EXHIBIT B-2
RECEIVABLES PURCHASE AND SALE AGREEMENT
Dated as of ,
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Between
[SPV]
as Seller
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and
ALLIANT ENERGY SPE LLC
as Purchaser
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and
ALLIANT ENERGY CORPORATE SERVICES, INC.
as Collection Agent
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TABLE OF CONTENTS
Section Page
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Preliminary Statements 1
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms 1
Collection Agent 1
Collection Agent Fee 1
Collections 1
Event of Termination 1
Originator 2
Originator Agreement 2
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ Price 2
Purchase Price Percentage 2
Termination Date 2
Section 1.02 Other Defined Terms Incorporated by Reference 2
Section 1.03 Other Terms 2
Section 1.04 Computation of Time Periods 2
ARTICLE II
SALES
Section 2.01 Agreement to Purchase 3
Section 2.02 Effective Date Transactions; Payment for Purchases 3
Section 2.03 Calculation of Purchase Price 4
Section 2.04 Payments and Computations, Etc. 4
Section 2.05 Transfer of Records to the Purchaser 5
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Section Page
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Section 2.06 Deemed Collections 5
Section 2.07 Assignment of the Originator Agreement 5
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Effectiveness 6
Section 3.02 Conditions Precedent to Purchases 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Seller 7
ARTICLE V
GENERAL COVENANTS OF THE SELLER
Section 5.01 Affirmative Covenants of the Seller 11
Section 5.02 Reporting Requirements of the Seller 13
Section 5.03 Negative Covenants of the Seller 14
ARTICLE VI
ADMINISTRATION AND COLLECTION
Section 6.01 Designation of Collection Agent 16
Section 6.02 Duties of Collection Agent 17
Section 6.03 Rights of the Agent 17
Section 6.04 Responsibilities of the Seller 18
Section 6.05 Further Action Evidencing Purchases 18
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Section Page
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ARTICLE VII
EVENTS OF TERMINATION
Section 7.01 Events of Termination 19
ARTICLE VIII
INDEMNIFICATION
Section 8.01 Indemnities by the Seller 20
ARTICLE IX
MISCELLANEOUS
Section 9.01 Amendments, Etc. 21
Section 9.02 Notices, Etc. 21
Section 9.03 No Waiver; Remedies 22
Section 9.04 Binding Effect; Assignability 22
Section 9.05 Governing Law 23
Section 9.06 Costs and Expenses 23
Section 9.07 No Proceedings 23
Section 9.08 Confidentiality 23
Section 9.09 Execution in Counterparts 24
LIST OF EXHIBITS
EXHIBIT A Form of Ownership Document
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RECEIVABLES PURCHASE AND SALE AGREEMENT
Dated as of ,
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[SPV], a Delaware limited liability company (the "Seller"), ALLIANT
ENERGY SPE LLC, a Delaware limited liability company (the "Purchaser"), and
ALLIANT ENERGY CORPORATE SERVICES, INC., an Iowa corporation ("Services"), agree
as follows:
PRELIMINARY STATEMENTS. (1) Certain terms which are capitalized and
used throughout this Agreement (in addition to those defined above) are defined
in Article I of this Agreement.
(2) The Seller and the Purchaser are entering into this Agreement in
order for the Seller to sell, transfer and otherwise assign to the Purchaser all
of its right, title and interest in and to the Pool Receivables, whether now
owned or hereafter existing, the interests in which may hereafter give rise to
Shares.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
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following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Collection Agent" means at any time the Person (including the Agent)
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then authorized pursuant to Article VI to service, administer and collect Pool
Receivables.
"Collection Agent Fee" shall have the meaning set forth in Section
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6.01.
"Collections" means, with respect to any Pool Receivable, all cash
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collections and other cash proceeds of such Pool Receivable, including, without
limitation, all cash proceeds of Related Security with respect to such Pool
Receivable, and any Collection of such Pool Receivable deemed to have been
received pursuant to Section 2.06.
"Event of Termination" shall include an "Event of Investment
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Ineligibility" under the ▇▇▇▇▇▇ Agreement and an "Event of Termination" under
the Citibank Agreement.
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"Originator" means .
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"Originator Agreement" means the Receivables Sale Agreement, dated the
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date hereof, among the Originator, Services and the Seller.
"Purchase" means a purchase by the Purchaser of Pool Receivables from
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the Seller, whether by way of capital contribution or sale, pursuant to Article
II.
"Purchase Price" means, with respect to any Purchase, the Purchase
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Price owed by the Purchaser to the Seller pursuant to Section 2.03.
"Purchase Price Percentage" has the meaning specified in Section 2.03.
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"Termination Date" has the meaning specified in Section 7.01.
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SECTION 1.02. Other Defined Terms Incorporated by Reference. Unless
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otherwise defined in this Agreement and subject to the modifications herein set
forth, capitalized terms used in this Agreement and not otherwise defined herein
shall have the meanings given to them in the ▇▇▇▇▇▇ Agreement. Without limiting
the foregoing, the defined terms "Credit and Collection Policy" and "Investor
Report" are hereby incorporated by reference together with the related
schedules, exhibits and annexes of the ▇▇▇▇▇▇ Agreement. The incorporation by
reference into this Agreement is for convenience only, and this Agreement and
the ▇▇▇▇▇▇ Agreement shall at all times be, and be treated as, separate and
distinct agreements. Except as otherwise agreed by the parties hereto,
incorporations by reference in this Agreement from the ▇▇▇▇▇▇ Agreement shall
not be affected or impaired by any amendment thereof or waiver thereunder.
SECTION 1.03. Other Terms. All accounting terms not specifically
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defined herein shall be construed in accordance with generally accepted
accounting principles. 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.
SECTION 1.04. Computation of Time Periods. Unless otherwise stated in
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this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
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ARTICLE II
SALES
SECTION 2.01. Agreement to Purchase. (a) On the terms and conditions
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hereinafter set forth, and subject to the satisfaction (or waiver) of all terms
and conditions of this Agreement, on each Business Day from and after the date
of the initial Purchase under the ▇▇▇▇▇▇ Agreement until the occurrence of the
Facility Termination Date, the Purchaser agrees to purchase from the Seller, and
the Seller hereby agrees to sell to the Purchaser, all of its right, title and
interest in and to the Pool Receivables, whether now owned or hereafter arising
at any time through the Facility Termination Date together with all of the
Related Security relating to such Pool Receivables and all Collections with
respect to and other proceeds of such Receivables and Related Security. Until
the Facility Termination Date, each Purchase described in the preceding sentence
shall occur no later than 11:00 a.m. (New York City time) on the date of such
Purchase concurrently with payment of the Purchase Price required under Section
2.02. Prior to making any Purchase hereunder, the Purchaser may request the
Seller, and the Seller shall deliver, such approvals, opinions, information,
reports or documents as the Purchaser may reasonably request.
(b) It is the intention of the parties hereto that each Purchase of
Pool Receivables to be made hereunder shall constitute a "sale of accounts," as
such term is used in Article 9 of the UCC, and not a loan secured by such
accounts. Except as otherwise provided in this Agreement, each sale of Pool
Receivables hereunder is made without recourse to the Seller; provided, however,
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that (i) the Seller shall be liable to the Purchaser for all representations,
warranties and covenants made by the Seller pursuant to the terms of this
Agreement, and (ii) such sale does not constitute and is not intended to result
in an assumption by the Purchaser or any assignee thereof of any obligation of
the Seller or any other Person arising in connection with the Pool Receivables,
the Related Security and the related Contracts, or any other obligations of the
Seller. In view of the intention of the parties hereto that the Purchases of
Pool Receivables to be made hereunder shall constitute a sale of such Pool
Receivables rather than a loan secured by such Receivables, the parties hereto
will treat the sale of such Receivables as a sale for accounting purposes.
SECTION 2.02. Transactions; Payment for Purchases. On the date of the
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initial Purchase under the ▇▇▇▇▇▇ Agreement, the Purchaser shall pay to the
Seller (either in cash or through the issuance of additional equity interests)
the Purchase Price for all of its right, title and interest in and to existing
Pool Receivables by multiplying the applicable Purchase Price Percentage at such
time times the Outstanding Balance of such Pool Receivables. Thereafter, on each
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Business Day until the Facility Termination Date, the Purchaser shall pay to the
Seller (either in cash or through the issuance of additional equity interests)
the Purchase Price for its Pool Receivables created since the immediately
preceding Business Day by multiplying the applicable Purchase Price Percentage
at such time times the Outstanding Balance of the Pool Receivables newly
created.
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SECTION 2.03. Calculation of Purchase Price. (a) The Purchase Price
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Percentage applicable to Purchases hereunder shall be a percentage calculated
each month according to the information provided in the most recent Investor
Report in accordance with the following formula:
PPP = 100% - LP - (ED x DR)
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360
where:
PPP = the Purchase Price Percentage;
LP = the Loss Percentage;
ED = Elapsed Days as defined in the definition of
"Yield" in the ▇▇▇▇▇▇ Agreement;
DR = a Discount Rate calculated to equal the sum of
(i) the weighted average of the applicable
Investor Rate as of the most recent month end plus
(ii) the percentages used to calculate the Fee
Letter Fees and Collection Agent Fee under the
▇▇▇▇▇▇ Agreement plus (ii) one-half of one
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percent.
The Purchase Price Percentage applicable to Purchases hereunder shall be set
forth in an addendum to each Investor Report prepared by the Collection Agent
under the ▇▇▇▇▇▇ Agreement, and such new Purchase Price Percentage shall become
effective on the Business Day following such delivery until the Business Day
following the delivery of the next Investor Report. The Seller agrees to provide
to the Collection Agent on a timely basis all information necessary to calculate
the applicable Purchase Price Percentage and, on any Business Day, the
applicable Purchase Price.
SECTION 2.04. Payments and Computations, Etc. All amounts to be paid
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by or deposited by the Purchaser to the Seller hereunder shall be paid or
deposited in accordance with the terms hereof no later than 12:00 (Noon) (New
York City time) on the day when due in lawful money of the United States of
America in same day funds to such account as the Seller may from time to time
specify in writing. Payments received by the Seller after such time shall be
deemed to have been received on the next Business Day. In the event that any
payment becomes due on a day which is not a Business Day, then such payment
shall be made on the next succeeding Business Day. Each party hereto shall, to
the extent permitted by law, pay to the other party interest on all amounts not
paid or deposited when due hereunder at 2% per annum above the Alternate Base
Rate, payable on demand; provided, however, that such interest rate shall not at
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any time exceed the maximum rate permitted by applicable law. All computations
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of interest hereunder shall be made on the basis of a year of 360 days for the
actual number of days (including the first but excluding the last day) elapsed.
SECTION 2.05. Transfer of Records to the Purchaser. (a) Each Purchase
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of Pool Receivables hereunder shall include the transfer to the Purchaser of all
of the Seller's right and title to and interest in the records relating to such
Pool Receivables (including, without limitation, all right, title and interest
in software owned by the Seller and used by it to account for the Pool
Receivables and all right, title and interest of the Seller under license
agreements relating to software owned by others and used by the Seller to
account for Pool Receivables) and the Seller hereby agrees that such transfer
shall be effected automatically with each such Purchase, without any further
documentation.
(b) The Seller shall take such action requested by the Purchaser, from
time to time hereafter, that may be necessary or appropriate to ensure that the
Purchaser has an enforceable ownership interest in the Records relating to the
Pool Receivables purchased from the Seller hereunder, including the rights to
the use of computer software to access and create the Records, and, in
recognition of the Purchaser's need to have access to the Records transferred to
the Purchaser hereunder, the Seller hereby grants to the Purchaser an
irrevocable license, which license is coupled with an interest, to access the
Records in the Seller's possession and to access the Seller's computer software
in connection with any of the Pool Receivables.
SECTION 2.06. Deemed Collections. If on any day the Outstanding
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Balance of a Pool Receivable is either (a) reduced as a result of any defective,
rejected or returned electricity, gas, water or services, any cash discount, or
any adjustment by the Seller or the Originator, or (b) reduced or cancelled as a
result of a setoff in respect of any claim by the Obligor thereof against the
Seller or the Originator (whether such claim arises out of the same or a related
transaction or an unrelated transaction), the Seller shall be deemed to have
received on such day a Collection of such Receivable in the amount of such
reduction or cancellation. If on any day any of the representations or
warranties in Section 4.01(h)(ii) is no longer true with respect to a Pool
Receivable, or if on any day any Pool Receivable shall no longer be an Eligible
Receivable, the Seller shall be deemed to have received on such day a Collection
in full of such Pool Receivable. The Seller shall promptly forward to the
Collection Agent, for the benefit of the Purchaser to be applied in accordance
with the provisions of the ▇▇▇▇▇▇ Agreement, all Collections of Pool Receivables
deemed to have been received by the Seller pursuant to this Section 2.06.
SECTION 2.07. Assignment of the Originator Agreement. The Seller
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hereby assigns to the Purchaser, for the benefit of the Owners under the ▇▇▇▇▇▇
Agreement and under the Citibank Agreement, all of the Seller's right and title
to and interest in the Originator Agreement. Such assignment shall include,
without limitation, (a) all monies due and to become due to the Seller from the
Originator under or in connection with the Originator Agreement, whether as
Receivables or fees, expenses, costs, indemnities, damages for the breach of the
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Originator Agreement or otherwise available at law or in equity. The Agent shall
have the sole right to enforce the Seller's rights and remedies under the
Originator Agreement for the benefit of such Owners (including, without
limitation, (i) the right at any time to enforce the Originator Agreement and
the obligations of the Originator thereunder and (ii) the right, at any time, to
give or withhold any and all consents, requests, notices, directions, approvals,
demands, extensions, amendments, modifications or waivers under or with respect
to the Originator Agreement). All amounts paid to the Seller under the
Originator Agreement shall constitute Collections hereunder. The foregoing
assignment shall create a continuing assignment of and security interest in such
collateral and shall remain in force until the later of the Facility Termination
Date and the date upon which no Capital for any Share shall be existing.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to Effectiveness. This Agreement
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shall become effective on the date of the initial Purchase under the ▇▇▇▇▇▇
Agreement concurrently with the satisfaction of the conditions precedent set
forth in Sections 3.01 and 3.02 of the ▇▇▇▇▇▇ Agreement.
SECTION 3.02. Conditions Precedent to Purchases. In addition to the
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foregoing, each Purchase of Pool Receivables is subject to the following
statements being true on the date of such Purchase:
(i) the representations and warranties of the Seller
contained in Section 4.01 are correct on and as of such date as though
made on and as of such date; and
(ii) no event has occurred and is continuing, or would
result from such Purchase, which constitutes an Event of Termination
hereunder.
The Seller, by accepting the proceeds of the Purchase Price for a Purchase,
shall be deemed to have certified to the Purchaser the satisfaction of the
foregoing conditions precedent. Upon the date of the initial Purchase under the
▇▇▇▇▇▇ Agreement, with respect to the Pool Receivables conveyed on such date and
thereafter on payment of the Purchase Price for any Purchase, title to such
Purchase shall vest in the Purchaser, whether or not the conditions precedent to
such Purchase were in fact satisfied.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller. The Seller
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represents and warrants as follows:
(a) The Seller is a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and is duly qualified to do business, and is in good standing,
in all states where the nature of its business or the ownership or use of
property requires such qualification.
(b) The execution, delivery and performance by the Seller of this
Agreement, the Ownership Document and all other instruments and documents
delivered by the Seller hereunder, and the transactions contemplated hereby
and thereby, and the Seller's use of the proceeds of Purchases, are within
the Seller's corporate powers, have been duly authorized by all necessary
corporate action, do not contravene (i) the Seller's Articles of
Organization or Operating Agreement, (ii) law or (iii) any provision of any
loan or credit agreement, indenture, mortgage, deed of trust, security
agreement or similar agreement to which the Seller is a party or by which
its property may be bound, and do not result in or require the creation of
any lien, security interest or other charge or encumbrance upon or with
respect to any of its properties, except as contemplated by this Agreement
or the Ownership Document; and no transaction contemplated hereby requires
compliance with any bulk sales act or similar law.
(c) No authorization or approval of, or application or notice to or
filing with, any governmental entity including, without limitation, the
Public Service Commission of Wisconsin, the Minnesota Public Utilities
Commission, the Illinois Commerce Commission, the Federal Energy Regulatory
Commission and the Securities and Exchange Commission is required for the
due execution, delivery and performance by the Seller of this Agreement,
the Ownership Document or any other document or instrument to be delivered
hereunder except for (i) the filing of such UCC Financing Statements,
naming the Seller as the seller of Receivables and the Purchaser as the
purchaser of Receivables, as may be necessary or, in the opinion of the
Purchaser, desirable under the UCC of all appropriate jurisdictions or any
comparable law to perfect the ownership interests in all Receivables
purchased from the Seller hereunder and (ii) the approval of the Public
Service Commission of Wisconsin, the Minnesota Public Utilities Commission,
the Illinois Commerce Commission and the Securities and Exchange
Commission, all of which, at the time required in Section 3.01, shall have
been duly made and shall be in full force and effect.
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(d) This Agreement constitutes, and the Ownership Document when
delivered hereunder shall constitute, the legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance with
their respective terms.
(e) The balance sheet as of , 1999, and the statements of
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income and retained earnings and cash flows of the Seller for the year then
ended, each as certified by the Seller's chief financial officer, copies of
which have been furnished to the Purchaser, fairly present the financial
condition of the Seller as of the date of such balance sheet and the
results of operations for the respective periods covered by said statements
of income and retained earnings. Since , 1999, there has been no
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material adverse change in the financial condition or operations of the
Seller.
(f) (i) There are no actions, suits or proceedings pending, or to the
knowledge of the Seller threatened, against or affecting the Seller or any
subsidiary, or the property of the Seller or of any subsidiary, in any
court, or before any arbitrator of any kind, or before or by any
governmental body, which, if determined adversely to the Seller, would
materially adversely affect the financial condition or operations of the
Seller or the ability of the Seller to perform its obligations under this
Agreement or the Ownership Document; (ii) there is no pending or threatened
litigation which purports to affect the legality, validity or
enforceability of this Agreement or any transaction contemplated hereby or
which seeks to enjoin or challenge any proposed use of the proceeds of the
Purchases hereunder; and (iii) the Seller is not in default with respect to
any order of any court, arbitrator or governmental body except for defaults
with respect to orders of governmental agencies which defaults are not
material to the business or operations of the Seller.
(g) No proceeds of any Purchase will be used (i) for a purpose which
violates, or would be inconsistent with, 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
Sections 13 and 14 of the Securities Exchange Act of 1934, as amended.
(h) (i) The Receivables Pool is composed solely of Eligible
Receivables, except for such Receivables as shall not, in the aggregate,
constitute a material portion of the Receivables Pool; and (ii) upon each
Purchase, the Purchaser will acquire a valid and perfected first priority
ownership interest in each Pool Receivable then existing or thereafter
arising and in the Related Security and Collections with respect thereto
free and clear of Adverse Claims; and no effective financing statement or
other instrument similar in effect covering any Pool Receivable or the
Related Security or Collections with respect thereto is on file in any
recording office, except those filed in favor of the Seller, the Purchaser
and the Agent in accordance with this Agreement, the Originator Agreement,
the ▇▇▇▇▇▇ Agreement and the Citibank Agreement.
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(i) Each Investor Report (if prepared by the Seller or Services, or to
the extent that information contained therein is supplied by the Seller or
Services), information, exhibit, financial statement, document, book,
record or report furnished at any time by the Collection Agent to the
Purchaser in connection with this Agreement or to the Agent or any Owner in
connection with the ▇▇▇▇▇▇ Agreement or the Citibank Agreement is accurate
in all material respects as of its date and (except as otherwise disclosed
to the Purchaser, the Agent or such Owner, as the case may be, at or prior
to the time furnished) as of the date so furnished, and no such document
contains, as of its date or (except as otherwise disclosed to the
Purchaser, the Agent or such Owner, as the case may be, at or prior to the
time furnished) as of the date so furnished, any material misstatement of
fact or omits to state a material fact or any fact necessary to make the
statements contained therein not materially misleading.
(j) The chief place of business and chief executive office of the
Seller are located at , and the
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offices where the Seller keeps all its books, records and documents
evidencing Pool Receivables or the related Contracts are located at
, or at other local offices within
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the State of .
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(k) The Pool Receivables are accounts receivable representing all or
part of the sale price of merchandise, insurance or services within the
meaning of Section 3(c)(5) of the Investment Company Act of 1940, as
amended; the nature of the Pool Receivables is such that their purchase
with the proceeds of notes would constitute a "current transaction" within
the meaning of Section 3(a)(3) of the Securities Act of 1933, as amended.
(l) The Joint Expenses Ratio is not in excess of 25%.
(m) The Originator Agreement is the only agreement pursuant to which
the Seller purchases receivables from any of the Originators or any SPV and
each of the Receivables sold hereunder has been purchased under the
Originator Agreement. The Seller has given the Purchaser true, correct and
complete copies of the Originator Agreement, which is in full force and
effect, and there are no written or oral understandings which would vary,
waive or otherwise modify the terms thereof except those which have been
approved in writing by the Agent.
(n) The Seller has no subsidiaries and does not own or hold, directly
or indirectly, any capital stock or equity security of, or any equity
interest in, any other Person and has conducted no other business except
for the execution and delivery of the Originator Agreement, this Agreement,
the acquisition of the Pool Receivables and sales thereof contemplated
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thereunder and hereunder, and such other activities as are incidental to
the foregoing.
(o) The Seller is operated as an entity separate from the Originators
and each other member of the Parent Group and, towards such end, the
Seller:
(i) maintains books and records of account (including financial
records) which are separate from each other member of the Parent Group
and maintains its assets in a manner which facilitates their
identification and segregation from those of any other member of the
Parent Group;
(ii) maintains its assets, funds and transactions separate from
those of any member of the Parent Group, reflecting such assets and
transactions in financial statements separate and distinct from those
of such members, and evidencing such assets, funds and transactions by
appropriate entries in the books and records referred to in clause (i)
above, and providing for its own operating expenses and liabilities
from its own assets and funds other than certain expenses and
liabilities relating to basic corporate overhead which may be
allocated between the Seller and the Parent Group;
(iii) conducts all intercompany transactions with all members of
the Parent Group on an arm's length basis;
(iv) at all times enters into its contracts and otherwise holds
itself out to the public under the Seller's own name as a legal entity
separate and distinct from its Affiliates;
(v) holds such appropriate meetings or obtains such appropriate
consents of its Board of Managers as are necessary to authorize all
the Seller's actions required by law to be authorized by such Board of
Managers, keeping minutes of such meetings and of meetings of its
members and observing all other limited liability company formalities.
(p) The Seller has been adequately capitalized in light of its
business and, on the date hereof, (i) is not "insolvent" (as such term is
defined in the Bankruptcy Code), (ii) is able to pay its debts as they
mature, and (iii) does not have unreasonably small capital for the business
in which it is engaged.
(q) The Seller shall have given reasonably equivalent value to the
Originator in consideration for the transfer to the Seller of the
Receivables and Related Security and such transfer is not voidable under
Sections 544, 545, 548, 549 or 724(a) of the Bankruptcy Code.
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(r) The Purchase Price for the Pool Receivables constitutes fair
consideration and approximates fair market value for such Pool Receivables,
and the terms and conditions of the sale of the Pool Receivables reasonably
approximates an arm's-length transaction between unaffiliated parties.
(s) The Seller is familiar with the representations and warranties
made by the Purchaser in Section 4.01 of the ▇▇▇▇▇▇ Agreement and hereby
warrants that it has taken, and has caused each other member of the Parent
Group to take, all actions required on their respective parts to maintain
the Purchaser's existence as an entity separate from the Seller and to
ensure that the other representations and warranties set forth in such
Section 4.01 are true and correct. The Seller acknowledges that the
Purchaser and the other parties to the ▇▇▇▇▇▇ Agreement and the Citibank
Agreement are relying on the Purchaser's separate existence in entering
into the transactions evidenced hereby and thereby.
ARTICLE V
GENERAL COVENANTS OF THE SELLER
SECTION 5.01. Affirmative Covenants of the Seller. Until the later of
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the Facility Termination Date and the date upon which no Capital for any Share
shall be existing under the ▇▇▇▇▇▇ Agreement or the Citibank Agreement, the
Seller will, unless the Purchaser shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material respects with
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all applicable laws, rules, regulations and orders with respect to it, its
business and properties and all Pool Receivables and related Contracts, the
noncompliance with which would materially and adversely affect the
financial condition or operations of the Seller or the Seller and its
consolidated subsidiaries taken as a whole or materially adversely affect
the collectibility of the Receivables Pool or the ability of the Seller to
perform its obligations under this Agreement or the Ownership Document.
(b) Preservation of Existence. Preserve and maintain its limited
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liability company existence, rights, franchises and privileges in the
jurisdiction of its organization, and qualify and remain qualified in good
standing as a foreign company in every jurisdiction where the nature of its
business requires it to be so qualified, to the extent that failure to
preserve and maintain such existence, rights, franchises, privileges and
qualification would materially adversely affect the interests of the
Purchaser hereunder or of the Owners or the Agent under the ▇▇▇▇▇▇
Agreement or the Citibank Agreement or in the Pool Receivables, or the
ability of the Seller or the Collection Agent to perform their respective
obligations hereunder.
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(c) Audits. At any time and from time to time during regular business
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hours, upon at least five Business Days' notice (or one Business Day's
notice if any Designated Event shall then exist), permit the Purchaser, or
its agents or representatives, at their own expense, (i) to examine 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 the Seller relating to Pool Receivables, including,
without limitation, the related Contracts, and (ii) to visit the offices
and properties of the Seller for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to Pool
Receivables or the Seller's performance hereunder with the chief financial
officer or the treasurer of the Seller or with any other officers or
employees of the Seller having knowledge of such matters and who are
referred by the chief financial officer or the treasurer. The Seller agrees
not to unreasonably withhold referrals to any such other officers or
employees.
(d) Keeping of Records and Books of Account. Maintain and implement
---------------------------------------
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing Pool 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 Pool Receivables (including, without
limitation, records adequate to permit the daily identification of each new
Pool Receivable and all Collections of and adjustments to each existing
Pool Receivable).
(e) Performance and Compliance with Receivables and Contracts. At its
---------------------------------------------------------
expense timely and fully perform and comply with all material provisions,
covenants and other promises required to be observed by it under the
Contracts related to the Pool Receivables.
(f) Location of Records. Keep its chief place of business and chief
-------------------
executive office, and the offices where it keeps its records concerning the
Pool Receivables and all Contracts related thereto (and all original
documents relating thereto), in the location set forth in Section 4.01(j)
hereof or, upon 30 days' prior written notice to the Agent, at other
locations.
(g) Credit and Collection Policies. Comply, and cause the Originator
------------------------------
to comply, in all material respects with its Credit and Collection Policy
in regard to each Pool Receivable and the related Contract.
(h) Collections. At all times following the designation by the Agent
-----------
of any Designated Account, deposit, or cause to be deposited, all
Collections to such Designated Account.
12
(i) Originator Agreement. Take all action necessary to perfect,
--------------------
protect and evidence the Seller's interest as against the Originator in the
Receivables and Related Contracts.
(j) Separate Identity. Take all steps on its part, and cause each
-----------------
other member of the Parent Group, to take all steps required on their
respective parts, to maintain itself as an entity separate and apart from
the Originator and other Affiliates of the Seller, including, without
limitation, such actions as are necessary to ensure that the
representations and warranties contained in Section 4(n) through (r) remain
true and correct at all times.
(k) Compliance with Opinion Assumptions and Constituent Documents.
-------------------------------------------------------------
Without limiting the generality of subsection (j) above, maintain in place
all policies and procedures, and take and continue to take all actions,
described in the assumptions as to facts set forth in, and forming the
basis of, the opinions set forth in the opinion delivered to the Agent in
substantially the form of the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ delivered to the
Originators and the Parent in connection with the transactions contemplated
by the Originator Agreements, and comply with, and cause compliance with,
the provisions of the constituent documents of the Seller delivered to the
Agent pursuant to Section 3.01 of the ▇▇▇▇▇▇ Agreement as the same may,
from time to time, be amended, modified or otherwise supplemented with the
prior written consent of the Agent.
(l) Separate Identity of the Purchaser. Take all steps on its part,
----------------------------------
and cause each other member of the Parent Group, to take all steps required
on their respective parts to ensure that the Purchaser is in compliance
with its covenants in Sections 5.01(j) through (k), and 5.03(f) through
(k), of the ▇▇▇▇▇▇ Agreement.
SECTION 5.02. Reporting Requirements of the Seller. Until the later of
------------------------------------
the Facility Termination Date and the date upon which no Capital for any Share
shall be existing under the ▇▇▇▇▇▇ Agreement or the Citibank Agreement, the
Seller will, unless the Agent shall otherwise consent in writing, furnish to the
Agent:
(a) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Seller,
beginning with the first quarter of 2000, a balance sheet of the Seller, as
of the end of such quarter, and statements of income and retained earnings
of the Seller, each for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, certified by a
principal financial or accounting officer of the Seller;
(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Seller beginning with the fiscal year ended
December 31, 1999, a copy of the balance sheet of the Seller, as of the end
of such year and the related statements of income and retained earnings of
13
the Seller, for such year each reported on by a principal financial or
accounting officer of the Seller;
(c) promptly after the sending or filing thereof, copies of all
reports which the Seller or its holding company sends to any of its
security holders generally and copies of all reports and registration
statements which the Seller or its holding company 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 security holders;
(d) 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 (other than a Reportable Event not subject to the provision for
30-day notice to the Pension Benefit Guaranty Corporation under regulations
promulgated under Article IV of ERISA) which the Seller, its holding
company or any subsidiary files under ERISA with the Internal Revenue
Service or the Pension Benefit Guaranty Corporation or the U.S. Department
of Labor or which the Seller, its holding company or any subsidiary
receives from such Corporation;
(e) as soon as possible and in any event within ten days after the
occurrence of each Event of Termination or each event which, with the
giving of notice or lapse of time or both, would constitute an Event of
Termination, the statement of a principal financial or accounting officer
of the Seller setting forth details of such Event or Termination or event
and the action which the Seller proposes to take with respect thereto;
(f) as soon as possible after the adoption of, or any change in, any
applicable law, rule or regulation which has, or is likely to have, the
effect described in Section 5.03(b) or 5.03(c), the statement of a
principal financial or accounting officer of the Seller describing such
law, rule or regulation and its effect (or anticipated effect);
(g) at least ten Business Days prior to any change in the Seller's
name, a notice setting forth the new name and the effective date thereof;
and
(h) promptly, from time to time, such other information, documents,
records or reports respecting the Receivables or the financial condition or
operations of the Seller, as the Purchaser may from time to time reasonably
request in order to protect the Purchaser's interests under or contemplated
by this Agreement or the Ownership Document or any Owner's or the Agent's
interests under or contemplated by the ▇▇▇▇▇▇ Agreement or the Citibank
Agreement.
SECTION 5.03. Negative Covenants of the Seller. Until the later of the
--------------------------------
Facility Termination Date and the date upon which no Capital for any Share shall
14
be existing under the ▇▇▇▇▇▇ Agreement or the Citibank Agreement, the Seller
will not, without the written consent of the Agent:
(a) Sales, Liens, Etc. Except as otherwise provided herein, or
-----------------
pursuant to the ▇▇▇▇▇▇ Agreement or the Citibank Agreement, sell, assign
(by operation of law or otherwise) or otherwise dispose of, or create or
suffer to exist any Adverse Claim upon or with respect to, the Seller's
undivided interest in any Pool Receivable or related Contract, or assign
any right to receive income in respect thereof.
(b) Extension or Amendment of Receivables. Except as otherwise
-------------------------------------
permitted in Section 6.02, extend, amend or otherwise modify the terms of
any Pool Receivable, or amend, modify or waive any term or condition of any
Contract related thereto.
(c) Change in Business or Credit and Collection Policy. Make any
--------------------------------------------------
change in the character of its business or in the Credit and Collection
Policy, which change would, in either case, impair the collectibility of
any Pool Receivable.
(d) Deposits to Designated Accounts. Deposit or otherwise credit, or
-------------------------------
cause or permit to be so deposited or credited, to any Designated Account
cash or cash proceeds other than Collections of Pool Receivables.
(e) Originator Agreement. Amend, waive, modify or otherwise terminate
--------------------
any terms or provisions of the Originator Agreement, which right to amend,
modify, waive or terminate has been assigned to the Agent for the benefit
of the Owners pursuant to Section 6.06.
(f) Amendment to Articles of Organization. Amend, modify, or otherwise
-------------------------------------
make any change to its Articles of Organization or Operating Agreement
which change in any way would nullify or circumvent the limitations on its
business activities, the nature of its separate existence from its
affiliates and the requisite directors' consents for taking certain
actions.
(g) Debt. Create, assume or suffer to exist any indebtedness for
----
borrowed money (excluding any indebtedness arising hereunder).
(h) Permitted Investments. Make any loans to, advances to, investments
---------------------
in or otherwise acquire any capital stock or equity security of, or any
equity interest in, any other Person.
(i) Restricted Payments. Make any cash payments to, or otherwise
-------------------
transfer any funds to, any of its Affiliates, except for (i) payments of
the "Purchase Price" under the Originator Agreement, (ii) payments owed for
15
shared operating expenses or allocated tax liabilities in accordance with
the representations and warranties set forth in Section 4.01(o), (iii)
dividends which are declared by the Seller's Board of Managers in
accordance with all formalities of limited liability company law and which
are made no more frequently than monthly, and (iv) so long as the Parent
maintains a senior unsecured long-term debt of at least BBB- by S&P and
Baa3 by ▇▇▇▇▇'▇, then the Seller may allow the Collection Agent to invest
Collections in short-term demand notes of the Parent, which notes are
evidenced in writing and contain arms'-length terms consistent with those
on which the Parent could borrow in the commercial paper market.
(j) Limited Business. Conduct any business with any Person, or enter
----------------
into any transactions with Affiliates or other Persons, except those that
are specifically contemplated under the Originator Agreement and this
Agreement and to the extent consistent with the representations and
warranties set forth in Section 4.01(_).
(k) Subsidiaries. Have any subsidiaries.
------------
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Collection Agent. The Purchaser shall
-------------------------------
have, as against the Seller, the sole right to service, administer and collect
the Pool Receivables. Notwithstanding the foregoing, the servicing,
administering and collection of the Pool Receivables shall be conducted by such
Person (the "Collection Agent") so designated from time to time in accordance
with this Section 6.01. Until the Purchaser gives notice to the Seller of a
designation of a new Collection Agent, Services is hereby designated as, and
hereby agrees to perform the duties and obligations of, the Collection Agent
pursuant to the terms hereof. The Purchaser may at any time after the occurrence
of a Designated Event designate as Collection Agent any Person (including
itself) to succeed Services or any successor Collection Agent, on the condition
in each case that any such Person so designated shall agree to perform the
duties and obligations of the Collection Agent pursuant to the terms hereof. The
Collection Agent may subcontract with the Originator or, with the prior consent
of the Purchaser, subcontract with any other Person for servicing, administering
or collecting the Pool Receivables, provided that the Collection Agent shall
--------
remain liable for the performance of the duties and obligations of the
Collection Agent pursuant to the terms hereof. The Purchaser shall pay to the
Collection Agent (other than Services who shall be paid a fee pursuant to
Section 2.10 of the ▇▇▇▇▇▇ Agreement) a collection fee (the "Collection Agent
Fee") of 1/4 of 1% per annum on the average daily amount of Capital of each
Share, from the date of the initial Purchase under the ▇▇▇▇▇▇ Agreement until
the later of the Facility Termination Date or the date on which such Capital is
reduced to zero, payable on the last day of each Settlement Period for such
Share; provided, however, that, upon three Business Days' notice to the
-------- -------
Purchaser, the Collection Agent may (if not Services) elect to be paid, as such
fee, another percentage per annum on the average daily amount of Capital of each
16
such Share, but in no event in excess of 110% of all reasonable and appropriate
out-of-pocket costs and expenses of such Collection Agent of servicing,
collecting and administering the Pool Receivables.
SECTION 6.02. Duties of Collection Agent. (a) The Collection Agent
--------------------------
shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Pool 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. The Purchaser hereby
appoints as its agent the Collection Agent, from time to time designated
pursuant to Section 6.01, to enforce its respective rights and interests in and
under the Pool Receivables, the Related Security and the Contracts. The
Collection Agent shall set aside and hold in trust for the account of the
Purchaser the Collections of Pool Receivables but shall not be required (unless
otherwise requested by the Purchaser) to segregate the funds constituting such
portion of such Collections prior to the remittance thereof. If instructed by
the Purchaser, the Collection Agent shall segregate and deposit with a bank
designated by the Purchaser Collections of Pool Receivables, on the first
Business Day following receipt by the Collection Agent of such Collections.
Provided no Event of Termination or Event of Purchase Ineligibility shall have
occurred and be continuing, Services, while it is the Collection Agent, may, in
accordance with the Credit and Collection Policy, extend the maturity or adjust
the Outstanding Balance of any Defaulted Receivable as Services may determine to
be appropriate to maximize Collections thereof. The Seller shall deliver to the
Collection Agent, and the Collection Agent shall hold in trust for the
Purchaser, all documents, instruments and records (including, without
limitation, computer tapes or disks) which evidence or relate to Pool
Receivables.
(b) The Collection Agent shall as soon as practicable following
receipt turn over to the Seller the Collections of any Receivable which is not a
Pool Receivable. The Collection Agent, if other than Services, shall as soon as
practicable upon demand deliver to the Seller all documents, instruments and
records in its possession which evidence or relate to Receivables of the Seller
other than Pool Receivables, and copies of documents, instruments and records in
its possession which evidence or relate to Pool Receivables.
SECTION 6.03. Rights of the Agent. (a) The Purchaser is hereby
-------------------
authorized to notify at the Seller's expense the Obligors of Pool Receivables,
or any of them, of the ownership thereof by the Purchaser.
(b) At any time following the designation of a Collection Agent other
than Services pursuant to Section 6.01:
(i) The Purchaser may direct the Obligors of Pool Receivables, or any
of them, that payment of all amounts payable under any Pool Receivable be
made directly to the Purchaser or its designee.
17
(ii) The Seller shall, at the Purchaser's request and at the Seller's
expense, give notice of such ownership to each said Obligor and direct that
payments be made directly to the Purchaser or its designee.
(iii) The Seller shall, at the Purchaser's request, (A) assemble all
of the documents, instruments and other records (including, without
limitation, computer tapes and disks) which evidence the Pool Receivables,
and the related Contracts and Related Security, or which are otherwise
necessary or desirable to collect such Pool Receivables, and shall make the
same available to the Purchaser at a place selected by the Purchaser or its
designee, and (B) segregate all cash, checks and other instruments received
by it from time to time constituting Collections of Pool Receivables in a
manner acceptable to the Purchaser and shall, promptly upon receipt, remit
all such cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to the Purchaser or its designee.
(iv) The Seller hereby authorizes the Purchaser (or the Agent on the
Purchaser's behalf) to take any and all steps in the Seller's name and on
behalf of the Purchaser necessary or desirable, in the determination of the
Purchaser (or the Agent on its behalf), to collect all amounts due under
any and all Pool Receivables, including, without limitation, endorsing the
Seller's name on checks and other instruments representing Collections and
enforcing such Pool Receivables and the related Contracts.
SECTION 6.04. Responsibilities of the Seller. Anything herein to the
------------------------------
contrary notwithstanding:
(a) the Seller shall (i) perform all of its obligations under the
Contracts related to the Pool Receivables to the same extent as if the Pool
Receivables had not been sold hereunder and the exercise by the Purchaser
of its rights hereunder shall not relieve the Seller from such obligations
or its obligations with respect to Pool Receivables and (ii) pay when due
any taxes (other than taxes based upon or measured by income of the
Purchaser, the Agent or any Owner), including without limitation, sales and
excise taxes, payable in connection with the Pool Receivables; and
(b) except as otherwise contemplated in this Agreement, neither the
Purchaser nor any of its successors-in-interest shall have any obligation
or liability with respect to any Pool Receivables or related Contracts, nor
shall any of them be obligated to perform any of the obligations of the
Seller thereunder.
SECTION 6.05. Further Action Evidencing Purchases. The 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
Purchaser may reasonably request in order to perfect, protect or more fully
evidence the Pool Receivables purchased by the Purchaser hereunder, or to enable
18
the Purchaser or any of the Owners or the Agent to exercise or enforce any of
their respective rights hereunder or under the Ownership Document, the ▇▇▇▇▇▇
Agreement or the Citibank Agreement. Without limiting the generality of the
foregoing, the Seller will upon the request of the Purchaser: (i) 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; (ii) ▇▇▇▇ conspicuously each invoice evidencing each Pool
Receivable and the related Contract with a legend, acceptable to the Purchaser
and not unacceptable to the Seller acting reasonably, evidencing that such Pool
Receivables have been sold in accordance with this Agreement; and (iii) ▇▇▇▇ its
master data processing records evidencing such Pool Receivables and related
Contracts with such legend. If the Seller does not execute and file or execute
and return to the Purchaser any financing statement requested by the Purchaser
pursuant to this Section within 20 days after the Purchaser's request, the
Seller hereby authorizes the Purchaser to file such financing statement without
the signature of the Seller where permitted by law, provided that the collateral
description contained in such financing statement shall be identical to that set
forth in the financing statements referred to in Section 4.01(c). If the Seller
fails to perform any of its agreements or obligations under this Agreement, the
Purchaser may (but shall not be required to) itself perform, or cause
performance of, such agreement or obligation, and the expenses of the Purchaser
incurred in connection therewith shall be payable by the Seller as provided in
Section 10.01 or 11.06, as applicable.
ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01. Events of Termination. If an Event of Termination shall
---------------------
occur and be continuing then, and in any such event, the Purchaser (or the Agent
on its behalf) may by notice to the Seller declare the termination date (the
"Termination Date") to have occurred and request the Seller (or, if a Collection
Agent has been appointed pursuant to Section 6.01, the Collection Agent) to turn
over to the Agent for the account of the Purchaser or its designee all
Collections received by the Seller or the Collection Agent prior to such time
and not previously paid over to the Purchaser or its designee, whereupon the
Seller or the Collection Agent, as the case may be, immediately shall be
required to turn such amounts over to the Agent, except that, in the case of any
------
event described in clause (i) of subsection (f), or in subsection (e), of
Section 7.01 of the ▇▇▇▇▇▇ Agreement, the Termination Date shall be deemed to
have occurred automatically upon the occurrence of such event and the Seller or
the Collection Agent, as the case may be, automatically shall be obligated to
turn such amounts over to the Agent upon the occurrence of such event to have
occurred. Upon the occurrence of any Event of Termination, the Agent and the
Owners shall have, in addition to all other rights and remedies under this
Agreement or otherwise, all other rights and remedies provided under the UCC of
the applicable jurisdiction and other applicable laws, which rights shall be
cumulative.
19
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Indemnities by the Seller. Without limiting any other
-------------------------
rights which the Purchaser may have hereunder or under applicable law, the
Seller hereby agrees to indemnify the Purchaser from and against any and all
damages, losses, claims, liabilities and related costs and expenses, including
reasonable attorneys' fees and disbursements and including any "Indemnified
Amounts" owed by the Purchaser under Section 10.01 or 11.06 of the ▇▇▇▇▇▇
Agreement or the Citibank Agreement (all of the foregoing being collectively
referred to as "Indemnified Amounts") awarded against or incurred by the
Purchaser arising out of or as a result of this Agreement or the use of proceeds
of Purchases or the ownership of Pool Receivables, excluding, however, (i)
Indemnified Amounts to the extent resulting from negligence or willful
misconduct on the part of the Agent, the Investor or CNA or any of their
Affiliates or (ii) recourse (except as otherwise specifically provided in this
Agreement) for uncollectible Receivables. Without limiting or being limited by
the foregoing, the Seller shall pay on demand to the Purchaser and its
successors in interest any and all amounts necessary to indemnify any of them
for Indemnified Amounts relating to or resulting from:
(i) the creation of an ownership interest in any Receivable which is
not at the date of the creation of such interest an Eligible Receivable or
which thereafter ceases to be an Eligible Receivable;
(ii) reliance on any representation or warranty made by the Seller or
the Originator or Services or the Parent (or any of their respective
officers) under or in connection with this Agreement, the Originator
Agreement, or the Parent Agreement, any Investor Report or any other
information or report delivered by the Seller or Services or the Parent
pursuant hereto or thereto, which shall have been false or incorrect in any
material respect when made or deemed made;
(iii) the failure by the Seller or the Originator or Services to
comply with any applicable law, rule or regulation with respect to any Pool
Receivable or the related Contract, or the nonconformity of any Pool
Receivable or the related Contract with any such applicable law, rule or
regulation;
(iv) the failure to vest in the Purchaser an ownership interest in the
Receivables in, or purporting to be in, the Receivables Pool, free and
clear of any Adverse Claim other than the interest of the Purchaser
(whether or not such Adverse Claim is specifically contemplated by this
Agreement);
(v) the failure by the Originator or the Seller to file, 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 in, or purporting to be in, the Receivables
20
Pool, whether at the time of any Purchase or reinvestment or at any
subsequent time;
(vi) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
in, or purporting to be in, the Receivables Pool (including, without
limitation, a defense based on such Receivable or the related Contract not
being a legal, valid and binding obligation of such Obligor), or any other
claim resulting from the sale of the electricity, gas, water or services
related to such Receivable or the furnishing or failure to furnish such
electricity, gas, water or services;
(vii) any failure of the Seller or Services, as Collection Agent or
otherwise, to perform its duties or obligations in accordance with the
provisions of Article VI;
(viii) any products liability claim arising out of or in connection
with the electricity, gas, water or services which are the subject of any
Contract; or
(ix) the commingling of Collections of Pool Receivables at any time
with other funds.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
---------------
of this Agreement, nor consent to any departure by the Seller or the Collection
Agent therefrom, shall in any event be effective unless the same shall be in
writing and signed by (i) the Seller, the Purchaser, the Collection Agent, the
Agent, the Investor and CNA (with respect to an amendment) or (ii) CNA and the
Agent (with respect to a waiver or consent by them) or the Seller (with respect
to a waiver or consent by it) or the Collection Agent (with respect to a waiver
or consent by it), as the case may be, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. This Agreement contains a final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, superseding all prior
oral or written understandings.
SECTION 9.02. Notices, Etc. All notices and other communications
------------
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telecopier or telex communication) and mailed or telecopied, telexed
or delivered, as to each party hereto, at its address set forth under its name
on the signature pages hereof or, in the case of the Agent or the Owners, at the
address specified in the ▇▇▇▇▇▇ Agreement, or at such other address as shall be
designated by such party in a written notice to the other parties hereto. All
such notices and communications shall be effective, in the case of notice by
21
mail, when deposited in the mails, and, in the case of notice by telecopier or
telex, when telecopied or telexed and appropriate confirmation is received, in
each case addressed as aforesaid.
SECTION 9.03. No Waiver; Remedies. No failure on the part of the
-------------------
Purchaser to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law. Without limiting the foregoing, the
Purchaser is hereby authorized by the Seller at any time and from time to time
following the occurrence of an Event of Termination, to the fullest extent
permitted by law, to instruct Citibank or any Affiliate of Citibank to set-off
and apply any and all deposits (whether general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by Citibank or such Affiliate to or for the credit or the account of the Seller
against any and all of the obligations of the Seller, now or hereafter existing
under this Agreement, to the Purchaser in order to satisfy any obligations of
the Purchaser to the Agent or any Owner or their respective successors and
assigns under the ▇▇▇▇▇▇ Agreement or the Citibank Agreement irrespective of
whether or not demand therefor shall have been made under this Agreement and
although such obligations may be contingent and unmatured. The Seller
acknowledges that the rights of the Purchaser or any of its successors and
assigns described in this paragraph are in addition to other rights and remedies
(including, without limitation, other rights of set-off) such parties may have.
SECTION 9.04. Binding Effect; Assignability. (a) This Agreement shall
-----------------------------
be binding upon and inure to the benefit of each of the Seller and the Purchaser
and their respective successors and assigns; provided, however, that the Seller
-------- -------
may not assign its rights or obligations hereunder or any interest herein
without the prior written consent of the Purchaser.
(b) Without limiting the foregoing, the Seller acknowledges that the
Purchaser has and intends to sell percentage interests in the Receivables
pursuant to the ▇▇▇▇▇▇ Agreement and/or the Citibank Agreement, including,
without limitation, (i) the right of the Purchaser, at any time, to enforce this
Agreement against the Seller and (ii) the right, at any time, to give or
withhold consents, requests, notices, directions, approvals, demands, extensions
or waivers under or with respect to this Agreement, or the obligations in
respect of the Seller and the Collection Agent hereunder to the same extent as
the Purchaser may do. The Seller agrees that the Agent (and any other permitted
assignee of the Purchaser or the Agent under the ▇▇▇▇▇▇ Agreement or the
Citibank Agreement) shall have the right, as the assignee of the Purchaser (or
the assignee of such assignee), to enforce this Agreement and to exercise
directly all of the Purchaser's rights and remedies under this Agreement to the
same extent as the Purchaser might do. The Seller further agrees (i) to send to
the Agent a copy of all notices, financial statements and certificates required
to be given by the Seller to the Purchaser hereunder and (ii) upon its receipt
22
of a notice of further assignment by the Purchaser or an assignee of the
Purchaser, to send the assignee identified in such notice a copy of all such
notices and other statements and certificates required to be given by the Seller
to the Purchaser hereunder. The Purchaser and the Seller each hereby acknowledge
and agree that the Agent and the other parties to the ▇▇▇▇▇▇ Agreement and the
Citibank Agreement have each relied upon the terms and provisions set forth in
this Agreement in entering into such agreements.
(c) 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 such time, after the Facility Termination Date,
as no Capital of any Share shall be outstanding and all other amounts then due
and payable under this Agreement shall have been paid; provided, however, that
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rights and remedies with respect to any breach of (i) any representation and
warranty made by the Seller pursuant to Article IV, (ii) any covenant made by
the Seller pursuant to Section 9.07 or 9.08, and (iii) the indemnification and
reimbursement provisions of Article VIII and Section 9.06 shall be continuing
and shall survive any termination of this Agreement.
SECTION 9.05. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE
EXTENT THAT THE PERFECTION OF THE INTERESTS OF THE PURCHASER IN THE POOL
RECEIVABLES, OR REMEDIES HEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS
OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 9.06. Costs and Expenses. In addition to the rights of
------------------
indemnification granted to the Purchaser and its successors in interest under
Article VIII hereof, the Seller agrees to pay on demand all costs and expenses
in connection with the preparation, execution, delivery and administration
(including periodic auditing) of this Agreement, the Ownership Document and the
other documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses owed by the Purchaser to other
parties under Section 11.06 of the ▇▇▇▇▇▇ Agreement.
SECTION 9.07. No Proceedings. The Seller hereby agrees that it will
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not institute against the Investor any proceeding of the type referred to in
clause (i) of Section 7.01(f) of the ▇▇▇▇▇▇ Agreement so long as any commercial
paper issued by the Investor shall be outstanding or there shall not have
elapsed one year plus one day since the last day on which any such commercial
paper shall have been outstanding.
SECTION 9.08. Confidentiality. Except to the extent required by
---------------
applicable law, each of the Seller and Services agrees to maintain the
confidentiality of this Agreement (and all drafts thereof) in communications
with third parties and otherwise; provided, however, that the Agreement may be
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disclosed to third parties to the extent such disclosure is (i) required in
23
connection with a sale of securities of the Seller or Services, (ii) made solely
to persons who are legal counsel for the purchaser or underwriter of such
securities, (iii) limited in scope to the provisions of Articles V, VII, VIII
and, to the extent defined terms are used in Articles V, VII and VIII, such
terms defined in Article I of this Agreement and (iv) made pursuant to a written
agreement of confidentiality in form and substance reasonably satisfactory to
the Agent; provided, further, however, that the Agreement may be disclosed to
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the Seller's or Service's legal counsel and auditors if they agree to hold the
same confidential; and provided, further, however, that neither the Seller nor
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Services shall have any obligation of confidentiality in respect of any
information which may be generally available to the public or becomes available
to the public through no fault of the Seller or Services, except that neither
the Seller nor Services will take any affirmative actions to further disclose
such information (except to the extent otherwise permitted by this Section).
SECTION 9.09. Execution in Counterparts. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
[SPV]
By
-------------------------------------
Title:
---------------------------------
[address]
ALLIANT ENERGY SPE LLC
By
-------------------------------------
Title:
---------------------------------
[address]
24
ALLIANT ENERGY CORPORATE SERVICES, INC.
By
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Title:
---------------------------------
[address]
25
EXHIBIT A
OWNERSHIP DOCUMENT
Dated as of ,
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Reference is made to the Receivables Purchase and Sale Agreement,
dated as of the date hereof (the "Agreement"), between SPE LLC, ALLIANT
----
ENERGY CORPORATE SERVICES, INC., and ALLIANT ENERGY SPE LLC. The terms defined
in the Agreement are used herein as therein defined.
The Seller hereby sells and assigns to the Purchaser each Pool
Receivable purchased in each Purchase from the Seller by the Purchaser under the
Agreement.
This Ownership Document is made without recourse except as otherwise
provided in the Agreement.
THIS OWNERSHIP DOCUMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Ownership Document
to be duly executed and delivered by its duly authorized officer as of the date
first above written.
SPE LLC
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By
-------------------------------------
Title: