Agent and the Trustee in writing, not later than 11:00 a.m.,
New York City time, ten London/U.S. Business Days prior to each
Distribution Date that it will repay all or a portion of the Class B
Invested Amount (if required under the Supplement) and shall state in
such notice (x) the amount of funds deposited in the Principal Funding
Account as of the time of such notice and (y) the Class A Invested
Amount as of the time of such notice, and shall cause an amount of
funds equal to the lesser of (i) the principal amount of the Class B
Certificate and
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(ii) the amount of funds deposited in the Principal Funding Account as
of the time of such notice which are available for application to the
principal amount of the Class B Certificate pursuant to the terms of
the Supplement, to be transferred to the Purchaser for reduction of the
funded principal amount of the Class B Certificate.
ARTICLE IV
OTHER PAYMENT TERMS
SECTION 4.1 Time and Method of Payment. All amounts payable
to the Purchaser or with respect to the Certificate shall be made to
the Purchaser by wire transfer of immediately available funds in
Dollars not later than 2:00 p.m., New York City time, on the date due.
Any funds received after that time will be deemed to have been received
on the next Business Day.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 Transferor. As of the Closing Date, Transferor
represents and warrants to the Purchaser that each of its
representations and warranties in the Pooling Agreement and Purchase
Agreement is true and correct, as if made on the Closing Date, and
further represents and warrants that:
(a) no Early Amortization Event or Unmatured Early
Amortization Event exists;
(b) assuming the accuracy of the Purchaser's representations
set out in Section 5.3 and that the Purchaser (and each Person
acting on the Purchaser's behalf) has not made a general
solicitation or general advertising within the meaning of the
Securities Act, the offer and sale of the Certificate in the
manner contemplated by this Agreement is a transaction exempt
from the registration requirements of the Securities Act, and
the Pooling Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended;
(c) Transferor has not dealt with any financial advisor, or
other Person who may be entitled to any commission or
compensation in connection with the sale of the Certificate;
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(d) no information supplied by or on behalf of Transferor, ICP
or any of its Subsidiaries to the Purchaser in connection with
the Transaction Documents contains any untrue statement of a
material fact or omits to state a material fact necessary to
make the statements contained herein or therein not misleading
in light of the circumstances under which they were made; and
(e) the Certificate has been duly and validly authorized by
Transferor and, from and after the date on which the
Certificate is executed by Transferor and authenticated by the
Trustee in accordance with the terms of the Pooling Agreement
and the Supplement and delivered to and paid for by the
Purchaser in accordance with the terms of this Agreement, will
be validly issued and outstanding and will constitute a valid
and legally binding obligation of the Trust entitled to the
benefits of the Pooling Agreement and the Supplement and
enforceable against the Trust in accordance with its terms.
SECTION 5.2 ICP. As of the Closing Date, ICP represents and
warrants to the Purchaser that:
(a) each of its representations and warranties in the Pooling
Agreement (in its capacity as Servicer) and the Purchase
Agreement (in its capacity as a Seller) is true and correct, as
if made on the Closing Date with the same effect as if made on
that date (unless specifically stated to relate to an earlier
date);
(b) the audited consolidated balance sheet of ICP and its
consolidated Subsidiaries as at the end of ICP's most recent
fiscal year and the related statement of earnings,
stockholders' equity and cash flows of ICP and its consolidated
Subsidiaries for such fiscal year and the unaudited
consolidated balance sheet of ICP and its consolidated
Subsidiaries as at the end of ICP's most recent fiscal quarter
and the related statement of earnings, stockholders' equity and
cash flows of ICP and its consolidated Subsidiaries for such
fiscal quarter, copies of which have been furnished to the
Trustee and the Purchaser, fairly present the consolidated
financial position and business of ICP and its consolidated
Subsidiaries as at the dates specified therein and the
consolidated results of the operations of ICP and its
consolidated Subsidiaries for the periods ended on such dates,
all in accordance with GAAP consistently applied throughout the
periods reflected therein;
(c) since January 1, 1996 through the Closing Date, (i) there
has been no material adverse change in the condition, financial
or otherwise, or the earnings, business affairs or business
prospects of Transferor or
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ICP whether or not arising in the ordinary course of business,
and (ii) there have been no transactions entered into by
Transferor, ICP or the Sellers that are material with respect
to the condition, financial or otherwise, or the earnings,
business affairs or business prospects of Transferor or ICP;
and
(d) no information supplied by or on behalf of Transferor, ICP
or any of its Subsidiaries to the Purchaser in connection with
the Transaction Documents contains any untrue statement of a
material fact or omits to state a material fact necessary to
make the statements contained herein or therein not misleading
in light of the circumstances under which they were made.
SECTION 5.3 Purchaser. As of the Closing Date, the Purchaser
represents and warrants (and each Assignee shall be deemed to represent
and warrant as of the date that its assignment becomes effective) that
it is an "accredited investor" as that term is defined in any of
paragraphs (1), (2), (3) or (7) of Rule 501(a) under the Securities Act
and is not purchasing its Certificate with a view to making a
distribution thereof (within the meaning of the Securities Act).
ARTICLE VI
CONDITIONS
SECTION 6.1 Conditions to Purchase. The obligation of the
Purchaser to Purchase the Certificate shall be subject to the
satisfaction of the conditions precedent that
(a) the conditions precedent specified in Section 4.1 of the
Purchase Agreement and Sections 7.1 and 7.2 of the Class A
Certificate Purchase Agreement (other than those that relate to
this Agreement) shall be satisfied;
(b) the Purchaser shall have received a duly executed and
authenticated Certificate registered in its name and in a
Stated Amount equal to $10,000,000;
(c) the Purchaser shall have received (i) certain fees and
reimbursement of any expenses referred to in Section 8.5 for
which invoices have been presented; and
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(d) the Purchaser shall have received an original (except as
indicated below) counterpart of the following (each of which,
if not in a form attached to this Agreement, shall be in form
and substance satisfactory to the Purchaser):
(i) the Pooling Agreement, the Purchase Agreement and the
Guaranty, each of which shall be in full force and effect, and
all actions required to be taken under those documents in
connection with the issuance of the Certificate shall have been
taken;
(ii) photocopies of each Account Agreement;
(iii) a certificate of the Secretary, or an Assistant
Secretary, of each of Transferor, Servicer, Guarantor and each
Seller with respect to:
(A) attached copies of resolutions of its Board of Directors
(or, if applicable, its managing body) then in full force and
effect authorizing the execution, delivery and performance of
the Transaction Documents,
(B) the incumbency and signatures of those of its officers
authorized to act with respect to the Transaction Documents,
and
(C) attached copies of its certificate of incorporation and
by-laws (or, if applicable, its limited partnership agreement);
(iv) a certificate of an Authorized Officer of each of
Transferor, Servicer and each Seller as to the satisfaction of
the conditions precedent set forth in Section 6.1, and a
certificate of Transferor that the representations and
warranties of the Transferor set out in this agreement are true
and correct as of the date of such initial purchase and that no
Early Amortization Event or Unmatured Early Amortization Event
exists;
(v) a certificate of an appropriate officer of Trustee stating
that the Pooling Agreement has been duly authorized, executed
and delivered by Trustee and the Certificate has been duly
authenticated by Trustee in accordance with the Pooling
Agreement and an opinion of counsel to Trustee as to related
matters;
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(vi) evidence that each of S&P and DCR has rated the Class B
Certificate "A";
(vii) the Daily Report for the Closing Date;
(viii) agreed-upon procedures letter, in form and substance
satisfactory to the Purchaser, from Coopers & ▇▇▇▇▇▇▇ LLP with
respect to certain historical information provided by ICP
relating to the Receivables;
(ix) copies of any management or other agreements with regard
to the administration of Transferor's business, certified by an
Authorized Officer of Transferor;
(x) a pro forma balance sheet of Transferor as of the date
hereof, after giving effect to the transactions contemplated by
the Supplement, and a certificate of an Authorized Officer of
ICP as to the capitalization of Transferor (the amount and type
of which capitalization shall be satisfactory to the
Purchaser);
(xi)results of recent searches of the UCC filing records and
tax and ERISA and judgment lien records in each jurisdiction in
which a filing referred to in subsection (xii) is to be made
for filings against each Seller (including any predecessors in
interest to any Seller going back five years) and Transferor,
showing no filings of record that cover any of the Receivables
or the other Transferred Assets other than (i) the financing
statements referred to in subsection (xii) (to the extent shown
in the searches) and (ii) any other filings as to which the
Purchaser has received signed UCC-3 termination statements or
pay-off letters in form and substance satisfactory to it;
(xii) confirmation satisfactory to the Purchaser that (x) the
following have been placed with Lexis Document Services or
another filing service selected by the Purchaser for filing,
the filing to occur on the Closing Date or the first Business
Day thereafter and (y) any filing fees and indebtedness taxes
necessary to perfect or protect true security interests by
means of such filings have been paid in full:
(A) UCC financing statements naming each Seller, as
seller/debtor, and Transferor, as secured party/purchaser, in
each office where the filing is necessary
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for the perfection of the sales or contribution of Receivables
and Related Assets by each Seller to Transferor;
(B) assignments of such existing UCC financing statements to
Trustee, as assignee of the secured party, in each office where
the filing is necessary for the perfection of the sales of
Receivables and Related Assets by each Seller to Transferor;
and
(C) UCC financing statements naming Transferor, as
seller/debtor, and Trustee, as secured party/purchaser, in each
office where the filing is necessary for the perfection of the
transfers of Receivables and other Transferred Assets by
Transferor to Trustee;
(xiii) the following opinions addressed to the Purchaser and
Trustee, and in each case as to the matters and in such form
and substance as shall be satisfactory to the Purchaser and
Trustee:
(A) opinions of Steptoe and ▇▇▇▇▇▇▇ as to certain corporate
and securities matters concerning ICP, Federal and state tax
and UCC matters, true sale and non-consolidation;
(B) opinions of Tuke ▇▇▇▇ & ▇▇▇▇▇▇▇ as to certain corporate
and securities matters concerning General and Coastline, and
Tennessee limited partnership, Tennessee state tax and
Tennessee UCC matters; and
(C)opinions of White & Case and ▇▇▇▇▇, Rice & Fingersh as to
certain state tax matters under Florida law and Missouri law,
respectively;
(xiv) evidence, reasonably satisfactory to the Purchaser, of
the payment of all taxes, fees and other governmental charges,
if any, incidental to the issuance of the Certificates and to
the consummation of the transactions contemplated hereunder and
under the Pooling Agreement;
(xv) a solvency certificate of the chief financial officer of
ICP with respect to the Sellers, which opinion shall be
addressed to the Purchaser and shall be in form and substance
satisfactory to the Purchaser;
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(xvi) such sublicenses and assignments as the Purchaser shall
require with regard to all computer and data recovery software
used by Servicer or any Seller in connection with the servicing
of the Transferred Assets, which sublicenses and assignments
will permit any substitute Servicer to use such software; and
(xvii) any other information, certificates, opinions and
documents as the Purchaser may have reasonably requested.
If the conditions specified above have not been fulfilled on
the date hereof, any condition specified in this Agreement shall not
have been fulfilled when and as required in this Agreement or waived by
the Purchaser, in each case the Purchaser's obligations to purchase the
Certificate pursuant to this Agreement may be terminated by notice to
Transferor. In addition, if, under the circumstances, it shall not be
feasible for the Purchaser to invest on the date the funds that are
held available by the Purchaser for the Purchase, Transferor and
Servicer, jointly and severally, shall pay the Purchaser interest on
the funds at the Alternate Base Rate plus two percent from the date of
the notice until the next succeeding Business Day on which it is
feasible for the Purchaser to invest the funds in the Certificates.
Nothing in this paragraph shall operate to relieve Transferor from any
of its obligations hereunder or otherwise waive any of the Purchaser's
rights against Transferor.
SECTION 6.2 Payment of Expenses. (a) Amounts received by the
Transferor from the Purchase shall be used to pay all expenses then due
and payable under the Transaction Documents.
(b)If the Purchase does not occur on the date hereof, the
Transferor shall nevertheless pay all transaction expenses on the date
hereof, including all legal fees, Rating Agency fees and Trustee fees.
ARTICLE VII
COVENANTS
SECTION 7.1 Affirmative Covenants. Transferor and ICP (in its
capacity as a Seller, as Guarantor and as Initial Servicer) each
severally covenant and agree that, until the Certificate has been paid
in full, it will:
(a) duly and timely perform all of its covenants and
obligations under each Transaction Document to which it is a
party;
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(b) with reasonable promptness deliver to the Purchaser such
information, documents, records or reports respecting the
Program or the Receivables as the Purchaser may from time to
time reasonably request;
(c) at the same time any report (including any Daily Report,
Monthly Report or annual auditors' report), notice or other
document is provided, or caused to be provided, by Transferor
or Servicer to Trustee under the Pooling Agreement, provide the
Purchaser with a copy of the report;
(d)during regular business hours and (so long as no Early
Amortization Event has occurred and is continuing) upon two
Business Days prior written notice, permit the Purchaser (or
such other Person as the Purchaser may designate from time to
time), or their respective agents or representatives (including
certified public accountants or other auditors), at the expense
of the Servicer paid out of the Servicing Fee, (i) to examine
and make copies of and abstracts from, and to conduct
accounting reviews of, all Records in the possession or under
the control of Servicer, Transferor or any Seller, including
the related Contracts and purchase orders, invoices and other
agreements related thereto, and (ii) to visit the offices and
properties of Servicer, Transferor or any Seller for the
purpose of examining such materials described in clause (i),
and to discuss matters relating to the Receivables or the
Related Transferred Assets or the performance by Servicer,
Transferor or any Seller of their respective obligations under
any Transaction Document with any officer, employee or
representative of Servicer, Transferor or any Seller. The
Purchaser may (but shall not be obligated to) conduct, or cause
its agents or representatives to conduct, reviews of the types
described in this paragraph (each such review, a "Receivables
Review") whenever the Purchaser, in its reasonable judgment,
deems any such review appropriate.
SECTION 7.2 Transfers. Purchaser agrees that it will not
transfer its Certificate (or any portion thereof) to any Person unless
such Person shall have provided the Trustee and Transferor with a
certificate to the effect that such Person is an "accredited investor"
as that term is defined in any of paragraphs (1), (2), (3) or (7) of
Rule 501(a) under the Securities Act and is not purchasing its
Certificate with a view to making a distribution thereof (within the
meaning of the Securities Act).
SECTION 7.3 Procedures Letter and Report. The Agent shall
receive, for the account of the Purchasers, on or before September 30,
1996, an agreed-upon procedures letter in form and substance similar to
the procedures letter delivered pursuant to Section 6.1(d)(viii) and a
report from Coopers & ▇▇▇▇▇▇▇ L.L.P. of the type specified in Section
3.7(a)(i) of the Pooling Agreement except
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that such report shall pertain only to Receivables originated by
General and Coastline during the period from the Closing Date through
August 31, 1996.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 Amendments. Except as provided in Section 13.1(a)
or (b) of the Pooling Agreement, Transferor, ICP and Initial Servicer
shall not amend, waive or otherwise modify any provision of any
Transaction Document to which it is a party, consent to any departure
therefrom, or grant any waiver or consent thereunder, unless the same
shall have been consented to in writing by Purchasers (defined for
purposes of this sentence as the Purchaser hereunder and under the
Certificate Purchase Agreement (Series 1996-1, Class A) dated as of the
date hereof, among Inter-City Products Receivables Company, L.P.,
Inter-City Products Corporation (USA) and the Purchasers described
therein) having Series Percentages that aggregate over 50% prior to the
effectiveness of the same; provided, however, that no amendment
modification, waiver or consent shall (a) decrease in any manner the
amount of, or delay the timing of, any allocation, payment or
distribution in respect of the Certificate without the prior written
consent of the Purchaser, (b) amend, modify or waive the provisions of
this section with respect to the rights of the Purchaser, or the Class
Percentage or Series Percentage of the Purchaser, without the consent
of the Purchaser, (d) waive any Early Amortization Event arising from a
Bankruptcy Event with respect to Transferor, ICP or any Seller without
the consent of the Purchaser, (e) amend or modify the Class Percentage
of the Purchaser, without its prior written consent, or (f) waive any
of the requirements hereunder that the interests of Trustee in the
Receivables and the other Transferred Assets be perfected by
appropriate UCC filings without the prior written consent of the
Purchaser; provided further that neither the execution and delivery of
a Supplement relating to a refinancing of the Certificate as
contemplated by Section 4.9 of the Supplement relating to the
Certificate, nor any other amendment to the Transaction Documents in
connection with such a refinancing, shall require any consent from the
Purchaser, so long as the prior or contemporaneous repayment in full of
the Certificate in accordance with Section 5.2 of the Supplement
relating to the Certificates is a condition to the issuance of the
refinancing certificates, and of the effectiveness of such related
amendment. The Purchaser shall be bound by any modification, waiver or
consent authorized by this section.
SECTION 8.2 No Waiver; Remedies. Any waiver, consent or
approval given by any party hereto shall be effective only in the
specific instance and for the specific purpose for which given, and no
waiver by a party of any breach or
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default under this Agreement shall be deemed a waiver of any other
breach or default. No failure on the part of any party hereto to
exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any
right hereunder, or any abandonment or discontinuation of steps to
enforce the right, power or privilege, preclude any other or further
exercise thereof or the exercise of any other right. No notice to or
demand on any party hereto in any case shall entitle such party to any
other or further notice or demand in the same, similar or other
circumstances. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.3 Successors and Assigns; Assignments. (a) This
Agreement shall be binding upon, and inure to the benefit of,
Transferor, Servicer, ICP, the Purchaser and their respective
successors and assigns; provided that none of Transferor, Servicer or
ICP may assign its rights or obligations hereunder or in connection
herewith or any interest herein (voluntarily, by operation of law or
otherwise) without the prior written consent of the Purchaser, except
that Servicer may be terminated in accordance with Sections 10.1 and
10.2 of the Pooling Agreement; and provided further, that the Purchaser
may not transfer, pledge, assign, sell participations in or otherwise
encumber its rights or obligations hereunder or any interest herein
except as permitted under this section.
(b) Subject to the terms of Section 8.3(e), the Purchaser may
at any time assign to any Permitted Transferee or to one or more banks
or institutional investors (each, an "Assignee") all or any part of its
participating interests in all or any portion of the Certificate and
its obligations hereunder (its "Credit Exposure"); provided that (i)
unless assigned to an Affiliate of the Purchaser or to a Permitted
Transferee, it assigns all of its Credit Exposure or a portion of its
Credit Exposure in an amount not less than $5,000,000, (ii) if such
Assignee is not a United States person (as defined in section
7701(a)(30) of the Internal Revenue Code), such Assignee shall satisfy
the requirements of Section 3.4(c), provided, that if such Assignee
thereafter fails to comply with the requirements of Section 3.4,
amounts payable to it under Section 3.4 shall be limited to amounts
that would be payable if such Assignee had complied with Section
3.4(c), and (iv) such Assignee shall have certified to the Purchaser
that such Assignee is an "accredited investor" as that term is defined
in any of paragraphs (1), (2), (3) or (7) of Rule 501(a) under the
Securities Act.
In the event of any assignment, the Purchaser (x) shall comply
with Article VI of the Pooling Agreement; provided that no Opinion of
Counsel shall be required to be delivered pursuant to Section 6.3(e) of
the Pooling Agreement with respect to any transfer to a Permitted
Transferee, and (y) shall give notice to Transferor and shall deliver
to the Transferor, for acceptance and recording in its
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records, an assignment agreement substantially in the form of Exhibit
D. Within five Business Days of receipt thereof, the Transferor shall,
if the assignment agreement has been fully executed by the Assignee and
the Purchaser, is completed and is in substantially the form of Exhibit
D, execute the assignment agreement and record the information
contained therein in its records. Upon the earlier of the expiration of
such five Business Day period or the date of the recording, the
assignment will become effective.
Transferor, Servicer, ICP and the Purchaser agree to extend the
rights and benefits with respect to Transferor under this Agreement to
the Assignee to the extent the Assignee would have had if it were the
Purchaser that was an original signatory to this Agreement; provided,
that the parties hereto shall be entitled to continue to deal solely
and directly with the assignor Purchaser in connection with the
interests so assigned to the Assignee until the assignment agreement
and any required fee, as described above, shall have been delivered to
the Transferor by the Purchaser and the Assignee and the assignment
shall have become effective. Upon the effective assignment of its
Credit Exposure, the Purchaser shall be relieved of its obligations
hereunder to the extent of the assignment.
(c) The sale or assignment by the Purchaser of any Credit
Exposure to any Assignee (each, a "Transferee") shall not be effective
until it has agreed to be bound by the provisions of this Agreement.
Transferor and, the Sellers, the Servicer and ICP each authorize the
Purchaser to disclose to any Transferee and any prospective Transferee
any and all information in its possession concerning Transferor, the
Sellers, the Servicer or ICP in connection with the Transferee's credit
evaluation of the Program prior to entering into this Agreement.
(d) Notwithstanding any other provision set forth in this
Agreement, the Purchaser may at any time create a security interest in
all or any portion of its rights under this Agreement and the
Certificate in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
(e) No transfer, assignment or other conveyance of, or sale of
any Credit Exposure of the Purchaser in, the Certificate shall be made
unless (i) the aggregate outstanding principal amount of the
Certificate transferred, or in which any Credit Exposure is sold,
pursuant to such transfer or sale is equal to a principal amount of
Certificates that would represent at least 2.1% of the total interests
in partnership capital or profits, within the meaning of Treasury
Regulation Section 1.7704-1, and (ii) after giving effect thereto,
there shall be no more than 20 Private Holders of Subject Instruments,
as reasonably determined by Transferor. No Certificate may be
subdivided into an aggregate principal amount that would represent less
than 2.1% of the total interest in partnership capital or profits as
determined pursuant to the preceding sentence. Any
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attempted transfer, assignment, conveyance, participation or
subdivision in contravention of the preceding restrictions, as
reasonably determined by the Transferor, shall be void ab initio and
the purported transferor, seller or subdivider of such Certificate
shall continue to be treated as the Certificateholder of any such
Certificate for all purposes of this Agreement.
(f) Each Affected Party with respect to the Purchaser shall be
entitled to receive additional payments pursuant to this Agreement as
though it were a Purchaser and this Agreement applied to its interest
in a Certificate or commitment to make or acquire interests in
Purchases; provided that such Affected Party shall not be entitled to
additional payments pursuant to Section 3.4 attributable to its failure
to satisfy the requirements of subsection 3.4(c) as if it were an
Assignee.
(g) Each Affected Party claiming increased amounts described
in this Agreement shall furnish, through its related Purchaser, to the
Trustee, Servicer and Transferor a certificate setting forth in
reasonable detail the basis and amount of each request by such Affected
Party for any such amounts referred to in this Agreement, which
certificate will be prepared in accordance with the requirements of
this Agreement (if any). Determinations by an Affected Party of any
increased amounts referred to in this Agreement shall be conclusive,
absent demonstrable error. Each Affected Party shall promptly notify,
through its related Purchaser, the Trustee, Servicer and Transferor of
the occurrence of any event of which such Affected Party is aware that
would be likely to result in a demand for compensation pursuant to this
Agreement.
SECTION 8.4 Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the Certificate
delivered pursuant hereto shall survive the making and the repayment of
the Purchase and the execution and delivery of this Agreement and the
Certificate and shall continue in full force and effect until all
obligations have been paid in full and all commitments of the Purchaser
hereunder have been terminated. In addition, the obligations of
Transferor under Sections 3.2, 3.3, 3.4, 3.5 and 8.5 shall survive the
termination of this Agreement.
SECTION 8.5 Expenses; Indemnification. Transferor and ICP
jointly and severally shall pay on demand (a) all reasonable out-of-
pocket fees and expenses (including reasonable attorneys' fees and
expenses) of the Purchaser incurred in connection with the preparation,
execution, delivery, administration, amendment, modification and waiver
of the Transaction Documents and the making and repayment of the
Purchase, including any Servicer or collection agent fees paid to any
third party for services rendered to the Purchaser in collecting the
Receivables and (b) all reasonable out-of-pocket fees and expenses of
the Purchaser (including reasonable attorneys' fees and expenses of its
counsel)
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incurred in connection with performance by the Agent of its
administrative duties under this Agreement, any consulting performed by
the Agent at the request of the Transferor, and the enforcement of the
Transaction Documents against Transferor, Servicer, Guarantor and the
Sellers and in connection with any workout or restructuring of the
Transaction Documents. In addition, Transferor will pay any and all
stamp and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing, recording or
enforcement of this Agreement or any payment made under the Transaction
Documents, and hereby indemnifies and saves the Purchaser harmless from
and against any and all liabilities with respect to or resulting from
any delay in paying or omission to pay the taxes and fees. Transferor
and ICP jointly and severally agree to reimburse and indemnify the
Purchaser and its officers, directors, shareholders, controlling
Persons, employees and agents (collectively, the "Indemnitees") from
and against any and all actions, judgments, costs, expenses or
disbursements of whatsoever kind or nature that may be imposed on,
asserted against or incurred or suffered by the Purchaser (including
fees and expenses of legal counsel, accountants and experts) in any way
relating to or arising out of any Transaction Document. Additional
amounts sufficient to indemnify the Purchaser or other Indemnitees
under this Section 8.5 shall constitute "Additional Amounts" for
purposes of the Supplement, and the Purchaser or other Indemnities
shall be entitled to receive these additional amounts, solely from
amounts allocated thereto and paid pursuant to the Supplement.
Notwithstanding the foregoing (and with respect to clause (x)
below, without prejudice to the rights that an Indemnitee may have
pursuant to the other provisions of the Transaction Documents), in no
event shall any Indemnitee be indemnified against any amounts (w)
resulting from gross negligence or willful misconduct on the part of
such Indemnitee (or any of its officers, directors, employees,
affiliates or agents) or the failure of such Indemnitee to perform its
obligations under the Transaction Documents, (x) to the extent they
include amounts in respect of Receivables and reimbursement therefor
that would constitute credit recourse to Servicer for the amount of any
Receivable or Related Transferred Asset not paid by the related Obligor
or (y) to the extent they are or result from lost profits (other than
any interest or prepayment premium or early termination amount).
If for any reason the indemnification provided in this section
is unavailable to an Indemnitee or is insufficient to hold it harmless,
then Transferor and ICP jointly and severally shall contribute to the
amount paid by the Indemnitee as a result of any loss, claim, damage or
liability in a proportion that is appropriate to reflect not only the
relative benefits received by the Indemnitee on the one hand and
Transferor and ICP on the other hand, but also the relative fault of
the Indemnitee (if any), Transferor and ICP and any other relevant
equitable
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considerations; provided that the Transferor shall not, and shall not
be obligated to, pay any amount pursuant to this Section unless and to
the extent that the Transferor has funds available to pay such amounts
or funds are allocated thereafter to the Transferor pursuant to the
penultimate paragraph of Section 4.3 or priority fifth of Section 4.4
of the Supplement, and there shall be no recourse to Transferor for all
or any part of any amounts payable pursuant to this section if the
funds are at any time insufficient to make all or part of any such
payments. Any amount which Transferor does not pay pursuant to the
operation of the preceding sentence shall not constitute a claim (as
defined in Sec. 101 of the Bankruptcy Code) against or corporate
obligation of Transferor for any such insufficiency.
SECTION 8.6 Entire Agreement. This Agreement, together with
the documents delivered pursuant to Section 6.1 and the other
Transaction Documents, including the exhibits and schedules thereto,
contains a 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 previous oral statements
and other writings with respect thereto.
SECTION 8.7 Notices. All communications hereunder shall be in
writing and shall be deemed to have been duly given if personally
delivered, sent by overnight courier or mailed by registered mail,
postage prepaid and return receipt requested, or transmitted by
facsimile transmission and confirmed by a similar mailed writing to any
party at the address for that party set forth (a) on the signature page
to this Agreement or (b) to another address as that party may designate
in writing to the Purchaser and Transferor.
SECTION 8.8 No Third-Party Beneficiaries. Nothing expressed
herein is intended or shall be construed to give any Person (other than
the parties hereto, and Assignees described in Section 8.3 and, to the
extent provided in Section 8.3, the other Affected Parties) any legal
or equitable right, remedy or claim under or in respect of this
Agreement.
SECTION 8.9 Severability of Provisions. Any covenant,
provision, agreement or term of this Agreement that is prohibited or is
held to be void or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement.
SECTION 8.10 Counterparts. This Agreement may be executed in
any number of counterparts (which may include facsimile) and by the
different parties hereto in separate counterparts, each of which when
so executed shall be deemed
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to be an original, and all of which together shall constitute one and
the same instrument.
SECTION 8.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
SECTION 8.12 Tax Characterization. Each party to this
Agreement (a) acknowledges that it is the intent of the parties to this
Agreement that, for purposes of Federal, applicable state and local
income and franchise and other taxes measured by or imposed on income,
the Certificate will be treated as evidence of indebtedness secured by
the Transferred Assets and the Trust will not be characterized as an
association (or publicly traded partnership) taxable as a corporation,
(b) agrees that the provisions of the Transaction Documents be
construed to further that intent, and (c) agrees to treat the
Certificate, for purposes of Federal, state and local income and
franchise and other taxes measured by or imposed on income, as
indebtedness.
SECTION 8.13 No Proceedings. (a) Each of Servicer and the
Purchaser (solely in its capacity as such) hereby agrees that it will
not institute against Transferor, or join any other Person in
instituting against Transferor, any insolvency proceeding (namely, any
proceeding of the type referred to in the definition of "Bankruptcy
Event") so long as any Series 1996-1 Certificates shall be outstanding
or there shall not have elapsed one year plus one day since the last
day on which any Series 1996-1 Certificates shall have been
outstanding. The foregoing shall not limit the right of Servicer or the
Purchaser to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted against
Transferor by any other Person.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers and delivered as of
the day and year first above written.
INTER-CITY PRODUCTS
RECEIVABLES COMPANY, L.P.
By: Inter-City Products Partner
Corporation, its general
partner
By:
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
Address: ▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
INTER-CITY PRODUCTS CORPORATION
(USA), as Servicer
By:
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
Address: ▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ARGOS FUNDING CORP.,
as the Purchaser
By:
-----------------------
Name:
-----------------------
Title:
---------------------
Address:
Attention:
Telephone:
Facsimile:
EXHIBIT A
to Certificate Purchase Agreement
Series 1996-1, Class B
FORM OF POOLING AND SERVICING AGREEMENT
Filed as Exhibit 10.1 to this Amendment No. 1 to Registration Statement on
Form S-4 (File No. 333-58837) and incorporated herein by this reference.
EXHIBIT B
to Certificate Purchase Agreement
Series 1996-1, Class B
FORM OF RECEIVABLES PURCHASE AGREEMENT
Filed as Exhibit 10.3 to this Amendment No. 1 to Registration Statement on
Form S-4 (File No. 333-58837) and incorporated herein by this reference.
EXHIBIT C
to Certificate Purchase Agreement
Series 1996-1, Class B
FORM OF SERIES 1996-1 SUPPLEMENT
Filed as Exhibit 10.2 to this Amendment No. 1 to Registration Statement on
Form S-4 (File No. 333-58837) and incorporated herein by this reference.
EXHIBIT D
to Certificate Purchase Agreement
Series 1996-1, Class B
FORM OF ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT, dated as of [____________] (this "Agreement"),
is made between ____________________ ("Assignor"), and
[_____________________] ("Assignee"). Except as otherwise defined herein,
capitalized terms have the meanings assigned to them in the Certificate
Purchase Agreement (as defined below).
BACKGROUND
A. Assignor is a party to the Certificate Purchase Agreement,
dated as of July 25, 1996 (as amended, supplemented or otherwise modified
from time to time, the "Certificate Purchase Agreement"), among INTER-CITY
PRODUCTS RECEIVABLES COMPANY, L.P., a Tennessee limited partnership
("Transferor"), INTER-CITY PRODUCTS CORPORATION (USA), a Delaware
corporation, and the Purchaser party thereto (including Assignor).
B. Assignor wishes to assign, and Assignee wishes to be so
assigned, Assignor's rights and obligations arising on and after the
Effective Date (as defined below) under the Certificate Purchase Agreement
and its Certificate including (a) its obligations to make Purchases (its
"Credit Exposure") and (b) its outstanding Purchases (the "Purchases").
C. Assignor and Assignee also wish (a) Assignee to assume the
obligations of Assignor under the Certificate Purchase Agreement with
respect to Assignee's Share (as defined below) to the extent of the rights
assigned and (b) Assignor to be released from the obligations assumed by
Assignee.
D. Transferor, by its execution hereof, are providing its written
consent to the assignment accomplished by this Agreement.
SECTION 1. Assignment. Effective on the Effective Date (as
defined below) and upon payment of the amount specified in Section 3(a),
Assignor hereby assigns and transfers to Assignee, without recourse,
representation or warranty of any kind, express or implied (except as
provided in Sections 6(a) and (b)), and subject to Section 4(b), Assignee's
Share (as specified in Annex I hereto)
(the "Assignee's Share") of all of Assignor's rights, title and interest
arising under (a) the Certificate Purchase Agreement relating to Assignor's
Credit Exposure including all rights and obligations with respect to the
Purchases attributable to Assignee's Share and (b) Assignor's Certificate
with respect to Assignee's Share as will result in Assignee having from and
after the Effective Date the Class Percentage ("Assignee's Percentage")
specified in Annex I.
SECTION 2. Assumption. Effective on the Effective Date, Assignee
hereby irrevocably purchases, assumes and takes from Assignor, and Assignor
is hereby expressly and absolutely released from, all of Assignor's
obligations arising under the Certificate Purchase Agreement relating to
Assignee's Share and of any outstanding Purchases attributable to
Assignee's Share. Assignee hereby agrees to be bound by the provisions of
the Certificate Purchase Agreement.
SECTION 3. Payment. In consideration of the assignment by
Assignor to Assignee as set forth above, Assignee agrees to pay to
Assignor, in Dollars and in immediately available funds, (a) on or prior to
the Effective Date, an amount specified by Assignor in writing on or prior
to the Effective Date that represents Assignee's Share attributable to the
principal amount of the Purchases made pursuant to the Certificate Purchase
Agreement and outstanding on the Effective Date, and (b) from time to time
thereafter, other amounts (if any) that Assignee has agreed in writing to
pay to Assignor after the Effective Date. In consideration of the
assumption by Assignee, Assignor agrees to pay to Assignee within two
Business Days of the Effective Date, an assignment fee (if any) that
previously has been agreed to in writing by both parties.
Notwithstanding anything to the contrary in this Agreement, if and
when Assignee receives or collects (x) any payment of principal or interest
relating to any Purchases or (y) any payment of fees that are required to
be paid to Assignor pursuant to this Agreement, then Assignee shall forward
the payment to Assignor.
To the extent payment of funds to Assignee or Assignor are not
made within two Business Days, each, as the case may be, shall be entitled
to recover the due amount, together with interest thereon at the Federal
Funds Rate per annum accruing from the date of payment or the date of
receipt of the funds by the other party.
SECTION 4. Effectiveness. (a)(ii This Agreement shall become
effective on the date (the "Effective Date") on which it shall have been
duly executed by all parties and the Transferor shall have recorded the
information contained herein in its records (or automatically upon the
Transferor's receipt of this Agreement signed by Assignor and Assignee if
not so recorded within five Business Days of such receipt) Assignor hereby
notifies the Transferor of the assignment, effective
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as of the Effective Date, of Assignee's Share and any Purchases
attributable to the Assignee's Share, and directs the Transferor to pay
Assignee any payment of principal of, or interest on, any Purchase
attributable to the Assignee's Share of any Purchases. No (x) failure of
either Assignee or Assignor to settle any amount owed to the other (except
with respect to the payment of the processing and recordation fee to the
Transferor and the payment due under Section 3(a)), (y) dispute respecting
any other settlement, including in respect of Transferor, or (z)
bankruptcy, insolvency or other condition whatsoever respecting any Person,
shall in any way impair, reduce or otherwise affect the effectiveness of
this Agreement.
(iii) Assignor, Assignee and the Transferor each acknowledges and
agrees that from and after the Effective Date, the Transferor shall make
all payments under the Certificate Purchase Agreement in respect of
Assignee's Share (including all payments of principal and interest with
respect thereto, whether or not the payments shall have accrued prior to or
after the Effective Date) to Assignee only. Assignor and Assignee hereby
agree further to make all appropriate adjustments in payments to either of
them under the Certificate Purchase Agreement for periods prior to the
Effective Date directly between themselves.
(b) With respect to any Purchase attributable to Assignee's
Share, if and when Assignor receives or collects any payment of principal,
interest or Additional Amounts with respect to Assignee's Share for any
period commencing on or after the Effective Date, Assignor shall distribute
to Assignee the portion attributable to Assignee's Share, but only to the
extent it accrued on or after the Effective Date and was not theretofore
paid to Assignee by Transferor or otherwise. Any principal, interest and
Additional Amounts paid prior to the Effective Date shall be retained by
Assignor. Any principal, interest and Additional Amounts received by
Assignee that accrued prior to the Effective Date shall be forwarded
promptly, in the form received, to Assignor. Assignee recognizes and agrees
that notwithstanding anything to the contrary in this Agreement, Assignor
shall retain all of its rights to indemnification under the Certificate
Purchase Agreement for any events, acts or omissions occurring prior to the
Effective Date.
(c) The Transferor, by its execution hereof, acknowledges the
assignment and agrees to make payments in respect of principal, interest,
fees and Additional Amounts as described in clause (a).
SECTION 5. Rights as Purchaser under Certificate Purchase
Agreement. In accordance with Section 8.3 of the Certificate Purchase
Agreement, (a) as of the Effective Date, Assignee will be a Purchaser
under, and party to, the Certificate Purchase Agreement and shall have (i)
all of the rights and obligations
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of a Purchaser (to the extent of the assignment and assumption of
Assignee's Share effected by this Agreement) and (ii) the addresses for (A)
notice purposes and (B) LIBOR Office as set forth in items 2 and 3,
respectively, of Annex I hereto and (b) promptly on or after the Effective
Date, Transferor will execute and deliver any documents and instruments
that Assignor or Assignee reasonably may require.
SECTION 6. Representations and Warranties. (a) Each of Assignor
and Assignee represents and warrants to the other as follows:
(i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement, to fulfill the
obligations hereunder and to consummate the transactions
contemplated hereby,
(ii) the making and performance of this Agreement and all
documents required to be executed and delivered hereunder do not
and will not violate any law or regulation of the jurisdiction of
its incorporation or any other applicable law or regulation,
(iii) this Agreement has been duly executed and delivered and
constitutes its legal, valid and binding obligation, enforceable
in accordance with its terms, and
(iv) all approvals, authorizations or other actions by, or filing
with, any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been
obtained.
(b) Assignor represents and warrants to Assignee that Assignee's
Share and the Purchases attributable to Assignee's Share are not subject to
any liens or security interests created by Assignor.
(c) Except as set forth in subsections (a) and (b), Assignor
makes no representations or warranties, express or implied, to Assignee and
shall not be responsible to Assignee for (i) the execution, effectiveness,
genuineness, legality, validity, enforceability, collectibility, regulatory
status or sufficiency of the Certificate Purchase Agreement or any of the
other Transaction Documents, (ii) the perfection, priority, value or
adequacy of any collateral security or guaranty, (iii) the taking of any
action, or the failure to take any action, with respect to any of the
Transaction Documents, (iv) any representations, warranties, recitals or
statements made in any of the Transaction Documents or in any written or
oral financial or other statements, instruments, reports, certificates or
documents made or furnished by Assignor to Assignee or by or on behalf of
Transferor or any of its Affiliates to Assignor or Assignee in connection
with the Transaction Documents and the transactions contemplated thereby,
(v) the financial or other
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condition of Transferor or any other Person or (vi) any other matter having
any relation to any of the foregoing. Assignor shall not be required to
ascertain or inquire as to the performance or observance of any of the
terms, conditions, provisions, covenants or agreements contained in any of
the Transaction Documents or the existence or possible existence of any
Unmatured Early Amortization Event, Early Amortization Event or Servicer
Default. Additionally, Assignor shall not have any duty or responsibility
either initially or on a continuing basis to make any investigation or any
appraisal on Assignee's behalf or to provide Assignee with any credit or
other information with respect thereto, whether coming into Assignor's
possession before the execution of the Certificate Purchase Agreement or at
any time thereafter. Assignor shall have no responsibility with respect to
the accuracy of, or the completeness of, any information provided to
Assignee, whether by Assignor or by or on behalf of Transferor or any other
Person obligated under the Certificate Purchase Agreement or any related
instrument or document.
(d) Assignee represents and warrants that (x) it has made its own
independent investigation of each of the foregoing matters, including the
financial condition and affairs of Transferor and its Affiliates, in
connection with the making of the Purchases and the execution of this
Agreement (including the solvency of Transferor and its Affiliates, their
ability to pay their respective debts as they mature and the capital of
Transferor and its Affiliates remaining after the closing under the
Transaction Documents and the consummation of the transactions contemplated
thereby) and has made and shall continue to make its own appraisal of the
creditworthiness of Transferor and its Affiliates, and (y) the
representations and warranties set forth in Section 5.3 of the Certificate
Purchase Agreement are true and correct with respect to the Assignee.
Assignee hereby agrees that it will not make any general solicitation or
general advertising for the offer or sale of the Certificates. Assignee
(i) confirms that it has received copies of the Transaction Documents
together with copies of certain other closing documents delivered in
connection with the Certificate Purchase Agreement, financial statements
and any other documents and information that it has requested or deemed
appropriate to make its own credit analysis and decision to enter into this
Agreement and (ii) agrees that it will, independently and without reliance
upon the Transferor, Assignor or any other Purchaser and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Transaction Documents.
(e) Assignee represents and warrants to Transferor that the
representations and warranties in Section 5.3 of the Certificate Purchase
Agreement are true and correct in respect of such Assignee as of the date
hereof.
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SECTION 7. No Proceedings. Assignee hereby agrees to be bound by
the provisions of Section 8.13 of the Certificate Purchase Agreement.
SECTION 8. Withholding Taxes. [In accordance with Section 3.4 of
the Certificate Purchase Agreement, Assignee agrees to execute and deliver
to the Trustee, as Paying Agent, and the Transferor, on or before the
Effective Date, (a) two original copies of Internal Revenue Service Form
1001 or 4224 or successor applicable form, properly completed and duly
executed by the Assignee certifying that it is entitled to receive payments
under the Certificate Purchase Agreement and any Certificate without
deduction or withholding of any United States Federal income taxes, and (b)
an original copy of Internal Revenue Service Form W-8 or W-9 or applicable
successor form, properly completed and duly executed. Assignee represents
and warrants to Transferor and Assignor that, as of the Effective Date, it
shall be entitled to receive payments of principal and interest under its
Certificate, the Certificate Purchase Agreement and hereunder without
deduction for or on account of any taxes imposed by the United States of
America or any political subdivision thereof. In the event that, after
delivering the applicable form, Assignee shall cease to be exempt from
withholding and/or deduction of taxes, then the Transferor may withhold
and/or deduct the applicable amount from any payments of principal,
interest and any fees to which Assignee otherwise would be entitled, and
the Transferor shall have no liability whatsoever to Assignee for any such
withholding or deduction. Assignee shall indemnify Transferor from and
against all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs or expenses that result from Assignee's breach of
such representation and warranty.]1
SECTION 9. Miscellaneous. (a) Each of the parties hereto agrees
to take any action and execute and deliver any documents that any party
hereto reasonably may request from time to time in order to implement more
fully the purposes of this Agreement. Without limiting the generality of
the foregoing, Assignor and Assignee will cooperate in obtaining for
Assignee a Certificate (as well as a replacement Certificate for Assignor
representing any retained interest of Assignor).
(b) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES.
_______________
1/ If the Assignee is not a person within the meaning of Section
7701(a)(30) of the Internal Revenue Code.
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(c) Except as otherwise set forth herein, this Agreement sets
forth the entire agreement between the parties relating to the subject
matter hereof, and no term or provision of this Agreement may be amended,
changed, waived, discharged or terminated orally or otherwise, except in a
writing signed by Assignor and Assignee.
(d) This Agreement may be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(e) Each of the parties hereto agrees that each party shall bear
its own expenses in connection with the preparation and execution of this
Agreement and the consummation of the Assignment described herein.
(f) All representations and warranties made, and indemnities
provided for, herein shall survive the consummation of the transactions
contemplated hereby.
(g) Assignor may at any time or from time to time grant
assignments in its rights and obligations under the Certificate Purchase
Agreement and its Certificate to other Persons, but not in the portions
thereof assigned to Assignee.
(h) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. Neither
Assignor nor Assignee may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
other party. The preceding sentence shall not limit the right of Assignee
to assign all or part of Assignee's Share in the manner contemplated by the
Certificate Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized officers and delivered as of
the day and year first above written.
-----------------------------,
as Assignor
By:
---------------------------
Title:
------------------------
-----------------------------,
as Assignee
By:
---------------------------
Title:
------------------------
The undersigned hereby acknowledges the terms and provisions of
this Agreement, and agrees to make payments in respect of principal,
interest and fees as described in Section 4(a).
INTER-CITY PRODUCTS RECEIVABLES COMPANY, L.P.
By: Inter-City Products Partner Corporation
By:
------------------------------------
Title:
---------------------------------
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ANNEX I
to Assignment Agreement
Item 1. Assignee's Share:
(a) Assignee's Stated Amount $______________
(b) Assignee's Class Percentage _____________%
Item 2. Address of Assignee for notice purposes:
Attention:
Telephone:
Facsimile:
Item 3. LIBOR Office of Assignee:
SCHEDULE I
to Certificate Purchase Agreement
Series 1996-1, Class B
AMOUNT OF EACH INITIAL PURCHASER'S CERTIFICATE
Purchaser Invested Amount of Certificate
---------- ------------------------------
Argos Funding Corp. $10,000,000.00
Class Percentage
----------------
Argos Funding Corp. 100%
Series Percentage
-----------------
Argos Funding Corp. 14.29%
APPENDIX X
to Certificate Purchase Agreement
Series 1996-1, Class B
INDEX OF ADDITIONAL DEFINED TERMS
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Assignee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Bankruptcy Event. . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Class Percentage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Credit Exposure . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Early Termination Fee . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ICP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indemnitees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Initial Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
LIBOR Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Pooling Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Purchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Receivables Review. . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Series Percentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Supplement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Transferee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Transferor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3