Exhibit 10.24
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RECEIVABLES SALE AGREEMENT
DATED AS OF NOVEMBER 29, 2000
BETWEEN
PACKAGING CREDIT COMPANY, LLC
AND
PACKAGING CORPORATION OF AMERICA
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TABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE I AGREEMENT TO SELL............................................... 3
Section 1.1. Sales .......................................................... 3
Section 1.2. Timing of Purchases............................................. 4
Section 1.3. Consideration for Purchases..................................... 4
Section 1.4. Sale Termination Date........................................... 4
ARTICLE II CALCULATION OF PURCHASE PRICE .................................. 4
Section 2.1. Calculation of Purchase Price................................... 4
ARTICLE III PAYMENT OF PURCHASE PRICE ...................................... 5
Section 3.1. Initial Purchase Price Payment ................................. 5
Section 3.2. Subsequent Purchase Price Payments.............................. 6
Section 3.3. Settlement as to Specific Receivables........................... 6
Section 3.4. Settlement as to Dilution....................................... 7
Section 3.5. Reconveyance of Receivables..................................... 7
ARTICLE IV CONDITIONS OF PURCHASERS ....................................... 8
Section 4.1. Conditions Precedent to Initial Purchase ....................... 8
Section 4.2. Certification as to Representations and Warranties.............. 9
ARTICLE V REPRESENTATIONS AND WARRANTIES ............................. ... 9
Section 5.1. Representations of Seller ...................................... 9
ARTICLE VI COVENANTS OF SELLER............................................. 13
Section 6.1. Affirmative Covenants........................................... 13
Section 6.2. Reporting Requirements.......................................... 14
Section 6.3. Negative Covenants.............................................. 15
ARTICLE VII ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE
RECEIVABLES .................................................... 16
Section 7.1. Rights of the Servicer ......................................... 16
Section 7.2. Responsibilities of Seller ..................................... 17
Section 7.3. Further Action Evidencing Purchases............................. 17
Section 7.4. Application of Collections...................................... 17
ARTICLE VIII INDEMNIFICATION................................................. 18
Section 8.1. Indemnities of Seller .......................................... 18
ARTICLE IX MISCELLANEOUS .................................................. 20
Section 9.1. Amendments, Etc. ............................................... 20
SECTION HEADING PAGE
Section 9.2. Notices, Etc.................................................... 20
Section 9.3. No Waiver; Cumulative Remedies.................................. 20
Section 9.4. Binding Effect; Assignability................................... 20
Section 9.5. Governing Law................................................... 21
Section 9.6. Costs, Expenses and Taxes....................................... 21
Section 9.7. Submission to Jurisdiction...................................... 21
Section 9.8. Waiver of Jury Trial............................................ 21
Section 9.9. Captions and Cross References; Incorporation by Reference ..... 22
Section 9.10. Execution in Counterparts....................................... 22
Section 9.11. Acknowledgment and Agreement.................................... 22
Section 9.12. No Proceedings.................................................. 22
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EXHIBITS
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EXHIBIT A FORM OF PURCHASE REPORT
EXHIBIT B FORM OF THE INITIAL PCA NOTE
EXHIBIT C OFFICE LOCATIONS
SCHEDULES
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SCHEDULE 5.1(O) TRADE NAMES
SCHEDULE 9.2 NOTICE ADDRESS
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RECEIVABLES SALE AGREEMENT
THIS
RECEIVABLES SALE AGREEMENT (as amended, supplemented or modified from
time to time, this "AGREEMENT"), dated as of November 29, 2000, is between
Packaging Corporation of America, a Delaware corporation ("SELLER"), as seller,
and Packaging Credit Company, LLC, a Delaware limited liability company (the
"COMPANY"), as purchaser.
DEFINITIONS
Unless otherwise indicated, certain terms that are capitalized and used
throughout this Agreement are defined in Appendix A to the Credit and Security
Agreement dated as of the date hereof (as amended, supplemented or otherwise
modified from time to time, (the "CREDIT AND SECURITY AGREEMENT"), among
Packaging Receivables Company, LLC (the "2ND STEP PURCHASER"), Company, as
initial Servicer, Blue Ridge Asset Funding Corporation, as a Lender, Wachovia
Bank, N.A., individually as a Lender and as the agent for the Lenders (the
"AGENT"). The following terms have the respective meanings indicated below:
AVAILABLE FUNDS: As defined in Section 3.2 hereof.
DEEMED COLLECTION: Amounts payable by Seller pursuant to Section 3.3 or
3.4.
EXCESS FUNDS NOTE: A note evidencing the indebtedness of Seller to the
Company pursuant to the Loan Agreement.
INELIGIBLE RECEIVABLE: As defined in Section 3.3 hereof.
INITIAL CLOSING DATE: As defined in Section 1.2 hereof.
INITIAL CUT-OFF DATE: The Business Day immediately preceding the Initial
Closing Date.
INITIAL PCA NOTE: As defined in Section 3.1 hereof.
LOAN AGREEMENT: A Loan Agreement dated as of the date hereof between Seller
and the Company pursuant to which the Company shall loan funds to the Seller
from the proceeds of the sale of the Receivables to the 2nd Step Purchaser.
LOCKBOX ACCOUNTS: One or more lockbox accounts held in Lockbox Banks for
receiving Collections from Receivables.
MAXIMUM SELLER NOTE BALANCE: As of any date means an amount equal to the
excess of (i) the Net Pool Balance over (ii) the sum of (a) the outstanding
principal balance of all Loans made to the 2nd Step Purchaser under the Credit
and Security Agreement and (b) the Triple-B Loss Reserve Amount, each as of such
date.
PURCHASE PRICE: As defined in Section 2.1 hereof.
PURCHASE REPORT: As defined in Section 2.1 hereof.
RELATED RIGHTS: As defined in Section 1.1(a) hereof.
SALE INDEMNIFIED AMOUNTS: As defined in Section 8.1 hereof.
SALE INDEMNIFIED PARTY: As defined in Section 8.1 hereof.
SALE TERMINATION DATE: As defined in Section 1.4 hereof.
SELLER MATERIAL ADVERSE EFFECT: With respect to any event or circumstance:
(i) a Credit Event shall have occurred;
(ii) a material adverse effect on the ability of Seller to
perform its obligations under this Agreement or any other Transaction
Document to which Seller is a party;
(iii) a material adverse effect on the validity or enforceability
as against Seller of this Agreement or any other Transaction Document to
which Seller is a party;
(iv) a material adverse effect on the status, existence,
perfection, priority or enforceability of the Company's interest in the
Receivables and the Related Rights; or
(v) a material adverse effect on the validity, enforceability or
collectability of a material portion of the Receivables.
TRIPLE-B LOSS RESERVE AMOUNT: As of any date means an amount equal to the
product of (i) the Net Pool Balance and (ii) the Loss Reserve as of the
immediately preceding Cut-Off Date (except that such Loss Reserve shall be
calculated with a multiple of 1.5 rather than 2.0).
BACKGROUND
1. The Company is a limited liability company, all of the membership
interests of which are wholly-owned by Seller.
2. Seller wishes to sell Receivables and Related Rights to the Company, and
the Company is willing, on the terms and subject to the conditions set forth
herein, to purchase Receivables and Related Rights from Seller.
3. The Company intends to sell the Receivables and Related Rights it
purchases from Seller hereunder to the 2nd Step Purchaser and the 2nd Step
Purchaser is willing, on the terms and subject to the conditions set forth in
the Purchase and Sale Agreement, to purchase such Receivables and Related Rights
from the Company.
4. The 2nd Step Purchaser intends to pledge its interests in the
Receivables and Related Rights purchased from the Company as collateral for
loans under the Credit and Security Agreement.
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NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
AGREEMENT TO SELL
SECTION 1.1. SALES.
(a) AGREEMENT TO SELL. On the terms and subject to the conditions set
forth in this Agreement (including Article V), and in consideration of the
Purchase Price, from the Initial Closing Date until the Sale Termination Date,
Seller agrees to sell, assign and transfer, and does hereby sell, assign and
transfer to the Company, and the Company agrees to purchase, and does hereby
purchase from Seller, all of Seller's right, title and interest in and to:
(i) each Receivable of Seller that existed and was owing to Seller as
of the close of Seller's business on the Initial Cut-Off Date;
(ii) each Receivable created or originated by the Seller from the
close of the Seller's business on the Initial Cut Off Date, to and
including the Sale Termination Date;
(iii) all rights to, but not the obligations under, all related
Contracts and all Related Security;
(iv) all monies due or to become due with respect to the foregoing;
(v) all books and records related to any of the foregoing;
(vi) all Lockbox Accounts, all amounts on deposit therein and all
related agreements between Seller and the Lockbox Banks, in each case to
the extent constituting or representing items described in paragraph (vii)
below; and
(vii) all Collections in respect of, and other proceeds of,
Receivables or any other of the foregoing (as defined in the UCC) received
on or after the Initial Cut-Off Date including, without limitation, all
funds which either are received by Seller, the Company, the Borrower or the
Servicer from or on behalf of the Obligors in payment of any amounts owed
(including, without limitation, finance charges, interest and all other
charges) in respect of Receivables, or are applied to such amounts owed by
the Obligors (including without limitation, insurance payments, if any,
that Seller, the Company, the Borrower or the Servicer (if other than
Seller) applies in the ordinary course of its business to amounts owed in
respect of any Receivable and net proceeds of sale or other disposition of
repossessed goods or other collateral or property of the Obligors or any
other party directly or indirectly liable for payment of such Receivable
and available to be applied thereon).
All purchases hereunder shall be made without recourse, but shall be made
pursuant to and in reliance upon the representations, warranties and covenants
of Seller, in its capacity as seller, set forth in each Transaction Document.
The proceeds and rights described in subsections (iii) through (vii) of this
Section 1.1(a) are herein collectively called the "RELATED RIGHTS."
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(b) ABSOLUTE TRANSFER. It is the intention of the parties hereto that the
conveyance of the Receivables and Related Rights by the Seller to the Company as
provided in this Section 1.1 be, and be construed as, an absolute sale, without
recourse, of such Receivables and Related Rights by the Seller to the Company.
Furthermore, it is not intended that such conveyance be deemed a pledge of such
Receivables and Related Rights by the Seller to the Company to secure a debt or
other obligation of the Seller. If, however, notwithstanding the intention of
the parties, the conveyance provided for in this Section 1.1 is determined to be
a transfer for security, then this Agreement shall also be deemed to be a
"security agreement" within the meaning of Article 9 of the UCC and the Seller
hereby grants to the Company a "security interest" within the meaning of Article
9 of the UCC in all of the Seller's right, title and interest in and to such
Receivables and Related Rights, now existing and hereafter created, to secure a
loan in an amount equal to the aggregate Purchase Price therefor and the
Seller's other payment obligations under this Agreement.
SECTION 1.2. TIMING OF PURCHASES.
(a) INITIAL CLOSING DATE PURCHASES. On the date of the first Loan under the
Credit and Security Agreement (the "INITIAL CLOSING DATE") Seller shall sell to
the Company, and the Company shall purchase, pursuant to Section 1.1, Seller's
entire right, title and interest in (i) each Receivable that existed and was
owing to Seller as of the close of Seller's business on the Initial Cut-Off
Date, and (ii) all Related Rights with respect thereto.
(b) REGULAR PURCHASES. After the Initial Closing Date, and continuing until
the Sale Termination Date, each Receivable described in Section 1.1(a)(ii)
hereof, and all the Related Rights with respect thereto, created or originated
by Seller shall be sold by Seller to the Company (without any further action)
upon the creation or origination of such Receivable. All such Receivables shall
be sold to the Company on such date.
SECTION 1.3. CONSIDERATION FOR PURCHASES. On the terms and subject to the
conditions set forth in this Agreement, the Company agrees to make all Purchase
Price payments to Seller in accordance with Article III.
SECTION 1.4. SALE TERMINATION DATE. The "SALE TERMINATION DATE" shall be
the Termination Date under the Credit and Security Agreement.
ARTICLE II
CALCULATION OF PURCHASE PRICE
SECTION 2.1. CALCULATION OF PURCHASE PRICE. On each Reporting Date
(commencing with the first Reporting Date following the Initial Closing Date),
the Servicer shall deliver to the Agent, Seller and the Company (if the Servicer
is other than the Company) a report in substantially the form of Exhibit A (each
such report being herein called a "PURCHASE REPORT") with respect to the
Company's purchases of Receivables from Seller:
(a) that arose on or prior to the Initial Cut-Off Date (in the
case of the first Purchase Report to be delivered hereunder) and
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(b) that arose during the Settlement Period immediately preceding
such Reporting Date (in the case of each successive Purchase Report).
Each Purchase Report shall designate the amount of such Receivables that were
Eligible Receivables on the date of origination (or, in the case of Receivables
transferred on the Initial Closing Date, on the Initial Closing Date).
The "PURCHASE PRICE" (to be paid in accordance with the terms of Article
III) for the Receivables and the Related Rights shall be determined in
accordance with the following formula:
PP = AUB - (AUB x FD)
where:
PP = Purchase Price (to be paid to Seller in accordance with
the terms of Article III) as calculated on the relevant
Reporting Date.
AUB = (i) for purposes of calculating the Purchase Price on
the Initial Closing Date, the aggregate Unpaid Balance of
all Receivables that existed and were owing to Seller as
measured as at the Initial Cut-Off Date, and
(ii) for purposes of calculating the Purchase Price for
Receivables on each Reporting Date thereafter, the
aggregate Unpaid Balance of the Receivables described in
Section 1.1(a)(ii) hereof that were generated by Seller
during the immediately preceding Settlement Period.
FD = the Factoring Discount.
"FACTORING DISCOUNT" as measured on the Initial Closing Date or any
Reporting Date means 1.40%; PROVIDED that the Factoring Discount may be revised
with the mutual written consent of the Seller and the Company based upon a third
party valuation report.
ARTICLE III
PAYMENT OF PURCHASE PRICE
SECTION 3.1. INITIAL PURCHASE PRICE PAYMENT. On the terms and subject to
the conditions set forth in this Agreement, the Company agrees to pay to Seller
on the Initial Closing Date the Purchase Price for the purchase to be made from
Seller with respect to Receivables existing on or prior to the Initial Cut-Off
Date (a) in cash in an amount equal to the amount received by the Company in
connection with the initial sale of the Receivables and Related Rights made
pursuant to the Purchase and Sale Agreement and (b) by the issuance of a
promissory note in the form of Exhibit B to Seller (such promissory note, as it
may be amended, supplemented, endorsed or otherwise modified from time to time
in substitution therefor or renewal thereof in accordance with the Transaction
Documents, being herein called the "INITIAL PCA NOTE") in the initial principal
amount equal to the remainder of the Purchase Price owing on the Initial Closing
Date after subtracting the amount paid in cash.
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SECTION 3.2. SUBSEQUENT PURCHASE PRICE PAYMENTS. After the Initial Closing Date
and until the termination of this Agreement pursuant to Section 9.4 hereof, the
Purchase Price due pursuant to Section 2.1 for each Settlement Period shall be
due on the related Settlement Date. As an advance payment of such Purchase
Price, on each Business Day during a Settlement Period, the Company shall pay to
Seller a portion of the Purchase Price due pursuant to Section 2.1 by depositing
into such account, as Seller shall specify, immediately available funds from
monies then held by or on behalf of the Company solely to the extent that such
monies are not necessary to pay current expenses of the Company (in its
reasonable discretion) (such available monies, the "AVAILABLE FUNDS") and
provided that Seller has paid all amounts then owing by it hereunder. On each
Reporting Date, the Servicer shall calculate the amount of the Purchase Price
remaining to be paid by deducting from the Purchase Price the Available Funds
that have been paid during the corresponding Settlement Period, and such amount
due shall be identified in the Purchase Report. To the extent that the Available
Funds were insufficient to pay the Purchase Price then due in full, the
remaining portion of such Purchase Price shall be paid, first, by decreasing the
principal amount of the Excess Funds Note, effective as of the last day of the
related Settlement Period and second, if the balance of the Excess Funds Note
has been reduced to zero, by increasing the balance of the Initial PCA Note,
effective as of the last day of the related Settlement Period; PROVIDED,
HOWEVER, that the aggregate of the principal amounts outstanding at any time
under the Initial PCA Note may not exceed the Maximum Seller Note Balance; and
PROVIDED FURTHER, that the amount of such decrease in the principal amount of
the Excess Funds Note or increase in the principal amount of the Initial PCA
Note on any Settlement Date may not account for more than 25% of the aggregate
Purchase Price due with respect to the related Settlement Period (the "NON-CASH
MONTHLY MAXIMUM"). To the extent that the amount due with respect to the related
Settlement Period pursuant to Section 2.1 exceeds (x) the Available Funds plus
(y) the Non-Cash Monthly Maximum (such excess amount, the "SHORTFALL"), the
Seller shall contribute to the Company cash in an amount equal to such
Shortfall, and the Company shall use such funds to repay the Shortfall.
Seller shall make all appropriate record keeping entries with respect to
the Excess Funds Note and the Initial PCA Note to reflect payments by the
Company thereon and Seller's books and records shall constitute rebuttable
presumptive evidence of the principal amount of and accrued interest on the
Excess Funds Note and the Initial PCA Note. Seller shall return the Excess Funds
Note and the Initial PCA Note to the Company upon the final payment thereof
after the termination of this Agreement pursuant to Section 9.4 hereof.
SECTION 3.3. SETTLEMENT AS TO SPECIFIC RECEIVABLES. If an officer of Seller
obtains knowledge or receives notice from the Company or the Agent that (a) on
the day that any Receivable purchased hereunder was created or originated by
Seller, (or, in the case of Receivables transferred on the Initial Closing Date,
on the Initial Closing Date) any of the representations or warranties set forth
in Section 5.1(l) were not true with respect to such Receivable, or such
Receivable was designated as an Eligible Receivable on the related Purchase
Report and was not an Eligible Receivable or, (b) on any day any of the
representations or warranties set forth in Section 5.1(l) with respect to any
Receivable is no longer true with respect to a Receivable (each such Receivable,
an "INELIGIBLE RECEIVABLE"), then the Purchase Price with respect to Receivables
that arose during the same Settlement Period in which such knowledge is obtained
or notification is received shall be decreased by an amount equal to the Unpaid
Balance of such Ineligible Receivable as of the related Settlement Date;
PROVIDED, HOWEVER, that if there have been no purchases of Receivables (or
insufficiently large purchases of Receivables to create a Purchase Price large
enough to so reduce by the amount of such Unpaid Balances) from Seller during
such Settlement Period, any amount owed by which the
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Purchase Price payable to Seller would have been reduced pursuant to the
immediately preceding clause of this sentence shall be paid by either (at the
option of Seller, unless the Company will, absent such payment in cash, be
unable to meet its obligations under the Purchase and Sale Agreement on the next
occurring Settlement Date, in which case Seller shall make a cash payment on or
before such Settlement Date) an increase in the principal amount of the Excess
Funds Note or by payment within two Business Days after the related Reporting
Date in cash by Seller to the Company by payment of same day funds; PROVIDED,
FURTHER, that if the Company receives payment on account of Collections due with
respect to such Ineligible Receivable after such Settlement Date, the Company
promptly shall deliver such funds to Seller. The enforcement of the obligations
of Seller set forth in this Section 3.3 shall be the sole remedy of the Company
with respect to Ineligible Receivables.
SECTION 3.4. SETTLEMENT AS TO DILUTION. Each Purchase Report shall include,
in respect of the Receivables previously sold by Seller, a calculation of the
aggregate net reduction in the aggregate Unpaid Balance of such Receivables owed
by particular Obligors on account of any defective, rejected or returned
merchandise or services, any cash discount, any incorrect ▇▇▇▇▇▇▇▇ or other
adjustments, or setoffs in respect of any claims by the Obligor(s) thereof
(whether such claims arise out of the same or a related or unrelated
transaction), or any rebate or refund during the most recent Settlement Period.
The Purchase Price to be paid to Seller for the Receivables generated during the
Settlement Period for which such Purchase Report is delivered shall be decreased
by the amount of such net reduction; PROVIDED, HOWEVER, that if there have been
no purchases of Receivables (or insufficiently large purchases of Receivables to
create a Purchase Price large enough to so reduce by the amount of such net
reduction) from Seller during such Settlement Period, any amount owed by which
the Purchase Price payable to Seller would have been reduced pursuant to the
immediately preceding clause of this sentence shall be paid by either (at the
option of Seller, unless the Company will, absent such payment in cash, be
unable to meet its obligations under the Purchase and Sale Agreement on the next
occurring Settlement Date, in which case Seller shall make a cash payment on or
before such Settlement Date) an increase in the principal amount of the Excess
Funds Note or by payment within two Business Days after the related Reporting
Date in cash by Seller to the Company by payment of same day funds.
SECTION 3.5. RECONVEYANCE OF RECEIVABLES. In the event that Seller has paid
(by effecting a Purchase Price reduction or otherwise) to the Company the full
Unpaid Balance of any Receivable pursuant to Section 3.3 or 3.4, the Company
shall reconvey such Receivable and all Related Rights with respect thereto, to
Seller, without recourse, representation or warranty, but free and clear of all
liens created by the Company; such reconveyed Receivables and all Related Rights
shall no longer be subject to the terms of this Agreement (including any
obligation to turn over Collections with respect thereto).
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ARTICLE IV
CONDITIONS OF PURCHASES
SECTION 4.1. CONDITIONS PRECEDENT TO INITIAL PURCHASE. The initial purchase
hereunder is subject to the condition precedent that the Company shall have
received, on or before the Initial Closing Date, the following, each (unless
otherwise indicated) dated the Initial Closing Date, and each in form, substance
and date reasonably satisfactory to the Company and the Agent:
(a) A copy of the resolutions of the Board of Directors of Seller
approving the Transaction Documents to be delivered by it and the
transactions contemplated hereby and thereby, certified by the Secretary or
Assistant Secretary of Seller;
(b) Good standing certificate for Seller issued as of a recent
date by the Secretary of State of Delaware;
(c) A certificate of the Secretary or Assistant Secretary of
Seller certifying the names and true signatures of the officers authorized
on Seller's behalf to sign the Transaction Documents to be delivered by it
(on which certificate the Company and Servicer (if other than Seller) may
conclusively rely until such time as the Company and the Servicer shall
receive from Seller a revised certificate meeting the requirements of this
subsection (c);
(d) The articles of incorporation of Seller, duly certified by
the Secretary of State of Delaware as of a recent date, together with a
copy of the by-laws of Seller, duly certified by the Secretary or Assistant
Secretary of Seller;
(e) Copies of the proper financing statements (Form UCC-1) that
have been duly executed and name Seller as the assignor and the Company as
the assignee (and the 2nd Step Purchaser, as assignee of the Company) of
the Receivables and the Related Rights or other, similar instruments or
documents, as may be necessary or, in Servicer's or the Agent's opinion,
desirable under the UCC of all appropriate jurisdictions or any comparable
law of all appropriate jurisdictions to perfect the Company's ownership
interest in all Receivables and Related Rights in which the ownership
interest may be assigned to it hereunder;
(f) A written search report from a Person satisfactory to
Servicer and the Agent listing all effective financing statements that name
Seller as debtor or assignor and that are filed in the jurisdictions in
which filings were made pursuant to the foregoing subsection (e), together
with copies of such financing statements (none of which, except for those
described in the foregoing subsection (e) and those in favor of the agent
pursuant to the Senior Credit Agreement shall cover any Receivable or any
Related Right related to any Receivable) which is to be sold to the Company
hereunder, and tax and judgment lien search reports from a Person
satisfactory to Servicer and the Agent showing no evidence of such liens
filed against Seller;
(g) Evidence (i) of the execution and delivery by each of the
parties thereto of each of the other Transaction Documents to be executed
and delivered in connection herewith and (ii) that each of the conditions
precedent to the execution, delivery and effectiveness of such other
Transaction Documents has been satisfied to the Company's satisfaction;
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(h) The Initial PCA Note in favor of Seller, duly executed by the
Company; and
(i) A certificate from an officer of Seller to the effect that
Servicer and Seller have placed on the most recent, and have taken all
steps reasonably necessary to ensure that there shall be placed on
subsequent, summary master control data processing reports the following
legend (or the substantive equivalent thereof): THE RECEIVABLES DESCRIBED
HEREIN HAVE BEEN SOLD BY PACKAGING CORPORATION OF AMERICA TO PACKAGING
CREDIT COMPANY, LLC AND THEN SOLD BY PACKAGING CREDIT COMPANY, LLC TO
PACKAGING RECEIVABLES COMPANY, LLC; AND A SECURITY INTEREST IN THE
RECEIVABLES DESCRIBED HEREIN HAS BEEN GRANTED AND ASSIGNED BY PACKAGING
RECEIVABLES COMPANY, LLC TO WACHOVIA BANK, N.A., AS AGENT.
SECTION 4.2. CERTIFICATION AS TO REPRESENTATIONS AND WARRANTIES. Seller, by
accepting the Purchase Price related to each purchase of Receivables (and
Related Rights), shall be deemed to have certified that the representations and
warranties contained in Article V are true and correct on and as of the day of
such purchase, with the same effect as though made on and as of such day.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1. REPRESENTATIONS OF SELLER. In order to induce the Company to
enter into this Agreement and to make purchases hereunder, Seller, in its
capacity as seller under this Agreement, hereby makes the representations and
warranties set forth in this Section 5.1.
(a) ORGANIZATION AND GOOD STANDING. Seller has been duly organized and is
validly existing as a corporation in good standing under the laws of the state
of its organization, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such business is
presently conducted.
(b) DUE QUALIFICATION. Seller is duly licensed or qualified to do business
in good standing, and has obtained all necessary approvals, in all jurisdictions
in which the ownership or lease of its property or the conduct of its business
requires such licensing, qualification or approvals, except where the failure to
be so qualified or have such licenses or approvals would not have a Seller
Material Adverse Effect.
(c) POWER AND AUTHORITY; DUE AUTHORIZATION. Seller has (a) all necessary
power, authority and legal right (i) to execute and deliver, and perform its
obligations under, each Transaction Document to which it is a party and (ii) to
own, sell, and assign Receivables on the terms and subject to the conditions
herein and therein provided; and (b) duly authorized such execution and delivery
and such sale and assignment and the performance of such obligations by all
necessary action.
(d) VALID SALE; BINDING OBLIGATIONS. Each sale of Receivables and Related
Rights made by Seller pursuant to this Agreement shall constitute a valid sale,
transfer, and assignment thereof to the Company, enforceable against creditors
of, and purchasers from, Seller; and this Agreement constitutes, and each other
Transaction Document to be signed by Seller, when duly executed and delivered,
will constitute, a legal, valid, and binding obligation of Seller, enforceable
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or
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other similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or in law.
(e) NO VIOLATION. The consummation of the transactions contemplated by this
Agreement and the other Transaction Documents to which Seller is a party and the
fulfillment of the terms hereof or thereof will not (a) conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under (i) Seller's organizational
documents, or (ii) any material indenture, loan agreement, mortgage, deed of
trust, or other agreement or instrument to which it is a party or by which it is
bound, (b) result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such material indenture, loan agreement,
mortgage, deed of trust, or other agreement or instrument, other than the
Transaction Documents, or (c) violate any law or any order, rule, or regulation
applicable to it of any court or of any federal, state or foreign regulatory
body, administrative agency, or other governmental instrumentality having
jurisdiction over it or any of its properties.
(f) PROCEEDINGS. There is no litigation, investigation or proceeding
pending, or to the best of Seller's knowledge, threatened, before any court,
regulatory body, arbitrator, administrative agency, or other tribunal or
governmental instrumentality (a) asserting the invalidity of any Transaction
Document to which Seller is a party, (b) seeking to prevent the sale of
Receivables and the Related Rights to the Company or the consummation of any of
the other transactions contemplated by any Transaction Document to which Seller
is a party, or (c) that would have a Seller Material Adverse Effect. No
injunction, writ, temporary restraining order or order of any nature has been
issued by any court or other regulatory body, arbitrator, administrative agency
or other tribunal or governmental instrumentality purporting to enjoin or
restrain the execution, delivery or performance of this Agreement or any other
Transaction Document, or directing that the transaction provided for herein or
therein not be consummated as herein or therein provided. The Seller is
generally subject to suit and it does not nor does any of its properties or
revenues enjoy any right of immunity from judicial proceedings.
(g) BULK SALES ACT. No transaction contemplated hereby requires compliance
with any bulk sales act or similar law.
(h) GOVERNMENT APPROVALS. Except for the filing of the UCC financing
statements referred to in Article IV, all of which, at the time required in
Article IV, shall have been duly made and shall be in full force and effect, no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for Seller's due
execution, delivery and performance of any Transaction Document to which it is a
party.
(i) FINANCIAL CONDITION. On the date hereof Seller is, and on the date of
each transfer of a new Receivable hereunder (both before and after giving effect
to such transfer), Seller shall be solvent.
(j) FINANCIAL STATEMENTS AND ABSENCE OF CERTAIN MATERIAL ADVERSE CHANGES.
(x) Each of the financial statements of Seller and its consolidated
Subsidiaries previously or hereafter furnished to the Agent, fairly
presents in all material respects the consolidated financial condition of
Seller and its consolidated Subsidiaries, taken as a whole, as at the dates
thereof and the results of their consolidated operations for the periods
covered
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thereby and each of such financial statements has been prepared in
accordance with GAAP consistently applied (subject, in the case of interim
financial statements, to customary year-end audit adjustments).
(y) From December 31, 1999 through and including the date of the
Initial Closing Date, there has been no material adverse change in Seller's
consolidated financial condition, business or operations. Since the date of
the Initial Closing Date, there has been no material adverse change in
Seller's consolidated financial condition, business or operations that has
had, or would reasonably be expected to have, a material adverse effect
upon its ability to perform its obligations as an Originator, under the
Transaction Documents when and as required, and no material adverse effect
on the collectibility of any material portion of the Receivables.
(z) Since the Initial Closing Date, no event has occurred which would
have a Seller Material Adverse Effect.
(k) MARGIN REGULATIONS. No use of any funds acquired by Seller under this
Agreement will conflict with or contravene any of Regulations T, U and X
promulgated by the Board of Governors of the Federal Reserve System from time to
time.
(l) QUALITY OF TITLE.
(i) Each Receivable (together with the Related Rights with respect to
such Receivable) which is to be sold to the Company hereunder is or shall
be, at the time of such sale, owned by Seller, free and clear of any Lien
and except Liens in favor of the agent pursuant to the Senior Credit
Agreement. Whenever the Company makes a purchase of a Receivable hereunder,
it shall have acquired a valid and perfected ownership interest (free and
clear of any Lien, other than a Lien created by or arising through the
Company, the Lenders or the Agent and except Liens in favor of the agent
pursuant to the Senior Credit Agreement) in such Receivable and all
Collections related thereto, and in Seller's entire right, title and
interest in and to the Related Rights with respect thereto.
(ii) No effective financing statement or other instrument similar in
effect covering any Receivable or any Related Right is on file in any
recording office except such as may be filed (1) in favor of Seller in
accordance with the Contracts, (2) in favor of the Company in accordance
with this Agreement, (3) in favor of the 2nd Step Purchaser in accordance
with the Purchase and Sale Agreement (4) in favor of the Lenders or the
Agent in accordance with the Credit and Security Agreement or in connection
with any Lien arising solely as the result of any action taken by the
Lender (or any assignee thereof) or by the Agent and (5) in favor of the
agent pursuant to the Senior Credit Agreement.
(m) ACCURACY OF INFORMATION. No information heretofore or contemporaneously
furnished in writing (and prepared) by Seller, as seller, to the Company, the
Lenders or the Agent for purposes of or in connection with any Transaction
Document or any transaction contemplated hereby or thereby is, and no other
written information hereafter furnished (and prepared) by Seller, as seller, to
the Company, the Lenders, or the Agent pursuant to or in connection with any
Transaction Document will be, inaccurate in any material respect as of the date
it was furnished or (except as otherwise disclosed to the company at or prior to
such time) as of the date as of which such information is
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dated or certified, or contained or will contain any material misstatement of
fact or omitted or will omit to state any material fact necessary to make such
information not materially misleading.
(n) OFFICES. Seller's principal place of business and chief executive
office is located at the address set forth in Exhibit C, and the offices where
Seller keeps all its books, records and documents evidencing the Receivables,
the related Contracts and all other agreements related to such Receivables are
located at the address specified in Exhibit C (or at such other locations,
notified to Servicer (if other than Seller), the Company and the Agent in
accordance with Section 6.1(f), in jurisdictions where all action required by
Section 7.3 has been taken and completed).
(o) TRADE NAMES. Except as disclosed on Schedule 5.1(o), Seller does not
use any trade name other than its actual legal name. From and after the date
that fell five (5) years before the date hereof, Seller has not been known by
any legal name other than Packaging Corporation of America as of the date
hereof, nor has Seller been the subject of any merger or similar change in
structure, except as disclosed on Schedule 5.1(o).
(p) TAXES. Seller has filed all material tax returns and reports required
by law to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes which are not yet delinquent or
are being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with generally accepted accounting
principles shall have been set aside on its books.
(q) COMPLIANCE WITH APPLICABLE LAWS. Seller is in compliance, in all
material respects, with the requirements of all applicable laws, rules,
regulations, and orders of all governmental authorities (including, without
limitation, Regulation Z, laws, rules and regulations relating to usury, truth
in lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy and all other consumer
laws applicable to the Receivables and related Contracts), except where such
noncompliance, individually or in the aggregate, would not have a Seller
Material Adverse Effect.
(r) RELIANCE ON SEPARATE LEGAL IDENTITY. Seller is aware that the Lenders
and the Agent are entering into the Transaction Documents to which they are
parties in reliance upon the Company's identity as a legal entity separate from
Seller and any of its other Affiliates.
(s) ELIGIBLE RECEIVABLES. Each Receivable included as an Eligible
Receivable in the Net Pool Balance in connection with any computation or
recomputation of the Borrowing Base is an Eligible Receivable on such date.
(t) CREDIT AND COLLECTION POLICY. With respect to each Receivable, the
Seller has complied in all material respects with its Credit and Collection
Policy, and no change has been made to such Credit and Collection Policy since
the date of this Agreement which would be reasonably likely to materially and
adversely affect the collectibility of the Receivables or decrease the credit
quality of any newly created Receivables except for such changes as to which
each of the Agent has received the notice required under Section 7.2(j) of the
Credit and Security Agreement and has given its prior written consent thereto
(which consent shall not be unreasonably withheld or delayed).
(u) PAYMENTS TO SELLER. With respect to each Receivable sold to the Company
by the Seller, the Company has given reasonably equivalent value to the Seller
in consideration for such
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Receivable and the Related Assets with respect thereto pursuant hereto and such
transfer was not made for or on account of an antecedent debt. No transfer by
the Seller of any Receivable is or may be voidable under any Section of the
Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101 et seq.), as amended.
(v) BORROWING BASE. As of each Borrowing Date made pursuant to the Credit
and Security Agreement, after giving effect to the Loans to be made on such date
made pursuant to the Credit and Security Agreement, the Borrowing Base is at
least equal to the aggregate outstanding principal balance of the Advances made.
ARTICLE VI
COVENANTS OF SELLER
SECTION 6.1. AFFIRMATIVE COVENANTS. From the date hereof until the Final
Payout Date, Seller will, unless the Company and the Agent shall otherwise
consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Comply in all material respects with all
applicable laws, rules, regulations and orders, including those with respect to
the Receivables generated by it and the Contracts and other agreements related
thereto, except where such noncompliance, individually or in the aggregate,
would not have a Seller Material Adverse Effect.
(b) PRESERVATION OF CORPORATE EXISTENCE. Preserve and maintain its legal
existence, rights, franchises and privileges in the jurisdiction of its
organization, and qualify and remain qualified in good standing in each
jurisdiction where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification would have a Seller Material Adverse
Effect.
(c) RECEIVABLES REVIEW. (i) At any time and from time to time, upon not
less than ten (10) Business Days' notice (unless an Event of Default has
occurred and is continuing (or the Agent believes in good faith that an Event of
Default has occurred and is continuing), in which case no such notice shall be
required) permit the Company and the Agent or their respective agents or
representatives, (A) to examine, to audit and make copies of and abstracts from
all books, records and documents (including, without limitation, computer tapes
and disks) in the possession or under the control of Seller relating to the
Receivables, including, without limitation, the Contracts, and purchase orders
and other agreements related thereto, and (B) to visit Seller's offices and
properties for the purpose of examining such materials described in the
foregoing clause (A) and discussing matters relating to the Receivables
generated by Seller or Seller's performance hereunder with any of the officers
or employees of Seller having knowledge of such matters; (ii) to meet with the
independent auditors of Seller, to review such auditor's work papers and
otherwise to review with such auditors the books and records of Seller with
respect to the Receivables and the Related Rights; and (iii) without limiting
the provisions of clause (i) next above, from time to time, at Seller's expense,
permit certified public accountants or other auditors acceptable to the Agent to
conduct a review of its books and records with respect to the Receivables and
the Related Rights; provided that, so long as no Event of Default has occurred
and is continuing, (x) such reviews described in clauses (i), (ii) and (iii) in
this subsection (c) shall not be done more than two (2) times in any one
calendar year and (y) Seller shall only be responsible for the costs and
expenses of one such review described in clauses (i), (ii) and (iii) in this
subsection (c) in any one calendar year.
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(d) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain an ability to
recreate in all material respects records evidencing the Receivables generated
by it in the event of the destruction of the originals thereof.
(e) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS. At its
expense timely and fully perform and comply in all material respects with all
provisions, covenants and other promises required to be observed by it under the
Contracts and all purchase orders and other agreements related to the
Receivables.
(f) LOCATION OF RECORDS. Keep its principal place of business and chief
executive office, and the offices where it keeps its records concerning or
related to Receivables, at the address(es) referred to in Exhibit C or, upon 30
days' prior written notice to the Company and the Agent, at such other locations
in jurisdictions where all action required by Section 7.3 shall have been taken
and completed.
(g) CREDIT AND COLLECTION POLICIES. Comply in all material respects with
its Credit and Collection Policy in connection with the Receivables and all
Contracts related thereto.
(h) SEPARATE CORPORATE EXISTENCE OF THE COMPANY. Take such actions as shall
be required in order to maintain the separate identity of the Company separate
and apart from Seller and its other Affiliates, including those actions set
forth in Section 7.4 of the Credit and Security Agreement.
SECTION 6.2. REPORTING REQUIREMENTS. From the date hereof until the Final
Payout Date, Seller will, unless the Company and the Agent shall otherwise
consent in writing, furnish to the Company and the Agent:
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 50 days after the end of each of the first three quarters of
each fiscal year of the Seller, copies of its consolidated balance sheets
and related statements of income and statements of cash flow, showing the
financial condition of the Seller and its consolidated Subsidiaries as of
the close of such fiscal quarter and the results of its operations and the
operations of such Subsidiaries during such fiscal quarter and the then
elapsed portion of the fiscal year, together with a Certificate of
Financial Officer in the form attached as Exhibit 7.2 to the Credit and
Security Agreement executed by the chief financial officer or treasurer of
the Seller;
(b) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
within 90 days after the end of each fiscal year of the Seller, copies of
its consolidated balance sheets and related statements of income and
statements of cash flow, showing the financial condition of the Seller and
its consolidated Subsidiaries as of the close of such fiscal year and the
results of its operations and the operations of such Subsidiaries during
such year, all audited by independent public accountants of recognized
national standing acceptable to the Agent and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect) to
the effect that such consolidated financial statements fairly present the
financial condition and results of operations of the Seller on a
consolidated basis (except as noted therein) in accordance with GAAP
consistently applied;
(c) REPORTS TO SEC AND EXCHANGES. In addition to the reports required
by subsections (a) and (b) next above, promptly upon the Agent's reasonable
request, copies of
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any reports or registration statements that the Seller files with the
Securities and Exchange Commission or any national securities exchange
other than registration statements relating to employee benefit plans and
to registrations of securities for selling securities;
(d) ERISA. Promptly after the filing or receiving thereof, copies of
all reports and notices with respect to any Reportable Event defined in
Article IV of ERISA which the Seller files under ERISA with the Internal
Revenue Service, the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or which the Seller receives from the Pension Benefit
Guaranty Corporation;
(e) EVENTS OF DEFAULT, ETC. As soon as possible and in any event
within five (5) Business Days after any Responsible Officer of the Seller
obtains knowledge of the occurrence of any Event of Default or any
Unmatured Default, a written statement of a Responsible Officer of the
Seller setting forth details of such event and the action that such Loan
Party will take with respect thereto;
(f) PROCEEDINGS. As soon as possible and in any event within ten
Business Days after any Responsible Officer of Seller has knowledge
thereof, written notice to the Company and the Agent of (i) all pending
proceedings and investigations of the type described in Section 5.1(f) not
previously disclosed to the Company and/or the Agent which would reasonably
be expected to have a Seller Material Adverse Effect and (ii) all material
adverse developments that have occurred with respect to any previously
disclosed proceedings and investigations which would reasonably be expected
to have a Seller Material Adverse Effect;
(g) CREDIT AND COLLECTION POLICY. Prompt notice of any material change
in the character of Seller's business or, with not less than 15 Business
Days' prior written notice, in the Credit and Collection Policy (together
with a copy of such change); and
(h) OTHER. Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables of Seller's
performance as seller hereunder that the Company or the Agent may from time
to time reasonably request in order to protect the interests of the
Company, the Lenders, the Agent, or any other Affected Party under or as
contemplated by the Transaction Documents.
SECTION 6.3. NEGATIVE COVENANTS. From the date hereof until the Final Payout
Date, Seller agrees that, unless the Agent shall otherwise consent in writing,
it shall not:
(a) SALES, LIENS, ETC. Except as otherwise provided herein or in any
other Transaction Document, sell, assign (by operation of law or otherwise)
or otherwise dispose of, or create or suffer to exist any Lien upon or with
respect to, any Receivable or related Contract or other Related Right, or
any interest therein, or any Collections thereon, or assign any right to
receive income in respect thereof.
(b) EXTENSION OR AMENDMENT OF RECEIVABLES. Except as otherwise
permitted in Section 8.2(c) of the Credit and Security Agreement, extend,
amend or otherwise modify the terms of any Receivable, or amend, modify or
waive any material term or condition of any Contract related thereto in any
way that adversely affects the collectibility of any Receivable or any
Lender's rights therein.
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(c) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES. Take any
action to cause or permit any Receivable generated by it to become
evidenced by any "instrument" (as defined in the applicable UCC), except in
connection with the collection of overdue Receivables, provided that the
original of such instrument is delivered to the Agent, duly endorsed.
(d) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Add or terminate any
bank as a Lock-Box Bank from those listed in Schedule 6.1(o) of the Credit
and Security Agreement or, after the Collection Account has been
established pursuant to Section 7.1(i) of the Credit and Security
Agreement, make any change in its instructions to Obligors regarding
payments to be made to the Servicer or payments to be made to any Lock-Box
Bank (except for a change in instructions solely for the purpose of
directing Obligors to make such payments to another existing Lock-Box
Bank), unless (i) the Agent shall have received prior written notice of
such addition, termination or change and (ii) the Agent shall have received
duly executed copies of Lock-Box Agreements in a form reasonably acceptable
to the Agent with each new Lock-Box Bank.
(e) DEPOSITS TO LOCK-BOX ACCOUNTS AND COLLECTION ACCOUNT. Deposit or
otherwise credit, or cause or permit to be so deposited or credited, to any
Lock-Box Account or the Collection Account, any cash or cash proceeds other
than Collections of Receivables.
(f) NAME CHANGE, OFFICES, RECORDS AND BOOKS OF ACCOUNTS. Change its
name, identity or corporate structure (within the meaning of Section
9-402(7) of any applicable enactment of the UCC) or relocate its chief
executive office or any office where Records are kept unless it shall have:
(i) given the Agent at least 15 Business Days' prior written notice thereof
and (ii) prior to effectiveness of such change, delivered to the Agent all
financing statements, instruments and other documents requested by the
Agent in connection with such change or relocation.
(g) DISPOSITION OF RECEIVABLES AND RELATED ASSETS. Except pursuant to
this Agreement, sell, lease, transfer, assign or otherwise dispose of (in
one transaction or in a series of transactions) any Receivables and Related
Assets.
(h) CHANGE IN CREDIT AND COLLECTION POLICY. Make any material change
in the Credit and Collection Policy that would impair the collectibility of
any significant portion of the Receivables or otherwise adversely affect
the interests or remedies of the Company hereunder or the Agent or the
Lenders under any Transaction Document.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE RECEIVABLES
SECTION 7.1. RIGHTS OF THE SERVICER. Seller hereby authorizes the Servicer
(if other than Seller) or its respective designees to take any and all steps in
Seller's name necessary or desirable, in its respective determination, to
collect all amounts due under any and all Receivables, including, without
limitation, endorsing Seller's name on checks and other instruments representing
Collections and enforcing such Receivables and the provisions of the related
Contracts that concern payment and/or enforcement of rights to payment.
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SECTION 7.2. RESPONSIBILITIES OF SELLER. Anything herein to the contrary
notwithstanding:
(a) COLLECTION PROCEDURES. Seller agrees to direct the Obligors, as
promptly as practicable after an Event of Default, to make payments of
Receivables directly to a Lock-Box Account that is the subject of a
Lock-Box Agreement at a Lock-Box Bank. Seller further agrees to transfer
any Collections (including any security deposits applied to the Unpaid
Balance of any Receivable) that it receives directly to the Servicer (if
other than Seller) within two Business Days of receipt thereof, and agrees
that all such Collections shall be deemed to be received in trust for the
Company; provided that, to the extent permitted pursuant to Section 3.2,
Seller may retain such Collections as a portion of the Purchase Price then
payable or apply such Collections to the reduction of the outstanding
balance of the Initial PCA Note.
(b) PERFORMANCE UNDER CONTRACT. Seller shall remain responsible for
performing its obligations hereunder and under the Contracts, and the
exercise by the Company or its designee of its rights hereunder shall not
relieve Seller from such obligations.
(c) POWER OF ATTORNEY. Seller hereby grants to the Servicer (if other
than Seller) an irrevocable power of attorney, with full power of
substitution, coupled with an interest, to take in the name of Seller all
steps necessary or advisable to indorse, negotiate or otherwise realize on
any writing or other right of any kind held or transmitted by Seller or
transmitted or received by the Company (whether or not from Seller) in
connection with any Receivable.
SECTION 7.3. FURTHER ACTION EVIDENCING PURCHASES. Seller agrees that from
time to time, at its expense, it will promptly execute and deliver all further
instruments and documents, and take all further action that the Company may
reasonably request in order to perfect, protect or more fully evidence the
Company's ownership of the Receivables (and the Related Rights) purchased by the
Company hereunder, or to enable the Company to exercise or enforce any of its
rights hereunder or under any other Transaction Document. Without limiting the
generality of the foregoing, upon the request of the Company, Seller will:
(a) execute and file such financing or continuation statements, or
amendments thereto or assignments thereof, and such other instruments or
notices, as may be necessary or appropriate; and
(b) ▇▇▇▇ the summary master control data processing records with the
legend set forth in Section 4.1(i).
Seller hereby authorizes the Company or its designee to file one or more
financing or continuation statements, and amendments thereto and assignment
thereof, relative to all or any of the Receivables (and the Related Rights) now
existing or hereafter sold by Seller. If Seller fails to perform any of its
agreements or obligations under this Agreement, the Company or its designee may
(but shall not be required to) itself perform, or cause performance of, such
agreement or obligation, and the expenses of the Company or its designee
incurred in connection therewith shall be payable by Seller as provided in
Section 9.6.
SECTION 7.4. APPLICATION OF COLLECTIONS. Any payment by an Obligor in
respect of any indebtedness owed by it to Seller in respect of any Contract
shall, except as otherwise specified by
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such Obligor or otherwise required by contract or law, be applied first, as a
Collection of the Receivables of such Obligor, in the order of the age of such
Receivables, starting with the oldest of such Receivables, and second, to any
other indebtedness of such Obligor.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. INDEMNITIES OF SELLER. Without limiting any other rights which
the Company may have hereunder or under applicable law, Seller hereby agrees to
indemnify the Company and each of its permitted assigns, officers, directors,
employees and agents (each of the foregoing Persons being individually called a
"SALE INDEMNIFIED PARTY"), on demand, from and against any and all damages,
losses, claims, judgments, liabilities and related costs and expenses, including
reasonable attorneys' fees and disbursements (all of the foregoing being
collectively called "SALE INDEMNIFIED AMOUNTS") awarded against or incurred by
any of them arising out of or as a result of arising out of or relating to this
Agreement, the Receivables or the Related Rights, EXCLUDING, HOWEVER, (i) Sale
Indemnified Amounts to the extent determined by a court of competent
jurisdiction to have resulted from bad faith, gross negligence or willful
misconduct on the part of such Sale Indemnified Party, (ii) recourse for Sale
Indemnified Amounts to the extent the same includes losses in respect of
Receivables which are uncollectible on account of the insolvency, bankruptcy or
lack of creditworthiness of the related Obligor, (iii) Sale Indemnified Amounts
that represent taxes based upon, or measured by, net income, or changes in the
rate of tax or as determined by reference to the overall net income, of such
Sale Indemnified Party, or (iv) Sale Indemnified Amounts that represent
franchise taxes, taxes on, or in the nature of, doing business taxes or capital
taxes. Without limiting the foregoing, the Seller shall indemnify each Sale
Indemnified Party for Sale Indemnified Amounts arising out of or related to the
following:
(a) the transfer by Seller of an interest in any Receivable or Related
Right to any Person other than the Company;
(b) the breach of any representation or warranty made by Seller under
or in connection with this Agreement or any other Transaction Document, or
any information or report delivered by Seller pursuant hereto or thereto
which shall have been false or incorrect in any material respect when made
or deemed made;
(c) the failure by Seller to comply with any applicable law, rule or
regulation with respect to any Receivable or the related Contract, or the
nonconformity of any Receivable or the related Contract with any such
applicable law, rule or regulation;
(d) (i) the failure to vest and maintain vested in the Company an
ownership interest in the Receivables and the Related Rights free and clear
of any Lien (other than Liens imposed by the Credit Agreement), or (ii) the
failure of the Company to vest in the Borrower an ownership interest in the
Receivables and the Related Rights free and clear of any Lien, in either
case other than a Lien arising solely as a result of an act of the Company,
the Lenders or the Agent, whether existing at the time of the purchase of
such Receivables or at any time thereafter;
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(e) the failure of Seller to file with respect to itself, 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 Receivables or purported Receivables generated by Seller,
whether at the time of any purchase or at any subsequent time;
(f) any dispute, claim, offset or defense (other than discharge in
bankruptcy) of the Obligor to the payment of any Receivable or purported
Receivable generated by Seller (including, without limitation, a defense
based on such Receivables or the related Contracts not being a legal, valid
and binding obligation of such Obligor enforceable against it in accordance
with its terms), or any other claim resulting from the services or
merchandise related to any such Receivable or the furnishing of or failure
to furnish such services or merchandise;
(g) any failure of the Seller to perform its duties or obligations in
accordance with the terms of this Agreement;
(h) any product liability claim arising out of or in connection with
services or merchandise with respect to any Receivable;
(i) any tax or governmental fee or charge, all interest and penalties
thereon or with respect thereto, and all out-of-pocket costs and expenses,
including the reasonable fees and expenses of counsel in defending against
the same, which may arise by reason of the purchase or ownership of the
Receivables generated by Seller or any Related Right connected with any
such Receivables;
(j) the commingling of Collections of Receivables at any time with
other funds of the Seller;
(k) any investigation, litigation or proceeding related to or arising
from this Agreement or the transactions contemplated hereby or any other
investigation, litigation or proceeding relating to the Seller or any of
the Originators in which any Indemnified Party becomes involved as a result
of any of the transactions contemplated hereby (other than an
investigation, litigation or proceeding relating to a dispute solely
amongst the Lenders (or certain Lenders) and the Agent); or
(l) 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;
excluding, however, (i) Sale Indemnified Amounts to the extent resulting from
gross negligence or willful misconduct on the part of such Sale Indemnified
Party, (ii) any indemnification which has the effect of recourse to Seller for
non-payment of the Receivables due to credit problems of the Obligors, (iii)
Sale Indemnified Amounts that represent taxes based upon, or measured by, net
income or changes in the rate of tax or as determined by reference to the
overall net income of such Sale Indemnified Party and (iv) Sale Indemnified
Amounts that represent franchise taxes, taxes of, or in the nature of, doing
business taxes or capital taxes.
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If for any reason the indemnification provided above in this Section 8.1 is
unavailable to a Sale Indemnified Party or is insufficient to hold such Sale
Indemnified Party harmless, then Seller shall contribute to the amount paid or
payable by such Sale Indemnified Party to the maximum extent permitted under
applicable law.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. AMENDMENTS, ETC.
(a) The provisions of this Agreement may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by Seller, the Company, the Agent and the Servicer (if other than
Seller).
(b) No failure or delay on the part of the Company, the Servicer, Seller or
any third party beneficiary in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on the Company, the
Servicer, or Seller in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by the Company or the
Servicer under this Agreement shall, except as may otherwise be stated in such
waiver or approval, be applicable to subsequent transactions. No waiver or
approval under this Agreement shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION 9.2. NOTICES, ETC. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by express
mail or courier or by certified mail, postage-prepaid, or by facsimile, to the
intended party at the address or facsimile number of such party set forth on
Schedule 9.2 or at such other address or facsimile number as shall be designated
by such party in a written notice to the other parties hereto. All such notices
and communications shall be effective, (i) if personally delivered or sent by
express mail or courier or if sent by certified mail, when received, and (ii) if
transmitted by facsimile, when sent, receipt confirmed by telephone or
electronic means.
SECTION 9.3. NO WAIVER; CUMULATIVE REMEDIES. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 9.4. BINDING EFFECT; ASSIGNABILITY. This Agreement shall be binding
upon and inure to the benefit of the Company, Seller and their respective
successors and permitted assigns. Seller may not assign its rights hereunder or
any interest herein without the prior written consent of the Company and the
Agent; subject to Section 9.11, the Company may not assign its rights hereunder
or any interest herein without the prior written consent of Seller and the
Agent. The 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 the date after the Sale Termination Date on which Seller has
received payment in full for all Receivables and Related Rights conveyed
pursuant to Section 1.1 hereof and has paid and performed all of its obligations
hereunder in full. The rights and remedies with respect to any breach of any
representation and warranty made by Seller pursuant to Article V
-20-
and the indemnification and payment provisions of Article VIII and Section 9.6
shall be continuing and shall survive any termination of this Agreement.
SECTION 9.5. GOVERNING LAW. THIS AGREEMENT, INCLUDING THE RIGHTS AND DUTIES
OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW, EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE INTERESTS OF
THE COMPANY IN THE RECEIVABLES OR RELATED RIGHTS IS GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
SECTION 9.6. COSTS, EXPENSES AND TAXES. In addition to the obligations of
Seller under Article VIII, Seller agrees to pay on demand:
(a) all reasonable costs and expenses, including attorneys' fees, in
connection with the enforcement against Seller of this Agreement and the
other Transaction Documents executed by Seller; and
(b) all stamp and other similar taxes and fees payable or determined
to be payable in connection with the execution, delivery, filing and
recording of this Agreement or the other Transaction Documents, and agrees
to indemnify each Sale Indemnified Party against any liabilities with
respect to or resulting from any delay in paying or omission to pay such
taxes and fees.
SECTION 9.7. SUBMISSION TO JURISDICTION. EACH PARTY HERETO HEREBY
IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE
OR UNITED STATES FEDERAL COURT SITTING IN THE STATE OF
NEW YORK, OVER ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (B) AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (C) WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (D) CONSENTS
TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN
SECTION 9.2; AND (E) TO THE EXTENT ALLOWED BY LAW, AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS SECTION 9.7 SHALL AFFECT THE COMPANY'S RIGHT TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR
PROCEEDING AGAINST SELLER OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTIONS.
SECTION 9.8. WAIVER OF JURY TRIAL. EACH PARTY HERETO EXPRESSLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR UNDER ANY
AMENDMENT, INSTRUMENT OR DOCUMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
-21-
SECTION 9.9. CAPTIONS AND CROSS REFERENCES; INCORPORATION BY REFERENCE. The
various captions (including, without limitation, the table of contents) in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to any underscored Section or Exhibit are to such Section or Exhibit of this
Agreement, as the case may be. The Exhibits hereto are hereby incorporated by
reference into and made a part of this Agreement.
SECTION 9.10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which so executed shall be deemed to be an original and
all of which 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 as effective as delivery of a manually executed counterpart
of a signature page to this Agreement.
SECTION 9.11. ACKNOWLEDGMENT AND AGREEMENT. By execution below, Seller
expressly acknowledges and agrees that on the date hereof the Company has
assigned all of its rights, title, and interests in, to, and under this
Agreement to the 2nd Step Purchaser pursuant to the Purchase and Sale Agreement
(and the 2nd Step Purchaser may further assign such rights in accordance with
the Purchase and Sale Agreement), and Seller consents to such assignment. Each
of the parties hereto acknowledges and agrees that the 2nd Step Purchaser is a
third party beneficiary of the rights of the Company arising hereunder and under
the other Transaction Documents to which Seller is a party as seller. The Seller
hereby further acknowledges that all provisions of this Agreement shall inure to
the benefit of the 2nd Step Purchaser, including in the enforcement of any
provision hereof to the extent set forth in the Purchase and Sale Agreement, but
that the 2nd Step Purchaser shall not have any obligations or duties under this
Agreement. The Seller hereby further acknowledges that the execution and
performance of this Agreement are conditions precedent for the Agent and the
Lenders to enter into the Credit and Security Agreement and that the agreement
of the Agent and the Lenders to enter into the Credit and Security Agreement
will directly or indirectly benefit the Seller and constitutes good and valuable
consideration for the rights and remedies of the Agent and each Lender with
respect hereto.
SECTION 9.12. NO PROCEEDINGS. Seller agrees that it shall not institute
against the Company, or join any other Person in instituting against the
Company, any insolvency proceeding (namely, any proceeding of the type referred
to in the definition of Event of Bankruptcy) as long as there shall not have
elapsed one year plus one day since the Final Payout Date. The foregoing shall
not limit Seller's right to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted by any Person other
than Seller.
-22-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duty authorized, as of the date first
above written.
PACKAGING CREDIT COMPANY, LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Title: Assistant Secretary
-----------------------------
PACKAGING CORPORATION OF AMERICA
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Title: Treasurer
-----------------------------
EXHIBIT A
RECEIVABLES SALE AGREEMENT
PURCHASE REPORT
PACKAGING CREDIT COMPANY, LLC
PACKAGING CORPORATION OF AMERICA
as of (Date)
CUT-OFF DATE
Total Receivables $ Input
Aggregate Unpaid Balance of AUB $ Calculated
Receivables
Purchaser's Total Investment PTI Fixed
Factoring Discount FD Calculated
Purchase Price (AUB - (AUB*FD)) PP Calculated
Eligible Receivables $ Input
Ineligible Receivables $ Input
EXHIBIT B
PROMISSORY NOTE
(NON-NEGOTIABLE INITIAL PCA NOTE)
[Effective Date]
FOR VALUE RECEIVED, the undersigned, Packaging Credit Company, LLC, a
Delaware limited liability company (the "COMPANY"), promises to pay to Packaging
Corporation of America, a Delaware corporation ("SELLER"), on the terms and
subject to the conditions set forth herein and in the Purchase Agreement
referred to below, the principal sum of the aggregate unpaid Purchase Price of
all Receivables purchased from time to time by the Company from Seller pursuant
to such Purchase Agreement, as such unpaid Purchase Price is shown in the
records of Seller.
1. PURCHASE AGREEMENT. This promissory note (this "INITIAL PCA NOTE") is
the Initial PCA Note described in, and is subject to the terms and conditions
set forth in, that certain
Receivables Sale Agreement of even date herewith (as
the same may be amended or otherwise modified from time to time, the "PURCHASE
AGREEMENT"), between Seller and the Company. Reference is hereby made to the
Purchase Agreement for a statement of certain other rights and obligations of
Seller and the Company.
2. DEFINITIONS. Capitalized terms used (but not defined) herein have the
meanings assigned thereto in the Purchase Agreement and in Appendix A to the
Credit and Security Agreement dated as of even date herewith among Packaging
Receivables Company, LLC, the Company, as initial Servicer, Blue Ridge Asset
Funding Corporation and Wachovia Bank, N.A., as Agent (as it may be amended or
otherwise modified from time to time, the "CREDIT AND SECURITY AGREEMENT"). In
addition, as used herein, the following terms have the following meanings:
BANKRUPTCY PROCEEDINGS: As defined in clause (b) of paragraph 9 hereof.
FINAL MATURITY DATE: The date that is one year and one day following the
Final Payout Date.
INTEREST PERIOD: The period from and including a Reporting Date (or, in the
case of the first Interest Period, the date hereof) to but excluding the next
Reporting Date.
SENIOR INTEREST: Collectively, (i) the obligation of the Company and the
Servicer to set aside, and to turn over, Collections and other proceeds of the
Loans funded by the Agent and Lenders pursuant to the Credit and Security
Agreement, (ii) any Indemnified Amounts and (iii) all other obligations of the
Company that are due and payable to any Affected Party, together with all
interest accruing on any such amounts after the commencement of any Bankruptcy
Proceedings, notwithstanding any provision or rule of law that might restrict
the rights of any Senior Interest Holder, as against the Company of anyone else,
to collect such interest.
SENIOR INTEREST HOLDERS: Collectively, the Lenders, the Agent, the other
Affected Parties and the Indemnified Parties.
3. INTEREST. Subject to the provisions set forth below, the Company
promises to pay interest on this Initial PCA Note as follows:
(a) Prior to the Final Payout Date, the aggregate unpaid Purchase
Price from time to time outstanding during any Interest Period shall bear
interest at a rate per annum equal to the LIBO Rate as in effect from time
to time on the first Business Day of each Settlement Period, as determined
by Seller, plus 1.00%; and
(b) From (and including) the Final Payout Date to (but excluding) the
date on which the entire aggregate unpaid Purchase Price is fully paid, the
aggregate unpaid Purchase Price from time to time outstanding shall bear
interest at a rate per annum equal to the LIBO Rate as in effect from time
to time on the first Business Day of each Settlement Period, as determined
by Seller, plus 1.00%,
but in no event in excess of the maximum rate permitted by law. In the event
that, contrary to the intent of Seller and Company, Company pays interest
hereunder and it is determined that such interest rate was in excess of the then
legal maximum rate, then that portion of the interest payment representing an
amount in excess of the then legal maximum rate shall be deemed a payment of
principal and applied against the principal then due hereunder.
4. INTEREST PAYMENT DATES. Subject to the provisions set forth below, the
Company shall pay accrued interest on this Initial PCA Note on each Settlement
Date, and shall pay accrued interest on the amount of each principal payment
made in cash on a date other than a Settlement Date at the time of such
principal payment.
5. BASIS OF COMPUTATION. Interest accrued hereunder shall be computed for
the actual number of days elapsed on the basis of a 360-day year.
6. PRINCIPAL PAYMENT DATES. Subject to the provisions set forth below,
payments of the principal amount of this Initial PCA Note shall be made as
follows:
(a) The principal amount of this Initial PCA Note shall be reduced
from time to time pursuant to Sections 3.2, 3.3, 3.4 and 7.2 of the
Purchase Agreement;
(b) The entire remaining unpaid balance of this Initial PCA Note shall
be paid on the Final Maturity Date.
Subject to the provisions set forth below, the principal amount of and accrued
interest on this Initial PCA Note may be prepaid on any Business Day without
premium or penalty.
7. PAYMENTS. All payments of principal and interest hereunder are to be
made in lawful money of the United States of America.
8. ENFORCEMENT EXPENSES. In addition to and not in limitation of the
foregoing, but subject to the provisions set forth below and to any limitation
imposed by applicable law, the Company agrees to pay all expenses, including
reasonable attorneys' fees and legal expenses, incurred by Seller in seeking to
collect any amounts payable hereunder which are not paid when due.
B-2
9. PROVISIONS REGARDING RESTRICTIONS ON PAYMENT. The Company covenants and
agrees, and Seller, by its acceptance of this Initial PCA Note, likewise
covenants and agrees on behalf of itself and any holder of this Initial PCA
Note, that the payment of the principal amount of, and interest on, this Initial
PCA Note is hereby expressly subject to certain restrictions set forth in the
following clauses of this paragraph 9:
(a) No payment or other distribution of the Company's assets of any
kind or character, whether in cash, securities, or other rights or
property, shall be made on account of this Initial PCA Note except to the
extent such payment or other distribution is permitted under the Purchase
Agreement and the Credit and Security Agreement;
(b) In the event of any dissolution, winding up, liquidation,
readjustment, reorganization or other similar event relating to the
Company, whether voluntary or involuntary, partial or complete, and whether
in bankruptcy, insolvency or receivership proceedings, or upon an
assignment for the benefit of creditors, or any other marshaling of the
assets and liabilities of the Company or any sale of all or substantially
all of the assets of the Company (such proceedings being herein
collectively called "BANKRUPTCY PROCEEDINGS"), the Senior Interest shall
first be paid and performed in full and in cash before Seller shall be
entitled to receive and to retain any payment or distribution in respect to
this Initial PCA Note. In order to implement the foregoing, Seller hereby
irrevocably agrees that the Agent, in the name of Seller or otherwise, may
demand, ▇▇▇ for, collect, receive and receipt for any and all such payments
or distributions, and the file, prove and vote or consent in any such
Bankruptcy Proceedings with respect to any and all claims of Seller
relating to this Initial PCA Note, in each case until the Senior Interest
shall have been paid and performed in full and in cash;
(c) In the event that the Seller receives any payment or other
distribution of any kind or character from the Company or from other source
whatsoever, in respect of this Initial PCA Note, other than as expressly
permitted by the terms of this Initial PCA Note, such payment or other
distribution shall be received for the sole benefit of the Senior Interest
Holders and shall be turned over by Seller to the Agent (for the benefit of
the Senior Interest Holders) forthwith;
(d) Notwithstanding any payments or distributions received by the
Senior Interest Holders in respect of this Initial PCA Note, Seller shall
not be subrogated to the rights of the Senior Interest Holders in respect
of the Senior Interest;
(e) The provisions set forth in this Section 9 are intended solely for
the purpose of defining the relative rights of Seller, on the one hand, and
the Senior Interest Holders on the other hand;
(f) Seller shall not, until Final Payout Date, transfer, pledge or
assign, or commence legal proceedings to enforce or collect this Initial
PCA Note or any rights in respect hereof except as required by the Senior
Credit Agreement;
(g) Seller shall not, without the advance written consent of the
Agent, commence, take any action to cause any other Person to commence, or
join with any other Person in
B-3
commencing, any Bankruptcy Proceedings with respect to the Company until
the Final Payout Date shall have occurred;
(h) If, at any time, any payment (in whole or in part) of any Senior
Interest is rescinded or must be restored or returned by a Senior Interest
Holder (whether in connection with Bankruptcy Proceedings or otherwise),
these provisions shall continue to be effective or shall be reinstated, as
the case may be, as though such payment had not been made;
(i) Seller hereby waives; (i) notice of acceptance of these provisions
by any of the Senior Interest Holders; (ii) notice of the existence,
creation, non-payment or non-performance of all or any of the Senior
Interest; and (iii) all diligence in enforcement, collection or protection
of, or realization upon, the Senior Interest, or any thereof, or any
security therefor;
(j) These provisions constitute a continuing offer from the holder of
this Initial PCA Note to all Persons who become the holders of, or who
continue to hold, the Senior Interest; and these provisions are made for
the benefit of the Senior Interest Holders, and the Agent or the Lenders
may proceed to enforce such provisions on behalf of each of such Persons.
10. GENERAL. No failure or delay on the part of Seller in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power of right preclude any other or further
exercise thereof or the exercise of any other power or right. No amendment,
modification or waiver of, or consent with respect to, any provision of this
Initial PCA Note shall in any event be effective unless (i) the same shall be in
writing and signed and delivered by the Company and Seller and (ii) all consent
required for such actions under the Transaction Documents shall have been
received by the appropriate Persons.
11. NO NEGOTIATION. This Initial PCA Note is not negotiable.
12. GOVERNING LAW. THIS PROMISSORY NOTE SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
13. CAPTIONS. Paragraph captions used in this Initial PCA Note are for
convenience only and shall not affect the meaning or interpretation of any
provision of this Initial PCA Note.
PACKAGING CREDIT COMPANY, LLC
By
-----------------------------------
Name Printed:
----------------------
Title:
-----------------------------
B-4
EXHIBIT C
OFFICE LOCATION WHERE RECORDS ARE KEPT
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▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
#▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
C-3
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇. #▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C-4
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇. ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C-5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C-6
SCHEDULE 5.1 (o)
TRADE NAMES
None
SCHEDULE 9.2
NOTICE ADDRESSES
Seller: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Company: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇