Exhibit 10.01
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AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
DATED AS OF NOVEMBER 17, 2004
AMONG
RED BIRD RECEIVABLES, INC.,
AS BORROWER,
INTERNATIONAL PAPER FINANCIAL SERVICES, INC.,
AS SERVICER,
INTERNATIONAL PAPER COMPANY,
AS PERFORMANCE GUARANTOR,
THE CONDUITS FROM TIME TO TIME PARTY HERETO,
THE BANK OF TOKYO-MITSUBISHI, LTD, NEW YORK BRANCH,
AS GOTHAM AGENT,
JPMORGAN CHASE BANK, N.A.,
AS PREFCO AGENT,
BNP PARIBAS, ACTING THROUGH ITS NEW YORK BRANCH,
AS ▇▇▇▇▇▇▇▇ AGENT,
CITICORP NORTH AMERICA, INC.,
AS CAFCO AGENT,
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS BLUE RIDGE AGENT AND AS ADMINISTRATIVE AGENT
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THE USE OF THE FOLLOWING NOTATION IN THIS EXHIBIT INDICATES THAT A CONFIDENTIAL
PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION: [***].
TABLE OF CONTENTS
PAGE
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ARTICLE I. THE CREDIT..........................................................2
Section 1.1 The Facility................................................2
Section 1.2 Funding Mechanics; Liquidity Fundings.......................4
Section 1.3 Interest Rates..............................................5
Section 1.4 Payment Dates; Absence of Notes to Evidence Loans...........5
Section 1.5 Prepayments.................................................6
Section 1.6 Reductions in Aggregate Commitment..........................7
Section 1.7 Distribution of Certain Notices; Notification of
Interest Rates...........................................8
ARTICLE II. BORROWING AND PAYMENT MECHANICS; CERTAIN COMPUTATIONS..............8
Section 2.1 Method of Borrowing.........................................8
Section 2.2 Selection of CP Tranche Periods and Interest Periods........8
Section 2.3 Computation of Concentration Limits and Outstanding
Balance..................................................9
Section 2.4 Maximum Interest Rate.......................................9
Section 2.5 Payments and Computations, Etc.............................10
Section 2.6 Non-Receipt of Funds by the Co-Agents......................10
ARTICLE III. SETTLEMENTS......................................................11
Section 3.1 Monthly Reporting..........................................11
Section 3.2 Turnover of Collections....................................11
Section 3.3 Non-Distribution of Servicer's Fee.........................12
Section 3.4 Deemed Collections.........................................12
ARTICLE IV. FEES AND YIELD PROTECTION.........................................13
Section 4.1 Fees.......................................................13
Section 4.2 Yield Protection...........................................13
Section 4.3 Funding Losses.............................................16
ARTICLE V. CONDITIONS OF ADVANCES.............................................16
Section 5.1 Conditions Precedent to Initial Advance....................16
Section 5.2 Conditions Precedent to All Advances.......................16
ARTICLE VI. REPRESENTATIONS AND WARRANTIES....................................17
Section 6.1 Representations and Warranties of the Loan Parties.........17
Section 6.2 Liquidity Bank Representations and Warranties..............21
ARTICLE VII. COVENANTS........................................................22
Section 7.1 Affirmative Covenants of the Loan Parties..................22
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Section 7.2 Negative Covenants of the Loan Parties.....................29
ARTICLE VIII. ADMINISTRATION AND COLLECTION...................................30
Section 8.1 Designation of Servicer....................................30
Section 8.2 Duties of Servicer.........................................32
Section 8.3 Collection Notices.........................................34
Section 8.4 Responsibilities of Borrower...............................34
Section 8.5 Monthly Reports............................................34
Section 8.6 Servicing Fee..............................................35
ARTICLE IX. AMORTIZATION EVENTS...............................................35
Section 9.1 Amortization Events........................................35
Section 9.2 Remedies...................................................38
ARTICLE X. INDEMNIFICATION....................................................38
Section 10.1 Indemnities by Borrower and Servicer.......................38
Section 10.2 Increased Cost and Reduced Return..........................41
Section 10.3 Other Costs and Expenses...................................41
ARTICLE XI. THE AGENTS........................................................42
Section 11.1 Appointment................................................42
Section 11.2 Delegation of Duties.......................................43
Section 11.3 Exculpatory Provisions.....................................44
Section 11.4 Reliance by Agents.........................................44
Section 11.5 Notice of Amortization Event...............................44
Section 11.6 Non-Reliance on Other Agents and Lenders...................45
Section 11.7 Indemnification of Agents..................................45
Section 11.8 Agents in their Individual Capacities......................46
Section 11.9 Conflict Waivers...........................................46
Section 11.10 UCC Filings................................................47
ARTICLE XII. ASSIGNMENTS; PARTICIPATIONS......................................47
Section 12.1 Restrictions on Assignments................................47
Section 12.2 Rights of Assignees and Participants.......................48
Section 12.3 Terms and Evidence of Assignment...........................49
ARTICLE XIII. SECURITY INTEREST...............................................49
Section 13.1 Grant of Security Interest.................................49
Section 13.2 Termination after Final Payout Date........................49
Section 13.3 Release of Certain Charged-Off Receivables.................49
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ARTICLE XIV. MISCELLANEOUS....................................................50
Section 14.1 Waivers and Amendments.....................................50
Section 14.2 Notices....................................................50
Section 14.3 Ratable Payments...........................................50
Section 14.4 Protection of Administrative Agent's Security Interest.....51
Section 14.5 Confidentiality............................................52
Section 14.6 Bankruptcy Petition........................................52
Section 14.7 Limitation of Liability....................................53
Section 14.8 CHOICE OF LAW..............................................53
Section 14.9 CONSENT TO JURISDICTION....................................53
Section 14.10 WAIVER OF JURY TRIAL.......................................53
Section 14.11 Integration; Binding Effect; Survival of Terms.............54
Section 14.12 Counterparts; Severability; Section References.............54
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EXHIBITS AND SCHEDULES
Exhibit I Definitions
Exhibit II Form of Borrowing Request
Exhibit III Chief Executive Offices of the Loan Parties; Locations of
Records; Federal Employer Identification Numbers
[***]
Exhibit V Form of Compliance Certificate
Exhibit VI Form of Collection Account Agreement
Exhibit VII [Reserved]
[***]
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AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT, dated as of
November 17, 2004 is entered into by and among:
(a) RED BIRD RECEIVABLES, INC., a Delaware corporation ("Borrower"),
(b) INTERNATIONAL PAPER FINANCIAL SERVICES, INC., a Delaware
corporation ("IPFS"), as initial Servicer, INTERNATIONAL PAPER COMPANY, a New
York corporation ("International Paper"), as Performance Guarantor (the
Servicer, the Performance Guarantor and Borrower, collectively, the "Loan
Parties" and each, a "Loan Party"),
(c) BLUE RIDGE ASSET FUNDING CORPORATION, a Delaware corporation
(together with its successors, "Blue Ridge"), WACHOVIA BANK, NATIONAL
ASSOCIATION, in its capacity as a Liquidity Bank to Blue Ridge (together with
its successors, "Wachovia" and together with Blue Ridge, the "Blue Ridge
Group"),
(d) GOTHAM FUNDING CORPORATION, a Delaware corporation (together with
its successors, "Gotham"), and THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK
BRANCH, in its capacity as a Liquidity Bank to Gotham (together with its
successors, "BTM" and, together with Gotham, the "Gotham Group"),
(e) PREFERRED RECEIVABLES FUNDING CORPORATION, a Delaware corporation
(together with its successors, "PREFCO"), and JPMORGAN CHASE BANK, N.A., in its
capacity as a Liquidity Bank to PREFCO (together with its successors, "JPMorgan"
and, together with PREFCO, the "PREFCO Group"),
(f) ▇▇▇▇▇▇▇▇ FUNDING CORPORATION, a Delaware corporation (together
with its successors, "▇▇▇▇▇▇▇▇"), and BNP PARIBAS, ACTING THROUGH ITS NEW YORK
BRANCH, in its capacity as a Liquidity Bank to ▇▇▇▇▇▇▇▇ (together with its
successors, "BNP Paribas" and, together with ▇▇▇▇▇▇▇▇, the "▇▇▇▇▇▇▇▇ Group"),
(g) CAFCO, LLC, a Delaware limited liability company (together with
its successors, "CAFCO" and, together with Blue Ridge, Gotham, PREFCO and
▇▇▇▇▇▇▇▇, the "Conduits"), and CITIBANK, N.A., in its capacity as a Liquidity
Bank to CAFCO (together with its successors, "Citibank" and, together with
CAFCO, the "CAFCO Group"),
(h) WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as agent for
the Blue Ridge Group (together with its successors in such capacity, the "Blue
Ridge Agent" or a "Co-Agent"), THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK
BRANCH, in its capacity as agent for the Gotham Group (together with its
successors in such capacity, the "Gotham Agent" or a "Co-Agent"), JPMORGAN CHASE
BANK, N.A., in its capacity as agent for the PREFCO Group (together with its
successors in such capacity, the "PREFCO Agent" or a "Co-Agent"), BNP PARIBAS,
ACTING THROUGH ITS NEW YORK BRANCH, in its capacity as agent for the ▇▇▇▇▇▇▇▇
Group (together with its successors in such capacity, the "▇▇▇▇▇▇▇▇ Agent" or a
"Co-Agent"), and CITICORP NORTH AMERICA, INC. in
its capacity as agent for the CAFCO Group ("CNAI" and, together with its
successors in such capacity, the "CAFCO Agent" or a "Co-Agent"), and
(i) WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for
the Blue Ridge Group, the Gotham Group, the PREFCO Group, the ▇▇▇▇▇▇▇▇ Group,
the CAFCO Group and the Co-Agents (in such capacity, together with any
successors thereto in such capacity, the "Administrative Agent" and together
with each of the Co-Agents, the "Agents").
Unless defined elsewhere herein, capitalized terms used in this
Agreement shall have the meanings assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
The Loan Parties, the Blue Ridge Group, the Gotham Group, the Blue
Ridge Agent, the Gotham Agent and the Administrative Agent are parties to
that certain Credit and Security Agreement dated as of December 26, 2001,
by and among the Loan Parties, the Blue Ridge Group, the Gotham Group, the
Blue Ridge Agent, the Gotham Agent and the Administrative Agent, as
heretofore amended from time to time (the "Existing Agreement").
Borrower has asked the PREFCO Group, the ▇▇▇▇▇▇▇▇ Group and the CAFCO
Group to become Lenders under the Existing Agreement. On the terms and
subject to the conditions hereinafter set forth, Blue Ridge, PREFCO,
▇▇▇▇▇▇▇▇ and CAFCO (collectively, the "Pool Funded Conduits") may, in their
absolute and sole discretion, make Loans to Borrower from time to time, and
Gotham shall make Loans to Borrower from time to time.
In the event that the Pool Funded Conduits decline to make any Loan,
the Pool Funded Conduits' Liquidity Banks shall, at the request of
Borrower, make such Loan. In the event that Gotham fails to make any Loan,
Gotham's Liquidity Banks shall, at the request of Borrower, make such Loan.
Wachovia Bank, National Association has been requested and is willing
to act as Administrative Agent on behalf of the Co-Agents, the Blue Ridge
Group, the Gotham Group, the PREFCO Group, the ▇▇▇▇▇▇▇▇ Group and the CAFCO
Group in accordance with the terms hereof.
ARTICLE I.
THE CREDIT
Section 1.1 The Facility. On the terms and subject to the conditions set
forth in this Agreement, Borrower (or the Servicer on Borrower's behalf) may
from time to time during the Revolving Period request Advances by delivering a
Borrowing Request to the Co-Agents in accordance with Section 2.1. Upon receipt
of a copy of each Borrowing Request from Borrower or Servicer, each of the
Co-Agents shall determine whether its Conduit will fund a Loan in an amount
equal to its Group's Percentage of the requested Advance specified in such
Borrowing Request, and
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(a) in the event that Blue Ridge elects not to make any such Loan to
Borrower, the Blue Ridge Agent shall promptly notify Borrower and, unless
Borrower cancels its Borrowing Request, each of the Blue Ridge Liquidity
Banks severally agrees to make its Ratable Share of such Loan to Borrower,
on the terms and subject to the conditions hereof, provided that at no time
may the aggregate principal amount of Blue Ridge's and the Blue Ridge
Liquidity Banks' Loans at any one time outstanding exceed the lesser of (i)
the Blue Ridge Group's Group Limit, and (ii) Blue Ridge's Percentage of the
Borrowing Base (such lesser amount, the "Blue Ridge Allocation Limit");
(b) in the event that Gotham fails to make any such Loan to Borrower
pursuant to Gotham's Commitment, the Gotham Agent shall promptly notify
Borrower and, unless Borrower cancels its Borrowing Request, each of the
Liquidity Banks of Gotham severally agrees to make its Ratable Share of
such Loan to Borrower, on the terms and subject to the conditions hereof,
provided that at no time may the aggregate principal amount of Gotham's and
the Gotham Liquidity Banks' Loans at any one time outstanding exceed the
lesser of (i) the Gotham Group's Group Limit, and (ii) Gotham's Percentage
of the Borrowing Base (such lesser amount, the "Gotham Allocation Limit");
(c) in the event that PREFCO elects not to make any such Loan to
Borrower, the PREFCO Agent shall promptly notify Borrower and, unless
Borrower cancels its Borrowing Request, each of the PREFCO Liquidity Banks
severally agrees to make its Ratable Share of such Loan to Borrower, on the
terms and subject to the conditions hereof, provided that at no time may
the aggregate principal amount of PREFCO's and the PREFCO Liquidity Banks'
Loans at any one time outstanding exceed the lesser of (i) the PREFCO
Group's Group Limit, and (ii) PREFCO's Percentage of the Borrowing Base
(such lesser amount, the "PREFCO Allocation Limit");
(d) in the event that ▇▇▇▇▇▇▇▇ elects not to make any such Loan to
Borrower, the ▇▇▇▇▇▇▇▇ Agent shall promptly notify Borrower and, unless
Borrower cancels its Borrowing Request, each of the ▇▇▇▇▇▇▇▇ Liquidity
Banks severally agrees to make its Ratable Share of such Loan to Borrower,
on the terms and subject to the conditions hereof, provided that at no time
may the aggregate principal amount of ▇▇▇▇▇▇▇▇'▇ and the ▇▇▇▇▇▇▇▇ Liquidity
Banks' Loans at any one time outstanding exceed the lesser of (i) the
▇▇▇▇▇▇▇▇ Group's Group Limit, and (ii) ▇▇▇▇▇▇▇▇'▇ Percentage of the
Borrowing Base (such lesser amount, the "▇▇▇▇▇▇▇▇ Allocation Limit"); and
(e) in the event that CAFCO elects not to make any such Loan to
Borrower, the CAFCO Agent shall promptly notify Borrower and, unless
Borrower cancels its Borrowing Request, each of the CAFCO Liquidity Banks
severally agrees to make its Ratable Share of such Loan to Borrower, on the
terms and subject to the conditions hereof, provided that at no time may
the aggregate principal amount of CAFCO's and the CAFCO Liquidity Banks'
Loans at any one time outstanding exceed the lesser of (i) the CAFCO
Group's Group Limit, and (ii) CAFCO's Percentage of the Borrowing Base
(such lesser amount, the "CAFCO Allocation Limit").
Each Loan shall be in the minimum amount of $1,000,000 or a larger integral
multiple of $500,000. In no event may the aggregate principal amount of the
Advances hereunder exceed
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the lesser of (x) the Aggregate Commitment, or (y) the Borrowing Base. Each
Committed Lender's Commitment under this Agreement shall terminate on the
Facility Termination Date. Each of the Loans, and all other Obligations of
Borrower, shall be secured by the Collateral as provided in Article IX.
Section 1.2 Funding Mechanics; Liquidity Fundings.
(a) Each Advance hereunder shall consist of Loans made by (i) Gotham
and/or its Liquidity Banks, (ii) Blue Ridge and/or its Liquidity Banks, (iii)
PREFCO and/or its Liquidity Banks, (iv) ▇▇▇▇▇▇▇▇ and/or its Liquidity Banks,
and/or (v) CAFCO and/or its Liquidity Banks and which (except for any Advance
which does not increase the aggregate principal amount of the Loans outstanding)
shall be made in such proportions by each Group such that, after giving effect
thereto, the aggregate outstanding principal balance of the Loans outstanding
from each Group shall be in proportion to such Group's Percentage of the
aggregate outstanding principal balance of all Advances then outstanding
hereunder. Any Advance which does not increase the aggregate principal amount
outstanding may be funded solely by one or more of the members of a single
Group.
(b) Each Lender funding any portion of an Advance shall wire transfer
the principal amount of its Loan to its applicable Co-Agent in immediately
available funds not later than 1:00 p.m. (New York City time) on the applicable
Borrowing Date and, subject to its receipt of such Loan proceeds, such Co-Agent
shall wire transfer such funds to the account specified by Borrower in its
Borrowing Request not later than 2:00 p.m. (New York City time) on such
Borrowing Date.
(c) While it is the intent of each of the Conduits to fund its
respective Loans through the issuance of Promissory Notes, the parties
acknowledge that if any of the Conduits is unable, or reasonably determines that
it is undesirable for any reason to issue Promissory Notes to fund or maintain
all or any portion of its Loans at a CP Rate, or is unable to repay such
Promissory Notes upon the maturity thereof, such Conduit will avail itself of a
Liquidity Funding under its Liquidity Agreement. The Liquidity Fundings may be
Alternate Base Rate Loans or LIBOR Loans, or a combination thereof, selected by
Borrower in accordance with Article II; provided, however, that each Liquidity
Funding shall be an Alternate Base Rate Loan at least for the first two (2)
Business Days after it is funded. In addition, the parties acknowledge that most
Promissory Notes are issued at a discount and at varying discount rates;
accordingly, it may not be possible for all CP Rate Loans to be made in amounts
precisely equal to the amounts specified in a Borrowing Request. Regardless of
whether a Liquidity Funding constitutes an assignment of a Loan or the sale of
one or more participations therein or any other obtaining of funding for all or
any portion of any Loan, each Liquidity Bank participating in a Liquidity
Funding shall have the same rights as its Conduit has hereunder with the same
force and effect as if such Liquidity Bank had directly made a Loan to Borrower
in the amount of its Liquidity Funding.
(d) Nothing herein shall be deemed to commit any Lender to make CP
Rate Loans.
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Section 1.3 Interest Rates.
(a) Each CP Rate Loan shall bear interest on the outstanding principal
amount thereof from and including the first day of the CP Tranche Period
applicable thereto selected in accordance with Article II of this Agreement to
(but not including) the last day of such CP Tranche Period at the applicable CP
Rate. On the 5th Business Day immediately preceding each Settlement Date, each
Pool Funded Conduit shall calculate the amount of its CP Costs for the
applicable Calculation Period and the Gotham Agent shall calculate Gotham's CP
Rate and each shall notify Borrower of such amount which shall be payable on
such Settlement Date.
(b) Each LIBOR Loan shall bear interest on the outstanding principal
amount thereof from and including the first day of the Interest Period
applicable thereto selected in accordance with Article II of this Agreement to
(but not including) the last day of such Interest Period at a rate per annum
equal to the applicable LIBOR for such Interest Period.
(c) Each Alternate Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from and including the date
such Loan is made to but excluding the date it is paid at a rate per annum equal
to the Alternate Base Rate for such day. Changes in the rate of interest on
Alternate Base Rate Loans will take effect simultaneously with each change in
the Alternate Base Rate.
(d) Notwithstanding anything to the contrary contained in Sections
1.3(a), (b) or (c), upon the occurrence of an Amortization Event, and during the
continuance thereof, all Obligations shall bear interest, payable upon demand,
at the Default Rate.
(e) Interest shall be payable for the day a Loan is made but not for
the day of any payment on the amount paid if payment is received by each
Co-Agent prior to 1:00 p.m. (New York City time) at the place of payment. If any
payment of principal of or interest on a Loan shall become due on a day which is
not a Business Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
Section 1.4 Payment Dates; Absence of Notes to Evidence Loans.
(a) Borrower promises to pay the principal of each CP Rate Loan on the
last day of its CP Tranche Period.
(b) Borrower promises to pay the principal of each LIBOR Loan on the
last day of its Interest Period.
(c) Borrower promises to pay the principal of each Alternate Base Rate
Loan on or before the earlier to occur of (i) the Facility Termination Date, and
(ii) the refinancing of such Loan with a CP Rate Loan or a LIBOR Loan.
(d) Borrower promises to pay all accrued and unpaid interest on each
Loan on its applicable Settlement Date.
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(e) Each Lender shall maintain (or cause its respective Co-Agent to
maintain) in accordance with its usual practice an account or accounts
evidencing the indebtedness of Borrower to such Lender resulting from each Loan
made by such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. Upon
request of Borrower, such Lender's Co-Agent or the Administrative Agent, such
Lender will confirm the outstanding principal balances of its Loans and the
amount of any accrued and unpaid interest thereon. The entries maintained in the
accounts maintained pursuant to this Section shall absent manifest error be
correct evidence of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of any Lender (or Co-Agent) to
maintain such accounts or any error therein shall not in any manner affect the
obligation of Borrower to repay the Obligations in accordance with their terms.
Section 1.5 Prepayments. Subject, in the case of CP Rate Loans and LIBOR
Loans, to the funding indemnification provisions of Section 4.3:
(a) Borrower may from time to time voluntarily prepay, without penalty
or premium, all outstanding Advances, or, in a minimum aggregate amount of
$1,000,000 per Group (or a larger integral multiple of $1,000,000 per Group),
any portion of the outstanding Advances by giving prior written notice to the
Co-Agents (each, a "Prepayment Notice"): (i) given within the Required Notice
Period with respect to each Pool Funded Conduit's Loans so prepaid and (ii)
providing for such prepayment to occur on the last day of the CP Tranche Period
with respect to Gotham's CP Rate Loans so prepaid; provided that each such
prepayment of principal complying with the provisions of this section or
otherwise is accompanied by a payment of all accrued and unpaid interest on the
amount prepaid, together with all amounts (if any) due under Section 4.3 and any
Broken Funding Costs (if any) due because of such prepayment, and is made
between the Conduits in such proportions so that after giving effect thereto,
the aggregate outstanding principal balance of the Loans outstanding from each
Conduit shall be in proportion to such Conduit's Percentage of the aggregate
outstanding principal balance of all Advances then outstanding hereunder. The
Co-Agent's agree to use their best efforts to accommodate any request by
Borrower to prepay any portion of the outstanding Advances in any manner other
than as required herein to minimize any Broken Funding Costs associated with
such prepayment.
(b) If, on any Business Day, the aggregate outstanding principal
amount of the Loans from the Blue Ridge Group exceeds the Blue Ridge Allocation
Limit, or the aggregate principal amount of the Loans outstanding from Blue
Ridge exceeds the Blue Ridge Liquidity Banks' Liquidity Commitments pursuant to
the Blue Ridge Liquidity Agreement divided by 102%, Borrower shall prepay such
Loans by wire transfer to the Blue Ridge Agent received not later than 1:00 p.m.
(New York City time) on the first Business Day thereafter of an amount
sufficient to eliminate such excess, together with accrued and unpaid interest
on the amount prepaid.
(c) If, on any Business Day, the aggregate outstanding principal
amount of the Loans from the Gotham Group exceeds the Gotham Allocation Limit,
or the aggregate principal amount of the Loans outstanding from Gotham exceeds
the Gotham Liquidity Banks' aggregate Liquidity Commitments pursuant to the
Gotham Liquidity Agreement divided by 102%, Borrower shall prepay such Loans by
wire transfer to the Gotham Agent received not later than
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1:00 p.m. (New York City time) on the first Business Day thereafter of an amount
sufficient to eliminate such excess, together with accrued and unpaid interest
on the amount prepaid.
(d) If, on any Business Day, the aggregate outstanding principal
amount of the Loans from the PREFCO Group exceeds the PREFCO Allocation Limit,
or the aggregate principal amount of the Loans outstanding from PREFCO exceeds
the PREFCO Liquidity Banks' aggregate Liquidity Commitments pursuant to the
PREFCO Liquidity Agreement divided by 102%, Borrower shall prepay such Loans by
wire transfer to the PREFCO Agent received not later than 1:00 p.m. (New York
City time) on the first Business Day thereafter of an amount sufficient to
eliminate such excess, together with accrued and unpaid interest on the amount
prepaid.
(e) If, on any Business Day, the aggregate outstanding principal
amount of the Loans from the ▇▇▇▇▇▇▇▇ Group exceeds the ▇▇▇▇▇▇▇▇ Allocation
Limit, or the aggregate principal amount of the Loans outstanding from ▇▇▇▇▇▇▇▇
exceeds the ▇▇▇▇▇▇▇▇ Liquidity Banks' aggregate Liquidity Commitments pursuant
to the ▇▇▇▇▇▇▇▇ Liquidity Agreement divided by 102%, Borrower shall prepay such
Loans by wire transfer to the ▇▇▇▇▇▇▇▇ Agent received not later than 1:00 p.m.
(New York City time) on the first Business Day thereafter of an amount
sufficient to eliminate such excess, together with accrued and unpaid interest
on the amount prepaid.
(f) If, on any Business Day, the aggregate outstanding principal
amount of the Loans from the CAFCO Group exceeds the CAFCO Allocation Limit, or
the aggregate principal amount of the Loans outstanding from CAFCO exceeds the
CAFCO Liquidity Banks' aggregate Liquidity Commitments pursuant to the CAFCO
Liquidity Agreement divided by 102%, Borrower shall prepay such Loans by wire
transfer to the CAFCO Agent received not later than 1:00 p.m. (New York City
time) on the first Business Day thereafter of an amount sufficient to eliminate
such excess, together with accrued and unpaid interest on the amount prepaid.
(g) Upon receipt of any wire transfer pursuant to Section 1.5(a), (b),
(c), (d), (e) or (f), the applicable Co-Agent shall wire transfer to each of its
Constituent Lenders their respective shares thereof not later than 1:30 p.m.
(New York City time) on the date when received. Any prepayment required pursuant
to Section 1.5(b), (c), (d), (e) or (f) shall be applied first, to the ratable
reduction of the applicable Group's Alternate Base Rate Loans outstanding,
second, to the ratable reduction of the applicable Group's LIBOR Loans
outstanding, and lastly, to the reduction of the applicable Group's CP Rate
Loans selected by Borrower (or the Servicer, on Borrower's behalf).
Section 1.6 Reductions in Aggregate Commitment. Borrower may permanently
reduce the Aggregate Commitment in whole, or ratably among the Groups in part,
in a minimum amount of $5,000,000 per Group (or a larger integral multiple of
$1,000,000 per Group), upon at least fifteen (15) Business Days' written notice
to the Co-Agents (each, a "Commitment Reduction Notice"), which notice shall
specify the aggregate amount of any such reduction and each Group's respective
Percentage thereof, provided, however, that (a) the amount of the Aggregate
Commitment may not be reduced below the aggregate principal amount of the
outstanding Advances, and (b) the amount of the Aggregate Commitment may not be
reduced below $250,000,000 unless the Aggregate Commitment is terminated in
full. All accrued and unpaid fees, including Broken Funding Costs, if any, shall
be payable on the effective date of
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any termination of the Aggregate Commitment. Each Commitment Reduction Notice
shall be irrevocable once delivered to the Co-Agents.
Section 1.7 Distribution of Certain Notices; Notification of Interest
Rates. Promptly after receipt thereof, the Blue Ridge Agent will notify the Blue
Ridge Group, the Gotham Agent will notify the Gotham Group, the PREFCO Agent
will notify the PREFCO Group, the ▇▇▇▇▇▇▇▇ Agent will notify the ▇▇▇▇▇▇▇▇ Group
and the CAFCO Agent will notify the CAFCO Group of the contents of each Monthly
Report, Borrowing Request, Commitment Reduction Notice, Prepayment Notice, or
notice of default received by it from Borrower or the Servicer hereunder. In
addition, each of the Co-Agents shall promptly notify its Constituent Lenders
and Borrower of each determination of and change in Interest Rates and of any
decision by the Liquidity Banks in its Group not to extend their Liquidity
Termination Date.
ARTICLE II.
BORROWING AND PAYMENT MECHANICS; CERTAIN COMPUTATIONS
Section 2.1 Method of Borrowing. Borrower (or the Servicer, on Borrower's
behalf) shall give the Co-Agents irrevocable notice in the form of Exhibit II
hereto (each, a "Borrowing Request") not later than 12:00 p.m. (New York City
time) at least one (1) Business Day before the Borrowing Date of each Advance.
On each Borrowing Date, each applicable Lender shall make available its Loan or
Loans in immediately available funds to its Co-Agent by wire transfer of such
amount received not later than 1:00 p.m. (New York City time). Subject to its
receipt of such wire transfers, each Co-Agent will wire transfer the funds so
received from its Constituent Lenders to Borrower at the account specified in
its Borrowing Request not later than 2:00 p.m. (New York City time) on the
applicable Borrowing Date. Unless each of the Co-Agents in its sole discretion
shall otherwise agree, not more than one (1) Borrowing Date shall occur in any
calendar week.
Section 2.2 Selection of CP Tranche Periods and Interest Periods.
(a) Except upon the occurrence and during the continuance of an
Amortization Event and subject to Section 2.2(b) and, in the case of LIBOR
Loans, Section 2.2(c): (i) Borrower (or the Servicer, on Borrower's behalf) in
its Borrowing Request may request CP Tranche Periods from time to time to apply
to Gotham's CP Rate Loans; provided, however, that no CP Tranche Period of
Gotham may extend beyond the Gotham Group's Liquidity Termination Date, and (ii)
Borrower (or the Servicer, on Borrower's behalf) in its Borrowing Request may
request Interest Periods from time to time to apply to the LIBOR Loans;
provided, however, that (x) at any time while any Liquidity Bank has LIBOR Loans
outstanding, at least one Interest Period of such Liquidity Bank shall mature on
each Settlement Date and (y) no Interest Period of any Liquidity Bank which
began prior to its Liquidity Termination Date shall extend beyond such Liquidity
Termination Date.
(b) While the Gotham Agent will use reasonable efforts to accommodate
Borrower's or the Servicer's requests for CP Tranche Periods except during the
continuance of an Amortization Event, the Gotham Agent shall have the right to
subdivide any requested CP Rate Loan into one or more CP Rate Loans of different
CP Tranche Periods, or, if the requested period is not feasible, to suggest an
alternative CP Tranche Period. While each of the Co-Agents
8
will use reasonable efforts to accommodate Borrower's or the Servicer's requests
for Interest Periods for LIBOR Loans except during the continuance of an
Amortization Event, each of the Co-Agents shall have the right to subdivide any
requested LIBOR Loan into one or more LIBOR Loans with different Interest
Periods, or, if the requested period is not feasible, to suggest an alternative
Interest Period. Notwithstanding the foregoing, not less than $1,000,000 of
principal may be allocated to any CP Tranche Period of the Conduits or Interest
Period of any Liquidity Funding, and no Alternate Base Rate Loan may have a
principal amount of less than $1,000,000.
(c) Borrower (or the Servicer, on Borrower's behalf) may not request
an Interest Period for a LIBOR Loan unless it shall have given each of the
applicable Co-Agent(s) written notice of its desire therefor not later than 1:00
p.m. (New York City time) at least three (3) Business Days prior to the first
day of the desired Interest Period. Accordingly, all Liquidity Fundings shall
initially be Alternate Base Rate Loans.
(d) Unless each of the Co-Agents shall have received written notice by
12:00 p.m. (New York City time) on the Business Day prior to the last day of a
CP Tranche Period that Borrower intends to reduce the aggregate principal amount
of the CP Rate Loans outstanding, each of the Co-Agents and the Conduits shall
be entitled to assume that Borrower desires to refinance the principal and
interest of each maturing CP Rate Loan on the last day of its CP Tranche Period
with new CP Rate Loans having substantially similar CP Tranche Periods;
provided, however, that Borrower shall remain liable to pay in cash any portion
of the principal or interest on the maturing CP Rate Loan when due to the extent
that the applicable Conduit cannot issue Promissory Notes or avail itself of a
Liquidity Funding, in either case, in the precise amount necessary to refinance
the maturing CP Rate Loan and the accrued and unpaid interest thereon.
(e) Unless each of the Co-Agents shall have received written notice by
1:00 p.m. (New York City time) on the third (3rd) Business Day prior to the last
day of an Interest Period with respect to a LIBOR Loan that Borrower intends to
reduce the aggregate principal amount of LIBOR Loans outstanding from the
Liquidity Banks, each of the Blue Ridge Liquidity Banks, the PREFCO Liquidity
Banks and the CAFCO Liquidity Banks shall be entitled to assume that Borrower
desires to refinance its maturing LIBOR Loans on the last day of such Interest
Period with Alternate Base Rate Loans, and each of the Gotham Liquidity Banks
and the ▇▇▇▇▇▇▇▇ Liquidity Banks shall be entitled to assume that Borrower
desires to refinance its maturing LIBOR Loans on the last day of such Interest
Period with LIBOR Loans for the same Interest Period then ending to the extent
of the applicable Liquidity Banks' ability to provide the funding without the
customary three (3) Business Days notice or, otherwise, with Alternate Base Rate
Loans.
Section 2.3 Computation of Concentration Limits and Outstanding Balance.
The Obligor Concentration Limits and the aggregate Outstanding Balance of
Receivables of each Obligor and its Affiliated Obligors (if any) shall be
calculated as if each such Obligor and its Affiliated Obligors were one Obligor.
Section 2.4 Maximum Interest Rate. No provision of this Agreement shall
require the payment or permit the collection of interest in excess of the
maximum permitted by applicable law (the "Maximum Rate"). If at any time the
interest rate applicable to any Loan, together with
9
all fees, charges and other amounts which are treated as interest on such Loan
under applicable law (collectively the "Charges"), shall exceed the Maximum Rate
which may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.
Section 2.5 Payments and Computations, Etc.
(a) Payments. All amounts to be paid or deposited by Borrower or the
Servicer (on Borrower's behalf) to any of the Agents or Lenders (other than
amounts payable under Section 4.2) shall be paid by wire transfer of immediately
available funds received not later than 1:00 p.m. (New York City time) on the
day when due in lawful money of the United States of America to the applicable
Co-Agent at its address specified in Schedule 14.2, and, to the extent such
payment is for the account of any Lender, the applicable Co-Agent shall promptly
disburse such funds to the appropriate Lender(s) in its Group.
(b) Late Payments. To the extent permitted by law, upon demand,
Borrower or the Servicer (on Borrower's behalf), as applicable, shall pay to the
applicable Co-Agent for the account of each Person in its Group to whom payment
of any Obligation is due, interest on all amounts not paid or deposited by 1:00
p.m. (New York City time) on the date when due (without taking into account any
applicable grace period) at the Default Rate.
(c) Method of Computation. All computations of interest at the
Alternate Base Rate or the Default Rate shall be made on the basis of a year of
365 (or, when appropriate, 366) days for the actual number of days (including
the first day but excluding the last day) elapsed. All other computations of
interest, and all computations of Servicer's Fee, any per annum fees payable
under Section 4.1 and any other per annum fees payable by Borrower to the
Lenders, the Servicer or any of the Agents under the Loan Documents shall be
made on the basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) elapsed.
(d) Avoidance or Rescission of Payments. To the maximum extent
permitted by applicable law, no payment of any Obligation shall be considered to
have been paid if at any time such payment is rescinded or must be returned for
any reason.
Section 2.6 Non-Receipt of Funds by the Co-Agents. Unless a Lender notifies
its Co-Agent prior to the date and time on which it is scheduled to fund a Loan
that it does not intend to fund such Loan, such Co-Agent may assume that such
funding will be made and may, but shall not be obligated to, make the amount of
such Loan available to the intended recipient in reliance upon such assumption.
If such Lender has not in fact funded its Loan proceeds to the applicable
Co-Agent, the recipient of such payment shall, on demand by such Co-Agent, repay
to such Co-
10
Agent the amount so made available together with interest thereon in respect of
each day during the period commencing on the date such amount was so made
available by such Co-Agent until the date such Co-Agent recovers such amount at
a rate per annum equal to the Federal Funds Effective Rate for such day.
ARTICLE III.
SETTLEMENTS
Section 3.1 Monthly Reporting. Not later than the Monthly Reporting Date in
each calendar month hereafter, the Servicer shall deliver to each of the
Co-Agents, a Monthly Report accompanied by an electronic file in a form
reasonably satisfactory to each of the Co-Agents; provided, however, that if an
Unmatured Amortization Event or an Amortization Event shall exist and be
continuing, each of the Co-Agents may request that a computation of the
Borrowing Base also be made on a date that is not a Monthly Reporting Date and,
so long as such request is not made on or within 5 Business Days prior to the
last day of any calendar month, the Servicer agrees to provide such computation
within 5 Business Days after such request. At or before 1:00 p.m. (New York City
time) on the Business Day before each Settlement Date, each of the Co-Agents
shall notify Borrower and the Servicer of (i) the aggregate principal balance of
all Loans that are then outstanding from its Constituents, and (ii) the
aggregate amount of all principal, interest and fees that will be due and
payable by Borrower to such Co-Agent for the account of such Co-Agent or its
Constituents on such Settlement Date.
Section 3.2 Turnover of Collections. Without limiting any Agent's or
Lender's recourse to Borrower for payment of any and all Obligations:
(a) If any Monthly Report reveals that a mandatory prepayment is
required under Section 1.5(b), (c), (d), (e) or (f), not later than the 1:00
p.m. (New York City time) on the next succeeding Settlement Date, the Servicer
shall turn over to each applicable Co-Agent, for distribution to its
Constituents, a portion of the Collections equal to the amount of such required
mandatory prepayment;
(b) If, on any Settlement Date, any Loans are to be voluntarily
prepaid in accordance with Section 1.5(a), or if the aggregate principal amount
of the Advances outstanding is to be reduced, the Servicer shall turn over to
each of the Co-Agents, for distribution to its Constituents, a portion of the
Collections equal to the Groups' respective Percentages of the aggregate amount
of such voluntary prepayment or reduction and any other amounts required to be
paid in connection with such voluntary prepayment or reduction; and
(c) In addition to, but without duplication of, the foregoing, on (i)
each Settlement Date, (ii) on each Business Day from and after the occurrence of
an Amortization Event and during the continuation thereof, and (iii) each other
date on which any principal of or interest on any of the Loans becomes due
(whether by acceleration or otherwise) and, in the case of principal, has not
been reborrowed pursuant to Section 1.1, the Servicer shall turn over to each of
the Co-Agents, for distribution to their respective Constituents, the Groups'
respective Percentages of a portion of the Collections equal to the aggregate
amount of all other Obligations that are due and owing on such date. If the
Collections and proceeds of new Loans are insufficient to make all payments
required under clauses (a), (b) and (c) and to pay the Servicer's
11
Fees and, if applicable, all expenses due and owing to any replacement Servicer
under Section 8.1(d) (all of the foregoing, collectively, the "Required
Amounts") and Borrower has made any Demand Advances, Borrower shall make demand
upon IPFS for payment of the Demand Advances in an amount equal to the lesser of
the Required Amounts or the aggregate outstanding principal balance of such
Demand Advances (plus any accrued and unpaid interest thereon) and, upon receipt
of any such amounts, Borrower shall pay them to each of the Co-Agents, ratably
in accordance with their respective Groups' Percentages, for distribution in
accordance with this Section 3.2.
(d) If the aggregate amount of Collections and payments on Demand
Advances received by the Co-Agents on any Settlement Date are insufficient to
pay all Required Amounts, the aggregate amount received shall be applied to the
items specified in the subclauses below, in the order of priority of such
subclauses:
(i) to any accrued and unpaid interest on the Loans that is then
due and owing, including any previously accrued interest which was not
paid on its applicable due date;
(ii) if the Servicer is not Borrower or an Affiliate thereof, to
any accrued and unpaid Servicer's Fee that is then due and owing to
such Servicer, together with any invoiced expenses of the Servicer due
and owing pursuant to Section 8.1(d);
(iii) to the Facility Fee and the Usage Fee accrued during such
Settlement Period, plus any previously accrued Facility Fee and Usage
Fee not paid on a prior Settlement Date;
(iv) to the payment of the principal of any Loans that are then
due and owing;
(v) to other Obligations that are then due and owing; and
(vi) if the Servicer is Borrower, IPFS or one of their respective
Affiliates, to the accrued and unpaid Servicer's Fee and Supplemental
Servicer's Fee that are then due and owing to such Servicer.
(e) In addition to, but without duplication of, the foregoing, on (i)
each Settlement Date and (ii) each other date on which any principal of or
interest on any of the Loans becomes due (whether by acceleration or otherwise),
the Servicer shall turn over to each of the Co-Agents, for distribution to the
Lenders, a portion of the Collections equal to the aggregate amount of all
Obligations that are due and owing on such date.
Section 3.3 Non-Distribution of Servicer's Fee. Each of the Agents and the
other Secured Parties hereby consents to the retention by the Servicer of a
portion of the Collections equal to the Servicer's Fee so long as the
Collections received by the Servicer are sufficient to pay all amounts pursuant
to Section 3.2(d) of a higher priority as specified in such Section.
Section 3.4 Deemed Collections. If as of the last day of any Settlement
Period:
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(a) the outstanding aggregate balance of the Net Pool Balance as
reflected in the preceding Monthly Report (net of any positive adjustments) has
been reduced for any of the following reasons:
(i) as a result of any rejected services, any cash discount or
any other adjustment by the Originator or any Affiliate thereof
(regardless of whether the same is treated by the Originator or such
Affiliate as a write-off), or as a result of any surcharge or other
governmental or regulatory action, or
(ii) as a result of any setoff or breach of the underlying
agreement in respect of any claim by the Obligor thereof (whether such
claim arises out of the same or a related or an unrelated
transaction), or
(iii) on account of the obligation of the Originator or any
Affiliate thereof to pay to the related Obligor any rebate or refund,
or
(iv) the Outstanding Balance of any Receivable is less than the
amount included in calculating the Net Pool Balance for purposes of
any Monthly Report (for any reason other than such Receivable becoming
a Defaulted Receivable), or
(b) any of the representations or warranties of Borrower set forth in
Section 6.1(i), (j), (l), (q)(ii), (r), (s) or (t) was not true when made with
respect to any Receivable, or any of the representations or warranties of
Borrower set forth in Section 6.1(i) or (j) is no longer true with respect to
any Receivable,
then, in such event, Borrower shall be deemed to have received a Collection in
an amount equal to (A) the amount of such reduction, cancellation or
overstatement, in the case of the preceding clauses (a)(i), (a)(ii), (a)(iii)
and (a)(iv), and (B) in the full amount of the Outstanding Balance of such
Receivable in the case of the preceding clause (b).
ARTICLE IV.
FEES AND YIELD PROTECTION
Section 4.1 Fees. IPFS or Borrower, as applicable, shall pay to each of the
Agents and the Lenders certain fees from time to time in amounts and payable on
such dates as are set forth in the Fee Letters.
Section 4.2 Yield Protection.
(a) If any Regulatory Change occurring after the date hereof:
(i) shall subject an Affected Party to any Tax (other than
Excluded Taxes), duty or other charge with respect to its Obligations
or, as applicable, its Commitment or its Liquidity Commitment, or
shall change the basis of taxation of payments to the Affected Party
of any Obligations, owed to or funded in whole or in part by it or any
other amounts due under this Agreement in respect of its Obligations
or, as applicable, its Commitment or its Liquidity Commitment; or
13
(ii) shall impose, modify or deem applicable any reserve that was
not included in the computation of the applicable Interest Rate, or
any special deposit or similar requirement against assets of any
Affected Party, deposits or obligations with or for the account of any
Affected Party or with or for the account of any affiliate (or entity
deemed by the Federal Reserve Board to be an affiliate) of any
Affected Party, or credit extended by any Affected Party; or
(iii) shall affect the amount of capital required or expected to
be maintained by any Affected Party; or
(iv) shall impose any other condition affecting any Obligation
owned or funded in whole or in part by any Affected Party, or its
rights or obligations, if any, to make Loans or Liquidity Fundings; or
(v) shall change the rate for, or the manner in which the Federal
Deposit Insurance Corporation (or a successor thereto) assesses
deposit insurance premiums or similar charges;
and the result of any of the foregoing is or would be:
(x) to increase the cost to or to impose a cost on (I) an
Affected Party funding or making or maintaining (or providing or
agreeing to provide funding for) any Loan, any Liquidity Funding, or
any commitment of such Affected Party with respect to any of the
foregoing, or (II) any of the Agents for continuing its or Borrower's
relationship with any Affected Party, in each case, in an amount
deemed to be material by such Affected Party,
(y) to reduce the amount of any sum received or receivable by an
Affected Party under this Agreement or under the Liquidity Agreement,
or
(z) to reduce the rate of return on such Affected Party's capital
as a consequence of its Commitment, its Liquidity Commitment or the
Loans made by it to a level below that which such Affected Party could
have achieved but for the occurrence of such circumstances,
then, within thirty days after demand by such Affected Party (which demand shall
be made not more than 45 days after the date on which the Affected Party becomes
aware of such Regulatory Change and shall be accompanied by a certificate
setting forth, in reasonable detail, the basis of such demand and the
methodology for calculating, and the calculation of the amounts claimed by the
Affected Party), Borrower shall pay directly to such Affected Party such
additional amount or amounts as will compensate such Affected Party for such
actual additional cost, actual increased cost or actual reduction.
(b) Each Affected Party will promptly notify Borrower, the
Administrative Agent and the applicable Co-Agent of any event of which it has
knowledge (including any future event that, in the judgment of such Affected
Party, is reasonably certain to occur) which will entitle such Affected Party to
compensation pursuant to this Section 4.2; provided, however, no failure to give
or delay in giving such notification shall adversely affect the rights of any
Affected Party
14
to such compensation unless such notification is given more than 45 days after
the Affected Party becomes aware of such Regulatory Change.
(c) In determining any amount provided for or referred to in this
Section 4.2, an Affected Party may use any reasonable averaging and attribution
methods (consistent with its ordinary business practices) that it (in its
reasonable discretion) shall deem applicable. Any Affected Party when making a
claim under this Section 4.2 shall submit to Borrower the above-referenced
certificate as to such actual increased cost or actual reduced return (including
calculation thereof in reasonable detail), which shall, in the absence of
manifest error, be conclusive and binding upon Borrower.
(d) Each of the Lenders agrees, and to require each Affected Party to
agree that, with reasonable promptness after an officer of such Lender or such
Affected Party responsible for administering the Transaction Documents becomes
aware that it has become an Affected Party under this Section 4.2, is entitled
to receive payments under this Section 4.2, or is or has become subject to U.S.
withholding Taxes payable by any Loan Party in respect of its investment
hereunder, it will, to the extent not inconsistent with any internal policy of
such Person or any applicable legal, rating agency or regulatory restriction or
directive: (i) use all reasonable efforts to make, fund or maintain its
commitment or investment hereunder through another branch or office of such
Affected Party, or (ii) take such other reasonable measures, if, as a result
thereof, the circumstances which would cause such Person to be an Affected Party
under this Section 4.2 would cease to exist, or the additional amounts which
would otherwise be required to be paid to such Person pursuant to this Section
4.2 would be reduced, or such withholding Taxes would be reduced, and if the
making, funding or maintaining of such commitment or investment through such
other office or in accordance with such other measures, as the case may be,
would not otherwise adversely affect such commitment or investment or the
interests of such Person; provided that such Person will not be obligated to
utilize such other lending office pursuant to this Section 4.2 unless Borrower
agrees to pay all incremental expenses incurred by such Person as a result of
utilizing such other office as described in clause (i) above.
(e) If any Liquidity Bank (other than a Co-Agent) makes a claim for
compensation under this Section 4.2, Borrower may propose an Eligible Assignee
to the applicable Co-Agent who is willing to accept an assignment of such
Liquidity Bank's Commitment, Liquidity Commitment and outstanding Loans,
together with each of its other rights and obligations under the Transaction
Documents; provided that any expenses or other amounts which would be owing to
such Liquidity Bank pursuant to any indemnification provision hereof (including,
if applicable, Section 4.3) shall be payable by Borrower as if Borrower had
prepaid the Loans of the assigning Lenders rather than such assigning Lenders
having assigned their respective interests hereunder. If such proposed Eligible
Assignee is acceptable to the applicable Co-Agent (who shall not unreasonably
withhold or delay its approval and shall be deemed to be acting per se
reasonably when following the instructions of any rating agency then rating its
respective Conduit's commercial paper or, as applicable, medium term note
program), the claiming Liquidity Bank will be obligated to assign all of its
rights and obligations to such proposed Eligible Assignee within ten (10)
Business Days after such Co-Agent gives its consent to such proposed Eligible
Assignee.
15
Section 4.3 Funding Losses. In the event that any Lender shall actually
incur any actual loss or expense (including, without limitation, any actual loss
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired to make any Loan or Liquidity Funding) as a result of (a)
Borrower's failure to borrow any LIBOR Loan on the date specified in any
Borrowing Request or repayment of any LIBOR Loan on a date other than the last
day of the applicable interest period, or (b) any event or condition specified
in the definition of "Broken Funding Costs," then, upon written notice from the
applicable Co-Agent to the Administrative Agent, Borrower and the Servicer,
Borrower shall pay to the Servicer, and the Servicer shall pay to the applicable
Co-Agent for the account of such Lender or Funding Source upon demand, the
amount of such actual loss or expense (which shall include without limitation
all Broken Funding Costs). Such written notice (which shall include the
methodology for calculating, and the calculation of, the amount of such actual
loss or expense, in reasonable detail) shall, in the absence of manifest error,
be conclusive and binding upon Borrower and the Servicer.
ARTICLE V.
CONDITIONS OF ADVANCES
Section 5.1 Conditions Precedent to Initial Advance. The initial Advance
under this Agreement is subject to the conditions precedent that (a) the
Administrative Agent shall have received on or before the date of such Advance
[***] those documents listed on Schedule B to this Agreement, (b) the Rating
Agency Condition, if required by any Conduit's program documents, shall have
been satisfied as to each applicable Conduit, and (c) the Agents shall have
received all fees and expenses required to be paid on such date pursuant to the
terms of this Agreement and the Fee Letters.
Section 5.2 Conditions Precedent to All Advances. Each Advance and each
rollover or continuation of any Advance shall be subject to the further
conditions precedent that (a) the Servicer shall have delivered to the Agents on
or prior to the date thereof, in form and substance satisfactory to the Agents,
all Monthly Reports as and when due under Section 8.5; (b) the Facility
Termination Date shall not have occurred; (c) the Agents shall have received
such other approvals, opinions or documents as any Agent may reasonably request;
and (d) on the date thereof, the following statements shall be true (and
acceptance of the proceeds of such Advance shall be deemed a representation and
warranty by Borrower that such statements are then true):
(i) the representations and warranties set forth in Section 6.1
are true and correct on and as of the date of such Advance (or such
Settlement Date, as the case may be) as though made on and as of such
date;
(ii) no event has occurred and is continuing, or would result
from such Advance (or the continuation thereof), that will constitute
an Amortization Event, and no event has occurred and is continuing, or
would result from such Advance (or the continuation thereof), that
would constitute an Unmatured Amortization Event; and
16
(iii) after giving effect to such Advance (or the continuation
thereof), the Aggregate Principal will not exceed the Aggregate
Commitment.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of the Loan Parties. Each Loan
Party hereby represents and warrants to the Agents and the Lenders, as to
itself, as of the date hereof, as of the date of each Advance and as of each
Settlement Date that:
(a) Existence and Power. Such Loan Party's jurisdiction of
organization is correctly set forth in the preamble to this Agreement. Such Loan
Party is duly organized under the laws of that jurisdiction and no other state
or jurisdiction. Such Loan Party is validly existing and in good standing under
the laws of its state of organization. Such Loan Party is duly qualified to do
business and is in good standing as a foreign entity, and has and holds all
organizational 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 so qualify or so hold 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 Loan Party of this Agreement and each other
Transaction Document to which it is a party, and the performance of its
obligations hereunder and thereunder and, in the case of Borrower, Borrower's
use of the proceeds of Advances 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 Loan
Party is a party has been duly executed and delivered by such Loan Party.
(c) No Conflict. The execution and delivery by such Loan Party of this
Agreement and each other Transaction Document to which it is a party, and the
performance of its obligations hereunder and thereunder (i) do not contravene or
violate (A) its certificate or articles of incorporation or by-laws, (B) any
law, rule or regulation applicable to it, (C) 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 (D) any order, writ, judgment, award, injunction or
decree binding on or affecting it or its property, and (ii) do not result in the
creation or imposition of any Adverse Claim on assets of such Loan Party or its
Subsidiaries (except as created hereunder) except, in the case of clauses
(i)(B), (i)(C) and (i)(D) above, where such contravention or violation could not
reasonably be expected to have a Material Adverse Effect. 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 Loan Party of this
Agreement or any other Transaction Document to which it is a party and the
performance of its obligations hereunder and thereunder.
17
(e) Actions, Suits. There are no actions, suits or proceedings
pending, or to the best of such Loan Party's knowledge, threatened, against or
affecting such Loan Party, 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 Loan Party is not in default with respect to any order of
any court, arbitrator or governmental body that could reasonably be expected to
have a Material Adverse Effect.
(f) Binding Effect. This Agreement and each other Transaction Document
to which such Loan Party is a party constitute the legal, valid and binding
obligations of such Loan Party enforceable against such Loan Party 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.
(i) Monthly Reports and Borrowing Base Recomputations. Each Monthly
Report delivered pursuant to Sections 3.1 and 8.5, and each recomputation (if
any) of the Borrowing Base delivered pursuant to Section 3.1, was true and
accurate in every material respect on the date specified in such report or
recomputation.
(ii) Pre-Closing Collateral Information. All information regarding the
Collateral or any Loan Party furnished by any Loan Party or any of its
Affiliates to any of the Agents or Lenders prior to the date of this Agreement
was true and accurate in every material respect on the date such information was
so furnished except as otherwise disclosed to the Agents and the Lenders prior
to the date hereof and, when taken as a whole together with such subsequent
disclosures, did 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 misleading.
(iii) Ongoing Collateral Information. All other information regarding
the Collateral not covered by clauses (i) and (ii) above which is hereafter
furnished by any Loan Party to any of the Agents or Lenders will be true and
accurate in every material respect on the date such information is so furnished
and, when taken as a whole, 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 misleading as of the date when so furnished.
(iv) Other Information. All other information regarding any Loan
Party, its business, operations, financial condition or prospects furnished by
any Loan Party to any of the Agents or Lenders in connection with the
Transaction Documents after the date of this Agreement that is not covered by
clauses (i), (ii) or (iii) above, will be true and accurate in every material
respect on the date such information is so furnished and, when taken as a whole
together with any subsequent updates to such information, 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 misleading as of the date
when furnished or updated.
(h) Use of Proceeds. No proceeds of any Advance hereunder will be used
(x) to purchase or carry any margin stock as defined in Regulation U promulgated
by the Board of
18
Governors of the Federal Reserve System or to advance or provide funds to others
for such purpose or (y)(i) for a purpose that violates: (A) Section 7.2(e) of
this Agreement or (B) Regulation T, U or X promulgated by the Board of Governors
of the Federal Reserve System from time to time 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. Borrower is the legal and beneficial owner of the
Receivables and Related Security with respect thereto or, to the extent the
transactions contemplated [***] are characterized, against the parties
express intentions, as other than true sales, possesses a valid and perfected
security interest therein, in each case, together with the filing of the
financing statements contemplated hereunder, 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 Borrower's ownership interest in each Receivable, its Collections and
the Related Security.
(j) Perfection. This Agreement, together with the filings of the
financing statements contemplated hereunder, is effective to create a valid and
perfected security interest in favor of the Administrative Agent for the benefit
of the Secured Parties in the Collateral to secure payment of the Obligations,
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 the Administrative Agent's (on behalf of
the Secured Parties) security interest in the Collateral.
(k) Places of Business and Locations of Records. The principal places
of business and chief executive office of such Loan Party and the offices where
it keeps all of its Records are located at the address(es) listed on Exhibit III
or such other locations of which the Administrative Agent has been notified in
accordance with Section 7.2(a) in jurisdictions where all action required by
Section 14.4(a) has been taken and completed. Borrower's Federal Employer
Identification Number is correctly set forth on Exhibit III.
(l) Collections. The conditions and requirements set forth in Section
7.1(j) and Section 8.2 have at all times been satisfied and duly performed. The
names, addresses and jurisdictions of organization of all Collection Banks,
together with the account numbers of the Collection Accounts of Borrower at each
Collection Bank and the post office box number of each Lock Box, are listed on
Exhibit IV, which Exhibit may be updated from time to time by the Borrower by
written notice to the Agents to reflect the closure of certain (but not all)
Lockboxes and Collection Accounts and the addition of new Lockboxes and
Collections Accounts which are subject to Collection Account Agreements.
Borrower has not granted any Person, other than the Administrative Agent as
contemplated by this Agreement, dominion and control of any Lock Box or
Collection Account, or the right to take dominion and control of any such Lock
Box or Collection Account at a future time or upon the occurrence of a future
event. Neither Borrower nor initial Servicer has authorized the deposit into any
Collection Account of any cash, check or other item except proceeds of the
Collateral.
19
(m) Material Adverse Effect. (i) The initial Servicer represents and
warrants that since December 31, 2003 and, for any date this representation and
warranty is made or deemed made after delivery of annual audited financial
statements pursuant to Section 7.1 hereof, the date of the most recently
delivered annual audited financial statements thereunder, no event has occurred
that would have a material adverse effect on the financial condition or
operations of the initial Servicer and its Subsidiaries, when taken as a whole,
or the ability of the initial Servicer to perform its obligations under this
Agreement, and (ii) Borrower represents and warrants that since the date of this
Agreement, no event has occurred that would have a material adverse effect on
(A) the financial condition or operations of Borrower, (B) the ability of
Borrower to perform its obligations under the Transaction Documents, or (C) the
collectibility of the Receivables generally or any material portion of the
Receivables.
(n) Names. The name in which Borrower has executed this Agreement is
identical to the name of Borrower as indicated on the public record of its state
of organization which shows Borrower to have been organized. Since its creation,
Borrower has not used any corporate names, trade names or assumed names other
than the name in which it has executed this Agreement.
(o) Ownership of Borrower. International Paper owns, directly or
indirectly, 100% of the issued and outstanding capital stock of Borrower, free
and clear of any Adverse Claim. Such capital stock is validly issued, fully paid
and nonassessable, and there are no options, warrants or other rights to acquire
securities of Borrower.
(p) Not a Holding Company or an Investment Company. Such Loan Party 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 Loan Party is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or any successor statute.
(q) Compliance with Law. (i) Such Loan Party has complied in all
respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it is subject, except where the failure
to so comply could not reasonably be expected to have a Material Adverse Effect.
(ii) 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), except where such contravention could not
reasonably be expected to have a Material Adverse Effect.
(r) Compliance with Credit and Collection Policy. Such Loan Party has
complied in all material respects with the Credit and Collection Policy with
regard to each Receivable and the related Contract, and has not made any change
to such Credit and Collection Policy, except such material change as to which
the Administrative Agent has been notified in accordance with Section
7.1(a)(vii).
(s) Payments to IPFS. With respect to each Receivable transferred to
Borrower under the [***], Borrower has given reasonably equivalent value
to IPFS in consideration therefor and such transfer was not made for
20
or on account of an antecedent debt. No transfer by IPFS of any Receivable under
the [***] is or may be voidable under any section of the Bankruptcy
Reform Act of 1978 (11 U.S.C. 'SS''SS' 101 et seq.), as amended.
(t) Eligible Receivables. Each Receivable included in the Net Pool
Balance as an Eligible Receivable on the date of any Monthly Report was an
Eligible Receivable on such date.
(u) Aggregate Commitment. Immediately after giving effect to each
Advance and each settlement on any Settlement Date hereunder, the Aggregate
Principal is less than or equal to the Aggregate Commitment.
(v) Accounting. The manner in which such Loan Party accounts for the
transactions contemplated by this Agreement [***] does not jeopardize the true
sale analysis.
Section 6.2 Liquidity Bank Representations and Warranties. Each Liquidity
Bank hereby represents and warrants to the Agents, the Conduits and the Loan
Parties that:
(a) Existence and Power. Such Liquidity Bank is a banking association
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and has all organizational power to perform its
obligations hereunder and under the Liquidity Agreement.
(b) No Conflict. The execution and delivery by such Liquidity Bank of
this Agreement and the Liquidity Agreement and the performance of its
obligations hereunder and thereunder are within its corporate powers, have been
duly authorized by all necessary corporate action, do not contravene or violate
(i) its certificate or articles of incorporation or association or by-laws, (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 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 its assets. This Agreement and the Liquidity
Agreement have been duly authorized, executed and delivered by such Liquidity
Bank.
(c) Governmental Authorization. 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 Liquidity
Bank of this Agreement or the Liquidity Agreement and the performance of its
obligations hereunder or thereunder.
(d) Binding Effect. Each of this Agreement and the Liquidity Agreement
constitutes the legal, valid and binding obligation of such Liquidity Bank
enforceable against such Liquidity Bank 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 such
enforcement is sought in a proceeding in equity or at law).
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ARTICLE VII.
COVENANTS
Section 7.1 Affirmative Covenants of the Loan Parties. Until the Final
Payout Date, each Loan Party hereby covenants, as to itself, as set forth below:
(a) Financial Reporting. Such Loan Party will maintain, for itself and
each of its domestic Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish or cause to be furnished to
the Co-Agents or, in the case of clauses (i) and (ii) below, make publicly
available at no cost to Co-Agents on ▇▇▇▇▇:
(i) Annual Reporting. Within 100 days after the close of each of
its respective fiscal years, audited, unqualified financial statements
(which shall include balance sheets, statements of income and retained
earnings and a statement of cash flows) for International Paper and
Borrower for such fiscal year certified in a manner acceptable to the
Administrative Agent by independent public accountants of recognized
national standing.
(ii) Quarterly Reporting. Within 55 days after the close of the
first three (3) quarterly periods of each of its respective fiscal years,
balance sheets of each of International Paper and Borrower as at the close
of each such period and statements of income and retained earnings and a
statement of cash flows for each such Person for the period from the
beginning of such fiscal year to the end of such quarter, all certified by
a senior financial officer of such Person.
(iii) Compliance Certificate. Together with the financial
statements required hereunder, a compliance certificate in substantially
the form of Exhibit V signed by Borrower's Authorized Officer and dated the
date of such annual financial statement or such quarterly financial
statement, as the case may be.
(iv) S.E.C. Filings. Promptly upon the filing thereof, copies of
all registration statements (other than registration statements filed on
Form S-8 and pricing supplements) and reports on form 8-K or successor
forms which International Paper or any of its Affiliates files with the
Securities and Exchange Commission.
(v) Copies of Notices. Promptly upon its receipt of any notice,
request for consent, financial statements, certification, report or other
material communication under or in connection with any Transaction Document
from any Person other than one of the Agents or Lenders, copies of the
same.
(vi) Change in Credit and Collection Policy. At least thirty (30)
days prior to the effectiveness of any material change in or material
amendment to the Credit and Collection Policy, a copy of the 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 or
decrease the credit quality of any newly created Receivables, requesting
the Administrative Agent's consent thereto.
22
(vii) Other Information. Promptly, from time to time, (A) such
other information, documents, records or data relating to the Receivables
or (B) such other information, documents, records or data relating to the
condition or operations, financial or otherwise, of such Loan Party each as
the Administrative Agent may from time to time reasonably request in order
to protect the interests of the Agents and the Lenders under or as
contemplated by this Agreement.
(b) Notices. Such Loan Party will notify the Administrative Agent in
writing of any of the following as soon as possible upon learning of the
occurrence thereof with respect to such Loan Party, describing the same and, if
applicable, the steps being taken with respect thereto:
(i) Amortization Events or Unmatured Amortization Events. The
occurrence of each Amortization Event and each Unmatured Amortization
Event, by a statement of an Authorized Officer of such Loan Party.
(ii) Judgments and Proceedings. (A) (1) The entry of any judgment
or decree against Performance Guarantor, the Servicer or any of their
respective Subsidiaries if the aggregate amount of all judgments and
decrees then outstanding against Performance Guarantor, the Servicer and
their respective Subsidiaries exceeds $200,000,000 after deducting (a) the
amount with respect to which Performance Guarantor, the Servicer or any
such Subsidiary, as the case may be, is insured and the insurer has not
denied coverage, and (b) the amount for which Performance Guarantor, the
Servicer or any such Subsidiary is otherwise indemnified if the terms of
such indemnification are satisfactory to the Administrative Agent, and (2)
the institution of any litigation, arbitration proceeding or governmental
proceeding against Performance Guarantor or the Servicer which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; and (B) the entry of any judgment or decree or the
institution of any litigation, arbitration proceeding or governmental
proceeding against Borrower.
(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) Termination Date. The occurrence of the "Termination Date"
under and as defined [***].
(v) Defaults Under Other Agreements. (A) The occurrence of a
material default or an amortization event under any other financing
arrangement pursuant to which IPFS is a debtor or an obligor; (B) the
occurrence of a default or an amortization event under any other financing
arrangement pursuant to which the Borrower is a debtor or an obligor and
such financing arrangement is in excess of $12,299; or (C) the occurrence
of a default or an amortization event under any other financing
arrangements pursuant to which Performance Guarantor is a debtor or an
obligor and such financing arrangement is in excess of $200,000,000.
23
(vi) Downgrade of Performance Guarantor. Any downgrade in the
rating of any Indebtedness of Performance Guarantor by S&P or ▇▇▇▇▇'▇,
setting forth the Indebtedness affected and the nature of such change.
(c) Compliance with Laws and Preservation of Corporate Existence. Such
Loan Party will comply in all respects with all applicable laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it is subject, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect. Such Loan Party 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 or qualify could
not reasonably be expected to have a Material Adverse Effect.
(d) Audits. Such Loan Party (other than Performance Guarantor) will,
from time to time during regular business hours as requested by the
Administrative Agent upon reasonable notice (except as provided below) and at
the sole cost of such Loan Party, permit the Administrative Agent, or its agents
or representatives (and shall cause each Transferor to permit the Co-Agents or
their agents or representatives), and use its best efforts to obtain permission
from [***] for the Co-Agents or their agents or representatives: (i) to examine
and make copies of and abstracts from all Records in the possession or under the
control of such Person or [***] relating to the Collateral, including, without
limitation, the related Contracts other than those Contracts that are subject to
confidentiality agreements for which the Loan Parties have been unable, after
diligent efforts, to obtain consent to disclosure, and (ii) to visit the
offices and properties of such Person and [***], for the purpose of examining
such materials described in clause (i) above, and to discuss matters relating
to such Person's financial condition or the Collateral or any Person's
performance under any of the Transaction Documents or any Person's performance
under the Contracts or [***] performance under the [***] and, in each case, with
any of the officers or employees of any Loan Party or [***], as the case may be,
having knowledge of such matters (each of the foregoing examinations and visits,
a "Review"); provided, however, that, so long as no Amortization Event or [***]
has occurred and is continuing, (A) the Loan Parties shall only be responsible
for the costs and expenses of one (1) Review in any one calendar year, and (B)
the Administrative Agent will not request more than two (2) Reviews in any one
calendar year.
(e) Keeping and Marking of Records and Books.
(i) The Servicer will (and will cause each Transferor to)
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). The
Servicer will (and will cause each Transferor to) give the Administrative Agent
notice of any material change in the administrative and operating procedures
referred to in the previous sentence.
24
(ii) IPFS and Borrower will (and will cause each Transferor to):
(A) on or prior to the date hereof, ▇▇▇▇ its master data processing records and
other books and records relating to the Loans with a legend, acceptable to the
Administrative Agent, describing the Administrative Agent's security interest in
the Collateral and (B) upon the request of the Administrative Agent following
the occurrence and continuation of an Amortization Event: (x) ▇▇▇▇ each Contract
constituting an instrument, chattel paper or a certificated security (each, as
defined in the UCC) with a legend describing the Administrative Agent's security
interest and (y) deliver to the Administrative Agent all Contracts (including,
without limitation, all multiple originals of any such Contract constituting an
instrument, a certificated security or chattel paper) relating to the
Receivables.
(f) Compliance with Contracts and Credit and Collection Policy. IPFS
and Borrower will (and will require each Transferor to) timely and fully (i)
perform and comply with all material provisions, covenants and other promises
required to be observed by it under the Contracts related to the Receivables,
and (ii) comply in all material respects with the Credit and Collection Policy
in regard to each Receivable and the related Contract.
(g) Performance and Enforcement [***]. Borrower will, and will
require each Transferor to, perform each of their respective obligations and
undertakings [***], will purchase Receivables thereunder in strict
compliance with the terms thereof and will vigorously enforce the rights and
remedies accorded to Borrower [***]. Borrower will take all actions
necessary to perfect and enforce its rights and interests (and the rights and
interests of the Administrative Agent and the Lenders as assignees of Borrower)
[***] as the Administrative Agent may from time to time reasonably
request, including, without limitation, making claims to which it may be
entitled under any indemnity, reimbursement or similar provision contained
[***].
(h) Ownership. Borrower will (or will require each Transferor to) take
all necessary action to (i) vest legal and equitable title to the Collateral
acquired by Borrower under the [***] irrevocably in Borrower, free and
clear of any Adverse Claims (other than Adverse Claims in favor of the
Administrative Agent, for the benefit of the Secured Parties) 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 Borrower's interest in such Collateral and such other
necessary action to perfect, protect or more fully evidence the interest of
Borrower therein as the Administrative Agent may reasonably request, and (ii)
establish and maintain, in favor of the Administrative Agent, for the benefit of
the Secured Parties, a valid and perfected first priority security interest in
all Collateral, free and clear of any Adverse Claims, 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 the Administrative Agent's (for the benefit of the
Secured Parties) security interest in the Collateral and such other action to
perfect, protect or more fully evidence the interest of the Administrative Agent
for the benefit of the Secured Parties as the Administrative Agent may
reasonably request.
25
(i) Reliance. Borrower acknowledges that the Agents and the Lenders
are entering into the transactions contemplated by this Agreement in reliance
upon Borrower's identity as a legal entity that is separate from each
Transferor. Therefore, from and after the date of execution and delivery of this
Agreement, Borrower shall take all necessary and reasonable steps, including,
without limitation, all steps that any Agent may from time to time reasonably
request, to maintain Borrower's identity as a separate legal entity and to make
it manifest to third parties that Borrower is an entity with assets and
liabilities distinct from those of each of the Transferors and any Affiliates
thereof (other than Borrower) and not just a division of any of the Transferors
or any such Affiliate. Without limiting the generality of the foregoing and in
addition to the other covenants set forth herein, Borrower will:
(i) conduct its own business in its own name and require that all
full-time employees of Borrower, if any, identify themselves as such and
not as employees of any Transferor (including, without limitation, by means
of providing appropriate employees with business or identification cards
identifying such employees as Borrower's employees);
(ii) compensate all consultants, independent contractors and
agents directly, from Borrower's own funds, for services provided to
Borrower by such consultants, independent contractors and agents and, to
the extent any employee, consultant or agent of Borrower is also an
employee, consultant or agent of any Transferor or any Affiliate thereof,
allocate the compensation of such employee, consultant or agent between
Borrower and such Transferor or such Affiliate, as applicable, on a basis
that reflects the services rendered to Borrower and such Transferor or such
Affiliate, as applicable;
(iii) clearly identify its offices (by signage or otherwise) as
its offices and, to the extent that Borrower and any of its affiliates
occupy any premises in the same location, allocate fairly, appropriately
and nonarbitrarily any rent and overhead expenses among and between such
entities with the result that each entity bears its fair share of all such
rent and expenses;
(iv) (A) have a separate telephone number, which will be answered
only in its name and (B) separate stationery in its own name;
(v) conduct all transactions with each Transferor and the
Servicer (including, without limitation, any delegation of its obligations
hereunder as Servicer) strictly on an arm's-length basis, allocate all
overhead expenses (including, without limitation, telephone and other
utility charges) for items shared between Borrower and such Transferor on
the basis of actual use to the extent practicable and, to the extent such
allocation is not practicable, on a basis reasonably related to actual use;
(vi) at all times have a Board of Directors consisting of three
members, at least one member of which is an Independent Director;
(vii) observe all corporate formalities as a distinct entity, and
ensure that all corporate actions relating to (A) the selection,
maintenance or replacement of the
26
Independent Director, (B) the dissolution or liquidation of Borrower or (C)
the initiation of, participation in, acquiescence in or consent to any
bankruptcy, insolvency, reorganization or similar proceeding involving
Borrower, are duly authorized by unanimous vote of its Board of Directors
(including the Independent Director);
(viii) maintain Borrower's books and records separate from those
of each Transferor and any Affiliate thereof and otherwise readily
identifiable as its own assets rather than assets of any Transferor or any
Affiliate thereof;
(ix) prepare its financial statements separately from those of
each Transferor and insure that any consolidated financial statements of
any Transferor or any Affiliate thereof that include Borrower and that are
filed with the Securities and Exchange Commission or any other governmental
agency have notes clearly stating that Borrower is a separate corporate
entity and that its assets will be available first and foremost to satisfy
the claims of the creditors of Borrower;
(x) except as herein specifically otherwise provided, maintain
the funds or other assets of Borrower separate from, and not commingled
with, those of any Transferor or any Affiliate thereof and only maintain
bank accounts or other depository accounts to which Borrower alone is the
account party, into which Borrower alone makes deposits and from which
Borrower alone (or the Administrative Agent hereunder) has the power to
make withdrawals;
(xi) pay all of Borrower's operating expenses from Borrower's own
assets (except for certain payments by any Transferor or other Persons
pursuant to allocation arrangements that comply with the requirements of
this Section 7.1(i));
(xii) operate its business and activities such that: it does not
engage in any business or activity of any kind, or enter into any
transaction or indenture, mortgage, instrument, agreement, contract, lease
or other undertaking, other than the transactions contemplated and
authorized by this Agreement [***]; and does not create, incur, guarantee,
assume or suffer to exist any indebtedness or other liabilities,
whether direct or contingent, other than (1) as a result of the endorsement
of negotiable instruments for deposit or collection or similar transactions
in the ordinary course of business, (2) the incurrence of obligations under
this Agreement, (3) the incurrence of obligations, as expressly
contemplated [***], to make payment to the applicable Transferor
thereunder for the purchase of Receivables from such Transferor
[***], and (4) the incurrence of operating expenses in the ordinary
course of business of the type otherwise contemplated by this Agreement;
(xiii) maintain its corporate charter in conformity with this
Agreement, such that it does not amend, restate, supplement or otherwise
modify its Certificate of Incorporation or By-Laws in any respect that
would impair its ability to comply with the terms or provisions of any of
the Transaction Documents, including, without limitation, Section 7.1(i) of
this Agreement;
27
(xiv) maintain the effectiveness [***] and use its best
efforts to maintain the effectiveness of the Performance Undertaking, and
continue to perform under [***] the Performance Undertaking, such
that it does not amend, restate, supplement, cancel, terminate or otherwise
modify [***] the Performance Undertaking, or give any consent,
waiver, directive or approval thereunder or waive any default, action,
omission or breach under [***] the Performance Undertaking or
otherwise grant any indulgence thereunder, without (in each case) the prior
written consent of the Administrative Agent;
(xv) maintain its corporate separateness such that it does not
merge or consolidate with or into, or convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of transactions, and
except as otherwise contemplated herein) all or substantially all of its
assets (whether now owned or hereafter acquired) to, or acquire all or
substantially all of the assets of, any Person, nor at any time create,
have, acquire, maintain or hold any interest in any Subsidiary.
(xvi) maintain at all times the Required Capital Amount (as
defined in the [***]) and refrain from making any dividend,
distribution, redemption of capital stock or payment of any subordinated
indebtedness which would cause the Required Capital Amount to cease to be
so maintained; and
(xvii) take such other actions as are necessary on its part to
ensure that the facts and assumptions set forth in the opinion issued by
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP as counsel for Borrower, in connection with the
closing or initial Advance under this Agreement and relating to substantive
consolidation issues, and in the certificates accompanying such opinion,
remain true and correct in all material respects at all times.
(j) Collections. IPFS and Borrower will cause (1) all proceeds from
all Lock Boxes to be directly deposited by a Collection Bank into a Collection
Account and (2) each Lock 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 the Collateral are remitted directly to Borrower or any
Affiliate of Borrower, Borrower will remit (or will cause all such payments to
be remitted) directly to a Collection Bank and deposited into a Collection
Account within two (2) Business Days following receipt thereof, and, at all
times prior to such remittance, Borrower will itself hold or, if applicable,
will cause such payments to be held in trust for the exclusive benefit of the
Administrative Agent and the Lenders. Borrower will maintain exclusive
ownership, dominion and control (subject to the terms of this Agreement) of each
Lock Box and Collection Account and shall not grant the right to take dominion
and control of any Lock Box or Collection Account at a future time or upon the
occurrence of a future event to any Person, except to the Administrative Agent
as contemplated by this Agreement.
(k) Taxes. Such Loan Party will file all tax returns and reports
required by law to be filed by it and will promptly pay all taxes and
governmental charges at any time owing, except any such taxes which are not yet
delinquent or are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
28
have been set aside on its books. Borrower will pay when due any taxes payable
in connection with the Receivables, exclusive of taxes on or measured by income
or gross receipts of any Agent or any Lender.
(l) Payment to IPFS. With respect to any Receivable purchased by
Borrower from IPFS, such sale shall be effected under, and in strict compliance
with the terms of (including any grace periods contained therein), the [***],
including, without limitation, the terms relating to the amount and timing of
payments to be made to IPFS in respect of the purchase price for such
Receivable.
Section 7.2 Negative Covenants of the Loan Parties. Until the Final Payout
Date, each Loan Party hereby covenants, as to itself, that:
(a) Name Change, Offices and Records. Borrower and Servicer will not,
and will not consent to any request by the Originator to, change its name,
identity or structure (within the meaning of any applicable enactment of the
UCC), change its state of incorporation, or change any office where Records are
kept unless it shall have: (i) given the Administrative Agent at least thirty
(30) days' prior written notice thereof and (ii) delivered to the Administrative
Agent all financing statements, instruments and other documents reasonably and
promptly requested by the Administrative Agent in connection with such change or
relocation.
(b) Change in Payment Instructions to Obligors. Except as may be
required by the Administrative Agent pursuant to Section 8.2(b), Borrower and
the Servicer 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 or Collection Account, unless the Administrative Agent 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 or Lock Box, an
executed Collection Account Agreement with respect to the new Collection Account
or Lock Box; provided, however, that the Servicer may make changes in
instructions to Obligors without any prior notice 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
Loan Party will not, and will not permit any Transferor to, make any change to
the Credit and Collection Policy that could adversely affect the collectibility
of the Receivables or decrease the credit quality of any newly created
Receivables. Except as provided in Section 8.2(d), the Servicer will not, and
will not permit any Transferor to, extend, amend or otherwise modify the terms
of any Receivable or any Contract related thereto other than in accordance with
the Credit and Collection Policy.
(d) Sales, Liens. Except as otherwise contemplated by the Transaction
Documents, Borrower 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 of the Collateral, or assign
any right to receive income with respect thereto (other than, in each case, the
creation of a security interest therein in favor of the Administrative Agent as
provided
29
for herein), and Borrower will defend the right, title and interest of the
Secured Parties in, to and under any of the foregoing property, against all
claims of third parties claiming through or under Borrower or any Transferor.
Borrower will not create or suffer to exist any mortgage, pledge, security
interest, encumbrance, lien, charge or other similar arrangement on any of its
inventory.
(e) Use of Proceeds. Borrower will not use the proceeds of the
Advances for any purpose other than (i) paying for Receivables and Related
Security under and in accordance with the [***], including without
limitation, making payments on the Subordinated Note to the extent permitted
thereunder and under the [***], (ii) making Demand Advances to IPFS or
other Affiliates at any time prior to the Facility Termination Date while it is
acting as Servicer and no Amortization Event or Unmatured Amortization Event
exists and is continuing, (iii) paying its ordinary and necessary operating
expenses when and as due, and (iv) making Restricted Junior Payments to the
extent permitted under this Agreement.
(f) Termination Date Determination. Borrower will not designate the
Termination Date (as defined [***]), or send any written notice to IPFS
in respect thereof, without the prior written consent of the Co-Agents, except
with respect to the occurrence of such Termination Date arising [***].
(g) Restricted Junior Payments. Borrower will not make any Restricted
Junior Payment if after giving effect thereto, Borrower's Net Worth (as defined
in the [***]) would be less than the Required Capital Amount (as defined
in the [***]).
(h) Borrower Indebtedness. Borrower will not incur or permit to exist
any Indebtedness or liability on account of deposits except: (i) the
Obligations, (ii) the Subordinated Loans, and (iii) other current accounts
payable arising in the ordinary course of business and not overdue.
(i) Prohibition on Additional Negative Pledges. No Loan Party will
enter into or assume any agreement (other than this Agreement and the other
Transaction Documents) prohibiting the creation or assumption of any Adverse
Claim upon the Collateral except as contemplated by the Transaction Documents,
or otherwise prohibiting or restricting any transaction contemplated hereby or
by the other Transaction Documents, and no Loan Party will enter into or assume
any agreement creating any Adverse Claim upon the Subordinated Notes.
ARTICLE VIII.
ADMINISTRATION AND COLLECTION
Section 8.1 Designation of Servicer.
(a) The servicing, administration and collection of the Receivables
shall be conducted by such Person (the "Servicer") so designated from time to
time in accordance with this Section 8.1. IPFS is hereby designated as, and
hereby agrees to perform the duties and obligations of, the Servicer pursuant to
the terms of this Agreement. The Administrative Agent shall upon the direction
of the Majority Co-Agents at any time following the occurrence and
30
continuation of an Amortization Event designate as Servicer any Person to
succeed IPFS or any successor Servicer provided that the Rating Agency Condition
is satisfied.
(b) IPFS may delegate to the Originator, as sub-servicer of the
Servicer, certain of its duties and responsibilities as Servicer hereunder in
respect of the Receivables. Without the prior written consent of the Agents,
IPFS shall not be permitted to delegate any of its duties or responsibilities as
Servicer to any Person other than (i) Borrower, (ii) the Originator, (iii) with
respect to certain Defaulted Receivables, outside collection agencies in
accordance with its customary practices, and (iv) solely to the extent and on
the conditions provided in Section 8.1(d), [***]. None of [***], Borrower nor
the Originator shall be permitted to further delegate to any other Person any of
the duties or responsibilities of the Servicer delegated to it by IPFS. If at
any time the Administrative Agent shall designate as Servicer any Person other
than IPFS, all duties and responsibilities theretofore delegated by IPFS
to [***], Borrower or the Originator may, at the discretion of the
Administrative Agent, be terminated forthwith on notice given by the
Administrative Agent to IPFS and to [***], Borrower and the Originator.
(c) Notwithstanding the foregoing subsection (b): (i) IPFS shall be
and remain primarily liable to the Agents and the Lenders for the full and
prompt performance of all duties and responsibilities of the Servicer hereunder
and (ii) the Agents and the Lenders shall be entitled to deal exclusively with
IPFS in matters relating to the discharge by the Servicer of its duties and
responsibilities hereunder. The Agents and the Lenders shall not be required to
give notice, demand or other communication to any Person other than IPFS in
order for communication to the Servicer and its sub-servicer or other delegate
with respect thereto to be accomplished. IPFS, at all times that it is the
Servicer, shall be responsible for providing any sub-servicer or other delegate
of the Servicer with any notice given to the Servicer under this Agreement.
(d) IPFS may delegate its cash application, collection and posting
responsibilities with respect to Collections [***]
[***]
(ii) [***]
31
[***]
Section 8.2 Duties of Servicer.
(a) The Servicer shall take or cause to be taken all such actions as
may be necessary or advisable to collect each Receivable from time to time, all
in accordance with applicable laws, rules and regulations, with reasonable care
and diligence, and in accordance with the Credit and Collection Policy.
32
(b) The Servicer will instruct all Obligors to pay all Collections
directly to a Lock Box or Collection Account. The Servicer shall effect a
Collection Account Agreement substantially in the form of Exhibit VI with each
bank party to a Collection Account at any time. In the case of any remittances
received in any Lock Box or Collection Account that shall have been identified,
to the satisfaction of the Servicer, to not constitute Collections or other
proceeds of the Receivables or the Related Security, the Servicer shall promptly
remit such items to the Person identified to it as being the owner of such
remittances. From and after the date the Administrative Agent delivers to any
Collection Bank a Collection Notice pursuant to Section 8.3, the Administrative
Agent may request that the Servicer, and the Servicer thereupon promptly shall
instruct all Obligors with respect to the Receivables, to remit all payments
thereon to a new depositary account specified by the Administrative Agent and,
at all times thereafter, Borrower and the Servicer shall not deposit or
otherwise credit, and shall not permit any other Person to deposit or otherwise
credit to such new depositary account any cash or payment item other than
Collections.
(c) The Servicer shall administer the Collections in accordance with
the procedures described herein and in Article II. The Servicer shall set aside
and hold in trust for the account of Borrower and the Lenders their respective
shares of the Collections in accordance with Article II. The Servicer shall,
upon the request of the Administrative Agent, segregate, in a manner acceptable
to the Administrative Agent, all cash, checks and other instruments received by
it from time to time constituting Collections from the general funds of the
Servicer or Borrower prior to the remittance thereof in accordance with Article
II. If the Servicer shall be required to segregate Collections pursuant to the
preceding sentence, the Servicer shall segregate and deposit with a bank
designated by the Administrative Agent such allocable share of Collections of
Receivables set aside for the Lenders on the first Business Day following
receipt by the Servicer of such Collections, duly endorsed or with duly executed
instruments of transfer.
(d) The Servicer may, in accordance with the Credit and Collection
Policy, extend the maturity of any Receivable or adjust the Outstanding Balance
of any Receivable as the Servicer determines to be appropriate to maximize
Collections thereof; provided, however, that such extension or adjustment shall
not alter the status of such Receivable as a Delinquent Receivable or Defaulted
Receivable or limit the rights of the Administrative Agent or the Lenders under
this Agreement. Notwithstanding anything to the contrary contained herein, upon
the occurrence and during the continuance of an Amortization Event the
Administrative Agent shall have the absolute and unlimited right to direct the
Servicer to commence or settle any legal action with respect to any Receivable
or to foreclose upon or repossess any Related Security.
(e) The Servicer shall hold in trust for Borrower and the Lenders all
Records that (i) evidence or relate to the Receivables, the related Contracts
and Related Security or (ii) are otherwise necessary or desirable to collect the
Receivables and shall, as soon as practicable after the occurrence and during
the continuance of an Amortization Event and upon demand of the Administrative
Agent, deliver or make available to the Administrative Agent all such Records,
at a place selected by the Administrative Agent. The Servicer shall, as soon as
practicable following receipt thereof turn over to Borrower any cash collections
or other cash proceeds received with respect to Indebtedness not constituting
Receivables. The Servicer shall, from time to time at the request of any Lender,
furnish to the Lenders (promptly after any such request) a calculation of the
amounts set aside for the Lenders pursuant to Article II.
33
(f) Any payment by an Obligor in respect of any indebtedness owed by
it to any Transferor or Borrower shall, except as otherwise specified by such
Obligor or otherwise required by contract or law and unless otherwise instructed
by the Administrative Agent, be applied as a Collection of any Receivable of
such Obligor (starting with the oldest such Receivable) to the extent of any
amounts then due and payable thereunder before being applied to any other
receivable or other obligation of such Obligor.
Section 8.3 Collection Notices. The Administrative Agent is authorized at
any time after the occurrence and continuation of an Amortization Event to date
and to deliver to the Collection Banks the Collection Notices. Borrower hereby
transfers, to the fullest extent permitted by applicable law, to the
Administrative Agent for the benefit of the Lenders, effective when the
Administrative Agent delivers such notice, the exclusive ownership and control
of each Lock Box and the Collection Accounts. In case any authorized signatory
of Borrower whose signature appears on a Collection Account Agreement shall
cease to have such authority before the delivery of such notice, such Collection
Notice shall nevertheless be valid as if such authority had remained in force.
Borrower hereby irrevocably constitutes and appoints the Administrative Agent
with full power of substitution, as Borrower's true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of Borrower and
in the name of Borrower or in its own name and without limiting the generality
of the foregoing, grants to Administrative Agent the power and right, on behalf
of Borrower, without notice or assent by Borrower to (i) at any time after
delivery of the Collection Notices, endorse Borrower's name on checks and other
instruments representing Collections, (ii) at any time after the occurrence and
continuation of an Amortization Event, enforce the Receivables, the related
Contracts and the Related Security, and (iii) at any time after the occurrence
and continuation of an Amortization Event, take such action as shall be
necessary or desirable to cause all cash, checks and other instruments
constituting Collections of Receivables to come into the possession of the
Administrative Agent rather than Borrower.
Section 8.4 Responsibilities of Borrower. Anything herein to the contrary
notwithstanding, the exercise by the Administrative Agent and the Lenders of
their rights hereunder shall not release the Servicer, any Transferor or
Borrower from any of their duties or obligations with respect to any Receivables
or under the related Contracts. The Lenders shall have no obligation or
liability with respect to any Receivables or related Contracts, nor shall any of
them be obligated to perform the obligations of Borrower.
Section 8.5 Monthly Reports. The Servicer shall prepare and forward to the
Co-Agents (i) on each Monthly Reporting Date, a Monthly Report and an electronic
file of the data contained therein and (ii) upon five (5) Business Day's notice
by Administrative Agent and in no event not more than once every six months, a
listing by Obligor (such Obligors to be limited to those with payables in excess
of $250,000) of all Receivables together with an aging of such Receivables;
provided, however, that if (a) an Amortization Event shall exist and be
continuing [***] (i) each of the Co-Agents may request a Monthly Report be
prepared and forwarded to the Co-Agents more frequently than monthly and, so
long as such request is not made on or within 5 Business Days prior to the last
day of any calendar month, the Servicer agrees to provide such report within 5
Business Days after such request and (ii) at such times as the Administrative
Agent shall request, the Servicer agrees to prepare and
34
forward to the Co-Agents a listing by Obligor of all Receivables together with
an aging of such Receivables.
Section 8.6 Servicing Fee. As compensation for the Servicer's servicing
activities on their behalf, the Borrower hereby agrees to pay the Servicer the
Servicing Fee, which fee shall be paid in arrears on the 2nd Business Day after
each Monthly Reporting Date, and the parties hereby agree that such fee shall be
paid out of Collections in accordance with Section 3.2. The Servicer shall be
solely responsible for paying any and all fees and expenses of [***] when
and as due under the terms of the [***]
ARTICLE IX.
AMORTIZATION EVENTS
Section 9.1 Amortization Events. The occurrence of any one or more of the
following events shall constitute an "Amortization Event:"
(a) Any Loan Party shall fail to make any payment or deposit: (i) of
principal when required to be made by it under the Transaction Documents;
provided, however, that in the event such payment or deposit of principal is
required because Aggregate Principal is discovered to exceed the Borrowing Base
after delivery of a recomputation of the Borrowing Base pursuant to Section 3.1,
such failure to pay or deposit principal when due shall not constitute an
Amortization Event unless and until such failure continues for two (2) Business
Days; or (ii) of any other Obligation or amount not covered by clause (i) when
required to be made by it under the Transaction Documents and such failure
continues for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by
Performance Guarantor or any Loan Party in any Transaction Document to which it
is a party or in any other document delivered pursuant thereto shall prove to
have been incorrect in any material respect when made or deemed made; provided
that the materiality threshold in the foregoing clause shall not be applicable
with respect to any representation or warranty which itself is subject to a
materiality threshold.
(c) Any Loan Party shall fail to perform or observe any covenant
contained in Section 7.2 or 8.5 when due.
(d) (i) Any Loan Party or Performance Guarantor shall fail to perform
or observe any covenant or agreement contained in Section 7.1(a)(i), (ii), (iii)
(iv), (v) or (vii)(B), Section 7.1(b)(vi), Section 7.1(f)(i), Section
7.1(i)(ii), (iii), (iv)(A) or (xvii) or Section 7.1(k), and such failure shall
continue for thirty (30) consecutive days, [***] except as provided in
any other subsection or clause of this Section 9.1, any Loan Party shall fail to
perform or observe any other covenant or agreement contained in any of the
Transaction Documents and such failure shall continue for ten (10) consecutive
Business Days.
(e) Failure of Borrower to pay any Indebtedness (other than the
Obligations) when due or the default by Borrower in the performance of any term,
provision or condition contained in any agreement under which any such
Indebtedness was created or is governed, the
35
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 Borrower 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.
(f) Failure of Performance Guarantor or any of its Subsidiaries other
than Borrower to pay Indebtedness in excess of $200,000,000 in aggregate
principal amount (hereinafter, "Material Indebtedness") when due; or the default
by Performance Guarantor or any of its Subsidiaries other than Borrower in the
performance of any term, provision or condition contained in any agreement under
which any Material Indebtedness was created or is governed, the effect of which
is to cause such Material Indebtedness to become due prior to its stated
maturity; or any Material Indebtedness of Performance Guarantor or any of its
Subsidiaries other than Borrower 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.
(g) An Event of Bankruptcy shall occur with respect to any Loan Party
or any Material Subsidiary of the Performance Guarantor.
(h) As at the end of any Calculation Period:
[***]
(i) A Change of Control shall occur.
(j) (i) One or more final judgments for the payment of money in an
aggregate amount of $12,299 or more shall be entered against Borrower or (ii)
one or more final judgments for the payment of money in an amount in excess of
$200,000,000, individually or in the aggregate, shall be entered against
Performance Guarantor or any of its Subsidiaries (other than Borrower) 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
thirty (30) consecutive days without a stay of execution.
(k) The "Termination Date" under and as defined [***] shall
occur or any Transferor shall for any reason cease to transfer, or cease to have
the legal capacity to transfer, or otherwise be incapable of transferring
Receivables [***]; provided, however, no Amortization Event shall be deemed
to have occurred if a Transferor (other than International Paper or IPFS)
ceases to transfer, ceases to have the legal capacity to transfer or
otherwise becomes incapable of transferring Receivables as a result of
its merger into International Paper or any of International Paper's
other Subsidiaries.
36
(l) This Agreement shall terminate in whole or in part (except in
accordance with its terms), or shall cease to be effective or to be the legally
valid, binding and enforceable obligation of Borrower, or any Obligor shall
directly or indirectly contest in any manner such effectiveness, validity,
binding nature or enforceability, or the Administrative Agent for the benefit of
the Lenders shall cease to have a valid and perfected first priority security
interest in the Collateral.
(m) On any Settlement Date, after giving effect to the turnover of
Collections by the Servicer on such date and the application thereof to the
Obligations in accordance with this Agreement, (i) the Aggregate Principal shall
exceed the Aggregate Commitment or (ii) the Net Pool Balance shall be less than
the sum of (A) the Aggregate Principal plus (B) the Required Reserve.
(n) The Performance Undertaking shall cease to be effective or to be
the legally valid, binding and enforceable obligation of Performance Guarantor,
or Performance Guarantor shall directly or indirectly contest in any manner such
effectiveness, validity, binding nature or enforceability of its obligations
thereunder.
(o) The Internal Revenue Service shall file notice of a lien pursuant
to Section 6323 of the Tax Code with regard to any of the Collateral and such
lien shall not have been released within ten (10) days, or the PBGC shall file
notice of a lien pursuant to Section 4068 of ERISA with regard to any of the
Collateral and such lien shall not have been released within ten (10) days.
(p) Any Plan of Performance Guarantor or any of its ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum
funding standard required by applicable law, the terms of such Plan,
Section 412 of the Tax Code or Section 302 of ERISA for any plan year or a
waiver of such standard is sought or granted with respect to such Plan
under applicable law, the terms of such Plan or Section 412 of the Tax Code
or Section 303 of ERISA; or
(ii) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms of such Plan; or
(iii) shall require Performance Guarantor or any of its ERISA
Affiliates to provide security under applicable law, the terms of such
Plan, Section 401 or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to Performance Guarantor or any of
its ERISA Affiliates under applicable law, the terms of such Plan, or Title
IV ERISA,
(v) and there shall result from any such failure, waiver,
termination or other event a liability to the PBGC or a Plan that would
have a Material Adverse Effect that is not remedied within ten (10) days of
the creation of such liability.
[***]
37
Section 9.2 Remedies. Upon the occurrence and during the continuation of an
Amortization Event, the Administrative Agent may, or upon the direction of the
Majority Co-Agents shall, take any of the following actions: (i) replace the
Person then acting as Servicer if the Administrative Agent has not already done
so, (ii) declare the Amortization Date to have occurred, whereupon the Aggregate
Commitment shall immediately terminate, and the Amortization Date shall
forthwith occur, all without demand, protest or further notice of any kind, all
of which are hereby expressly waived by each Loan Party; provided, however, that
upon the occurrence of an Event of Bankruptcy with respect to any Loan Party,
the Amortization Date shall automatically occur, without demand, protest or any
notice of any kind, all of which are hereby expressly waived by each Loan Party,
(iii) deliver the Collection Notices to the Collection Banks, (iv) exercise all
rights and remedies of a secured party upon default under the UCC and other
applicable laws, and (v) notify Obligors of the Administrative Agent's security
interest in the Receivables and other Collateral. The aforementioned rights and
remedies shall be without limitation, and shall be in addition to all other
rights and remedies of the Administrative Agent and the Lenders 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 X.
INDEMNIFICATION
Section 10.1 Indemnities by Borrower and Servicer. Without limiting any
other rights that the any such Person may have hereunder or under applicable law
and subject to the last sentence of this Section 10.1:
(A) Borrower hereby agrees to indemnify (and pay upon demand to) each
of the Affected Parties, each of their respective Affiliates, and each of the
respective assigns, officers, directors, agents and employees of the foregoing
(each, an "Indemnified Party") from and against any and all damages, losses,
claims, taxes, liabilities, penalties, costs, expenses and for all other amounts
payable, including reasonable attorneys' fees (which attorneys may be employees
of any Agent or Lender) and disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts") awarded against or incurred
by any of them directly or indirectly arising out of or as a result of the
execution, delivery, performance, non-performance, enforcement, non-enforcement
of, or other condition or circumstance whatsoever with respect to, this
Agreement or any of the Transaction Documents (including without limitation (i)
any fees and expenses of attorneys and other advisers and (ii) any Taxes (other
than Excluded Taxes): (I) which may be asserted or imposed in respect of the
Loans or the receipt of Collections or other proceeds with respect to the Loans
or any Related Security, (II) which may arise by reason of the Loans or
ownership or the sale or other disposition thereof, or any other interest in the
Loans or in any Related Security, or (III) which may arise otherwise by reason
of the execution, delivery, performance, non-performance, enforcement or
non-enforcement of, or other condition or circumstance whatsoever with respect
to the Loans, the Related Security, this Agreement or any Transaction Document,
except that, notwithstanding the foregoing parenthetical exclusion relating to
Excluded Taxes, in the event that the Obligations of Borrower hereunder are for
any reason determined not to be treated as indebtedness of Borrower for income
or franchise tax purposes, Borrower shall indemnify each Indemnified Party in
respect of such additional
38
amounts in respect of such Taxes as may be described in clauses (I), (II) or
(III), with such amounts being calculated on an after-tax basis, as are imposed
on or incurred by an Indemnified Party to the extent that such Taxes would not
have been imposed or incurred (or would not have been imposed or incurred at the
same time) had the Obligations of Borrower hereunder or the acquisition, either
directly or indirectly, by a Conduit of an interest in the Receivables, been
treated as indebtedness for such income or franchise tax purposes, as applicable
and
(B) the Servicer hereby agrees to indemnify (and pay upon demand to)
each Indemnified Party for Indemnified Amounts awarded against or incurred by
any of them arising directly or indirectly out of the Servicer's activities as
Servicer hereunder,
excluding, however, in all of the foregoing instances under the preceding
clauses (A) and (B), Indemnified Amounts to the extent such Indemnified Amounts
resulted from gross negligence or willful misconduct on the part of the
Indemnified Party seeking indemnification.
Without limiting the generality of the foregoing indemnification, Borrower shall
indemnify the Indemnified Parties for Indemnified Amounts (including, without
limitation, losses in respect of uncollectible receivables, regardless of
whether reimbursement therefor would constitute recourse to Borrower or the
Servicer) relating to or resulting from:
(i) any representation or warranty made by any Loan Party or any
Transferor (or any officers of any such Person) under or in connection with
this Agreement, any other Transaction Document or any other information or
report delivered by any such Person pursuant hereto or thereto, which shall
have been false or incorrect when made or deemed made;
(ii) the failure by any Loan Party or any Transferor 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 any Transferor to keep or perform any of its obligations,
express or implied, with respect to any Contract;
(iii) any failure of any Loan Party or any Transferor to perform
its duties, covenants or other obligations in accordance with the
provisions of any Transaction Document to which it is a party;
(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 (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;
39
(vi) the commingling of Collections of Receivables at any time
with other funds;
(vii) any investigation, litigation or proceeding related to or
arising from any Transaction Document, the transactions contemplated
hereby, the use of the proceeds of any Advance, the Collateral or any other
investigation, litigation or proceeding relating to Borrower, the Servicer
or any Transferor 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 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) the occurrence and continuation of any Amortization Event;
(x) any failure of Borrower to acquire and maintain legal and
equitable title to, and ownership of any of the Collateral from IPFS, free
and clear of any Adverse Claim (other than as created hereunder); or any
failure of Borrower to give reasonably equivalent value to IPFS under the
[***] in consideration of the transfer by IPFS of any Receivable, or
any attempt by any Person to void such transfer under statutory provisions
or common law or equitable action;
(xi) any failure to vest and maintain vested in the
Administrative Agent for the benefit of the Secured Parties, or to transfer
to the Administrative Agent for the benefit of the Secured Parties, a valid
first priority perfected security interest in the Collateral, free and
clear of any Adverse Claim (except as created by the Transaction
Documents);
(xii) 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 Collateral, and the proceeds thereof, whether at the time of any
Advance or at any subsequent time;
(xiii) any action or omission by any Loan Party or any Transferor
which reduces or impairs the rights of the Administrative Agent or the
Lenders with respect to any Collateral or the value of any Collateral;
(xiv) any attempt by any Person to void any Advance or the
Administrative Agent's security interest in the Collateral held on behalf
of the Secured Parties under statutory provisions or common law or
equitable action;
(xv) the failure of any Receivable included in the calculation of
the Net Pool Balance as an Eligible Receivable to be an Eligible Receivable
at the time so included; and
40
(xvi) any breach by the Originator of any confidentiality clause
in any Contract governing a Receivable except for a Receivable that, prior
to the assertion of such breach, had already become a Defaulted Receivable.
Notwithstanding the foregoing, (A) the foregoing indemnification contained in
this Section 10.1 is not intended to, and shall not, constitute a guarantee of
collectibility or payment of the Receivables; and (B) nothing in this Section
10.1 shall require Borrower to indemnify the Indemnified Parties for Receivables
which are not collected, not paid or otherwise uncollectible on account of the
insolvency, bankruptcy, credit-worthiness or financial inability to pay the
applicable Obligor.
Section 10.2 Increased Cost and Reduced Return. If after the date hereof,
any Funding Source shall be charged any fee, expense or increased cost on
account of the adoption of any applicable law, rule or regulation (including any
applicable law, rule or regulation regarding capital adequacy) or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency (a "Regulatory Change"): (i) that subjects any
Funding Source to any charge or withholding on or with respect to any Funding
Agreement or a Funding Source's obligations under a Funding Agreement, or on or
with respect to the Receivables, or changes the basis of taxation of payments to
any Funding Source of any amounts payable under any Funding Agreement (except
for changes in the rate of tax on the overall net income of a Funding Source or
taxes excluded by Section 10.1) or (ii) that imposes, modifies or deems
applicable any reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of a Funding
Source, or credit extended by a Funding Source pursuant to a Funding Agreement
or (iii) that imposes any other condition the result of which is to increase the
cost to a Funding Source of performing its obligations under a Funding
Agreement, or to reduce the rate of return on a Funding Source's capital as a
consequence of its obligations under a Funding Agreement, or to reduce the
amount of any sum received or receivable by a Funding Source under a Funding
Agreement or to require any payment calculated by reference to the amount of
interests or loans held or interest received by it, then, upon demand by the
Administrative Agent, Borrower shall pay to the Administrative Agent, for the
benefit of the relevant Funding Source, such amounts charged to such Funding
Source or such amounts to otherwise compensate such Funding Source for such
increased cost or such reduction.
Section 10.3 Other Costs and Expenses.
(a) Initial Expenses Borrower shall pay to the Agents and the
Conduits, on demand, all Arrangement Fees outlined in the Fee Letters, travel
expenses actually incurred in connection with the Agents' pre-closing due
diligence visit, the fees of Protiviti, and the legal fees payable to ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, LLP pursuant to a separate agreement (whether such fees are incurred
before or after the closing).
(b) Subsequent Costs. Borrower shall also pay to the Administrative
Agent, on demand, all reasonable costs and expenses actually incurred by the
Administrative Agent in connection with matters contemplated hereby to occur
post-closing and any post-closing
41
documents to be delivered hereunder, including without limitation, the costs of
the Administrative Agent's auditors auditing the books, records and procedures
of Borrower, the reasonable fees and out-of-pocket expenses of outside legal
counsel for the Administrative Agent actually incurred (but no payment shall be
due for such counsel who are employees of the Conduits, the Co-Agents or the
Administrative Agent) with respect to the Transaction Documents, any amendments
thereto and the transactions contemplated thereby, and with respect to advising
the Agents and the Lenders as to their respective rights and remedies under the
Transaction Documents. Furthermore, following the occurrence of an Amortization
Event, Borrower shall pay to the applicable Agent, on demand, any and all
reasonable costs and expenses of the Agents and the Lenders (including
reasonable counsel fees and expenses) actually incurred in connection with the
enforcement of the Transaction Documents and in connection with any
restructuring or workout of this Agreement or the administration of the
Transaction Documents.
ARTICLE XI.
THE AGENTS
Section 11.1 Appointment.
(a) Each member of the Blue Ridge Group hereby irrevocably designates
and appoints Wachovia Bank, National Association as Blue Ridge Agent hereunder
and under the other Transaction Documents to which the Blue Ridge Agent is a
party, and authorizes the Blue Ridge Agent to take such action on its behalf
under the provisions of the Transaction Documents and to exercise such powers
and perform such duties as are expressly delegated to the Blue Ridge Agent by
the terms of the Transaction Documents, together with such other powers as are
reasonably incidental thereto. Each member of the Gotham Group hereby
irrevocably designates and appoints The Bank of Tokyo-Mitsubishi, Ltd., New York
branch, as Gotham Agent hereunder and under the other Transaction Documents to
which the Gotham Agent is a party, and authorizes the Gotham Agent to take such
action on its behalf under the provisions of the Transaction Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Gotham Agent by the terms of the Transaction Documents, together with such other
powers as are reasonably incidental thereto. Each member of the PREFCO Group
hereby irrevocably designates and appoints JPMorgan Chase Bank, N.A., as PREFCO
Agent hereunder and under the other Transaction Documents to which the PREFCO
Agent is a party, and authorizes the PREFCO Agent to take such action on its
behalf under the provisions of the Transaction Documents and to exercise such
powers and perform such duties as are expressly delegated to the PREFCO Agent by
the terms of the Transaction Documents, together with such other powers as are
reasonably incidental thereto. Each member of the ▇▇▇▇▇▇▇▇ Group hereby
irrevocably designates and appoints BNP Paribas, acting through its New York
branch, as ▇▇▇▇▇▇▇▇ Agent hereunder and under the other Transaction Documents to
which the ▇▇▇▇▇▇▇▇ Agent is a party, and authorizes the ▇▇▇▇▇▇▇▇ Agent to take
such action on its behalf under the provisions of the Transaction Documents and
to exercise such powers and perform such duties as are expressly delegated to
the ▇▇▇▇▇▇▇▇ Agent by the terms of the Transaction Documents, together with such
other powers as are reasonably incidental thereto. Each member of the CAFCO
Group hereby irrevocably designates and appoints Citicorp North America, Inc.,
as CAFCO Agent hereunder and under the other Transaction Documents to which the
CAFCO Agent is a party, and authorizes the CAFCO Agent to take such action on
its behalf under the
42
provisions of the Transaction Documents and to exercise such powers and perform
such duties as are expressly delegated to the ▇▇▇▇▇▇▇▇ Agent by the terms of the
Transaction Documents, together with such other powers as are reasonably
incidental thereto. Each member of the CAFCO Group hereby irrevocably designates
and appoints Citicorp North America, Inc., as CAFCO Agent hereunder and under
the other Transaction Documents to which the CAFCO Agent is a party, and
authorizes the CAFCO Agent to take such action on its behalf under the
provisions of the Transaction Documents and to exercise such powers and perform
such duties as are expressly delegated to the CAFCO Agent by the terms of the
Transaction Documents, together with such other powers as are reasonably
incidental thereto. Each of the Lenders and the Co-Agents hereby irrevocably
designates and appoints Wachovia Bank, National Association as Administrative
Agent hereunder and under the Transaction Documents to which the Administrative
Agent is a party, and authorizes the Administrative Agent to take such action on
its behalf under the provisions of the Transaction Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of the Transaction Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, none of the Agents shall
have any duties or responsibilities, except those expressly set forth in the
Transaction Documents to which it is a party, or any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of such Agent shall be read into any
Transaction Document or otherwise exist against such Agent.
(b) The provisions of this Article XI are solely for the benefit of
the Agents and the Lenders, and none of the Loan Parties shall have any rights
as a third-party beneficiary or otherwise under any of the provisions of this
Article XI, except that this Article XI shall not affect any obligations which
any of the Agents or Lenders may have to any of the Loan Parties under the other
provisions of this Agreement.
(c) In performing its functions and duties hereunder, (i) the Blue
Ridge Agent shall act solely as the agent of the members of the Blue Ridge Group
and does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for any of the Loan Parties or any of
their respective successors and assigns, (ii) the Gotham Agent shall act solely
as the agent of the members of the Gotham Group and does not assume nor shall be
deemed to have assumed any obligation or relationship of trust or agency with or
for any of the Loan Parties or any of their respective successors and assigns,
(iii) the PREFCO Agent shall act solely as the agent of the members of the
PREFCO Group and does not assume nor shall be deemed to have assumed any
obligation or relationship of trust or agency with or for any of the Loan
Parties or any of their respective successors and assigns, (iv) the ▇▇▇▇▇▇▇▇
Agent shall act solely as the agent of the members of the ▇▇▇▇▇▇▇▇ Group and
does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for any of the Loan Parties or any of
their respective successors and assigns, (v) the CAFCO Agent shall act solely as
the agent of the members of the CAFCO Group and does not assume nor shall be
deemed to have assumed any obligation or relationship of trust or agency with or
for any of the Loan Parties or any of their respective successors and assigns
and (vi) the Administrative Agent shall act solely as the agent of the Secured
Parties and does not assume nor shall be deemed to have assumed any obligation
or relationship of trust or agency with or for any of the Loan Parties or any of
their respective successors and assigns.
Section 11.2 Delegation of Duties. Each of the Agents may execute any of
its duties under the Transaction Documents to which it is a party by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. None of the Agents shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
43
Section 11.3 Exculpatory Provisions. None of the Agents nor any of its
directors, officers, agents or employees shall be (i) liable for any action
lawfully taken or omitted to be taken by it or them or any Person described in
Section 11.2 under or in connection with this Agreement (except for its, their
or such Person's own bad faith, gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders or other Agents for any
recitals, statements, representations or warranties made by Borrower contained
in this Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other document furnished in connection
herewith, or for any failure of any of the Loan Parties to perform its
respective obligations hereunder, or for the satisfaction of any condition
specified in Article V, except receipt of items required to be delivered to such
Agent. None of the Agents shall be under any obligation to any other Agent or
any Lender to ascertain or to inquire as to the observance or performance of any
of the agreements or covenants contained in, or conditions of, this Agreement,
or to inspect the properties, books or records of the Loan Parties. This Section
11.3 is intended solely to govern the relationship between the Agents, on the
one hand, and the Lenders and their respective Liquidity Banks, on the other.
Section 11.4 Reliance by Agents.
(a) Each of the Agents shall in all cases be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Loan Parties), independent accountants and
other experts selected by such Agent. Each of the Agents shall in all cases be
fully justified in failing or refusing to take any action under this Agreement
or any other document furnished in connection herewith unless it shall first
receive such advice or concurrence of such of its Lenders and Liquidity Banks,
as it shall determine to be appropriate under the relevant circumstances, or it
shall first be indemnified to its satisfaction by its Constituent Liquidity
Banks against any and all liability, cost and expense which may be incurred by
it by reason of taking or continuing to take any such action.
(b) Any action taken by any of the Agents in accordance with Section
11.4(a) shall be binding upon all of the Agents and the Lenders.
Section 11.5 Notice of Amortization Event. None of the Agents shall be
deemed to have knowledge or notice of the occurrence of any Amortization Event
or Unmatured Amortization Event unless such Agent has received notice from
another Agent, a Lender or a Loan Party referring to this Agreement, stating
that an Amortization Event or Unmatured Amortization Event has occurred
hereunder and describing such Amortization Event or Unmatured Amortization
Event. In the event that any of the Agents receives such a notice, it shall
promptly give notice thereof to the Lenders and the other Agents. The
Administrative Agent shall take such action with respect to such Amortization
Event or Unmatured Amortization Event as shall be directed by either of the
Co-Agents provided that the Administrative Agent is indemnified to its
satisfaction by such Co-Agent and its Constituent
44
Liquidity Banks against any and all liability, cost and expense which may be
incurred by it by reason of taking any such action.
Section 11.6 Non-Reliance on Other Agents and Lenders. Each of the Lenders
expressly acknowledges that none of the Agents, nor any of the Agents'
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
any of the Agents hereafter taken, including, without limitation, any review of
the affairs of the Loan Parties, shall be deemed to constitute any
representation or warranty by such Agent. Each of the Lenders also represents
and warrants to the Agents and the other Lenders that it has, independently and
without reliance upon any such Person (or any of their Affiliates) and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of the Loan
Parties and made its own decision to enter into this Agreement. Each of the
Lenders also represents that it will, independently and without reliance upon
the Agents or any other Liquidity Bank or Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, prospects, financial and
other condition and creditworthiness of the Loan Parties. The Agents, the
Lenders and their respective Affiliates, shall have no duty or responsibility to
provide any party to this Agreement with any credit or other information
concerning the business, operations, property, prospects, financial and other
condition or creditworthiness of the Loan Parties which may come into the
possession of such Person or any of its respective officers, directors,
employees, agents, attorneys-in-fact or affiliates, except that each of the
Agents shall promptly distribute to the other Agents and the Lenders, copies of
financial and other information expressly provided to it by any of the Loan
Parties pursuant to this Agreement.
Section 11.7 Indemnification of Agents. Each Liquidity Bank agrees to
indemnify (a) its applicable Co-Agent, (b) the Administrative Agent, and (c) the
officers, directors, employees, representatives and agents of each of the
foregoing (to the extent not reimbursed by the Loan Parties and without limiting
the obligation of the Loan Parties to do so), ratably in accordance with their
respective Loans, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including, without limitation, the reasonable
fees and disbursements of counsel for such Co-Agent, the Administrative Agent or
such Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not such Co-Agent or the
Administrative Agent or such Person shall be designated a party thereto) that
may at any time be imposed on, incurred by or asserted against such Co-Agent,
the Administrative Agent or such Person as a result of, or arising out of, or in
any way related to or by reason of, any of the transactions contemplated
hereunder or the execution, delivery or performance of this Agreement or any
other document furnished in connection herewith (but excluding any such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the bad faith, gross
negligence or willful misconduct of such Co-Agent, the Administrative Agent or
such Person as finally determined by a court of competent jurisdiction).
45
Section 11.8 Agents in their Individual Capacities. Each of the Agents in
its individual capacity and its affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Loan Parties and
their Affiliates as though such Agent were not an Agent hereunder. With respect
to its Loans, if any, pursuant to this Agreement, each of the Agents shall have
the same rights and powers under this Agreement as any Lender and may exercise
the same as though it were not an Agent, and the terms "Lender" and "Lenders"
shall include each of the Agents in their individual capacities.
Section 11.9 Conflict Waivers.
(a) Wachovia acts, or may in the future act: (i) as administrative
agent for Blue Ridge, (ii) as issuing and paying agent for Blue Ridge's
Commercial Paper, (iii) to provide credit or liquidity enhancement for the
timely payment for Blue Ridge's Commercial Paper and (iv) to provide other
services from time to time for Blue Ridge (collectively, the "Wachovia Roles").
Without limiting the generality of Sections 11.1 and 11.8, each of the
Administrative Agent and the Lenders hereby acknowledges and consents to any and
all Wachovia Roles and agrees that in connection with any Wachovia Role,
Wachovia may take, or refrain from taking, any action which it, in its
discretion, deems appropriate, including, without limitation, in its role as
administrative agent for Blue Ridge, the giving of notice to the Liquidity Banks
of a mandatory purchase pursuant to the Blue Ridge Liquidity Agreement, and
hereby acknowledges that neither Wachovia nor any of its Affiliates has any
fiduciary duties hereunder to any Lender (other than Blue Ridge) arising out of
any Wachovia Roles.
(b) BTM acts, or may in the future act: (i) as administrator of
Gotham, (ii) to provide credit or liquidity enhancement for the timely payment
for Gotham's Commercial Paper and (iii) to provide other services from time to
time for Gotham (collectively, the "BTM Roles"). Without limiting the generality
of Sections 11.1 and 11.8, each of the Agents and Gotham hereby acknowledges and
consents to any and all BTM Roles and agrees that in connection with any BTM
Role, BTM may take, or refrain from taking, any action which it, in its
discretion, deems appropriate, including, without limitation, in its role as
administrator of Gotham, the giving of notice to the Gotham Liquidity Banks of a
mandatory purchase pursuant to the Gotham Liquidity Agreement.
(c) JPMorgan acts, or may in the future act: (i) as administrator of
PREFCO, (ii) to provide credit or liquidity enhancement for the timely payment
for PREFCO's Commercial Paper and (iii) to provide other services from time to
time for PREFCO (collectively, the "JPMorgan Roles"). Without limiting the
generality of Sections 11.1 and 11.8, each of the Agents and PREFCO hereby
acknowledges and consents to any and all JPMorgan Roles and agrees that in
connection with any JPMorgan Role, JPMorgan may take, or refrain from taking,
any action which it, in its discretion, deems appropriate, including, without
limitation, in its role as administrator of PREFCO, the giving of notice to the
PREFCO Liquidity Banks of a mandatory purchase pursuant to the PREFCO Liquidity
Agreement.
(d) BNP Paribas acts, or may in the future act: (i) as administrator
of ▇▇▇▇▇▇▇▇, (ii) to provide credit or liquidity enhancement for the timely
payment for ▇▇▇▇▇▇▇▇'▇ Commercial Paper and (iii) to provide other services from
time to time for ▇▇▇▇▇▇▇▇ (collectively, the "BNP Paribas Roles"). Without
limiting the generality of Sections 11.1 and 11.8, each of the Agents
46
and ▇▇▇▇▇▇▇▇ hereby acknowledges and consents to any and all BNP Paribas Roles
and agrees that in connection with any BNP Paribas Role, BNP Paribas may take,
or refrain from taking, any action which it, in its discretion, deems
appropriate, including, without limitation, in its role as administrator of
▇▇▇▇▇▇▇▇, the giving of notice to the ▇▇▇▇▇▇▇▇ Liquidity Banks of a mandatory
purchase pursuant to the ▇▇▇▇▇▇▇▇ Liquidity Agreement.
(e) Citibank or CNAI, as applicable, acts, or may in the future act:
(i) as administrator of CAFCO, (ii) to provide credit or liquidity enhancement
for the timely payment for CAFCO's Promissory Notes and (iii) to provide other
services from time to time for CAFCO (collectively, the "Citigroup Roles").
Without limiting the generality of Sections 11.1 and 11.8, each of the Agents
and CAFCO hereby acknowledges and consents to any and all Citigroup Roles and
agrees that in connection with any Citigroup Role, Citibank or CNAI, as
applicable, may take, or refrain from taking, any action which it, in its
discretion, deems appropriate, including, without limitation, in its role as
administrator of CAFCO, the giving of notice to the CAFCO Liquidity Banks of a
mandatory purchase pursuant to the CAFCO Liquidity Agreement.
Section 11.10 UCC Filings. Each of the Secured Parties hereby expressly
recognizes and agrees that the Administrative Agent may be listed as the
assignee or secured party of record on the various UCC filings required to be
made under the Transaction Documents in order to perfect their respective
interests in the Collateral, that such listing shall be for administrative
convenience only in creating a record or nominee holder to take certain actions
hereunder on behalf of the Secured Parties and that such listing will not affect
in any way the status of the Secured Parties as the true parties in interest
with respect to the Collateral. In addition, such listing shall impose no duties
on the Administrative Agent other than those expressly and specifically
undertaken in accordance with this Article XI.
ARTICLE XII.
ASSIGNMENTS; PARTICIPATIONS
Section 12.1 Restrictions on Assignments.
(a) Except to the extent permitted by the Transaction Documents, no
Loan Party may assign its rights, or delegate its duties hereunder or any
interest herein without the prior written consent of each of the Agents and, if
required by any Conduit, satisfaction of the Rating Agency Condition.
(b) Each of the Conduits may, at any time, assign all or any portion
of any of its Loans, or sell participations therein, to its Constituent
Liquidity Banks (or to its Co-Agent for the ratable benefit of its Constituent
Liquidity Banks).
(c) In addition to, and not in limitation of, assignments and
participations described in Section 12.1(b):
(i) in the event that any of the Liquidity Banks becomes a
Downgraded Liquidity Bank, such Downgraded Liquidity Bank shall give
prompt written notice of its Downgrading Event to the applicable
Co-Agent and Borrower. Within 5 Business Days after Borrower's receipt
of such notice, Borrower may propose an Eligible Assignee who is
willing to accept an
47
assignment of, and to assume, such Downgraded Liquidity Bank's rights
and obligations under this Agreement and under the applicable
Liquidity Agreement. In the event that Borrower fails to propose such
an Eligible Assignee within such 5 Business Day period, or such
Eligible Assignee does not execute and deliver assignment and
assumption documents reasonably acceptable to such Downgraded
Liquidity Bank and the applicable Co-Agent and pay the Downgraded
Liquidity Bank's Obligations in full, in each case, not later than
5:00 p.m. (New York City time) on the 10th Business Day following
Borrower's receipt of notice of such Downgrading Event, the applicable
Co-Agent may identify an Eligible Assignee without Borrower's consent,
and the Downgraded Liquidity Bank shall promptly assign its rights and
obligations to the Eligible Assignee designated by such Co-Agent
against payment in full of its Obligations;
(ii) each of the Lenders may assign all or any portion of its
Loans and, if applicable, its Commitment and Liquidity Commitment, to
any Eligible Assignee with the prior written consent of (A) Borrower
and (B) such Lender's applicable Co-Agent, which consents shall not be
unreasonably withheld or delayed; provided, however, that no such
consent shall be required if such Eligible Assignee is already a
Liquidity Bank party to this Agreement and the aggregate Liquidity
Commitments, after giving effect to such assignment, would not be
reduced solely because of such assignment;
(iii) each of the Lenders may, without the prior written consent
of Borrower or any of the Agents, sell participations in all or any
portion of their respective rights and obligations in, to and under
the Transaction Documents and the Obligations to any bank or other
financial entity (each, a "Participant") in accordance with Sections
12.2 and 14.5.
(d) Nothing herein shall limit the ability of any Conduit to grant a
security interest therein to the program collateral agent for such Conduit's
Promissory Note program.
Section 12.2 Rights of Assignees and Participants.
(a) Upon the assignment by a Lender in accordance with Section 1.2(c)
or 12.1(b) or (c), the Eligible Assignee(s) receiving such assignment shall have
all of the rights of such Lender with respect to the Transaction Documents and
the Obligations (or such portion thereof as has been assigned).
(b) In no event will the sale of any participation interest in any
Lender's or any Eligible Assignee's rights under the Transaction Documents or in
the Obligations relieve the seller of such participation interest of its
obligations, if any, hereunder or, if applicable, under the Liquidity Agreement
to which it is a party and such seller shall remain solely responsible for the
performance of its obligations hereunder and thereunder. No Participant shall
have any right to restrict the approval of or to approve any amendment,
modification or waiver to the provisions hereof except to the extent any such
amendment, modification or waiver reduces the amount of Advances or the interest
rate or fees payable with respect to such Advances; provided, however, that to
the extent that any Liquidity Funding is deemed to be the sale of a
participation, the
48
foregoing limitation on Participants' voting rights shall not apply to any
Liquidity Bank participating in such Liquidity Funding.
Section 12.3 Terms and Evidence of Assignment. Any assignment to any
Eligible Assignee(s) pursuant to Section 1.2(c), 12.1(b) or 12.1(c) shall be
upon such terms and conditions as the assigning Lender and the applicable
Co-Agent, on the one hand, and the Eligible Assignee, on the other, may mutually
agree, and shall be evidenced by such instrument(s) or document(s) as may be
satisfactory to such Lender, the applicable Co-Agent and the Eligible
Assignee(s). Any assignment made in accordance with the terms of this Article
XII shall relieve the assigning Lender of its obligations, if any, under this
Agreement (and, if applicable, the Liquidity Agreement to which it is a party)
to the extent assigned.
ARTICLE XIII.
SECURITY INTEREST
Section 13.1 Grant of Security Interest. To secure the due and punctual
payment of the Obligations, whether now or hereafter existing, due or to become
due, direct or indirect, or absolute or contingent, including, without
limitation, all Indemnified Amounts, in each case pro rata according to the
respective amounts thereof, Borrower hereby grants to the Administrative Agent,
for the benefit of the Secured Parties, a security interest in, all of
Borrower's right, title and interest, whether now owned and existing or
hereafter arising in and to all of the Receivables, the Related Security, the
Collections and all proceeds of the foregoing (collectively, the "Collateral").
Section 13.2 Termination after Final Payout Date. Each of the Secured
Parties hereby authorizes the Administrative Agent, and the Administrative Agent
hereby agrees, promptly after the Final Payout Date to execute and deliver to
Borrower such UCC termination statements as may be necessary to terminate the
Administrative Agent's security interest in and Lien upon the Collateral, all at
Borrower's expense. Upon the Final Payout Date, all right, title and interest of
the Administrative Agent and the other Secured Parties in and to the Collateral
shall terminate.
Section 13.3 Release of Certain Charged-Off Receivables. From time to time,
the Borrower may request that the Agents and the Lenders release their security
interest in specific Receivables that have been fully charged-off (and all
related Collections thereof and Records) in order to permit their sale to
International Paper on an arms'-length basis by delivering a written request to
the Agents accompanied by a list of the specific Receivables involved, including
related dollar amounts, sales prices and purchasers, not less than 5 Business
Days prior to the proposed third party sale. Provided that no Amortization Event
or Unmatured Amortization Event then exists or would result from such sale, each
of the Co-Agents and the Lenders hereby authorizes the Administrative Agent, and
the Administrative Agent hereby agrees, to execute a specific release in
substantially the form of the first document included in Exhibit X hereto, and
the Borrower hereby agrees to execute a sale and assignment of such specific
Receivables in substantially the form of the second document included in Exhibit
X hereto.
49
ARTICLE XIV.
MISCELLANEOUS
Section 14.1 Waivers and Amendments. No amendment or waiver of any
provision of this Agreement nor consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be in writing
and signed by each of the Loan Parties and the Agents, and any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that:
(a) before any Co-Agent enters into such an amendment or grants such a
waiver or consent that is deemed to be material by S&P and/or Moody's, if
required by its Conduit's program documents, the Rating Agency Condition must be
satisfied with respect to such Conduit, and
(b) without the prior written consent of all Gotham Liquidity Banks
with respect to the Gotham Agent, the Blue Ridge Liquidity Banks with respect to
the Blue Ridge Agent, the PREFCO Liquidity Banks with respect to the PREFCO
Agent, the ▇▇▇▇▇▇▇▇ Liquidity Banks with respect to the ▇▇▇▇▇▇▇▇ Agent and the
CAFCO Liquidity Banks with respect to the CAFCO Agents, such Co-Agent will not
amend, modify or waive any provision of this Agreement which would (i) reduce
the amount of any principal or interest that is payable on account of its
Conduit's Loans or delay any scheduled date for payment thereof; (ii) decrease
the Required Reserve, decrease the spread included in any Interest Rate or
change the Servicer's Fee; (iii) modify this Section 14.1; or (iv) modify any
yield protection or indemnity provision which expressly inures to the benefit of
assignees or Participants of such Co-Agent's Conduit.
Section 14.2 Notices. Except as provided in this Section 14.2, 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 14.2. Borrower hereby authorizes each of the Co-Agents to effect
Advances and Interest Period and Interest Rate selections based on telephonic
notices made by any Person whom such Co-Agent in good faith believes to be
acting on behalf of Borrower. Borrower agrees to deliver promptly to the
Co-Agents a written confirmation of each telephonic notice signed by an
authorized officer of Borrower; provided, however, the absence of such
confirmation shall not affect the validity of such notice. If the written
confirmation differs from the action taken by the Co-Agents, the records of the
Co-Agents shall govern absent manifest error.
Section 14.3 Ratable Payments. Except as provided in the next sentence, if
any Lender, whether by setoff or otherwise, has payment made to it with respect
to any portion of the Obligations owing to such Lender (other than payments
received pursuant to Section 10.2 or 10.3) in a greater proportion than that
received by any other Lender entitled to receive a ratable share of such
Obligations, such Lender agrees, promptly upon demand, to purchase for cash
50
without recourse or warranty a portion of such Obligations held by the other
Lenders so that after such purchase each Lender will hold its ratable proportion
of such Obligations; provided that if all or any portion of such excess amount
is thereafter recovered from such Lender, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without
interest. Notwithstanding the foregoing, if the Liquidity Banks in one of the
Groups decline to extend their Liquidity Termination Date, their Co-Agent will
promptly notify the other Co-Agents and Borrower of such decision, and Borrower
shall have the right to replace the non-extending Group with a new Conduit and
one or more new Liquidity Banks without repaying any portion of the other
Group's Loans at the time of such replacement, and without triggering the
purchase requirements under the preceding sentence.
Section 14.4 Protection of Administrative Agent's Security Interest.
(a) Borrower 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, to perfect, protect or more fully
evidence the Administrative Agent's security interest in the Collateral, or to
enable the Administrative Agent or the Lenders to exercise and enforce their
rights and remedies hereunder. At any time after the occurrence and continuation
of an Amortization Event, the Administrative Agent may, or the Administrative
Agent may direct Borrower or the Servicer to, notify the Obligors of
Receivables, at Borrower's expense, of the ownership or security interests of
the Lenders 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
the Administrative Agent or its designee. Borrower or the Servicer (as
applicable) shall, at any Lender's request, withhold the identity of such Lender
in any such notification.
(b) If any Loan Party fails to perform any of its obligations
hereunder, the Administrative Agent or any Lender may (but shall not be required
to) perform, or cause performance of, such obligations, and the Administrative
Agent's or such Lender's reasonable costs and expenses incurred in connection
therewith shall be payable by Borrower as provided in Section 10.3. Each Loan
Party irrevocably authorizes the Administrative Agent at any time and from time
to time in the sole discretion of the Administrative Agent, and appoints the
Administrative Agent as its attorney-in-fact, to act on behalf of such Loan
Party (i) to execute on behalf of Borrower as debtor and to file financing
statements necessary or desirable in the Administrative Agent's sole discretion
to perfect and to maintain the perfection and priority of the interest of the
Lenders 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 the Administrative Agent
in its sole discretion deems necessary or desirable to perfect and to maintain
the perfection and priority of the Administrative Agent's security interest in
the Collateral, for the benefit of the Secured Parties. This appointment is
coupled with an interest and is irrevocable. Each of the Loan Parties (A) hereby
authorizes the Administrative Agent to file financing statements and other
filing or recording documents with respect to the Receivables and Related
Security (including any amendments thereto, or continuation or termination
statements thereof), without the signature or other authorization of such Loan
Party, in such form and in such offices as the Administrative Agent reasonably
determines appropriate to perfect or maintain the perfection of the security
interest of the Administrative Agent hereunder, (B) acknowledges and agrees that
it is not authorized to, and will not, file financing statements or other filing
or recording documents with respect to the
51
Receivables or Related Security (including any amendments thereto, or
continuation or termination statements thereof), without the express prior
written approval by the Administrative Agent, consenting to the form and
substance of such filing or recording document, and approves, authorizes and
ratifies any filings or recordings made by or on behalf of the Administrative
Agent in connection with the perfection of the security interests in favor of
Borrower or the Administrative Agent.
Section 14.5 Confidentiality.
(a) Each Loan Party and each Lender shall maintain and shall cause
each of its employees and officers to maintain the confidentiality of this
Agreement, the Fee Letters and the other confidential or proprietary information
that are clearly marked as being confidential and/or proprietary with respect to
any Agent or any Conduit 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 Loan Party and such Lender
and its officers and employees may disclose such information to such Loan
Party's and such Lender'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 Loan Party
hereby consents to the disclosure of any nonpublic information with respect to
it (i) to any Agent, the Liquidity Banks or any Conduit by each other, (ii) by
any Agent or the Lenders to any prospective or actual assignee or Participant of
any of them and (iii) by any Agent to any rating agency, Promissory Note dealer
or provider of a surety, guaranty or credit or liquidity enhancement to any
Conduit or any entity organized for the purpose of purchasing, or making loans
secured by, financial assets for which Wachovia, BTM, JPMorgan, BNP Paribas or
Citibank or any of their respective Affiliates acts as the administrative agent
and to any officers, directors, employees, outside accountants and attorneys of
any of the foregoing, provided that each such Person is informed of the
confidential nature of such information and (except in the case of a Person
described in clause (iii) above) agrees to maintain the confidential nature of
such information. In addition, the Lenders and the Agents 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) Notwithstanding any other provision in this Agreement, each of the
Agents and the Lenders hereby confirms that each of the Loan Parties, the
Originators and their respective representatives shall not be limited from
disclosing the U.S. tax treatment or U.S. tax structure of the transactions
evidenced hereby.
Section 14.6 Bankruptcy Petition. To the fullest extent permitted by
applicable law, each of the Loan Parties, Agents and Lenders 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 of the Conduits,
it will not institute against, or join any other Person in instituting against,
any of the Conduits 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.
52
Section 14.7 Limitation of Liability. Except with respect to any claim
arising out of the willful misconduct or gross negligence of any Agent, any
Lender or JH Management Corporation, no claim may be made by any Loan Party or
any other Person against any such Person or any of its 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 Loan Party 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 14.8 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW (EXCEPT IN THE CASE OF THE OTHER TRANSACTION DOCUMENTS, TO THE
EXTENT OTHERWISE EXPRESSLY STATED THEREIN) AND EXCEPT TO THE EXTENT THAT THE
PERFECTION OF THE OWNERSHIP INTEREST OF BORROWER OR THE SECURITY INTEREST OF THE
ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, IN ANY OF THE
COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
Section 14.9 CONSENT TO JURISDICTION. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT,
AND EACH SUCH PARTY 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 ANY AGENT OR
ANY LENDER TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY LOAN PARTY AGAINST ANY AGENT
OR ANY LENDER OR ANY AFFILIATE OF ANY AGENT OR ANY LENDER 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 LOAN PARTY PURSUANT TO THIS
AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.
Section 14.10 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 LOAN
PARTY PURSUANT
53
TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 14.11 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
the parties hereto and their respective successors and permitted assigns
(including any trustee in bankruptcy). 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 any Loan
Party pursuant to Article VI, (ii) the indemnification and payment provisions of
Article X, and Sections 14.5 and 14.6 shall be continuing and shall survive any
termination of this Agreement.
Section 14.12 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. Delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of a signature page to this 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 indicated, all references herein to "Article," "Section," "Schedule"
or "Exhibit" shall mean articles and sections of, and schedules and exhibits to,
this Agreement.
[signature pages follow]
54
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.
RED BIRD RECEIVABLES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
INTERNATIONAL PAPER FINANCIAL SERVICES,
INC., AS SERVICER
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
INTERNATIONAL PAPER COMPANY, AS
PERFORMANCE GUARANTOR
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page for Amended and Restated
Credit and Security Agreement
BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA CAPITAL MARKETS, LLC, ITS
ATTORNEY-IN-FACT
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
Blue Ridge Asset Funding Corporation
c/o Wachovia Bank, National Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇ TRW 10 NC0610
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually as a Liquidity Bank, as
Blue Ridge Agent and as Administrative
Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, N.E., 22nd Floor
GA-8088
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page for Amended and Restated
Credit and Security Agreement
GOTHAM FUNDING CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW
YORK BRANCH, as a Liquidity Bank
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW
YORK BRANCH, as Gotham Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page for Amended and Restated
Credit and Security Agreement
PREFERRED RECEIVABLES FUNDING
CORPORATION
By:
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signer
Address:
Preferred Receivables Funding
Corporation
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: PREFCO Funding Manager
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
JPMORGAN CHASE BANK, N.A.,
as a Liquidity Bank and as PREFCO Agent
By:
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Address:
JPMorgan Chase Bank, N.A.
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ABS Transaction Management
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page for Amended and Restated
Credit and Security Agreement
▇▇▇▇▇▇▇▇ FUNDING CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
▇▇▇▇▇▇▇▇ Funding Corporation
c/o ▇. ▇. Management Corporation
One International Place, Room 3218
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BNP PARIBAS, ACTING THROUGH ITS NEW
YORK BRANCH, as a Liquidity Bank and as
▇▇▇▇▇▇▇▇ Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
BNP Paribas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page for Amended and Restated
Credit and Security Agreement
CAFCO, LLC
BY: CITICORP NORTH AMERICA, INC., ITS
ATTORNEY-IN-FACT
By:
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director & Vice President
Address:
CAFCO, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CITICORP NORTH AMERICA, INC.,
as CAFCO Agent
By:
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director & Vice President
Address:
Citicorp North America, Inc.,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page for Amended and Restated
Credit and Security Agreement
CITIBANK, N.A.,
as a Liquidity Bank
By:
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director & Vice President
Address:
Citibank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page for Amended and Restated
Credit and Security Agreement
EXHIBIT I
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Actual Setoff Reserve Amount" means, on any date of
determination, [***]
"Adjusted Dilution Ratio" means, at any time, the rolling average
of the Dilution Ratio for the 12 Calculation Periods then most recently ended.
"Administrative Agent" has the meaning set forth in the preamble
to this Agreement.
"Administrative Agent's Account" means account [***] at
Wachovia Bank, National Association, ABA #▇▇▇▇▇▇▇▇▇.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made on the same Borrowing Date.
"Adverse Claim" means a lien, security interest, charge or
encumbrance, or other right or claim in, of or on any Person's assets or
properties in favor of any other Person.
"Affected Party" means each of the Conduits, the Agents and the
Liquidity Banks.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person or any Subsidiary of such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Agents" means the Administrative Agent and Co-Agents.
"Aggregate Commitment" means, on any date of determination, the
aggregate amount of the Commitments to make Loans hereunder. As of November 17,
2004, the Aggregate Commitment is $1,200,000,000.
"Aggregate Principal" means, on any date of determination, the
aggregate outstanding principal amount of all Advances outstanding on such date.
I-1
"Agreement" means this Amended and Restated Credit and Security
Agreement, as it may be amended or modified and in effect from time to time.
"Alternate Base Rate" means for any day, the rate per annum equal
to the higher as of such day of (i) the Prime Rate, or (ii) one-half of one
percent (0.50%) above the Federal Funds Effective Rate. For purposes of
determining the Alternate Base Rate for any day, changes in the Prime Rate or
the Federal Funds Effective Rate shall be effective on the date of each such
change.
"Alternate Base Rate Loan" means a Loan which bears interest at
the Alternate Base Rate or the Default Rate.
"Amortization Date" means the earliest to occur of (i) the day on
which any of the conditions precedent set forth in Section 6.2 are not
satisfied, (ii) the Business Day immediately prior to the occurrence of an Event
of Bankruptcy with respect to any Loan Party, (iii) the Business Day specified
in a written notice from the Administrative Agent following the occurrence and
during the continuance of any other Amortization Event, and (iv) the date which
is 15 Business Days after the Administrative Agent's receipt of written notice
from Borrower that it wishes to terminate the facility evidenced by this
Agreement.
"Amortization Event" has the meaning specified in Article IX.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Authorized Officer" means, with respect to any Person, its
president, corporate controller, treasurer or chief financial officer.
"Blue Ridge" has the meaning set forth in the preamble to this
Agreement.
"Blue Ridge Agent" has the meaning provided in the preamble of
this Agreement.
"Blue Ridge Allocation Limit" has the meaning set forth in
Section 1.1(a).
"Blue Ridge Fee Letter" means that certain Blue Ridge Fee Letter
dated as of November 17, 2004 by and among International Paper, Borrower, Blue
Ridge and Wachovia, as the Blue Ridge Agent and the Administrative Agent.
"Blue Ridge Group" has the meaning provided in the preamble of
this Agreement.
"Blue Ridge Liquidity Agreement" means the Liquidity Asset
Purchase Agreement dated as of the date hereof among Blue Ridge, the Blue Ridge
Agent, and the Liquidity Banks from time to time party thereto, as the same may
be amended, restated, supplemented, replaced or otherwise modified from time to
time.
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"Blue Ridge Liquidity Bank" means any Liquidity Bank that enters
into this Agreement and the Blue Ridge Liquidity Agreement.
"Borrower" has the meaning set forth in the preamble to this
Agreement.
"Borrowing Base" means, on any date of determination, the Net
Pool Balance as of the last day of the period covered by the most recent Monthly
Report, minus the Required Reserve as of the last day of the period covered by
the most recent Monthly Report, and minus Dilution that have occurred since the
most recent Cut-Off Date to the extent that such Dilution exceed the Dilution
Reserve.
"Borrowing Date" means a Business Day on which an Advance is made
hereunder.
"Borrowing Request" has the meaning set forth in Section 2.1.
"Box Group" means, collectively, Box USA Group, Inc., a New York
corporation, Box USA Manufacturing Group of Iowa, Inc., a Delaware corporation,
Page Packaging Corporation, a California corporation, and Box USA Manufacturing
Group of Georgia, Inc., a Pennsylvania corporation.
"Broken Funding Costs" means, for any CP Rate Loan which: (a) has
its principal reduced without compliance by Borrower with the notice
requirements hereunder or (b) is not prepaid in the amount specified in a
Prepayment Notice on the date specified therein or (c) is assigned or otherwise
transferred by the applicable Conduit to its respective Liquidity Banks under
its respective Liquidity Agreement or terminated prior to the date on which it
was originally scheduled to end or (d) in the case of Gotham, is prepaid in an
aggregate principal amount in excess of the aggregate Face Value of Gotham's
Commercial Paper issued to fund its CP Rate Loan which matures on the date of
prepayment, an amount equal to:
(i) in the case of any Pool Funded Conduit, the excess, if any,
of (A) the CP Costs that would have accrued during the remainder of the
applicable commercial paper tranche periods determined by the Blue Ridge
Agent, PREFCO Agent, ▇▇▇▇▇▇▇▇ Agent or CAFCO Agent, as applicable, to
relate to such Loan subsequent to the date of such reduction, assignment or
termination (or in respect of clause (b) above, the date such prepayment
was designated to occur pursuant to the applicable Prepayment Notice) of
the principal of such CP Rate Loan if such reduction, assignment or
termination had not occurred or such Prepayment Notice had not been
delivered, over (B) the sum of (x) to the extent all or a portion of such
principal is allocated to another CP Rate Loan, the amount of CP Costs
actually accrued during the remainder of such period on such principal for
the new Loan, and (y) to the extent such principal is not allocated to
another CP Rate Loan, the income, if any, actually received during the
remainder of such period by the holder of such Loan from investing the
portion of such principal not so allocated; and
(ii) in the case of Gotham, the excess, if any, of (A) the
Interest at the CP Rate that would have accrued during the remainder of the
applicable CP
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Tranche Periods as determined by the Gotham Agent to relate to such CP Rate
Loan subsequent to the date of such reduction, assignment or termination
(or in respect of clause (b) above, the date such prepayment was designated
to occur pursuant to the applicable Prepayment Notice) of the principal of
such CP Rate Loan if such reduction, assignment or termination had not
occurred or such Prepayment Notice had not been delivered, over (B) the sum
of (x) to the extent all or a portion of such principal is allocated to
another CP Rate Loan, the amount of Interest at the CP Rate actually
accrued during the remainder of such period on such principal for the new
Loan, and (y) to the extent such principal is not allocated to another CP
Rate Loan, the income, if any, actually received during the remainder of
such period by the holder of such Loan from investing the portion of such
principal not so allocated.
"BTM" means The Bank of Tokyo-Mitsubishi, Ltd., New York Branch,
and its successors.
"Business Day" means any day on which banks are not authorized or
required to close in New York, New York or Atlanta, Georgia, and The Depository
Trust Company of New York is open for business, and, if the applicable Business
Day relates to any computation or payment to be made with respect to LIBOR, any
day on which dealings in dollar deposits are carried on in the London interbank
market.
"Calculation Period" means a calendar month.
[***]
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[***]
"Cash Discount" means a cash discount as described in Section
3.4(a)(i).
"Cash Discount Reserve" means, at any time, such balance of all
reserve accounts that any Loan Party establishes to reserve for Cash Discounts
earned by all Obligors.
"Change of Control" means (a) the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 20% or more of the outstanding shares of
voting stock of International Paper, or (b) International Paper fails to own,
directly or indirectly, 100% of the outstanding shares of voting stock of IPFS
and Borrower.
"CAFCO" has the meaning set forth in the preamble to this
Agreement.
"CAFCO Agent" has the meaning provided in the preamble of this
Agreement.
"CAFCO Allocation Limit" has the meaning set forth in Section
1.1(e).
"CAFCO Fee Letter" means that certain CAFCO Fee Letter dated as
of November 17, 2004 by and among International Paper, Borrower and CNAI.
"CAFCO Group" has the meaning set forth in the preamble to this
Agreement.
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"CAFCO Liquidity Agreement" means the Second Amended and Restated
Secondary Market Agreement dated as of November 17, 2004 among CAFCO, the CAFCO
Agent, and the Liquidity Banks from time to time party thereto, as the same may
be amended, restated, supplemented, replaced or otherwise modified from time to
time.
"CAFCO Liquidity Bank" means any Liquidity Bank that enters into
this Agreement and the CAFCO Liquidity Agreement.
"CNAI" has the meaning set forth in the Preamble to this
Agreement.
"Collateral" has the meaning set forth in Section 13.1.
"Collection Account" means each concentration account, depositary
account, lock box account or similar account in which any Collections are
collected or deposited and which is listed on Exhibit IV.
"Collection Account Agreement" means an agreement substantially
in the form of Exhibit VI among IPFS, Borrower, the Administrative Agent and a
Collection Bank.
"Collection Bank" means, at any time, any of the banks holding
one or more Collection Accounts.
"Collection Notice" means a notice, in substantially the form of
Annex A to Exhibit VI, from the Administrative Agent to a Collection Bank.
"Collections" means, with respect to any Receivable, all cash
collections and other cash proceeds in respect of such Receivable, including,
without limitation, all Finance Charges or other related amounts accruing in
respect thereof and all cash proceeds of Related Security with respect to such
Receivable.
"Commercial Paper" means promissory notes of a Conduit with
maturities of less than 397 days issued by such Conduit in the commercial paper
market.
"Commitment" means, as of any date of determination, for each
Committed Lender, its commitment to make Loans to Borrower hereunder in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Committed Lender's name under the heading "Commitment"
on Schedule A to this Agreement.
"Commitment Reduction Notice" has the meaning specified in
Section 1.6.
"Committed Lender" means (a) Gotham, (b) each of the Blue Ridge
Liquidity Banks, (c) each of the PREFCO Liquidity Banks, (d) each of the
▇▇▇▇▇▇▇▇ Liquidity Banks and (e) each of the CAFCO Liquidity Banks.
"Conduits" has the meaning specified in the preamble to this
Agreement.
"Constituent" means, (a) as to the Blue Ridge Agent, any member
of the Blue Ridge Group from time to time party hereto, (b) as to the Gotham
Group, any member of the
I-6
Gotham Group from time to time a party hereto, (c) as to the PREFCO Agent, any
member of the PREFCO Group from time to time party hereto, (d) as to the
▇▇▇▇▇▇▇▇ Agent, any member of the ▇▇▇▇▇▇▇▇ Group from time to time party hereto,
and (e) as to the CAFCO Group, any member of the CAFCO Group from time to time
party hereto, and when used as an adjective, "Constituent" shall have a
correlative meaning.
"Contingent Obligation" of a Person means any agreement,
undertaking or arrangement by which such Person assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or liability of
any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any creditor
of such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract or reimbursement agreement
with respect to a letter of credit.
"Contract" means, with respect to any Receivable, any and all
instruments, agreements, invoices or other writings pursuant to which such
Receivable arises or which evidences such Receivable.
"CP Costs" means:
(a) for each of the Pool Funded Conduits other than CAFCO for
each day, the sum of (i) discount or interest accrued on Pooled Commercial Paper
for such Conduit on such day, plus (ii) any and all accrued commissions in
respect of placement agents and dealers, and issuing and paying agent fees
incurred, in respect of such Pooled Commercial Paper for such day, plus (iii)
other costs associated with funding small or odd-lot amounts with respect to all
receivable purchase facilities which are funded by Pooled Commercial Paper for
such day, minus (iv) any accrual of income net of expenses received on such day
from investment of collections received under all receivable purchase or
financing facilities funded substantially with Pooled Commercial Paper, minus
(v) any payment received on such day net of expenses in respect of Broken
Funding Costs (or similar costs) related to the prepayment of any investment of
such Pool Funded Conduit, as applicable, pursuant to the terms of any receivable
purchase or financing facilities funded substantially with Pooled Commercial
Paper. In addition to the foregoing costs, if Borrower shall request any Advance
from any of the Pool Funded Conduits other than CAFCO during any period of time
determined by the applicable Co-Agent to such Pool Funded Conduit in its sole
discretion to result in incrementally higher CP Costs applicable to such
Advance, the principal associated with any such Advance shall, during such
period, be deemed to be funded by such Conduit in a special pool (which may
include capital associated with other receivable purchase or financing
facilities) for purposes of determining such additional CP Costs applicable only
to such special pool and charged each day during such period against such
principal; and
(b) for CAFCO for each day, interest at the Investor Rate on or
otherwise (by means of interest rate ▇▇▇▇▇▇ or otherwise) in respect of those
Promissory Notes issued by CAFCO that are allocated, in whole or in part, by the
CAFCO Agent (on behalf of CAFCO) to fund or maintain any Loan on such day as
reported to the Borrower and the Servicer.
I-7
"CP Rate" means:
(a) with respect to each of the Pool Funded Conduits for any CP
Tranche Period, the per annum interest rate that, when applied to the
outstanding principal balance of such Pool Funded Conduits' CP Rate Loans
for the actual number of days elapsed in such CP Tranche Period, would
result in an amount of accrued interest equivalent to such Pool Funded
Conduits' CP Costs for such CP Tranche Period; and
(b) with respect to Gotham for any CP Tranche Period and with
respect to any Loan (or portion thereof) funded by Commercial Paper notes
issued by Gotham, a rate per annum calculated by the Gotham Agent to
reflect Gotham's cost of funding such Loan (or portion thereof), taking
into account the weighted daily average interest rate payable in respect of
such Commercial Paper during such CP Tranche Period (determined in the case
of discount Commercial Paper by converting the discount to an
interest-bearing equivalent rate per annum), applicable placement fees and
commissions, and such other costs and expenses as the Gotham Agent in good
▇▇▇▇▇ ▇▇▇▇▇ appropriate. Such Commercial Paper may be issued in such
maturities as the Gotham Agent may choose in accordance with Article II
hereof. Gotham's CP Rate shall be determined by the Gotham Agent, in its
sole discretion.
"CP Rate Loan" means a Loan made by any of the Conduits which
bears interest at a CP Rate.
"CP Tranche Period" means:
(a) with respect to the Pool Funded Conduits, a Calculation
Period, and
(b) with respect to Gotham, a period selected by the Gotham Agent
pursuant to Section 2.2; provided, however, that if any such CP Tranche
Period would end on a day which is not a Business Day, such CP Tranche
Period shall end on the preceding Business Day.
"Credit and Collection Policy" means Borrower's credit and
collection policies and practices relating to Contracts and Receivables existing
on the date hereof and summarized in Exhibit VIII hereto, as modified from time
to time in accordance with this Agreement.
"Credit and Rebill" means any reduction to the Outstanding
Balance of a Receivable which is re-documented by a new invoice for the same
product and the same Obligor, such reduction is limited to the amount by which
the original invoice exceeds the new invoice.
"Cut-Off Date" means the last day of a Calculation Period.
"Days Sales Outstanding" means, as of any day, an amount equal to
the product of (x) 91, multiplied by (y) the amount obtained by dividing (i) the
aggregate Outstanding Balance of Receivables minus the aggregate amount of
Suspense Accounts, in each case, as of
I-8
the most recent Cut-Off Date, by (ii) the aggregate amount of Receivables
created during the three (3) Calculation Periods including and immediately
preceding such Cut-Off Date.
"Deemed Collections" means Collections deemed received by
Borrower under Section 3.4(a).
"Default Horizon Ratio" means, [***]
"Default Rate" means a rate per annum equal to the sum of (i) the
Alternate Base Rate plus (ii) 2.00%, changing when and as the Alternate Base
Rate changes.
"Default Ratio" means, [***]
"Defaulted Receivable" means a [***]
"Delinquent Receivable" means [***]
"Demand Advance" means an advance made by Borrower to IPFS at any
time while it is acting as the Servicer on any day prior to the Facility
Termination Date on which no Amortization Event or Unmatured Amortization Event
exists and is continuing, which advance (a) is payable upon demand, (b) is not
evidenced by an instrument, chattel paper or a certificated security (unless
such instrument, chattel paper or certificated security is pledged and delivered
to the Administrative Agent, together with all necessary indorsement), (c) bears
interest at a market rate determined by Borrower and the Servicer from time to
time, (d) is not subordinated to any other Indebtedness or obligation of the
Servicer, and (e) may not be offset by IPFS against amounts due and owing from
Borrower to it under its Subordinated Note.
"Dilution" means the amount of any reduction or cancellation of
the Outstanding Balance of a Receivable (other than Suspense Accounts) as
described in Section 3.4(a)
I-9
and including Credit and Rebills, provided that Dilution does not include Cash
Discounts or Volume Rebates.
"Dilution Horizon Ratio" means, [***]
"Dilution Ratio" means, [***]
"Dilution Reserve" means, [***]
"Dilution Volatility Component" means [***]
"Downgraded Liquidity Bank" means a Liquidity Bank which has been
the subject of a Downgrading Event.
"Downgrading Event" with respect to any Person means the lowering
of the rating with regard to the short-term securities of such Person to below
(i) A-1 by S&P, or (ii) P-1 by Moody's.
"Eligible Assignee" means:
(i) for any of the Conduits, any bankruptcy-remote commercial
paper conduit sponsored or administered by a Co-Agent or one of its
Affiliates whose Commercial Paper is rated at least "A-1" by S&P and "P-1"
by Moody's,
(ii) solely for Gotham, any Liquidity Bank, or
(iii) for all Lenders, any commercial bank having a combined
capital and surplus of at least $250,000,000 with a rating of its (or its
parent holding
I-10
company's) short-term securities equal to or higher than (A) "A-1" by S&P
and (B) "P-1" by Moody's.
"Eligible Receivable" means, at any time, a Receivable:
(i) the Obligor of which (a) if a natural person, is a resident
of the United States or, if a corporation or other business organization,
is organized under the laws of the United States or any political
subdivision thereof and has its chief executive office in the United
States; (b) is not an Affiliate of any of the parties hereto; and (c) is
not a government or a governmental subdivision or agency,
(ii) which is not a Defaulted Receivable,
(iii) which was not a Delinquent Receivable on the date on which
it was acquired by Borrower from IPFS,
(iv) [***]
(v) which is an "account" or "chattel paper" (other than
"electronic chattel paper"), each within the meaning of Article 9 of the
UCC of all applicable jurisdictions,
(vi) which is denominated and payable only in United States
dollars in the United States,
(vii) which arises under a Contract, which, together with such
Receivable, is in full force and effect and constitutes the legal, valid
and binding obligation of the related Obligor enforceable against such
Obligor in accordance with its terms, 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),
(viii) which arises under a Contract which does not require the
Obligor under such Contract to consent to the transfer, sale, pledge or
assignment of the rights and duties of the Originator or any of its
assignees under such Contract,
(ix) which arises under a Contract that contains an obligation to
pay a specified sum of money, contingent only upon the sale of goods or the
provision of services by the Originator,
(x) which is not a credit card receivable,
(xi) which was generated in the ordinary course of the
Originator's business,
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(xii) which arises solely from the sale of goods or the provision
of services to the related Obligor by the Originator, and not by any other
Person (in whole or in part),
(xiii) which is not subject to any dispute, counterclaim, right
of rescission, set-off, counterclaim or any other defense (including
defenses arising out of violations of usury laws) of the applicable Obligor
against the Originator or any of its Affiliates or any other Adverse Claim,
and the Obligor thereon holds no right as against the Originator to cause
the Originator to repurchase the goods or merchandise the sale of which
shall have given rise to such Receivable (except with respect to sale
discounts effected pursuant to the Contract, or defective goods returned in
accordance with the terms of the Contract); provided, however, that if such
dispute, offset, counterclaim or defense affects only a portion of the
Outstanding Balance of such Receivable, then such Receivable may be deemed
an Eligible Receivable to the extent of the portion of such Outstanding
Balance which is not so affected, and provided, further, that Receivables
of any Obligor which has any accounts payable by the Originator or by a
wholly-owned Subsidiary of the Originator (thus giving rise to a potential
offset against such Receivables) may be treated as Eligible Receivables to
the extent that the Obligor of such Receivables has agreed pursuant to a
written agreement in form and substance satisfactory to the Administrative
Agent, that such Receivables shall not be subject to such offset,
(xiv) as to which the Originator has satisfied and fully
performed all obligations on its part with respect to such Receivable
required to be fulfilled by it, and no further action is required to be
performed by any Person with respect thereto other than payment thereon by
the applicable Obligor,
(xv) as to which each of the representations and warranties
contained in Sections 6.1(i), (j), (l), (q)(ii), (r) or (s) is true and
correct,
(xvi) all right, title and interest to and in which has been
validly transferred by the applicable Originator directly to IPFS under and
in accordance with the applicable [***], and by IPFS to Borrower under
and in accordance with the [***] and,
(xvii) which is not a Suspense Account.
Provided, however, that in no event will Receivables originated by International
Paper's Evergreen division or by the Box Group be Eligible Receivables unless
and until the Agents otherwise agree in writing.
"Eligible Receivables Net Balance" means, at any time, the
aggregate Outstanding Balance of all Eligible Receivables at such time
[***]
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any rule or regulation issued
thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with International Paper within the meaning
of Section 414(b) or (c) of the Tax Code (and Sections 414(m) and (o) of the Tax
Code for purposes of provisions relating to Section 412 of the Tax Code).
"Event of Bankruptcy" shall be deemed to have occurred with
respect to a Person if either:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding up, or
composition or readjustment of debts of such Person, the appointment of a
trustee, receiver, custodian, liquidator, assignee, sequestrator or the
like for such Person or all or substantially all of its assets, or any
similar action with respect to such Person under any law relating to
bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall continue
undismissed, or unstayed and in effect, for a period of 60 consecutive
days; or an order for relief in respect of such Person shall be entered in
an involuntary case under the federal bankruptcy laws or other similar laws
now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other
proceeding under any applicable bankruptcy, insolvency, reorganization,
debt arrangement, dissolution or other similar law now or hereafter in
effect, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee (other than a trustee under a deed
of trust, indenture or similar instrument), custodian, sequestrator (or
other similar official) for, such Person or for any substantial part of its
property, or shall make any general assignment for the benefit of
creditors, or shall be adjudicated insolvent, or admit in writing its
inability to pay its debts generally as they become due, or, if a
corporation or similar entity, its board of directors shall vote to
implement any of the foregoing.
"Excluded Taxes" means, with respect to a Indemnified Party,
Taxes which are (a) both (i) imposed by the jurisdiction in which such
Indemnified Party is organized or by any other taxing authority of a United
States jurisdiction as a result of such Indemnified Party doing business or
maintaining an office in such jurisdiction (other than any such taxes that the
Indemnified Party establishes would not have been imposed but for (A) such
Indemnified Party having executed, or enforced, a Transaction Document or (B)
any of the transactions contemplated herein or in the other Transaction
Documents) and also (ii) imposed on, based on or measured by net pre-tax income,
capital or net worth of such Indemnified Party (other than Taxes that are, or
are in the nature of, sales, use, rental, property or value added or similar
taxes) or (b) any Tax, assignment or other governmental charge attributable to
and which would not have been imposed but for the failure of a Indemnified Party
to deliver to Borrower the
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Prescribed Forms properly completed and duly executed by such Indemnified Party
establishing such party's exemption from, or eligibility for, a reduced rate of
any such tax or assessment.
"Existing Agreement" has the meaning set forth in the Preliminary
Statements.
"Extrapolated Setoff Reserve Amount" means [***]
"Face Value" means, when used with reference to any Commercial
Paper issued by Gotham, the face amount stated therein in the case of any
Commercial Paper note issued on a discount basis, and the principal amount
stated therein plus the amount of all interest accruing on such Commercial Paper
note from the date of its issue to its stated maturity date in the case of any
Commercial Paper note issued on an interest-bearing basis..
"Facility Termination Date" means the earliest of (i) November
17, 2007, (ii) the occurrence of the applicable Liquidity Termination Date for
any of the Conduits, and (iii) the Amortization Date.
"Federal Bankruptcy Code" means Title 11 of the United States
Code entitled "Bankruptcy," as amended and any successor statute thereto.
"Federal Funds Effective Rate" means, for any period, a
fluctuating interest rate per annum for each day during such period equal to (a)
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York in the Composite Closing
Quotations for U.S. Government Securities; or (b) if such rate is not so
published for any day which is a Business Day, the average of the quotations at
approximately 11:30 a.m. (New York time) for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Fee Letters" means the Blue Ridge Fee Letter, the Gotham Fee
Letter the PREFCO Fee Letter, the ▇▇▇▇▇▇▇▇ Fee Letter and the CAFCO Fee Letter.
"Final Payout Date" means the date on which all Obligations have
been paid in full and the Aggregate Commitment has been terminated.
"Finance Charges" means, with respect to a Contract, any finance,
interest, late payment charges or similar charges owing by an Obligor pursuant
to such Contract.
[***]
I-14
[***]
"Funding Agreement" means (i) this Agreement, (ii) the Liquidity
Agreements and (iii) any other agreement or instrument executed by any Funding
Source with or for the benefit of any Conduit.
"Funding Source" means (i) any Liquidity Bank or (ii) any
insurance company, bank or other funding entity providing liquidity, credit
enhancement or back-up purchase support or facilities to any Conduit, including,
without limitation, such Conduit's Participants, if any.
"GAAP" means generally accepted accounting principles in effect
in the United States of America as of the date of this Agreement.
"Gotham" has the meaning provided in the preamble of this
Agreement.
"Gotham Agent" has the meaning provided in the preamble of this
Agreement.
"Gotham Allocation Limit" has the meaning set forth in Section
1.1(b).
"Gotham Fee Letter" means that certain Gotham Fee Letter dated as
of November 17, 2004 by and among International Paper, Borrower and the Gotham
Agent.
"Gotham Group" has the meaning provided in the preamble of this
Agreement.
"Gotham Liquidity Agreement" means, collectively, any liquidity
agreement pursuant to which any of the Gotham Liquidity Banks provides liquidity
to Gotham and any related asset purchase agreement, as each may be amended,
restated, supplemented, replaced or otherwise modified from time to time.
"Gotham Liquidity Bank" means any Liquidity Bank that now or
hereafter enters into this Agreement and the Gotham Liquidity Agreement.
"Group" means the Blue Ridge Group, the Gotham Group, the PREFCO
Group, the ▇▇▇▇▇▇▇▇ Group or the CAFCO Group, as the case may be.
"Group Limit" means, as to each Group, the aggregate amount of
the Commitments of the Liquidity Banks in such Group.
"Indebtedness" of a Person means such Person's (i) obligations
for borrowed money, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) capitalized lease obligations, (vi) net liabilities under
interest rate swap, exchange or cap agreements, (vii)
I-15
Contingent Obligations and (viii) liabilities in respect of unfunded vested
benefits under plans covered by Title IV of ERISA.
"Indemnified Party" has the meaning set forth in Section 10.1.
"Independent Director" shall mean a member of the Board of
Directors of Borrower who is not at such time, and has not been at any time
during the preceding five (5) years: (A) a director, officer, employee or
affiliate of Performance Guarantor, any Transferor or any of their respective
Subsidiaries or Affiliates (other than Borrower), or (B) the beneficial owner
(at the time of such individual's appointment as an Independent Director or at
any time thereafter while serving as an Independent Director) of any of the
outstanding common shares of Borrower, any Transferor, or any of their
respective Subsidiaries or Affiliates, having general voting rights.
"Interest" means for each respective Interest Period relating to
Loans of the Liquidity Banks, an amount equal to the product of the applicable
Interest Rate for each Loan multiplied by the principal of such Loan for each
day elapsed during such Interest Period, annualized on a 360 day basis.
"Interest Period" means, with respect to any Loan held by a
Liquidity Bank:
(a) if Interest for such Loan is calculated on the basis of
LIBOR, a period of one, two, three or six months, or such other period as
may be mutually agreeable to the applicable Co-Agent and Borrower,
commencing on a Business Day selected by Borrower or the Administrative
Agent pursuant to this Agreement. Such Interest Period shall end on the day
in the applicable succeeding calendar month which corresponds numerically
to the beginning day of such Interest Period, provided, however, that if
there is no such numerically corresponding day in such succeeding month,
such Interest Period shall end on the last Business Day of such succeeding
month; or
(b) if Interest for such Loan is calculated on the basis of the
Alternate Base Rate, a period commencing on a Business Day selected by
Borrower and agreed to by the Administrative Agent, provided that no such
period shall exceed one month.
If any Interest Period would end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, provided,
however, that in the case of Interest Periods corresponding to LIBOR, if such
next succeeding Business Day falls in a new month, such Interest Period shall
end on the immediately preceding Business Day. In the case of any Interest
Period for any Loan which commences before the Amortization Date and would
otherwise end on a date occurring after the Amortization Date, such Interest
Period shall end on the Amortization Date. The duration of each Interest Period
which commences after the Amortization Date shall be of such duration as
selected by the Administrative Agent.
"Interest Rate" means, with respect to each Loan of the Liquidity
Banks, LIBOR, the Alternate Base Rate or the Default Rate, as applicable.
I-16
"Interest Reserve" means, for any Calculation Period, [***]
"International Paper" has the meaning set forth in the preamble
to this Agreement.
"Investor Rate" for any CP Tranche Period for any Loan of CAFCO
means the per annum rate equivalent to the weighted average of the per annum
rates paid or payable by CAFCO from time to time as interest on or otherwise (by
means of interest rate ▇▇▇▇▇▇ or otherwise) in respect of those Promissory Notes
issued by CAFCO that are allocated, in whole or in part, by the CAFCO Agent (on
behalf of CAFCO) to fund or maintain such Loan during such CP Tranche Period as
determined by the CAFCO Agent (on behalf of CAFCO) and reported to the Borrower
and the Servicer which rates shall reflect and give effect to the commissions of
placement agents and dealers in respect of such Promissory Notes, to the extent
such commissions are allocated, in whole or in part, to such Promissory Notes by
the CAFCO Agent (on behalf of CAFCO); provided, however, that (a) if any
component of such rate is a discount rate, in calculating the "Investor Rate"
for such CP Tranche Period the CAFCO Agent shall for such component use the rate
resulting from converting such discount rate to an interest bearing equivalent
rate per annum; (b) the Investor Rate with respect to Loans of CAFCO funded by
Participants shall be the same rate as in effect from time to time on Loans or
portions thereof that are not funded by a Participant; (c) if all of the Loans
maintained by CAFCO are funded by Participants, then the Investor Rate shall be
CAFCO's pool funding rate in effect from time to time for its largest size pool
of transactions which settles monthly; and (d) the per annum rate determined
pursuant hereto shall be the Default Rate at any time when an Amortization Event
shall exist.
"IP Top 30 Payable Percentage" means [***]
"IPFS" has the meaning set forth in the preamble to this
Agreement.
"Lenders" means, collectively, Blue Ridge, Gotham, PREFCO,
▇▇▇▇▇▇▇▇, CAFCO, the Blue Ridge Liquidity Banks, the Gotham Liquidity Banks, the
PREFCO Liquidity Banks, the ▇▇▇▇▇▇▇▇ Liquidity Banks, the CAFCO Liquidity Banks
and their respective successors and permitted assigns.
"LIBOR" means, for any Interest Period, the rate per annum
determined on the basis of the offered rate for deposits in U.S. dollars of
amounts equal or comparable to the principal amount of the related Loan offered
for a term comparable to such Interest Period, which rates appear on a Bloomberg
L.P. terminal, displayed under the address "US0001M [Index] Q [Go]" effective
as of 11:00 A.M., London time, two Business Days prior to the
I-17
first day of such Interest Period, provided that if no such offered rates appear
on such page, LIBOR for such Interest Period will be the arithmetic average
(rounded upwards, if necessary, to the next higher 1/100th of 1%) of rates
quoted by not less than two major banks in New York, New York, selected by the
Administrative Agent, at approximately 10:00 a.m.(New York time), two Business
Days prior to the first day of such Interest Period, for deposits in U.S.
dollars offered by leading European banks for a period comparable to such
Interest Period in an amount comparable to the principal amount of such Loan,
divided by (i) one minus the maximum aggregate reserve requirement (including
all basic, supplemental, marginal or other reserves) which is imposed against
the Administrative Agent in respect of Eurocurrency liabilities, as defined in
Regulation D of the Board of Governors of the Federal Reserve System as in
effect from time to time (expressed as a decimal), applicable to such Interest
Period plus (ii) either (a) if the outstanding principal balance of all Loans is
equal to or less than 50% of the Aggregate Commitment, 62.5 basis points or (b)
if the outstanding principal balance of all Loans is greater than 50% of the
Aggregate Commitment, 75 basis points. LIBOR shall be rounded, if necessary, to
the next higher 1/16 of 1%.
"LIBOR Loan" means a Loan which bears interest at LIBOR.
"Liquidity Agreements" means, collectively, the Blue Ridge
Liquidity Agreement, the Gotham Liquidity Agreement, the PREFCO Liquidity
Agreement, the ▇▇▇▇▇▇▇▇ Liquidity Agreement and the CAFCO Liquidity Agreement.
"Liquidity Bank" means:
(a) with respect to Blue Ridge, Wachovia or any Eligible Assignee
of Wachovia's Commitment and Liquidity Commitment,
(b) with respect to Gotham, BTM or any Eligible Assignee of BTM's
Commitment and/or Liquidity Commitment,
(c) with respect to PREFCO, JPMorgan or any Eligible Assignee of
JPMorgan's Commitment and Liquidity Commitment,
(d) with respect to ▇▇▇▇▇▇▇▇, BNP Paribas or any Eligible
Assignee of BNP Paribas's Commitment and Liquidity Commitment, and
(e) with respect to CAFCO, Citibank or any Eligible Assignee of
Citibank's Commitment and Liquidity Commitment,
in each of the foregoing cases, to which Borrower has consented if required
under Section 12.1. A Liquidity Bank will become a "Lender" hereunder at such
time as it makes any Liquidity Funding.
"Liquidity Commitment" means, as to each Liquidity Bank, its
commitment under its respective Liquidity Agreement.
"Liquidity Funding" means (a) a purchase made by any Liquidity
Bank pursuant to its Liquidity Commitment of all or any portion of, or any
undivided interest in (or a loan made
I-18
by any Liquidity Bank pursuant to its Liquidity Commitment in the amount equal
to) a Loan of its applicable Conduit, or (b) any Loan made by the applicable
Liquidity Banks in lieu of a Conduit pursuant to Section 1.1.
"Liquidity Termination Date" means:
(a) as to the Gotham Group, November 17, 2007 (unless such date
is extended from time to time in the sole discretion of the Gotham
Liquidity Banks); and
(b) as to the Blue Ridge Group, the earlier to occur of (i)
November 17, 2007 (unless such date is extended from time to time in the
sole discretion of the Blue Ridge Liquidity Banks); and (ii) the date on
which a Downgrading Event with respect to a Blue Ridge Liquidity Bank shall
have occurred and been continuing for not less than 30 days, and either (A)
the Downgraded Liquidity Bank shall not have been replaced by an Eligible
Assignee pursuant to the Blue Ridge Liquidity Agreement, or (B) the
Liquidity Commitment of such Downgraded Liquidity Bank shall not have been
funded or collateralized in such a manner that will avoid a reduction in or
withdrawal of the credit rating applied to the Commercial Paper to which
such Liquidity Agreement applies by any of the rating agencies then rating
such Commercial Paper.
(c) as to the PREFCO Group, November 17, 2007 (unless such date
is extended from time to time in the sole discretion of the PREFCO
Liquidity Banks).
(d) as to the ▇▇▇▇▇▇▇▇ Group, November 17, 2007 (unless such date
is extended from time to time in the sole discretion of the ▇▇▇▇▇▇▇▇
Liquidity Banks).
(e) as to the CAFCO Group, November 17, 2007 (unless such date is
extended from time to time in the sole discretion of the CAFCO Liquidity
Banks).
"Loan" means any loan made by a Lender to Borrower pursuant to
this Agreement (including, without limitation, any Liquidity Funding). Each Loan
shall either be a CP Rate Loan or, in the case of any Loan funded through a
Liquidity Funding, an Alternate Base Rate Loan or a LIBOR Loan, selected in
accordance with the terms of this Agreement.
"Loan Parties" has the meaning set forth in the preamble to this
Agreement.
"Lock Box" means each locked postal box with respect to which a
bank who has executed a Collection Account Agreement has been granted exclusive
access for the purpose of retrieving and processing payments made on the
Receivables and which is listed on Exhibit IV.
"Loss Reserve" means, [***]
I-19
"Majority Co-Agents" means, (a) at any time while Loans are
outstanding, those Co-Agents representing Groups whose combined Loans
outstanding are in excess of fifty percent (50%) of the aggregate principal
amount of all Loans outstanding and (b) at any time while no Loans are
outstanding, those Co-Agents representing Groups with Group Limits totaling in
excess of fifty percent (50%) of the Aggregate Commitment.
"Material Adverse Effect" means, with respect to any Loan Party,
a material adverse effect on (i) the financial condition or operations of any
Loan Party and its Subsidiaries taken as a whole, (ii) the ability of such Loan
Party to perform its obligations under this Agreement or the Performance
Guarantor to perform its obligations under the Performance Undertaking, (iii)
the legality, validity or enforceability of this Agreement or any other
Transaction Document to which it is a party, (iv) the Administrative Agent's
security interest, for the benefit of the Secured Parties, in the Receivables
generally or in any material portion of the Receivables, the Related Security or
the Collections with respect thereto, or (v) the collectibility of the
Receivables generally or of any material portion of the Receivables.
"Material Subsidiary" means any Subsidiary of International Paper
that has $150 million or more of assets as reflected on such Subsidiary's most
recent balance sheet consolidated in any audited financial statements of
International Paper.
"Monthly Report" means a report, in substantially the form of
Exhibit IX hereto (appropriately completed), furnished by the Servicer to the
Administrative Agent pursuant to Section 8.5.
"Monthly Reporting Date" means the 15th day of each month after
the date of this Agreement (or if any such day is not a Business Day, the next
succeeding Business Day thereafter) or such other days of each month as the
Administrative Agent shall request in connection with Section 8.5 hereof.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Pool Balance" means, [***]
"Obligations" means, at any time, any and all obligations of any
of the Loan Parties to any of the Secured Parties arising under or in connection
with the Transaction Documents, whether now existing or hereafter arising, due
or accrued, absolute or contingent, including, without limitation, obligations
in respect of Aggregate Principal, CP Costs, Interest, fees under the Fee
Letter, Broken Funding Costs and Indemnified Amounts.
"Obligor" means a Person obligated to make payments pursuant to a
Contract.
"Obligor Concentration Limit" means, at any time, in relation to
the aggregate Outstanding Balance of Receivables owed by any single Obligor and
its Affiliates (if any), the applicable concentration limit shall be determined
as follows for Obligors who have short term unsecured debt ratings currently
assigned to them by S&P and ▇▇▇▇▇'▇ (or in the absence
I-20
thereof, the equivalent long term unsecured senior debt ratings), the applicable
concentration limit shall be determined according to the following table:
[***]
;provided, however, that (i) if any Obligor has a split rating, the
applicable rating will be the lower of the two, (ii) if any Obligor is not
rated by either S&P or ▇▇▇▇▇'▇, the applicable Obligor Concentration Limit
shall be the one set forth in the last line of the table above, and (iii)
subject to satisfaction of the Rating Agency Condition and/or an increase
in the percentage set forth in clause (a)(i) of the definition of "Required
Reserve," upon Borrower's request from time to time, the Co-Agents may
agree to a higher percentage of the Eligible Receivables Net Balance for a
particular Obligor and its Affiliates (each such higher percentage, a
"Special Concentration Limit"), it being understood that any Special
Concentration Limit may be cancelled by any Agent upon not less than five
(5) Business Days' written notice to the Loan Parties.
"Originator" means each of International Paper, Box USA Group,
Inc., Box USA Manufacturing Group of Iowa, Inc., Page Packaging Corporation and
Box USA Manufacturing Group of Georgia, Inc., in its capacity as a seller under
the applicable [***].
"Outstanding Balance" of any Receivable at any time means the
then outstanding principal balance thereof.
"Participant" has the meaning specified in Section 12.1(c)(iii).
"Past Due Ratio" means, [***]
I-21
[***]
"Payable Setoff Reserve" means [***]
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Pension Plan" means a pension plan (as defined in Section 3(2)
of ERISA) subject to Title IV of ERISA which Performance Guarantor sponsors or
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five plan years.
"Percentage" means, for each Group (a) on any date of
determination on which no Loans are outstanding, the ratio of such Group's Group
Limit to the Aggregate Commitment, and (b) on any date of determination on which
any Loans are outstanding, the ratio of the aggregate principal amount of such
Group's Loans to Aggregate Principal.
"Performance Guarantor" means International Paper, in its
capacity as performance guarantor pursuant to the Performance Undertaking.
[***]
"Performance Undertaking" means [***] by Performance
Guarantor in favor of Borrower and its assigns (including, without limitation,
the Administrative Agent, for the benefit of the Lenders), [***], as the
same may be amended, restated or otherwise modified from time to time.
"Person" means an individual, partnership, corporation (including
a business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means an employee benefit plan (as defined in Section 3(3)
of ERISA) which Performance Guarantor or any of its ERISA Affiliates sponsors or
maintains or to which Performance Guarantor or any of its ERISA Affiliates
makes, is making, or is obligated to make contributions and includes any Pension
Plan, other than a Plan maintained outside the United States primarily for the
benefit of Persons who are not U.S. residents.
I-22
"Pooled Commercial Paper" means for each of the Pool Funded
Conduits the Commercial Paper notes of such Pool Funded Conduit subject to any
particular pooling arrangement by such Conduit, but excluding Commercial Paper
issued by the Pool Funded Conduits for a tenor and in an amount specifically
requested by any Person in connection with any agreement effected by such Pool
Funded Conduit.
"Pool Funded Conduits" has the meaning specified in the
Preliminary Statements to this Agreement.
"PREFCO" has the meaning set forth in the preamble to this
Agreement.
"PREFCO Agent" has the meaning provided in the preamble of this
Agreement.
"PREFCO Allocation Limit" has the meaning set forth in Section
1.1(c).
"PREFCO Fee Letter" means that certain PREFCO Fee Letter dated
as of November 17, 2004 by and among International Paper, Borrower and the
PREFCO Agent.
"PREFCO Group" has the meaning set forth in the preamble to this
Agreement.
"PREFCO Liquidity Agreement" means the Liquidity Asset Purchase
Agreement dated as of the date hereof among PREFCO, the PREFCO Agent, and the
Liquidity Banks from time to time party thereto, as the same may be amended,
restated, supplemented, replaced or otherwise modified from time to time.
"PREFCO Liquidity Bank" means any Liquidity Bank that enters into
this Agreement and the PREFCO Liquidity Agreement.
"Prescribed Forms" means such duly executed form(s) or
statement(s), and in such number of copies, which may, from time to time, be
prescribed by law and which, pursuant to applicable provisions of (a) an income
tax treaty between the United States and the country of residence of the
Indemnified Party providing the form(s) or statement(s), (b) the Tax Code or (c)
any applicable rule or regulation under the Tax Code, required and permitted by
law to be provided by the Indemnified Party, as exhibits, to Borrower in order
to permit Borrower to make payments hereunder for the account of such
Indemnified Party free of deduction or withholding for income or similar taxes.
"Prime Rate" means a rate per annum equal to the prime rate of
interest announced from time to time by Wachovia (which is not necessarily the
lowest rate charged to any customer), changing when and as said prime rate
changes.
"Promissory Notes" means (a) with respect to any Conduit,
Commercial Paper and other promissory notes issued by such Conduit and (b) with
respect to CAFCO, participations sold by CAFCO pursuant to Section 12.1(b);
provided that the term "Promissory Notes" shall not include the interests sold
by CAFCO to a CAFCO Liquidity Bank or its designee under the CAFCO Liquidity
Agreement.
I-23
"Ratable Share" means, for each Liquidity Bank in a Group, a
percentage equal to the Commitment of such Liquidity Bank, divided by such
Group's Group Limit.
"Rating Agency Condition" means that (i) if required, a Conduit
has received written notice from S&P and ▇▇▇▇▇'▇ that the closing of this
transaction will not result in a withdrawal or downgrade of the then current
rating of its Promissory Notes and (ii) if required, each of the Conduits has
received written notice from S&P and ▇▇▇▇▇'▇ that any material amendment, change
or a waiver will not result in a withdrawal or downgrade of the then current
ratings on such Conduit's Promissory Notes.
"Receivable" has the meaning set forth in the [***].
[***].
"Records" means, with respect to any Receivable, all Contracts
and other documents, books, records and other information (including, without
limitation, computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Receivable, any
Related Security therefor and the related Obligor.
"Regulatory Change" has the meaning set forth in Section 10.2.
"Related Security" means, with respect to any Receivable:
(i) all of Borrower's interest in the inventory and goods
(including returned or repossessed inventory or goods), if any, the sale of
which by an 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 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 Borrower's right, title and interest in [***] respect
of such Receivable and all of Borrower's right, title and interest in, to
and under the Performance Undertaking,
I-24
(vii) all of Borrower's right, title and interest in and to the
Demand Advances and evidenced by a demand promissory note issued by IPFS in
favor of Borrower, and
(viii) all proceeds of any of the foregoing.
"Required Notice Period" means, for any Pool Funded Conduit, the
number of days required notice set forth below opposite the applicable
prepayment of the outstanding principal balance of such Conduit's Loans:
--------------------------------------------------------------------------------
Amount of Principal Prepayment Required Notice Period
--------------------------------------------------------------------------------
less than 25% of such Pool Funded Conduit's 2 Business Days
Group Limit
--------------------------------------------------------------------------------
greater than or equal to 5 Business Days
25% but less than 50% of such Pool Funded
Conduit's Group Limit
--------------------------------------------------------------------------------
greater than or equal to 50% of 10 Business Days
of such Pool Funded Conduit's Group Limit
--------------------------------------------------------------------------------
"Required Reserve" means, [***]
"Reserve Floor" means, [***]
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
capital stock of Borrower now or hereafter outstanding, except a dividend
payable solely in shares of that class of stock or in any junior class of stock
of Borrower, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of capital stock of Borrower now or hereafter outstanding, (iii) any
payment or prepayment of principal of, premium, if any, or interest, fees or
other charges on or with respect to, and any redemption, purchase, retirement,
defeasance, sinking fund or similar payment and any claim for rescission with
respect to the Subordinated Loans [***], (iv) any payment made to redeem,
purchase, repurchase or retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
capital stock of Borrower now or hereafter outstanding, and (v) any payment of
management fees by Borrower (except for reasonable management fees to the
Originator or its Affiliates in reimbursement of actual management services
performed).
I-25
"S&P" means Standard and Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc.
[***]
"Secured Parties" means each Indemnified Party.
"Servicer" means at any time the Person (which may be the
Administrative Agent) then authorized pursuant to Article VIII to service,
administer and collect Receivables.
"Servicing Fee" means, for each day in a Calculation Period:
(a) an amount equal to (i) the Servicing Fee Rate (or, at any
time while IPFS or one of its Affiliates is the Servicer, such lesser percentage
as may be agreed between Borrower and the Servicer on an arms' length basis
based on then prevailing market terms for similar services), times (ii) the
aggregate Outstanding Balance of all Receivables at the close of business on the
Cut-Off Date immediately preceding such Calculation Period, times (iii) 1/360;
or
(b) on and after the Servicer's reasonable request made at any
time when IPFS or one of its Affiliates is no longer acting as Servicer
hereunder, an alternative amount specified by the successor Servicer not
exceeding (i) 110% of such Servicer's reasonable costs and expenses of
performing its obligations under this Agreement during the preceding Calculation
Period, divided by (ii) the number of days in the current Calculation Period.
"Servicing Fee Rate" means [***].
"Servicing Reserve" means, [***]
"Settlement Date" means (A) the 2nd Business Day after each
Monthly Reporting Date, and (B) the last day of the relevant Interest Period in
respect of each Loan funded through a Liquidity Funding.
"Settlement Period" means (A) in respect of each Loan of a
Conduit, the immediately preceding Calculation Period, and (B) in respect of
each Loan funded through a Liquidity Funding, the entire Interest Period of such
Loan.
"▇▇▇▇▇▇▇▇" has the meaning set forth in the preamble to this
Agreement.
"▇▇▇▇▇▇▇▇ Agent" has the meaning provided in the preamble of this
Agreement.
I-26
"▇▇▇▇▇▇▇▇ Allocation Limit" has the meaning set forth in Section
1.1(d).
"▇▇▇▇▇▇▇▇ Fee Letter" means that certain ▇▇▇▇▇▇▇▇ Fee Letter
dated as of November 17, 2004 by and among International Paper, Borrower and the
▇▇▇▇▇▇▇▇ Agent.
"▇▇▇▇▇▇▇▇ Group" has the meaning set forth in the preamble to
this Agreement.
"▇▇▇▇▇▇▇▇ Liquidity Agreement" means the Global Liquidity Asset
Purchase Agreement dated as of November 15, 2000 among ▇▇▇▇▇▇▇▇, the Liquidity
Banks from time to time party thereto, the ▇▇▇▇▇▇▇▇ Agent, and BNP Paribas, as
administrator, as supplemented by Supplement No. 44 to the Global Liquidity
Asset Purchase Agreement dated as of November 17, 2004 among ▇▇▇▇▇▇▇▇, the
Liquidity Banks from time to time party thereto, the ▇▇▇▇▇▇▇▇ Agent, and BNP
Paribas, as administrator, as the same may be amended, restated, supplemented,
replaced or otherwise modified from time to time.
"▇▇▇▇▇▇▇▇ Liquidity Bank" means any Liquidity Bank that enters
into this Agreement and the ▇▇▇▇▇▇▇▇ Liquidity Agreement.
"Subsidiary" of a Person means (i) any corporation more than 50%
of the outstanding securities having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (ii) any partnership, association, limited liability company, joint venture
or similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
"Suspense Account" means any Receivable other than a Defaulted
Receivable, (i) as to which the Obligor thereof has suffered an Event of
Bankruptcy, (ii) which, consistent with the Credit and Collection Policy, would
be written off Borrower's books as uncollectible, or (iii) which the applicable
Originator tracks separately from other Receivables.
"Tax" or "Taxes" means all license and registration fees and all
income, gross receipts, rental, franchise, excise, occupational, capital, value
added, sales, use, ad valorem (real and personal), property (real and personal)
and excise taxes, fees, levies, imposts, charges or withholdings of any nature
whatsoever, together with any assessments, penalties, fines, additions to tax
and interest thereon, by any federal, state or local government or taxing
authority in the United States or by any foreign government, foreign
governmental subdivision or other foreign or international taxing authority.
"Tax Code" means the Internal Revenue Code of 1986, as the same
may be amended from time to time.
"Termination Date" has the meaning set forth in the Receivables
Purchase Agreement.
"Top 30 Obligors" means, on any date of determination, the 30
Obligors with the highest aggregate amount of Receivables (other than Suspense
Accounts) generated during the one (1) month ending on or prior to the date of
computation.
I-27
"Transaction Documents" means, collectively, this Agreement, each
Borrowing Request, [***], each Collection Account Agreement, the
Performance Undertaking, the Fee Letters, each of the Subordinated Notes (as
defined [***]), the Liquidity Agreements and all other instruments,
documents and agreements executed and delivered in connection herewith.
"Transferor" means each Originator in its capacity as a seller
under a [***] and IPFS in its capacity as seller under the [***]
"UCC" means the Uniform Commercial Code as from time to time in
effect in the specified jurisdiction.
"Unmatured Amortization Event" means an event which, with the
passage of time or the giving of notice, or both, would constitute an
Amortization Event.
"Volume Rebate" means a rebate or refund as described in Section
3.4(a)(iii).
"Volume Rebate Reserve" means, at any time, such balance of all
reserve accounts that any Loan Party establishes for Volume Rebates earned by
all Obligors.
"Wachovia" means Wachovia Bank, National Association in its
individual capacity and its capacity as agent.
"xpedx" means the distribution business of International Paper.
"xpedx Top 30 Payable Percentage" means [***]
All accounting terms not specifically defined herein shall be
construed in accordance with GAAP. All terms used in Article 9 of the UCC in the
State of New York, and not specifically defined herein, are used herein as
defined in such Article 9.
For the avoidance of doubt, "during the continuance of an
Amortization Event" means that an Amortization Event has occurred and has not
been waived.
I-28
EXHIBIT II
FORM OF BORROWING REQUEST
----------
RED BIRD RECEIVABLES, INC.
BORROWING REQUEST
For Borrowing on __________________
Wachovia Bank, National Association, as Blue Ridge Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, N.E., 22nd Floor
GA-8088
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as Gotham Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
JPMorgan Chase Bank, N.A., as PREFCO Agent
1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ABS Transaction Management, Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
JPMorgan Chase Bank, N.A., as PREFCO Agent
1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ABS Transaction Department, Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
BNP Paribas, acting through its New York branch, as ▇▇▇▇▇▇▇▇ Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
and
Citicorp North America, Inc., as CAFCO Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit and Security
Agreement dated as of November 17, 2004 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Red Bird Receivables,
Inc. (the "Borrower"), International Paper Financial Services, Inc., as initial
Servicer, International Paper Company, as Performance Guarantor, Blue Ridge
Asset Funding Corporation, Gotham Funding Corporation, Preferred Receivables
Funding Corporation, ▇▇▇▇▇▇▇▇ Funding Corporation, CAFCO, LLC, various Liquidity
Banks, The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as a Co-Agent,
JPMorgan Chase Bank, N.A., as a Co-Agent, BNP Paribas, acting through its New
York branch, as a Co-Agent, Citicorp North America,
II-1
Inc., as a Co-Agent and Wachovia Bank National Association, as a Co-Agent and
Administrative Agent. Capitalized terms defined in the Credit Agreement are used
herein with the same meanings.
1. The Borrower hereby certifies, represents and warrants to the
Agents and the Lenders that on and as of the Borrowing Date (as hereinafter
defined):
(a) all applicable conditions precedent set forth in Article V of the
Credit Agreement have been satisfied;
(b) each of its representations and warranties contained in Section
6.1 of the Credit Agreement will be true and correct, in all material respects,
as if made on and as of the Borrowing Date;
(c) no event will have occurred and is continuing, or would result
from the requested Purchase, that constitutes an Amortization Event or Unmatured
Amortization Event;
(d) the Termination Date has not occurred; and
(e) after giving effect to the Loans comprising the Advance requested
below, the aggregate principal amount of the Blue Ridge Group's Loans at any one
time outstanding will not exceed the Blue Ridge Allocation Limit, the aggregate
principal amount of the Gotham Group's Loans at any one time outstanding will
not exceed the Gotham Allocation Limit, the aggregate principal amount of the
PREFCO Group's Loans at any one time outstanding will not exceed the PREFCO
Allocation Limit, the aggregate principal amount of the ▇▇▇▇▇▇▇▇ Group's Loans
at any one time outstanding will not exceed the ▇▇▇▇▇▇▇▇ Allocation Limit and
the aggregate principal amount of the CAFCO Group's Loans at any one time
outstanding will not exceed the CAFCO Allocation Limit.
2. The Borrower hereby requests that the Conduits (or their respective
Liquidity Banks) make an Advance on ___________, _____ (the "Borrowing Date") as
follows:
(a) Aggregate Amount of Advance: $_____________ calculated as:
Rollover Amount: __________________
Reduction Amout: __________________
New Loan Amount: __________________
Total Advance: ____________________
(i) Blue Ridge Group's Share of Advance: $___________
(ii) Gotham Group's Share of Advance: $___________
(iii) PREFCO Group's Share of Advance: $___________
(iv) ▇▇▇▇▇▇▇▇ Group's Share of Advance: $___________
(v) CAFCO Group's Share of Advance: $___________
(b) Interest Rate Requested: CP Rate
II-2
(c) CP Tranche Period Requested from Gotham: ________ days
(maturing on _________,____)
(d) Blue Ridge Group, PREFCO Group, ▇▇▇▇▇▇▇▇ Group, CAFCO Group
repayment date: ____________________
3. Please disburse the proceeds of the Loans as follows:
(i) Blue Ridge Group: [Wire transfer $________ to account no.
________ at ___________ Bank, in [city, state], ABA No. __________,
Reference: ________];
(ii) Gotham Group: [Wire transfer $________ to account no.
________ at ___________ Bank, in [city, state], ABA No. __________,
Reference: ________];
(iii) PREFCO Group: [Wire transfer $________ to account no.
________ at ___________ Bank, in [city, state], ABA No. __________,
Reference: ________];
(iv) ▇▇▇▇▇▇▇▇ Group: [Wire transfer $________ to account no.
________ at ___________ Bank, in [city, state], ABA No. __________,
Reference: ________]; and
(v) CAFCO Group: [Wire transfer $________ to account no. ________
at ___________ Bank, in [city, state], ABA No. __________, Reference: ________].
II-3
IN WITNESS WHEREOF, the Borrower has caused this Borrowing Request to
be executed and delivered as of this ____ day of ___________, _____.
Red Bird Receivables, as Borrower
By:
--------------------------------
Name:
Title:
II-4
EXHIBIT III
CHIEF EXECUTIVE OFFICES OF THE LOAN PARTIES; LOCATIONS OF RECORDS; FEDERAL
EMPLOYER IDENTIFICATION NUMBERS;
ORGANIZATIONAL IDENTIFICATION NUMBERS
International Paper Company
Principal Places of Business: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Locations of Records: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
International Paper Financial Services, Inc.
Principal Places of Business: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Locations of Records: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Red Bird Receivables, Inc.
Principal Places of Business: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Locations of Records: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Federal Employer
Identification Number
of Red Bird Receivables, Inc.: ▇▇-▇▇▇▇▇▇▇
Legal, Trade and Assumed Names
of Red Bird Receivables, Inc.: None
III-1
EXHIBIT IV
NAMES OF COLLECTION BANKS; LOCK BOXES & COLLECTION ACCOUNTS
Lock boxes; Collection Accounts; Collection Banks
DOMESTIC
[***]
IV-1
[***]
IV-2
EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: Wachovia Bank, National Association, as Blue Ridge Agent and as
Administrative Agent The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as
Gotham Agent JPMorgan Chase Bank, N.A., as PREFCO Agent BNP Paribas, acting
through its New York branch, as ▇▇▇▇▇▇▇▇ Agent Citicorp North America, Inc.,
as CAFCO Agent
This Compliance Certificate is furnished pursuant to that certain
Amended and Restated Credit and Security Agreement dated as of November 17, 2004
among Red Bird Receivables, Inc. (the "Borrower"), International Paper Financial
Services, Inc., as initial Servicer, International Paper Company, as Performance
Guarantor, Blue Ridge Asset Funding Corporation, Gotham Funding Corporation,
Preferred Receivables Funding Corporation, ▇▇▇▇▇▇▇▇ Funding Corporation, CAFCO,
LLC, various Liquidity Banks, The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch, as a Co-Agent, JPMorgan Chase Bank, N.A., as a Co-Agent, BNP Paribas,
acting through its New York branch, as a Co-Agent, Citicorp North America, Inc.,
as a Co-Agent and Wachovia Bank National Association, as a Co-Agent and
Administrative Agent (the "Agreement").
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _________________ of Borrower.
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
an Amortization Event or Unmatured Amortization Event, as each such term is
defined under the Agreement, during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate[, except as set forth in paragraph 4 below].
[4. Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
____________________]
V-1
The foregoing certifications and the financial statements delivered
with this Certificate in support hereof, are made and delivered as of
______________, 20__.
By:
------------------------------------
Name:
Title:
V-2
EXHIBIT VI
FORM OF COLLECTION ACCOUNT AGREEMENT
COLLECTION ACCOUNT AGREEMENT
, 200
------------- -
[Collection Bank Name]
[Collection Bank Address]
Attn:
-----------------------
Fax No. ( )
--- ---------------
Re: International Paper Financial Services, Inc./Red Bird Receivables,
Inc.
Ladies and Gentlemen:
Reference is hereby made to each of the [departmental] post office
boxes listed on Schedule 1 hereto (each, a "Lock Box") of which [Collection Bank
Name], a _________ banking association (hereinafter "you"), has exclusive
control for the purpose of receiving mail and processing payments therefrom
pursuant to the [Lock Box Service Agreement] dated _______________, originally
by and between International Paper Financial Services, Inc. ("IPFS") and you
(the "Service Agreement").
1. You hereby confirm your agreement to perform the services described
therein. Among the services you have agreed to perform therein, is to endorse
all checks and other evidences of payment received in each of the Lock Boxes,
and credit such payments to account no. _____________ (the "Lock Box Account").
2. IPFS hereby informs you that it has transferred to its affiliate,
Red Bird Receivables, Inc., a Delaware corporation (the "Borrower") all of their
respective right, title and interest in and to the items from time to time
received in the Lock Boxes and/or deposited in the Lock Box Account, but that
IPFS has agreed to continue to service the receivables giving rise to such
items. Accordingly, IPFS and Borrower (collectively, the "Companies") hereby
request that the name of the Lock Box Account be changed to "Red Bird
Receivables, Inc." Borrower hereby further advises you that it has pledged the
receivables giving rise to such items to a group of lenders for whom Wachovia
Bank, National Association acts as administrative agent (in such capacity, the
"Administrative Agent") and has granted a security interest to the
Administrative Agent in all of Borrower's right, title and interest in and to
the Lock Box Account and the funds therein.
3. Each of the Companies hereby irrevocably instructs you, and you
hereby agree, that upon receiving notice from the Administrative Agent in the
form attached hereto as Annex A:
(i) the name of the Lock Box Account will be changed to "Wachovia
Bank, National Association, as Administrative Agent" (or any designee of
the Administrative Agent), and the Administrative Agent will have exclusive
ownership of and access to the Lock Boxes and the Lock Box Account, and
none of the Companies nor any of their respective affiliates will have any
control of the Lock Boxes or the Lock Box Account or any access thereto,
(ii) you will either continue to send the funds from the Lock Boxes to the
Lock Box Account, or will redirect the funds as the Administrative Agent
may otherwise request, (iii) you will transfer monies on deposit in the
Lock Box Account to the following account:
Bank Name: Wachovia Bank, National Association
Location: Charlotte, NC
ABA Routing No.: ABA #
Credit Account No.: For credit to Blue Ridge Asset Funding
Account #[***].
VI-1
Reference: Blue Ridge/Red Bird Receivables, Inc.
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Sr. (▇▇▇) ▇▇▇-▇▇▇▇
or to such other account as the Administrative Agent may specify, (iv) all
services to be performed by you under the Service Agreement will be performed on
behalf of the Administrative Agent, and (v) all correspondence or other mail
which you have agreed to send to either of the Companies will be sent to the
Administrative Agent at the following address:
Wachovia Bank, National Association, as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, N.E., 22nd Floor
Mail Stop GA-8088
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Asset-Backed Finance
FAX: (404) ▇▇▇- ▇▇▇▇
Moreover, upon such notice, the Administrative Agent will have all rights and
remedies given to IPFS (and Borrower, as IPFS's assignee) under the Service
Agreement. IPFS agrees, however, to continue to pay all fees and other
assessments due thereunder at any time.
4. You hereby acknowledge that monies deposited in the Lock Box
Account or any other account established with you by the Administrative Agent
for the purpose of receiving funds from the Lock Boxes are subject to the liens
of the Administrative Agent, and will not be subject to deduction, set-off,
banker's lien or any other right you or any other party may have against either
of the Companies except that you may debit the Lock Box Account for any items
deposited therein that are returned or otherwise not collected and for all
charges, fees, commissions and expenses incurred by you in providing services
hereunder, all in accordance with your customary practices for the charge back
of returned items and expenses.
5. You will be liable only for direct damages in the event you fail to
exercise ordinary care. You shall be deemed to have exercised ordinary care if
your action or failure to act is in conformity with general banking usages or is
otherwise a commercially reasonable practice of the banking industry. You shall
not be liable for any special, indirect or consequential damages, even if you
have been advised of the possibility of these damages.
6. The parties acknowledge that you may assign or transfer your rights
and obligations hereunder solely to a wholly-owned subsidiary of [insert name of
Collection Bank's holding company].
7. Borrower agrees to indemnify you for, and hold you harmless from,
all claims, damages, losses, liabilities and expenses, including legal fees and
expenses, resulting from or with respect to this letter agreement and the
administration and maintenance of the Lock Box Account and the services provided
hereunder, including, without limitation: (a) any action taken, or not taken, by
you in regard thereto in accordance with the terms of this letter agreement, (b)
the breach of any representation or warranty made by Borrower pursuant to this
letter agreement, (c) any item, including, without limitation, any automated
clearinghouse transaction, which is returned for any reason, and (d) any failure
of Borrower to pay any invoice or charge to you for services in respect to this
letter agreement and the Lock Box Account or any amount owing to you from
Borrower with respect thereto or to the service provided hereunder.
8. THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF _________, WHICH STATE SHALL BE YOUR "LOCATION" FOR
PURPOSES OF THE UNIFORM COMMERCIAL CODE. This letter agreement may be executed
in any number of counterparts and all of such counterparts taken together will
be deemed to constitute one and the same instrument.
VI-2
9. This letter agreement contains the entire agreement between the
parties, and may not be altered, modified, terminated or amended in any respect,
nor may any right, power or privilege of any party hereunder be waived or
released or discharged, except upon execution by all parties hereto of a written
instrument so providing. In the event that any provision in this letter
agreement is in conflict with, or is inconsistent with, any provision of the
Service Agreement, this letter agreement will exclusively govern and control.
Each party agrees to take all actions reasonably requested by any other party to
carry out the purposes of this letter agreement or to preserve and protect the
rights of each party hereunder.
Please indicate your agreement to the terms of this letter agreement
by signing in the space provided below. This letter agreement will become
effective immediately upon execution of a counterpart of this letter agreement
by all parties hereto.
VI-3
Very truly yours,
INTERNATIONAL PAPER FINANCIAL SERVICES,
INC.
By:
------------------------------------
Name:
Title:
RED BIRD RECEIVABLES, INC.
By:
------------------------------------
Name:
Title:
Acknowledged and agreed to as of the
date first above written:
[COLLECTION BANK]
By:
------------------------------------
Name:
Title:
WACHOVIA BANK, National Association, AS ADMINISTRATIVE AGENT
By:
------------------------------------
Name:
Title:
VI-4
ANNEX A
FORM OF NOTICE
[On letterhead of the Administrative Agent]
[Date]
[Collection Bank Name]
[Collection Bank Address]
Attn:
----------------------
Fax No. ( )
--- --------------
Re: International Paper Financial Services, Inc./Red Bird
Receivables, Inc.
Ladies and Gentlemen:
We hereby notify you that we are exercising our rights pursuant to
that certain letter agreement dated ____________, 200_ (the "Letter Agreement")
among International Paper Financial Services, Inc., Red Bird Receivables, Inc.,
you and us, to have the name of, and to have exclusive ownership and control of,
account no. __________ identified in the Letter Agreement (the "Lock Box
Account") maintained with you, transferred to us. The Lock Box Account will
henceforth be a zero-balance account, and funds deposited in the Lock Box
Account should be sent at the end of each day to the account specified in
Section 3(i) of the Letter Agreement, or as otherwise directed by the
undersigned. You have further agreed to perform all other services you are
performing under the "Service Agreement" (as defined in the Letter Agreement) on
our behalf.
We appreciate your cooperation in this matter.
Very truly yours,
WACHOVIA BANK, NATIONAL ASSOCIATION, AS
ADMINISTRATIVE AGENT
By:
------------------------------------
Title:
A-1
SCHEDULE 1
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LOCK BOX POST OFFICE ADDRESS
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A-2
EXHIBIT VII
[RESERVED]
VII-1
EXHIBIT VIII
CREDIT AND COLLECTION POLICY
[***]
VIII-1
EXHIBIT IX
[***]
IX
EXHIBIT X
FORM OF PARTIAL RELEASE AND SALE DOCUMENTS
----------
ADMINISTRATIVE AGENT'S RELEASE OF CERTAIN RECEIVABLE ASSETS
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, the Administrative Agent (hereinafter defined)
under that certain Amended and Restated Credit and Security Agreement, dated as
of November 17, 2004, as amended (the "CSA"), by and among (a) RED BIRD
RECEIVABLES, INC., a Delaware corporation ("Borrower"), (b) International Paper
Financial Services, Inc., a Delaware corporation ("IPFS"), as initial Servicer,
(c) INTERNATIONAL PAPER COMPANY, a New York corporation ("International Paper"),
as Performance Guarantor, (d) BLUE RIDGE ASSET FUNDING CORPORATION, a Delaware
corporation (together with its successors, "Blue Ridge"), and WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity as a Liquidity Bank to Blue Ridge, (e)
GOTHAM FUNDING CORPORATION, a Delaware corporation (together with its
successors, "Gotham"), and THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
in its capacity as a Liquidity Bank to Gotham, (f) PREFERRED RECEIVABLES FUNDING
CORPORATION, a Delaware Corporation (together with its successors, "PREFCO"),
and JPMORGAN CHASE BANK, N.A., in its capacity as a Liquidity Bank to PREFCO,
(g) ▇▇▇▇▇▇▇▇ FUNDING CORPORATION, a Delaware Corporation (together with its
successors, "▇▇▇▇▇▇▇▇"), and BNP PARIBAS, acting through its New York branch, in
its capacity as a Liquidity Bank to ▇▇▇▇▇▇▇▇, (h) CAFCO, LLC, a Delaware limited
liability company (together with its successors, "CAFCO"), and CITIBANK, N.A.,
in its capacity as a Liquidity Bank to CAFCO, (i) WACHOVIA BANK, NATIONAL
ASSOCIATION, as "Blue Ridge Agent", THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK
BRANCH, as "Gotham Agent", JPMORGAN CHASE BANK, N.A., as "PREFCO Agent", BNP
PARIBAS, as "▇▇▇▇▇▇▇▇ Agent", and CITICORP NORTH AMERICA, INC., as "CAFCO
Agent", and (j) WACHOVIA BANK, NATIONAL ASSOCIATION (f/k/a Wachovia Bank,
National Association), as "Administrative Agent" (together with the Blue Ridge
Agent, the Gotham Agent, the PREFCO Agent, the ▇▇▇▇▇▇▇▇ Agent and the CAFCO
Agent, the "Agents" ), does hereby irrevocably release all right, title and
interest in and to, and liens and security interests upon, the following
personal property:
All existing and future Receivables as to which ___________ (or one of its
Affiliates) is the Obligor, the Related Security associated directly with
such Receivables (except to the extent such Related Security includes
Records related to other Receivables), and all Collections on and other
proceeds of the foregoing (collectively, the "Specified Receivables").
Capitalized terms used herein are used with the meanings attributed thereto in
the CSA.
Further, notwithstanding any provision of the CSA to the contrary, the
Administrative Agent, on behalf of the Agents and the Lenders, hereby consents
to (a) the sale by the Borrower of any Specified Receivables owned by the
Borrower to International Paper for an aggregate sum of $__________, and (b) the
sale by International Paper to __________________ ("Purchaser"), for an
aggregate sum of $________.
This release is executed by the Administrative Agent on behalf of the
Agents and the Lenders party to the CSA, without representation or warranty of
any kind, express or implied, except that the Administrative Agent has not
granted any right, title or interest in, or lien upon, the Specified Receivables
to any other Person.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
_____________, 200_.
WACHOVIA BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT
By:
----------------------------------
Title:
Attachment: Exhibit A
X-1
SALE OF CERTAIN RECEIVABLE ASSETS
IN CONSIDERATION OF THE PAYMENT OF $_________, the receipt and
sufficiency of which are hereby acknowledged, RED BIRD RECEIVABLES, INC., a
Delaware corporation ("Red Bird"), hereby sells, assigns, transfers and conveys,
to INTERNATIONAL PAPER COMPANY, a New York corporation ("International Paper"),
all right, title and interest in and to the trade accounts receivable as to
which _______________ (or one of its Affiliates) is the account debtor that is
listed on Exhibit A attached hereto and made a part hereof, together with all
records related thereto and all proceeds of the foregoing (collectively, the
"Specified Receivables"), without representation or warranty of any kind,
express or implied.
It is Red Bird's intention that the conveyance of the Specified
Receivables made hereunder shall constitute a true sale, which sale is absolute
and irrevocable and provides International Paper with the full benefits of
ownership of the Specified Receivables.
IN WITNESS WHEREOF, Red Bird has caused this instrument to be duly
executed and delivered on _____________, 200_.
RED BIRD RECEIVABLES, INC.
By:
-----------------------
Name:
Title:
Agreed to and accepted:
INTERNATIONAL PAPER COMPANY
By:
-----------------------
Name:
Title:
Attachment: Exhibit A
X-2
SCHEDULE A
COMMITMENTS
[***]
A-1
[***]
B-1
[***]
B-2
[***]
B-3