1
EXHIBIT 4.1
U.S. RECEIVABLES SALE AGREEMENT
DATED AS OF JULY 2, 2001
AMONG
WEATHERFORD ARTIFICIAL LIFT SYSTEMS, INC., WEATHERFORD U.S., L.P.
AND EACH OF THEIR U.S. AFFILIATES WHO HEREAFTER BECOMES
A ORIGINATOR HEREUNDER,
AS SELLERS,
AND
W1 RECEIVABLES, L.P.,
AS PURCHASER
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I. AMOUNTS AND TERMS OF THE PURCHASES.....................................................................1
Section 1.1 Purchases of U.S. Receivables...................................................................1
Section 1.2 Payment for the Purchases.......................................................................2
Section 1.3 Purchase Price Credit Adjustments...............................................................3
Section 1.4 Payments and Computations, Etc..................................................................4
Section 1.5 Transfer of Records.............................................................................4
Section 1.6 Characterization; Granting Clause...............................................................5
ARTICLE II. REPRESENTATIONS AND WARRANTIES........................................................................5
Section 2.1 Representations of the Originators..............................................................5
(a) Existence and Power...................................................................................5
(b) Power and Authority; Due Authorization, Execution and Delivery........................................5
(c) No Conflict...........................................................................................5
(d) Governmental Authorization............................................................................6
(e) Actions, Suits........................................................................................6
(f) Binding Effect........................................................................................6
(g) Accuracy of Information...............................................................................6
(h) Use of Proceeds.......................................................................................6
(i) Good Title............................................................................................7
(j) Perfection............................................................................................7
(k) Chief Executive Offices and Locations of Records......................................................7
(l) Collections...........................................................................................7
(m) Material Adverse Effect...............................................................................7
(n) Names.................................................................................................7
(o) Ownership of Originators..............................................................................7
(p) Not a Holding Company or an Investment Company........................................................7
(q) Compliance with Law...................................................................................8
(r) Compliance with Credit and Collection Policy..........................................................8
(s) Enforceability of Invoices............................................................................8
(t) Accounts..............................................................................................8
(u) Accounting............................................................................................8
ARTICLE III. CONDITIONS OF PURCHASES..............................................................................9
Section 3.1 Conditions Precedent to Initial Purchase........................................................9
Section 3.2 Conditions Precedent to All Purchases...........................................................9
Section 3.3 Reaffirmation of Representations and Warranties.................................................9
ARTICLE IV. COVENANTS.............................................................................................9
Section 4.1 Affirmative Covenants...........................................................................9
(a) Reporting............................................................................................10
(i) Annual Reporting..................................................................................10
(ii) Quarterly Reporting...............................................................................10
(iii) Shareholders Statements and Reports...............................................................10
(iv) Change in Credit and Collection Policy............................................................10
(v) Other Information.................................................................................10
i
3
(b) Notices..............................................................................................10
(i) Termination Events or Potential Termination Events................................................10
(ii) Judgment and Proceedings..........................................................................10
(iii) Material Adverse Effect...........................................................................11
(iv) Defaults Under Other Agreements...................................................................11
(c) Compliance with Laws and Preservation of Corporate Existence.........................................11
(d) Audits...............................................................................................11
(e) Keeping and Marking of Records and Books.............................................................11
(f) Compliance with Contracts, Invoices and Credit and Collection Policy.................................12
(g) Ownership............................................................................................12
(h) W1R Separateness.....................................................................................12
(i) Collections..........................................................................................13
(j) Taxes................................................................................................13
Section 4.2 Negative Covenants.............................................................................13
(a) Name Change, Offices and Records.....................................................................13
(b) Change in Payment Instructions to Obligors...........................................................13
(c) Modifications to Invoices............................................................................14
(d) Sales, Liens.........................................................................................14
(e) Deposits to Collection Accounts......................................................................14
(f) Mergers, Consolidations and Acquisitions.............................................................14
(g) U.S. Receivables Not to be Evidenced by Promissory Notes.............................................15
(h) Accounting for Purchases.............................................................................15
(i) W1R's Ownership Interest.............................................................................15
ARTICLE V. JOINDER OF ADDITIONAL ORIGINATORS.....................................................................15
Section 5.1 Addition of New Originators....................................................................15
Section 5.2 Documentation..................................................................................15
ARTICLE VI. TERMINATION EVENTS...................................................................................16
Section 6.1 Termination Events.............................................................................16
Section 6.2 Remedies.......................................................................................16
ARTICLE VII. INDEMNIFICATION.....................................................................................17
Section 7.1 Indemnities by the Originators.................................................................17
Section 7.2 Costs, Expenses and Taxes......................................................................19
ARTICLE VIII. MISCELLANEOUS......................................................................................20
Section 8.1 Waivers and Amendments.........................................................................20
Section 8.2 Notices, Etc...................................................................................20
Section 8.3 Confidentiality................................................................................20
Section 8.4 Bankruptcy Petition............................................................................21
Section 8.5 Limitation of Liability........................................................................21
Section 8.6 Rights of W1R..................................................................................22
Section 8.7 Responsibilities of the Originators............................................................22
(a) Performance Under Contracts..........................................................................22
(b) Power of Attorney....................................................................................22
ii
4
Section 8.8 Further Action Evidencing Purchases............................................................22
Section 8.9 Application of Collections.....................................................................23
Section 8.10 Cumulative Remedies............................................................................23
Section 8.11 Binding Effect; Assignability..................................................................23
Section 8.12 Acknowledgment and Agreement...................................................................23
Section 8.13 Governing Law..................................................................................24
Section 8.14 Waiver of Jury Trial...........................................................................24
Section 8.15 Captions and Cross References; Incorporation by Reference......................................24
Section 8.16 Execution in Counterparts......................................................................24
iii
5
U.S. RECEIVABLES SALE AGREEMENT
THIS
U.S. RECEIVABLES SALE AGREEMENT (as amended,
supplemented, restated or otherwise modified from time to time, this
"AGREEMENT"), dated as of July 2, 2001, is entered into by and among:
(1) Weatherford Artificial Lift Systems, Inc., a
Delaware corporation, and Weatherford U.S., L.P., a Louisiana limited
partnership (collectively, the "INITIAL ORIGINATORS"), as sellers, and
(2) W1 Receivables, L.P., a
Texas limited partnership
("W1R"), as purchaser.
UNLESS OTHERWISE INDICATED, CAPITALIZED TERMS USED IN THIS AGREEMENT ARE DEFINED
IN EXHIBIT A HERETO OR IN THE U.S. RECEIVABLES PURCHASE AGREEMENT REFERENCED
THEREIN.
WITNESSETH:
WHEREAS, the Originators desire to sell to W1R certain U.S.
Receivables and Related Security owned from time to time by the
Originators, and
WHEREAS, W1R is willing, on the terms and subject to the
conditions set forth herein, to purchase U.S. Receivables and Related
Security from the Originators.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1 Purchases of U.S. Receivables.
(a) Effective on the Applicable Closing Date for each
Originator, in consideration for the Purchase Price and upon the terms and
subject to the conditions set forth herein, each Originator does hereby sell,
assign, transfer, set-over and otherwise convey to W1R, without recourse (except
to the extent expressly provided herein), and W1R does hereby purchase from such
Originator, all of such Originator's right, title and interest in and to such
Originator's Initial U.S. Receivables and all Related Security with respect
thereto.
(b) Effective on each Business Day after each Originator's
Applicable Closing Date and prior to such Originator's Sale Termination Date, in
consideration for the Purchase Price and upon the terms and subject to the
conditions set forth herein, such Originator does hereby sell, assign, transfer,
set-over and otherwise convey to W1R, without recourse (except to the extent
expressly provided herein), and W1R does hereby purchase from such Originator,
all
1
6
of such Originator's right, title and interest in and to such Originator's
Additional U.S. Receivables and all Related Security with respect thereto.
(c) In addition to, and not in limitation of, the foregoing,
in connection with the payment of the Purchase Price for any U.S. Receivables
purchased hereunder, W1R may request that the applicable Originator deliver, and
such Originator shall deliver, such approvals, opinions, information or
documents as W1R may reasonably request.
(d) It is the intention of the parties hereto that each sale
of U.S. Receivables made hereunder shall constitute, and the parties hereto
hereby characterize each such transaction as, a "sale of accounts" (as such term
is used in Article 9 of the UCC), which sale is absolute and irrevocable, and
the effect of such sale is to transfer and pass to W1R title, both legal and
equitable, to such U.S. Receivables so sold and shall provide W1R with the full
benefits of ownership of the U.S. Receivables and the associated Related
Security. Except for the Purchase Price Credits owed pursuant to Section 1.3,
each sale of U.S. Receivables hereunder is made without recourse to the
applicable Originator; provided, however, that (i) each Originator shall be
liable to W1R for all representations, warranties, covenants and indemnities
made by such Originator pursuant to the terms of the Transaction Documents to
which such Originator is a party, and (ii) such sale does not constitute and is
not intended to result in an assumption by W1R or any assignee thereof of any
obligation of such Originator or any other Person arising in connection with the
U.S. Receivables, the related Contracts or Invoices and/or other Related
Security or any other obligations of such Originator. In view of the intention
of the parties hereto that the acquisitions of U.S. Receivables made hereunder
shall constitute outright sales of such U.S. Receivables rather than loans
secured thereby, each Originator agrees that it will, on or prior to its
Applicable Closing Date, ▇▇▇▇ its master data processing records relating to its
U.S. Receivables with the legend stating that W1R has purchased such U.S.
Receivables and has subsequently sold interests in them to the Agent, for the
benefit of various Purchasers, and to note in its financial statements that its
U.S. Receivables have been sold to W1R. Upon the request of W1R or the Agent,
each Originator will execute and file such financing or continuation statements,
or amendments thereto or assignments thereof, and such other instruments or
notices, as may be necessary or appropriate to perfect and maintain the
perfection of W1R's ownership interest in the U.S. Receivables and the Related
Security or as W1R or the Agent may reasonably request.
Section 1.2 Payment for the Purchases.
(a) The Purchase Price for each purchase of Initial U.S.
Receivables and Related Security from any Originator shall be payable in full by
W1R to such Originator on such Originator's Applicable Closing Date, and shall
be paid to such Originator:
(i) by delivery of immediately available funds, and/or
(ii) by delivery of the proceeds of a Subordinated Loan made
by the applicable Originator to W1R in a principal amount not to exceed
the lesser of (A)
2
7
the remaining unpaid portion of such Purchase Price, and (B) 15% of
such Purchase Price.
(b) The Purchase Price for each purchase of Additional U.S.
Receivables and Related Security shall be due and owing in full by W1R to the
applicable Originator on the date of such purchase (except that W1R may, with
respect to any such purchase, offset against such Purchase Price any amounts
owed by such Originator to W1R hereunder which have become due but remain
unpaid) and shall be paid to such Originator on the next subsequent Settlement
Date by W1R:
(i) by delivery of immediately available funds, and/or
(ii) by delivery of the proceeds of a Subordinated Loan made
by the applicable Originator to W1R in a principal amount not to exceed
the lesser of (A) the remaining unpaid portion of such Purchase Price,
and (B) 15% of such Purchase Price.
(c) Subject to the limitations set forth in Section 1.2(a)(ii)
and Section 1.2(b)(ii), each of the Originators irrevocably agrees to advance
each Subordinated Loan requested by W1R to be made by such Originator on or
prior to such Originator's Sale Termination Date. The Subordinated Loans owing
to each Originator shall be evidenced by, and shall be payable in accordance
with the terms and provisions of, its Subordinated Note. Each Originator is
hereby authorized by W1R to endorse on the schedule attached to its Subordinated
Note an appropriate notation evidencing the date and amount of each Subordinated
Loan thereunder, as well as the date of each payment with respect thereto,
provided that the failure to make such notation shall not affect any obligation
of W1R thereunder. Although the Purchase Price for each purchase of Additional
U.S. Receivables and Related Security shall be due and payable in full by W1R to
the applicable Originator on the date of such purchase, settlement of the
Purchase Price between W1R and such Originator shall be effected on Settlement
Dates with respect to all purchases within the prior calendar week. Although
cash settlements shall be effected on Settlement Dates, increases or decreases
in the Subordinated Loans shall be deemed to have occurred and shall be
effective as of the last Business Day of the calendar week to which such
settlement relates.
Section 1.3 Purchase Price Credit Adjustments. If on any day,
any Originator is deemed to have received a Deemed Collection with respect to
any U.S. Receivable sold by it to W1R hereunder, then, in such event, W1R shall
be entitled to a credit (each, a "PURCHASE PRICE CREDIT") against the Purchase
Price otherwise payable to such Originator hereunder in an amount equal to such
Deemed Collection. If such Purchase Price Credit exceeds the original
Outstanding Balance of the U.S. Receivables to be sold by the applicable
Originator on the date of a purchase, then the applicable Originator shall pay
the remaining amount of such Purchase Price Credit in cash not later than the
next Settlement Date; PROVIDED THAT if such Originator's Sale Termination Date
has not occurred, such Originator shall be allowed to deduct the remaining
amount of such Purchase Price Credit from any indebtedness owed to it under its
Subordinated Note to the extent permitted thereunder.
3
8
Section 1.4 Payments and Computations, Etc. All amounts to be
paid or deposited by W1R hereunder shall be paid or deposited in accordance with
the terms hereof on the day when due in immediately available funds to the
account of the applicable Originator designated from time to time by such
Originator or as otherwise directed by such Originator. In the event that any
payment owed by any Person hereunder becomes due on a day that is not a Business
Day, then such payment shall be made on the next succeeding Business Day. If any
Person fails to pay any amount hereunder when due, such Person agrees to pay, on
demand, interest on the past due amount at the Default Rate until paid in full;
provided, however, that such interest shall not at any time exceed the maximum
rate permitted by applicable law.
Section 1.5 Transfer of Records.
(a) In connection with the sales of U.S. Receivables
hereunder, each Originator hereby sells, transfers, assigns and otherwise
conveys to W1R all of such Originator's right and title to and interest in the
Records relating to all U.S. Receivables sold by such Originator hereunder,
without the need for any further documentation in connection with any sale. In
connection with such transfer, each Originator hereby grants to each of W1R (the
Agent, as W1R's assignee) and the Servicer an irrevocable, non-exclusive license
to use, without royalty or payment of any kind, all software used by such
Originator to account for its U.S. Receivables, to the extent necessary to
administer such U.S. Receivables, whether such software is owned by such
Originator or is owned by others and used by such Originator under license
agreements with respect thereto, provided that should the consent of any
licensor of such Originator to such grant of the license described herein be
required, such Originator hereby agrees that upon the request of W1R (or the
Agent, as W1R's assignee) or the Servicer, such Originator will use its
reasonable efforts to obtain the consent of such third-party licensor and until
such consent is obtained, no license is granted to W1R or the Agent hereunder
with respect to the software requiring consent. The license granted hereby shall
be irrevocable, and shall terminate on the date on which all Aggregate Unpaids
under the U.S. Receivables Purchase Agreement have been paid in full.
(b) Each Originator (i) shall take such action requested by
W1R (or the Agent, as W1R's assignee) from time to time hereafter, that may be
necessary or reasonably appropriate to ensure that W1R has an enforceable
ownership interest in the Records relating to the U.S. Receivables sold by such
Originator to W1R hereunder, and (ii) shall use its reasonable efforts to ensure
that W1R and the Servicer each has an enforceable right (whether by license or
sublicense or otherwise) to use all of the computer software used to account for
such U.S. Receivables and/or to recreate such Records.
4
9
Section 1.6 Characterization; Granting Clause. If,
notwithstanding the intention of the parties expressed in Section 1.1(c), any
sale to W1R of U.S. Receivables hereunder shall be characterized by a court of
competent jurisdiction as a secured loan and not as a sale or other absolute
transfer, then this Agreement shall be deemed to constitute a security agreement
under the UCC and other applicable law, and for this purpose and without being
in derogation of the parties' intention that each sale of U.S. Receivables
hereunder shall constitute a true sale thereof, each of the Originators shall be
deemed (if any such sale is deemed to constitute a secured loan) to have created
in favor of W1R a duly perfected security interest in all of such Originator's
right, title and interest in, to and under all of such Originator's U.S.
Receivables now existing and hereafter arising, and in all Related Security with
respect thereto, which security interest shall be prior to all other Adverse
Claims thereto. From and after an Originator's Sale Termination Date, W1R and
its assigns shall have as against such Originator, in addition to the rights and
remedies which they may have under this Agreement, all other rights and remedies
provided to a secured creditor after default under the UCC and other applicable
law, which rights and remedies shall be cumulative.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations of the Originators. In order to
induce W1R to enter into this Agreement and to make purchases hereunder, each
Originator hereby makes the following representations and warranties, as to
itself, as of the date of each sale by it hereunder:
(a) Existence and Power. Such Originator is duly organized,
validly existing and in good standing under the laws of its state of
organization. Such Originator is duly qualified to do business and is in good
standing as a foreign corporation or limited liability company, as the case may
be, and has and holds all organizational power and all governmental licenses,
authorizations, consents and approvals required to carry on its business in each
jurisdiction in which its business is conducted where the failure to so qualify
or so hold could reasonably be expected to have a Material Adverse Effect.
(b) Power and Authority; Due Authorization, Execution and
Delivery. The execution and delivery by such Originator of this Agreement (or a
Joinder Agreement) and each other Transaction Document to which it is a party,
and the performance of its obligations hereunder and thereunder, and such
Originator's use of the proceeds of purchases made hereunder, are within its
corporate or limited liability company, as applicable, powers and authority and
have been duly authorized by all necessary corporate or limited liability
company, as applicable, action on its part. This Agreement (or a Joinder
Agreement) and each other Transaction Document to which such Originator is a
party has been duly executed and delivered by such Originator.
(c) No Conflict. The execution and delivery by such Originator
of this Agreement (or a Joinder Agreement) and each other Transaction Document
to which it is a party, and the performance of its obligations hereunder and
thereunder do not breach or violate (i) its Organic Documents, (ii) any law,
rule or regulation applicable to it, (iii) any restrictions under
5
10
any agreement, contract or instrument to which it is a party or by which it or
any of its property is bound, or (iv) any order, writ, judgment, award,
injunction or decree binding on or affecting it or its property, and do not
result in the creation or imposition of any Adverse Claim on assets of such
Originator or its Subsidiaries (other than as created under the Transaction
Documents), in any case, where such breach or violation could reasonably be
expected to have a Material Adverse Effect, and no transaction contemplated
hereby requires compliance with any bulk sales act.
(d) Governmental Authorization. Other than the filing of the
financing statements required hereunder, no authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution and delivery by such
Originator of this Agreement (or a Joinder Agreement) and each other Transaction
Document to which it is a party and the performance of its obligations hereunder
and thereunder.
(e) Actions, Suits. Except as disclosed in ▇▇▇▇▇▇▇▇▇▇▇'▇
reports on SEC Form 10-K or 10-Q, there are no actions, suits or proceedings
pending, or to the best of such Originator's knowledge, threatened, against or
affecting such Originator, or any of its properties, in or before any court,
arbitrator or other body, that could reasonably be expected to have a Material
Adverse Effect. Such Originator is not in default with respect to any order of
any court, arbitrator or governmental body.
(f) Binding Effect. This Agreement and each other Transaction
Document to which such Originator is a party constitute the legal, valid and
binding obligations of such Originator enforceable against such Originator in
accordance with their respective terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(g) Accuracy of Information. All information relating to such
Originator's business, assets or financial condition heretofore furnished by
such Originator to W1R (or its assigns) for purposes of or in connection with
this Agreement, any of the other Transaction Documents or any transaction
contemplated hereby or thereby is, and all such information hereafter furnished
by such Originator to W1R (or its assigns) will be, true and accurate in every
material respect on the date such information is stated or certified and does
not and will not contain any material misstatement of fact or omit to state a
fact necessary to make the statements contained therein not misleading in any
material respect.
(h) Use of Proceeds. No proceeds of any purchase hereunder
will be used (i) for a purpose that 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 that constitutes a tender offer under Regulation 140 promulgated
under the Securities Exchange Act of 1934, as amended and in which the board of
directors or similar governing body of the subject company has not approved the
transaction.
6
11
(i) Good Title. Immediately prior to each purchase hereunder,
such Originator shall be the legal and beneficial owner of the U.S. Receivables
and Related Security with respect thereto, free and clear of any Adverse Claim,
except as created by the Transaction Documents.
(j) Perfection. This Agreement, together with the filing of
the financing statements contemplated hereby, is effective to, and shall, upon
each purchase hereunder, transfer to W1R (and W1R shall acquire from such
Originator) a perfected interest in and ownership of, and all legal and
equitable title to, each U.S. Receivable originated by such Originator, whether
now existing or hereafter arising, and in the Related Security and Collections
with respect thereto, free and clear of any Adverse Claim except as created by
the Transactions Documents. There have been delivered to the Agent (as assignee
of W1R) in form suitable for filing all financing statements or other similar
instruments or documents necessary under the UCC (or any comparable law) of all
appropriate jurisdictions to perfect W1R's ownership interest in each
Receivable, its Collections and the Related Security.
(k) Chief Executive Offices and Locations of Records. The
chief executive office of such Originator and the offices where it keeps all of
its Records are located at the address(es) listed on Exhibit D or such other
locations of which W1R has been notified in accordance with Section 4.2(a) in
jurisdictions where all action required by such Section 4.2(a) has been taken
and completed. Such Originator's Federal Employer Identification Number is
correctly set forth on Exhibit D.
(l) Collections. The conditions and requirements set forth in
Section 4.1(i) have at all times since the Effective Date been satisfied and
duly performed.
(m) Material Adverse Effect. Since December 31, 2000, no event
has occurred that would have a material adverse effect on (i) the financial
condition or operations of the Performance Guarantor and its Subsidiaries taken
as a whole, or (ii) the ability of such Originator to perform its obligations
under the Transaction Documents to which it is a party.
(n) Names. In the past two (2) years, such Originator has not
used any corporate or limited liability company names, trade names or assumed
names other than the name in which it has executed this Agreement and other than
as set forth on Exhibit D hereto.
(o) Ownership of Originators. ▇▇▇▇▇▇▇▇▇▇▇ owns, directly or
indirectly, 100% of the issued and outstanding Equity Interests of each
Originator. Such Equity Interests are validly issued, fully paid and
nonassessable, and there are no options, warrants or other rights to acquire
securities of such Originator.
(p) Not a Holding Company or an Investment Company. Such
Originator is not a "holding company" or a "subsidiary holding company" of a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended, or any successor statute. Such Originator is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or any successor statute.
7
12
(q) Compliance with Law. Such Originator has complied in all
respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject where the failure to
so comply could reasonably be expected to have a Material Adverse Effect. Such
Originator represents and warrants that each U.S. Receivable originated by it,
together with the Contract and Invoice related thereto, does not breach any
laws, rules or regulations applicable thereto (including, without limitation,
laws, rules and regulations relating to truth in lending, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt collection practices
and privacy), and no part of such Contract or Invoice is in violation of any
such law, rule or regulation, where such breach or violation could reasonably be
expected to have a Material Adverse Effect.
(r) Compliance with Credit and Collection Policy. From and
after the Effective Date, such Originator has complied in all material respects
with the Credit and Collection Policy with regard to each U.S. Receivable
originated by it and the related Invoice.
(s) Enforceability of Invoices. Each Invoice with respect to
each U.S. Receivable originated by such Originator is effective to create, and
has created, a legal, valid and binding obligation of the related Obligor to pay
the Outstanding Balance of the U.S. Receivable created thereunder (subject to
adjustment, to the extent provided therein) and any accrued interest thereon,
enforceable against the Obligor in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws relating to or limiting creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(t) Accounts. Each U.S. Receivable originated by such
Originator is an "account" under and as defined in the UCC of all applicable
jurisdictions.
(u) Accounting. Such Originator accounts for the transactions
contemplated by this Agreement for financial accounting purposes as sales of the
U.S. Receivables and Related Security.
8
13
ARTICLE III.
CONDITIONS OF PURCHASES
Section 3.1 Conditions Precedent to Initial Purchase. The
initial purchase from each Originator hereunder is subject to the conditions
precedent that (1) W1R shall have been capitalized with not less than the
Required Capital Amount, (2) W1R shall have executed and delivered a
Subordinated Note in favor of such Originator, and (3) W1R shall have received,
on or before such Originator's Applicable Closing Date, the documents listed on
Schedule A hereto, each (unless otherwise indicated) dated such Originator's
Applicable Closing Date, and each in form, substance and date reasonably
satisfactory to W1R and the Agent (as assignee of W1R).
Section 3.2 Conditions Precedent to All Purchases. Each
purchase from an Originator shall be subject to the further conditions precedent
that:
(a) such Originator's Sale Termination Date shall not have
occurred;
(b) W1R (or its assigns) shall have received such other
approvals, opinions or documents as it may reasonably request; and
(c) on the date of such purchase, each of the representations
and warranties of such Originator set forth in Article II hereof are
true and correct on and as of the date of such purchase (and after
giving effect thereto) as though made on and as of such date.
Section 3.3 Reaffirmation of Representations and Warranties.
Each Originator, by accepting the Purchase Price related to each purchase of
such Originator's U.S. Receivables and Related Security, shall be deemed to have
certified that the representations and warranties of such Originator contained
in Article II are true and correct as to such Originator on and as of the date
of such purchase, with the same effect as though made on and as of such day, and
that each of the applicable conditions precedent set forth in this Article III
has been satisfied or, with the consent of the Agent, waived as of the date of
such purchase.
ARTICLE IV.
COVENANTS
Section 4.1 Affirmative Covenants. From each Originator's
Applicable Closing Date until the earlier to occur of such Originator's Sale
Termination Date or the date on which this Agreement terminates in accordance
with its terms:
9
14
(a) Reporting. ▇▇▇▇▇▇▇▇▇▇▇ will furnish to W1R (and its
assigns):
(i) Annual Reporting. Within 120 days after the close
of each of its fiscal years, audited, unqualified financial statements (which
shall include balance sheets, statements of income and retained earnings and a
statement of cash flows) for ▇▇▇▇▇▇▇▇▇▇▇ for such fiscal year certified in a
manner reasonably satisfactory to W1R (and its assigns) by independent public
accountants of recognized national standing.
(ii) Quarterly Reporting. Within 60 days after the
close of the first three (3) quarterly periods of each of its respective fiscal
years, balance sheets of ▇▇▇▇▇▇▇▇▇▇▇ as at the close of each such period and
statements of income and retained earnings and a statement of cash flows for
▇▇▇▇▇▇▇▇▇▇▇ for the period from the beginning of such fiscal year to the end of
such quarter, all certified by its vice president-finance, its chief financial
officer or other vice president with finance or accounting responsibility.
(iii) Shareholders Statements and Reports. Promptly
upon the furnishing thereof to the shareholders of ▇▇▇▇▇▇▇▇▇▇▇, copies of all
financial statements, reports and proxy statements so furnished.
(iv) Change in Credit and Collection Policy. At least
thirty (30) days prior to the effectiveness of any material change in or
material amendment to the Credit and Collection Policy, a copy of the Credit and
Collection Policy then in effect and a notice (A) indicating such change or
amendment, and (B) if such proposed change or amendment would be reasonably
likely to materially and adversely affect the collectibility of the U.S.
Receivables or decrease the credit quality of any newly created U.S.
Receivables, requesting W1R's consent thereto.
(v) Other Information Promptly, from time to time,
such other information, documents, records or reports relating to the U.S.
Receivables or the condition or operations, financial or otherwise, of
▇▇▇▇▇▇▇▇▇▇▇ as W1R (or its assigns) may from time to time reasonably request in
order to protect the interests of W1R (and its assigns) under or as contemplated
by this Agreement.
(b) Notices. ▇▇▇▇▇▇▇▇▇▇▇ will provide W1R and its assigns with
written notice of any of the following events promptly upon learning of the
occurrence thereof, which written notice shall describe such event and, if
applicable, the steps being taken with respect thereto:
(i) Termination Events or Potential Termination
Events. The occurrence of each Termination Event and each Potential Termination
Event.
(ii) Judgment and Proceedings. The entry of any
judgment or decree against such Originator or any of its Subsidiaries if the
aggregate amount of all judgments and decrees then outstanding against
▇▇▇▇▇▇▇▇▇▇▇ and its Subsidiaries exceeds $25,000,000 after deducting (A) the
amount with respect to which they are insured and with respect to which the
10
15
insurer has assumed responsibility in writing, and (B) the amount for which they
are otherwise indemnified if the terms of such indemnification are reasonably
satisfactory to W1R and its assigns.
(iii) Material Adverse Effect. The occurrence of any
event or condition that has had, or could reasonably be expected to have, a
Material Adverse Effect.
(iv) Defaults Under Other Agreements. The occurrence
of a default or an event of default under any other financing arrangement
pursuant to which such Originator is a debtor or an obligor, the effect of which
is to cause, or to permit any Person to cause, the acceleration of Indebtedness
evidenced thereby; PROVIDED, HOWEVER, that no such notice shall be required
unless such financing arrangement provides for credit accommodations or
facilities in excess of $25,000,000 in the aggregate.
(c) Compliance with Laws and Preservation of Corporate
Existence. Such Originator will comply in all respects with all applicable laws,
rules, regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject, where the failure to so comply could reasonably be
expected to have a Material Adverse Effect. Such Originator will preserve and
maintain its corporate or limited liability company, as applicable, existence,
rights, franchises and privileges in the jurisdiction of its incorporation or
formation, as applicable, and qualify and remain qualified in good standing as a
foreign corporation or foreign limited liability company, as applicable, in each
jurisdiction where its business is conducted, where the failure to so preserve
and maintain or qualify could reasonably be expected to have a Material Adverse
Effect.
(d) Audits. Such Originator will furnish to W1R and its
assigns from time to time such information with respect to it and the U.S.
Receivables sold by it as W1R or its assigns may reasonably request. Such
Originator will, from time to time during regular business hours as requested by
W1R or its assigns upon reasonable notice and at the sole cost of such
Originator, permit each of W1R and its assigns, or their respective agents or
representatives: (i) to examine and make copies of and abstracts from all
Records in the possession or under the control of such Originator relating to
the U.S. Receivables originated by it and the associated Collections and Related
Security, including, without limitation, the related Invoices, and (ii) to visit
the offices and properties of such Originator during normal business hours for
the purpose of examining such materials described in clause (i) above, and to
discuss matters relating to such Originator's financial condition or the U.S.
Receivables originated by it and the associated Collections and Related Security
or such Originator's performance under any of the Transaction Documents to which
it is a party or any Person's performance under the Invoices evidencing any U.S.
Receivables originated by such Originator and, in each case, with any of the
officers or employees of such Originator having knowledge of such matters.
(e) Keeping and Marking of Records and Books.
(i) Such Originator will maintain and implement
administrative and operating procedures (including, without limitation,
an ability to recreate records
11
16
evidencing U.S. Receivables originated by it 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 such U.S. Receivables (including,
without limitation, records adequate to permit the immediate
identification of each new U.S. Receivable originated by it and all
Collections of and adjustments to each such existing Receivable). Such
Originator will give W1R (and its assigns) notice of any material
change in the administrative and operating procedures referred to in
the previous sentence.
(ii) Such Originator will: (A) on or prior to the
date hereof, ▇▇▇▇ its master data processing records and other books
and records relating to the U.S. Receivables originated by it with the
legend described in Section 1.1(d) and (B) upon the request of W1R (or
its assigns) following the occurrence of a Termination Event: (x) ▇▇▇▇
each Invoice with a legend describing W1R's ownership interests in such
Receivables and further describing the Purchaser Interests of the Agent
(on behalf of the Purchasers) and (y) deliver to W1R (or its assigns)
all Invoices (including, without limitation, all multiple originals of
any such Invoice) relating to such U.S. Receivables.
(f) Compliance with Contracts, Invoices and Credit and
Collection Policy. Such Originator will timely and fully (i) perform and comply
with all material provisions, covenants and other promises required to be
observed by it under the Contracts and Invoices related to the U.S. Receivables
originated by it, and (ii) comply in all material respects with the Credit and
Collection Policy in regard to each such U.S. Receivable and the related
Invoice.
(g) Ownership. Such Originator will take all necessary action
to (i) vest legal and equitable title to the U.S. Receivables originated by it
and the associated Related Security and Collections irrevocably in W1R, free and
clear of any Adverse Claims other than Adverse Claims arising under the
Transaction Documents (including, without limitation, the filing of all
financing statements or other similar instruments or documents necessary under
the UCC (or any comparable law) of all appropriate jurisdictions to perfect
W1R's interests in such U.S. Receivables, Related Security and Collections and
such other action to perfect, protect or more fully evidence the interest of W1R
as W1R or its assigns may reasonably request), and (ii) to the extent such title
is not vested in W1R, establish and maintain, in favor of W1R, a valid and
perfected security interest in all such U.S. Receivables, Related Security and
Collections to the full extent contemplated herein, free and clear of any
Adverse Claims other than Adverse Claims arising under the Transaction Documents
(including, without limitation, the filing of all financing statements or other
similar instruments or documents necessary under the UCC (or any comparable law)
of all appropriate jurisdictions to perfect W1R's interest in such U.S.
Receivables, Related Security and Collections and such other action to perfect,
protect or more fully evidence the interests of W1R as W1R (or its assigns) may
reasonably request.
(h) W1R Separateness. Such Originator will take all reasonable
steps, including, without limitation, all steps that W1R (or its assigns) may
from time to time reasonably request, to maintain such Originator's identity as
a separate legal entity from W1R
12
17
and its General Partner and to make it manifest to third parties that such
Originator is an entity with assets and liabilities distinct from those of each
of W1R and its General Partner.
(i) Collections. Such Originator shall direct all Obligors to
make payments of such Originator's U.S. Receivables directly to a Lock Box or
Collection Account that at all times from and after August 15, 2001 is the
subject of a Collection Account Agreement at a Collection Bank. If,
notwithstanding the foregoing, any Obligor makes payment to such Originator,
such Originator further agrees to remit any Collections (including any security
deposits applied to the Outstanding Balance of any Receivable) that it receives
on such U.S. Receivables directly to a Collection Bank for deposit into a
Collection Account within two (2) Business Days after receipt thereof, and
agrees that all such Collections shall be deemed to be received in trust for W1R
and its assigns; provided that, to the extent permitted pursuant to Section 1.2,
such Originator may retain such Collections as a portion of the Purchase Price
then payable to or apply such Collections to the reduction of the outstanding
balance of its Subordinated Note.
(j) Taxes. Except to the extent that such Originator is
included in consolidated federal income tax returns or reports filed by
▇▇▇▇▇▇▇▇▇▇▇, such Originator will file all tax returns and reports required by
law to be filed by it and will promptly pay all taxes and governmental charges
at any time owing, except any such taxes which are not yet delinquent or are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books, and except for such failures to file returns or pay taxes as could not
reasonably be expected to have a Material Adverse Effect.
Section 4.2 Negative Covenants. From such Originator's
Applicable Closing Date until the earlier to occur of such Originator's Sale
Termination Date or the date on which this Agreement terminates in accordance
with its terms, such Originator shall not:
(a) Name Change, Offices and Records. Except for Permitted
Restructurings, change its name, identity or organizational structure (within
the meaning of Article 9 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 W1R and its assigns at least thirty (30) days' prior written
notice thereof and (ii) delivered to W1R (or its assigns) all financing
statements, instruments and other documents requested by W1R (or its assigns) in
connection with such change or relocation.
(b) Change in Payment Instructions to Obligors. Make any
change in the instructions to Obligors regarding payments to be made to any
Lock-Box or Collection Account, unless W1R and its assigns shall have received,
at least ten (10) days before the proposed effective date therefor, (i) written
notice of such addition, termination or change and (ii) with respect to the
addition of a Collection Bank or a Collection Account or Lock-Box, an executed
Collection Account Agreement with respect to the new Collection Account or
Lock-Box; provided, however, that the Servicer may make changes in instructions
to Obligors regarding payments if such new instructions require such Obligor to
make payments to another existing Collection Account.
13
18
(c) Modifications to Invoices. Extend, amend or otherwise
modify the terms of any U.S. Receivable or any Invoice related thereto except as
otherwise directed by the Servicer in accordance with the Credit and Collection
Policy.
(d) Sales, Liens. Except pursuant to the Transaction
Documents, sell, assign (by operation of law or otherwise) or otherwise dispose
of, or grant any option with respect to, or create or suffer to exist any
Adverse Claim upon (including, without limitation, the filing of any financing
statement) or with respect to, any U.S. Receivable originated by it or the
associated Collections and other Related Security, or upon or with respect to
any Invoice under which any such U.S. Receivable arises, and will defend the
right, title and interest of W1R and its assigns in, to and under any of the
foregoing property, against all claims of third parties claiming through or
under such Originator.
(e) Deposits to Collection Accounts. Deposit or otherwise
credit, or cause or permit to be so deposited or credited, to any Collection
Account, any cash or cash proceeds other than Collections of U.S. Receivables.
(f) Mergers, Consolidations and Acquisitions. Liquidate or
dissolve, consolidate with, or merge into or with, any other Person (other than
in Permitted Restructurings) without the consent of W1R and its assigns under
Section 8.5 if such merger could reasonably be expected to have a Material
Adverse Effect or to result in a material adverse change in the nature or
characteristics of such Originator's U.S. Receivables taken as a whole, PROVIDED
THAT, in connection with any consolidation or merger (regardless of whether
W1R's and its assigns' consent is required pursuant hereto):
(A) each of W1R and its assigns pursuant to
Section 8.5 receives prior written notice of such
consolidation or merger, and the successor or surviving entity
(if not an Originator) unconditionally assumes such
Originator's (or Originators') respective obligations under
the Transaction Documents to which it is (or they are) a party
immediately prior to giving effect to such consolidation or
merger,
(B) all UCC financing statements necessary
to maintain the validity and perfection of W1R's and its
assigns' ownership interests in the U.S. Receivables and
Related Security acquired or to be acquired from such survivor
under this Agreement have been duly executed and filed in all
necessary jurisdictions, and
(C) if the surviving entity in such
transaction(s) is not an existing Originator under this
Agreement, all other documents required to be delivered in
connection with a Joinder Agreement hereunder have been duly
executed and delivered substantially contemporaneously with
such transaction(s).
14
19
(g) U.S. Receivables Not to be Evidenced by Promissory Notes.
Take any action to cause or permit any U.S. Receivable generated by it to become
evidenced by any "instrument" (as defined in the applicable UCC), except in
connection with the collection of overdue U.S. Receivables, provided that the
original of any such instrument is delivered to W1R for immediate delivery to
its assignees, duly endorsed.
(h) Accounting for Purchases. Account for the transactions
contemplated hereby in any manner other than as a sale by such Originator to W1R
of U.S. Receivables originated by such Originator and the associated Collections
and Related Security.
(i) W1R's Ownership Interest. The Originators shall not take
any action that is inconsistent with W1R's ownership of the U.S. Receivables
sold hereunder or that is inconsistent with the characterization of the sale of
U.S. Receivables made hereunder being a "sale of accounts" (as such term is used
in Article 9 of the UCC) and shall respond to any and all inquiries by third
parties by indicating that the ownership and all right, title and interest,
legal and equitable, in the U.S. Receivables sold hereunder is finally and fully
vested in W1R. The Originators shall not claim any ownership interest in any
U.S. Receivables sold hereunder.
ARTICLE V.
JOINDER OF ADDITIONAL ORIGINATORS
Section 5.1 Addition of New Originators. From time to time
upon not less than 60 days' prior written notice to W1R and its assigns (or such
shorter period of time as W1R and its assigns may agree upon), ▇▇▇▇▇▇▇▇▇▇▇ and
W1R may agree that one or more of ▇▇▇▇▇▇▇▇▇▇▇'▇ existing or hereafter acquired
U.S. Subsidiaries of which ▇▇▇▇▇▇▇▇▇▇▇ owns, directly or indirectly, 100% of the
outstanding voting securities become an Originator hereunder. No such addition
shall become effective (a) without the written consent of W1R (and its assigns
pursuant to Section 8.5) but may become effective prior to such 60th day if such
written consent is given more promptly and (b) unless all conditions precedent
to such addition required by Section 5.2 below are satisfied prior to such date.
Section 5.2 Documentation. In the event that W1R and its
assigns pursuant to Section 8.5 consent to the addition of a New Originator,
such New Originator shall execute a Joinder Agreement in the form of Exhibit C
hereto (a "JOINDER AGREEMENT") and shall deliver each of the documents,
certificates and opinions required to be delivered under Section 3.1 prior to
such New Originator's Closing Date, together with such updated Exhibits hereto
as may be necessary to ensure that after giving effect to the addition of such
New Originator, each of the representations and warranties of such New
Originator under Article II hereof will be true and correct, and W1R will
deliver a Subordinated Note to such New Originator.
15
20
ARTICLE VI.
TERMINATION EVENTS
Section 6.1 Termination Events. The occurrence of any one or
more of the following events shall constitute a Termination Event with respect
to an Originator:
(a) (i) Such Originator shall fail to make any payment or
deposit required to be made by it hereunder when due and such failure continues
for five (5) consecutive Business Days and the Performance Guarantor fails to
make payment to cure such Originator's failure to pay or deposit, or (ii) such
Originator or the Performance Guarantor shall fail to perform or observe any
term, covenant or agreement required to be performed or observed by it hereunder
(other than as referred to in clause (i) of this paragraph (a)) or any other
Transaction Document to which it is a party and such failure shall continue for
ten (10) consecutive Business Days.
(b) Any representation, warranty, certification or statement
made by such Originator or the Performance Guarantor in this Agreement, any
other Transaction Document or in any other document delivered pursuant hereto or
thereto shall prove to have been incorrect in any material respect when made or
deemed made; PROVIDED THAT the materiality threshold in the preceding clause
shall not be applicable with respect to any representation or warranty which
itself contains a materiality threshold.
(c) Failure of such Originator to pay any Indebtedness when
due in excess of $25,000,000 in aggregate principal amount; or the default
(which has not been cured within the applicable period of grace, if any) by such
Originator in the performance of any term, provision or condition contained in
any agreement under which any such Indebtedness was created or is governed, the
effect of which is to cause, or to permit the holder or holders of such
Indebtedness to cause, such Indebtedness to become due prior to its stated
maturity; or any such Indebtedness of such Originator or shall be declared to be
due and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the date of maturity thereof.
(d) Any Event of Bankruptcy shall occur with respect to the
Performance Guarantor, such Originator or any of such Originator's Subsidiaries.
(e) A Change of Control shall occur with respect to such
Originator or the Performance Guarantor.
(f) One or more final judgments for the payment of money in an
amount in excess of $25,000,000, individually or in the aggregate, shall be
entered against such Originator on claims not covered by insurance or as to
which the insurance carrier has denied its responsibility, and such judgment
shall continue unsatisfied and in effect for thirty (30) consecutive days
without a stay of execution.
Section 6.2 Remedies. Upon the occurrence and during the
continuation of a Termination Event with respect to an Originator, W1R may take
any of the following actions: (i) declare such Originator's Sale Termination
Date to have occurred, whereupon such Originator's
16
21
Sale Termination Date shall forthwith occur, without demand, protest or further
notice of any kind, all of which are hereby expressly waived by each Originator;
PROVIDED, HOWEVER, that upon the occurrence of a Termination Event with respect
to any Originator described in Section 6.1(d), or of an actual or deemed entry
of an order for relief with respect to any Originator under the United States
Bankruptcy Code, such Originator's Sale Termination Date shall automatically
occur, without demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Originator and (ii) to the fullest extent
permitted by applicable law, declare that the Default Fee shall accrue with
respect to any amounts then due and owing by any of the Originators to W1R. The
aforementioned rights and remedies shall be without limitation and shall be in
addition to all other rights and remedies of W1R and its assigns otherwise
available under any other provision of this Agreement, by operation of law, at
equity or otherwise, all of which are hereby expressly preserved, including,
without limitation, all rights and remedies provided under the UCC, all of which
rights shall be cumulative.
ARTICLE VII.
INDEMNIFICATION
Section 7.1 Indemnities by the Originators. Without limiting
any other rights that W1R or its assigns may have hereunder or under applicable
law, each Originator hereby agrees to indemnify (and pay upon demand to) W1R and
its assigns, officers, managers, directors, agents and employees (each an
"INDEMNIFIED PARTY") from and against any and all damages, losses, claims,
taxes, liabilities, costs, expenses and for all other amounts payable, including
reasonable attorneys' fees (which attorneys may be employees of any Indemnified
Party) and disbursements (all of the foregoing being collectively referred to as
"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of
or as a result of this Agreement or the acquisition, either directly or
indirectly, by W1R of any U.S. Receivable originated by such Originator,
EXCLUDING, HOWEVER, in all of the foregoing instances:
(a) Indemnified Amounts to the extent a final judgment of a
court of competent jurisdiction holds that such Indemnified Amounts
resulted from gross negligence or willful misconduct on the part of the
Indemnified Party seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses
in respect of U.S. Receivables that are uncollectible on account of the
insolvency, bankruptcy or lack of creditworthiness of the related
Obligor or the related Obligor's inability or unwillingness (absent a
dispute) to pay; or
(c) taxes imposed by the jurisdiction in which such
Indemnified Party's principal executive office is located, on or
measured by the overall net income of such Indemnified Party to the
extent that the computation of such taxes is consistent with the
characterization for income tax purposes of the acquisition by W1R of
U.S. Receivables as a true sale by such Originator to W1R of such U.S.
Receivables and the associated Related Security;
17
22
PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the
liability of such Originator or limit the recourse of W1R and its assigns for
amounts otherwise specifically provided to be paid by such Originator under the
terms of this Agreement and that is not described by clauses (a), (b) or (c)
above. Without limiting the generality of the foregoing indemnification, but
excluding the matters described in clauses (a), (b) and (c) above, each
Originator shall indemnify the Indemnified Parties and its assigns for
Indemnified Amounts (including, without limitation, losses in respect of
uncollectible U.S. Receivables, regardless of whether reimbursement therefor
would constitute recourse to such Originator) relating to or resulting from:
(i) any representation or warranty made by such
Originator (or any of its officers) under or in connection
with this Agreement, any other Transaction Document to which
such Originator is a party or any other information or report
delivered by any such Person pursuant hereto or thereto, which
shall have been false or incorrect when made or deemed made;
(ii) the failure by such Originator to comply with
any applicable law, rule or regulation with respect to any
U.S. Receivable originated by it, or any Contract or Invoice
related thereto, or the nonconformity of any such Receivable,
Contract or Invoice with any such applicable law, rule or
regulation or any failure of any Originator to keep or perform
any of its obligations, express or implied, with respect to
any such Contract or Invoice;
(iii) any failure of such Originator to perform its
duties, covenants or other obligations in accordance with the
provisions of this Agreement or any other Transaction Document
to which it is a party;
(iv) any products liability, personal injury or
damage suit, or other similar claim arising out of or in
connection with goods that are the subject of any Contract or
Invoice or any U.S. Receivable originated by such Originator;
(v) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor or an inability of such
Obligor to pay due to lack of funds or lack of
creditworthiness) to the payment of any U.S. Receivable
originated by such Originator (including, without limitation,
a defense based on such U.S. Receivable or the related
Contract or Invoice not being a legal, valid and binding
obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from
the sale of goods related to such U.S. Receivable or the
furnishing or failure to furnish such goods;
(vi) the commingling by such Originator of
Collections of such U.S. Receivables at any time with other
funds;
(vii) any investigation, litigation or proceeding
related to or arising from this Agreement or any other
Transaction Document to which such Originator is a
18
23
party, the transactions contemplated hereby, the use by such
Originator of the proceeds of any purchase from it hereunder
or any other investigation, litigation or proceeding relating
to such Originator in which any Indemnified Party becomes
involved as a result of any of the transactions contemplated
hereby;
(viii) any inability to litigate any claim against
any Obligor in respect of any such U.S. Receivable as a result
of such Obligor being immune (other than by virtue of a
discharge in bankruptcy) from civil and commercial law and
suit on the grounds of sovereignty or otherwise from any legal
action, suit or proceeding;
(ix) (A) failure of such Originator generally to pay
its debts as such debts become due or admission by such
Originator in writing of its inability to pay its debts
generally or any making by such Originator of a general
assignment for the benefit of creditors; or (B) the
institution of any proceeding by or against such Originator
seeking to adjudicate it bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee
or other similar official for it or any substantial part of
its property, or (C) the taking by such Originator of any
corporate action to authorize any of the actions set forth in
clauses (A) or (B) above in this clause (ix);
(x) any failure to vest and maintain vested in W1R or
its assigns (subject to the Transaction Documents), or to
transfer to W1R, legal and equitable title to, and ownership
of the U.S. Receivables originated by such Originator and the
associated Related Security and Collections, free and clear of
any Adverse Claim (except as created by the Transaction
Documents); and/or
(xi) the failure to have filed, or any delay in
filing, financing statements or other similar instruments or
documents under the UCC of any applicable jurisdiction or
other applicable laws with respect to any such Receivable, the
Related Security and Collections with respect thereto, and the
proceeds of any thereof, whether at the time of sale to W1R or
at any subsequent time.
Section 7.2 Costs, Expenses and Taxes. In addition to the
obligations of each Originator under Section 7.1, each Originator agrees to pay
on demand:
(a) all reasonable costs and expenses, including attorneys'
fees, in connection with the enforcement against such Originator of
this Agreement and the other Transaction Documents executed by such
Originator; and
(b) all stamp duties and other similar filing or recording
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
19
24
Documents executed by such Originator, and agrees to indemnify
Indemnified Parties against any liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and
fees.
ARTICLE VIII.
MISCELLANEOUS
Section 8.1 Waivers and Amendments. The provisions of this
Agreement may from time to time be amended, restated, otherwise modified or
waived, if such amendment, modification or waiver is in writing and consented to
by W1R and its assigns pursuant to Section 8.5. No failure or delay on the part
of W1R, such assigns 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 any party hereto or the Agent in any case shall entitle it to any
notice or demand in similar or other circumstances. No waiver or approval by W1R
or its assigns 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 8.2 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 (a) in the case of any Originator, to it in care of W1R at
its address set forth in the U.S. Receivables Purchase Agreement, and in the
case of W1R, to it at its address set forth in the U.S. Receivables Purchase
Agreement, or, in each of the foregoing cases, 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 8.3 Confidentiality.
(a) Each Originator shall maintain and shall cause each of its
employees, agents and officers to maintain the confidentiality of this Agreement
and the other confidential or proprietary information with respect to the Agent
and Conduit and their respective businesses obtained by them in connection with
the structuring, negotiating and execution of the transactions contemplated
herein, except that each of the Originators and their respective officers,
agents and employees may disclose such information to ▇▇▇▇▇▇▇▇▇▇▇'▇ external
accountants and attorneys and as required by any applicable law or order of any
judicial or administrative proceeding.
(b) Anything herein to the contrary notwithstanding, each
Originator hereby consents to the disclosure of any nonpublic information with
respect to it (i) to W1R, the Agent,
20
25
the Financial Institutions or Conduit by each other, (ii) by W1R, the Agent or
the Purchasers to any prospective or actual assignee or participant of any of
them and (iii) by the Agent to any rating agency, Commercial Paper dealer or
provider of a surety, guaranty or credit or liquidity enhancement to Conduit or
any entity organized for the purpose of purchasing, or making loans secured by,
financial assets for which Bank One acts as the administrative agent and to any
officers, directors, employees, outside accountants and attorneys of any of the
foregoing, provided each such Person is informed of the confidential nature of
such information. In addition, the Purchasers and the Agent may disclose any
such nonpublic information pursuant to any law, rule, regulation, direction,
request or order of any judicial, administrative or regulatory authority or
proceedings (whether or not having the force or effect of law).
(c) W1R shall maintain, shall require the Agent and the
Purchasers to maintain, and shall cause each of its employees and officers to
maintain the confidentiality of the non-public, confidential or proprietary
information with respect to each Originator, the Obligors and their respective
businesses obtained by it in connection with the due diligence evaluations,
structuring, negotiating and execution of the Transaction Documents, and the
consummation of the transactions contemplated herein and any other activities of
W1R arising from or related to the transactions contemplated herein provided,
however, that each of W1R and its employees and officers shall be permitted to
disclose such confidential or proprietary information: (i) to the Agent, the
Purchasers, and the other Originators, (ii) to any prospective or actual
assignee or participant of the Agent or the other Purchasers who execute a
confidentiality agreement for the benefit of the applicable Originator and W1R
on terms comparable to those required of W1R hereunder with respect to such
disclosed information, (iii) to any rating agency, provider of a surety,
guaranty or credit or liquidity enhancement to Conduit, (iv) to any officers,
directors, employees, outside accountants and attorneys of any of the foregoing,
and (v) to the extent required pursuant to any applicable law, rule, regulation,
direction, request or order of any judicial, administrative or regulatory
authority or proceedings with competent jurisdiction (whether or not having the
force or effect of law) so long as such required disclosure is made under seal
to the extent permitted by applicable law or by rule of court or other
applicable body.
Section 8.4 Bankruptcy Petition. (a) Each of the Originators
and W1R hereby covenants and agrees that, prior to the date that is one year and
one day after the payment in full of all outstanding senior indebtedness of
Conduit or any Financial Institution that is a special purpose bankruptcy remote
entity, it will not institute against, or join any other Person in instituting
against, Conduit or any such entity any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States.
(b) Each of the Originators hereby covenants and agrees that,
prior to the date that is one year and one day after the payment in full of all
Aggregate Unpaids under the U.S. Receivables Purchase Agreement, it will not
institute against, or join any other Person in instituting against, W1R any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States.
21
26
Section 8.5 Limitation of Liability. Except with respect to
any claim arising out of the willful misconduct or gross negligence of any party
hereto, no claim may be made by any party or any Person claiming through any
party against any other party or its respective Affiliates, directors, officers,
employees, attorneys or agents for any special, indirect, consequential or
punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated
by this Agreement, or any act, omission or event occurring in connection
therewith; and each of the parties hereby waives, releases, and agrees not to
▇▇▇ upon any claim for any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor.
Section 8.6 Rights of W1R. Each Originator hereby authorizes
W1R and the Servicer (if other than W1R or such Originator) or their respective
designees and assigns to take any and all steps in such Originator's name
necessary or desirable, in their respective determination, to collect all
amounts due under any and all U.S. Receivables originated by such Originator,
including, without limitation, endorsing such Originator's name on checks and
other instruments representing Collections and enforcing such U.S. Receivables,
the Invoices and the provisions of the related Contracts and Related Security
that concern payment and/or enforcement of rights to payment.
Section 8.7 Responsibilities of the Originators. Anything
herein to the contrary notwithstanding:
(a) Performance Under Contracts. The exercise by W1R or its
designees or assigns of their rights hereunder shall not relieve any Originator
from its obligations hereunder or under any Contract or Invoice applicable to
such Originator.
(b) Power of Attorney. Each Originator hereby grants to the
Servicer (if other than such Originator) an irrevocable power of attorney, with
full power of substitution, coupled with an interest, to take in the name of
such Originator all steps necessary or advisable to endorse, negotiate or
otherwise realize on any writing or other right of any kind held or transmitted
by such Originator or transmitted or received by W1R (whether or not from such
Originator) in connection with any U.S. Receivables generated by such
Originator.
Section 8.8 Further Action Evidencing Purchases. Each
Originator 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 W1R or any of its assigns may reasonably request in order to
perfect, protect or more fully evidence W1R's ownership of the U.S. Receivables
generated by such Originator (and the Related Security) purchased by W1R
hereunder, or to enable W1R 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 W1R or any of its assigns, each Originator will:
(a) execute (if required by applicable law) and file
such financing or continuation statements, or amendments thereto or
assignments
22
27
thereof, and such other instruments or notices, as may be necessary or
appropriate; and
(b) ▇▇▇▇ its master ledger with the legend set forth
in Section 1.1(d).
Each Originator hereby authorizes W1R or its designees or assigns to file one or
more financing or continuation statements, and amendments thereto and assignment
thereof, with or without such Originator's signature (as permitted by applicable
law), in each case relative to all or any of the U.S. Receivables (and the
Related Security) now existing or hereafter sold by such Originator. If such
Originator fails to perform any of its agreements or obligations under this
Agreement, W1R or its designee may (but shall not be required to) itself
perform, or cause performance of, such agreement or obligation, and the expenses
of W1R or its designee incurred in connection therewith shall be payable by such
Originator.
Section 8.9 Application of Collections. Except as otherwise
specified by such Obligor or required by the underlying Contract or Invoice or
applicable law: any payment by an Obligor in respect of any indebtedness owed by
it to such Originator or to W1R shall be applied first, as a Collection of any
U.S. Receivable or U.S. Receivables then outstanding of such Obligor in the
order of the age of such U.S. Receivables, starting with the oldest of such U.S.
Receivables (unless another reasonable basis for allocation of such payments to
the U.S. Receivables of such Obligor exists), and second, to any other
indebtedness of such Obligor.
Section 8.10 Cumulative Remedies. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
Section 8.11 Binding Effect; Assignability. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns; provided, however, that no
Originator may assign its rights hereunder or any interest herein without the
prior written consent of W1R and its assigns pursuant to Section 8.5. 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 the date after the Facility Termination Date on which all Aggregate
Unpaids under the U.S. Receivables Purchase Agreement have been paid in full.
The rights and remedies with respect to any breach of any representation and
warranty made by any Originator pursuant to Article II and the indemnification
and payment provisions of Article V shall be continuing and shall survive any
termination of this Agreement.
Section 8.12 Acknowledgment and Agreement. Each of the
Originators hereby expressly acknowledges and agrees that all of W1R's rights,
title, and interests in, to, and under this Agreement shall be assigned by W1R
to the Agent, for the benefit of the Purchasers, pursuant to the U.S.
Receivables Purchase Agreement, and each of the Originators consents to such
assignment. Each of the parties hereto acknowledges and agrees that the Agent
and the Purchasers are third party beneficiaries of the rights of W1R arising
hereunder and under the other Transaction Documents to which W1R is a party.
Each of the Originators further
23
28
acknowledges and agrees that all right, title and interest in and to the
Lock-Boxes and Collection Accounts has been transferred to and vested in W1R and
its assigns, and W1R may at any time in its sole discretion (subject to the
terms of the U.S. Receivables Purchase Agreement and the Collection Account
Agreements hereafter executed in connection therewith) direct and re-direct
payments from such Lock-Boxes and Collection Accounts.
Section 8.13 Governing Law. Each Transaction Document shall be
governed by, and construed in accordance with, the law of the State of
Texas,
without regard to the principles of conflicts of laws thereof EXCEPT TO THE
EXTENT THAT THE PERFECTION OF THE OWNERSHIP INTERESTS OF W1R IS GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF
TEXAS.
Section 8.14 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, JOINDER AGREEMENT OR DOCUMENT DELIVERED OR WHICH MAY
IN THE FUTURE BE DELIVERED BY IT OR ON ITS BEHALF 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.
Section 8.15 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 8.16 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.
{signature pages follow}
24
29
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered as of the date first above written.
▇▇▇▇▇▇▇▇▇▇▇ ARTIFICIAL LIFT SYSTEMS, INC.
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ U.S., L.P.
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Treasurer
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
25
30
W1 RECEIVABLES, L.P.
BY: W1 GENERAL PARTNER, INC., ITS GENERAL
PARTNER
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
ADDRESS FOR NOTICES:
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
26
31
EXHIBIT A
DEFINITIONS
A. INCORPORATION OF U.S. RECEIVABLES PURCHASE AGREEMENT
DEFINITIONS. Unless otherwise defined herein, terms that are capitalized and
used throughout this Agreement are used as defined in the U.S. Receivables
Purchase Agreement (hereinafter defined).
B. CERTAIN DEFINED TERMS. The following terms have the
respective meanings indicated hereinbelow:
"ADDITIONAL U.S. RECEIVABLES" means, with respect to any
Originator, all U.S. Receivables of such Originator arising after the close of
such Originator's business on the Initial Cut-Off Date (in the case of each of
the Initial Originators) or the applicable New Originator Cut-Off Date (in the
case of any New Originator) through and including such Originator's Sale
Termination Date.
"ADVERSE CLAIM" means a lien, security interest, charge or
encumbrance, or other right or claim in, of or on any Person's assets or
properties in favor of any other Person.
"AGENT" means Bank One, NA in its capacity as the agent under
the U.S. Receivables Purchase Agreement and its successors and permitted assigns
in such capacity.
"AGREEMENT" means this
U.S. Receivables Sale Agreement, as it
may be amended or modified and in effect from time to time in accordance with
the terms hereof.
"APPLICABLE CLOSING DATE" means (i) with respect to each of
the Initial Originators, the Initial Closing Date, and (ii) with respect to each
New Originator, its New Originator Closing Date.
"APPLICABLE CUT-OFF DATE" means (i) with respect to each
Initial Originator, the Initial Cut-Off Date, (ii) with respect to each New
Originator, its New Originator Cut-Off Date, and (iii) with respect to all
Originators, each Cut-Off Date after the applicable date in the preceding clause
(i) or clause (ii).
"CHANGE OF CONTROL" means (a) the acquisition by any Person,
or two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 50% or more of the outstanding Equity
Interests of Weatherford or (b) Weatherford ceases to own, directly or
indirectly, 100% of the outstanding Equity Interests of any Originator.
"COLLECTIONS" means, with respect to any U.S. Receivable, all
cash collections and other cash proceeds in respect of such U.S. Receivable,
including, without limitation, all yield, Finance Charges or other related
amounts accruing in respect thereof and all cash proceeds of Related Security
with respect to such U.S. Receivable.
"CONDUIT" means Jupiter Securitization Corporation, a Delaware
corporation, and its successors.
27
32
"CONTINGENT OBLIGATION" of a Person means any agreement,
undertaking or arrangement by which such Person assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or liability of
any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any creditor
of such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract or application for a letter of
credit.
"CONTRACT" means, with respect to any U.S. Receivable, any and
all instruments, agreements, Invoices or other writings pursuant to which such
U.S. Receivable arises or which evidences such U.S. Receivable.
"CREDIT AND COLLECTION POLICY" means Originator's credit and
collection policies and practices relating to Contracts and U.S. Receivables
existing on the date hereof and summarized in Exhibit VIII to the U.S.
Receivables Purchase Agreement, as modified from time to time in accordance with
the Transaction Documents.
"DEEMED COLLECTIONS" means the aggregate of all amounts an
Originator shall have been deemed to have received as a Collection of a U.S.
Receivable sold by it. An Originator shall be deemed to have received a
Collection (but only to the extent of the reduction or cancellation identified
below) of a U.S. Receivable sold by it if at any time (i) the Outstanding
Balance of any such U.S. Receivable is either (x) reduced as a result of any
defective or rejected goods, any discount or any adjustment or otherwise by such
Originator (other than cash Collections on account of the U.S. Receivables) or
(y) reduced or canceled as a result of a setoff in respect of any claim by any
Person (whether such claim arises out of the same or a related transaction or an
unrelated transaction) or (ii) any of the representations or warranties in
Article II were not true with respect to such U.S. Receivable at the time of its
sale hereunder.
"DEFAULT RATE" means the sum of the Prime Rate plus 2.0% per
annum (computed for actual days elapsed on the basis of a year consisting of
365, or when appropriate, 366 days).
"DISCOUNT FACTOR" means a percentage calculated to provide W1R
with a reasonable return on its investment in the U.S. Receivables after taking
account of (i) the time value of money based upon the anticipated dates of
collection of the Receivables and the cost to W1R of financing its investment in
the U.S. Receivables during such period and (ii) the risk of nonpayment by the
Obligors. Each Originator and W1R may agree from time to time to change the
Discount Factor applicable to U.S. Receivables originated by such Originator
based on changes in one or more of the items affecting the calculation thereof,
PROVIDED THAT any change to the Discount Factor for any Originator shall take
effect as of the commencement of a month, shall apply only prospectively and
shall not affect the Purchase Price payment made prior to the month during which
such Originator and W1R agree to make such change. As of the date hereof, the
Discount Factor for each Originator is 2%.
28
33
"EQUITY INTERESTS" means, with respect to any Person, any and
all shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, whether outstanding on the date
hereof or issued after the date of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"EVENT OF BANKRUPTCY" means an event in which (i) a Person
shall generally not pay its debts as such debts become due or shall admit in
writing its inability to pay its debts generally or shall make a general
assignment for the benefit of creditors or (ii) any proceeding shall be
instituted by or against a Person seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, rearrangement of
debts is whole or in substantial part or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or any substantial part of
its property or (iii) a Person shall take any corporate action to authorize any
of the actions set forth in clauses (i) or (ii) above.
"FINANCE CHARGES" means, with respect to a Contract, any
finance, interest, late payment charges or similar charges owing by an Obligor
pursuant to such Contract.
"GAAP" means generally accepted accounting principles in
effect in the United States of America from time to time.
"INDEBTEDNESS" of a Person means such Person's (i) obligations
for borrowed money, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) capitalized lease obligations, (vi) net liabilities under
interest rate swap, exchange or cap agreements, (vii) Contingent Obligations and
(viii) liabilities in respect of unfunded vested benefits under plans covered by
Title IV of ERISA.
"INITIAL CLOSING DATE" means the date on which the initial
purchase under the U.S. Receivables Purchase Agreement occurs.
"INITIAL CUT-OFF DATE" means the Cut-Off Date immediately
preceding the Initial Closing Date.
"INITIAL ORIGINATORS" has the meaning set forth in the
preamble of this Agreement.
29
34
"INITIAL U.S. RECEIVABLES" means, with respect to any
Originator, all U.S. Receivables of such Originator that existed and were owing
to such Originator as of the close of such Originator's business on the Initial
Cut-Off Date (in the case of each of the Initial Originators) or the applicable
New Originator Cut-Off Date (in the case of any New Originator).
"INVOICE" means any paper or electronic invoice, statement or
▇▇▇▇ evidencing the amount of any U.S. Receivable.
"JOINDER AGREEMENT" has the meaning set forth in Section 5.2
hereof.
"MATERIAL ADVERSE EFFECT" means, with respect to any
Originator, a material adverse effect on (i) the ability of Performance
Guarantor and the Originators, taken as a whole, to perform their obligations
under this Agreement, (ii) the legality, validity or enforceability of this
Agreement or any other Transaction Document to which such Originator is a party,
(iii) W1R's ownership interest in the U.S. Receivables generally or in any
material portion of the U.S. Receivables, the Related Security or the
Collections with respect thereto, or (iv) the collectibility of the U.S.
Receivables generally or of any material portion of the U.S. Receivables.
"NEW ORIGINATOR" means any direct or indirect Subsidiary of
Weatherford, organized under the laws of one of the United States of America or
the District of Columbia, of which Weatherford owns 100% of each class of Equity
Interests that hereafter becomes a Originator under this Agreement by executing
a Joinder Agreement and complying with the provisions of Article V hereof.
"NEW ORIGINATOR CLOSING DATE" means, as to any New Originator,
the Business Day on which each of the conditions set forth in Article V has been
satisfied.
"NEW ORIGINATOR CUT-OFF DATE" means, with respect to each New
Originator, the Cut-Off Date immediately preceding its New Originator Closing
Date.
"OBLIGOR" means a Person obligated to make payments pursuant
to a Contract.
"ORGANIC DOCUMENTS" means with respect to (i) a corporation,
such Person's articles or certificate of incorporation and its by-laws, (ii)
with respect to a limited liability company, such Person's certificate of
formation and limited liability company or operating agreement (or similar
agreement among such Person's members), (iii) with respect to a limited
partnership, such Person's certificate of limited partnership (or other
equivalent) and partnership agreement, and (iv) with respect to any other
Person, such Person's organizational charter as required by the jurisdiction of
such Person's organization and any other agreement or document evidencing the
rights of holders of equity interests in such Person and/or the rights of any
officers, directors or managers of such Person.
"ORIGINATOR" means an Initial Originator or a New Originator.
"PERFORMANCE GUARANTOR" means Weatherford.
30
35
"PERFORMANCE UNDERTAKING" means an undertaking in the form
attached to the U.S. Receivables Purchase Agreement as an exhibit, duly executed
by the Performance Guarantor.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock company,
trust, unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"POTENTIAL TERMINATION EVENT" means an event which, with the
passage of time or the giving of notice, or both, would constitute a Termination
Event.
"PURCHASE PRICE" means, with respect to any purchase of U.S.
Receivables and their Related Security from an Originator on any date, the
aggregate price to be paid therefor by W1R to the applicable Originator in
accordance with Section 1.2 of this Agreement on such date, which price shall
equal (i) the product of (x) the Outstanding Balance of such U.S. Receivables as
of the Applicable Cut-Off Date, multiplied by (y) one minus the Discount Factor
then in effect, minus (ii) any Purchase Price Credits to be credited against the
Purchase Price otherwise payable in accordance with Section 1.3 of this
Agreement.
"PURCHASE PRICE CREDIT" has the meaning set forth in Section
1.3 hereof.
"RELATED SECURITY" means, with respect to any Receivable:
(i) all of the applicable Originator's interest in the
inventory and goods (including returned or repossessed inventory or
goods), if any, the sale, financing or lease of which by such
Originator gave rise to such Receivable, and all insurance contracts
with respect thereto,
(ii) all other security interests or liens and property
subject thereto from time to time, if any, purporting to secure payment
of such Receivable, whether pursuant to the Contract or Invoice related
to such U.S. Receivable or otherwise, together with all financing
statements and security agreements describing any collateral securing
such Receivable,
(iii) all guaranties, letters of credit, insurance and other
agreements or arrangements of whatever character from time to time to
the extent supporting or securing payment of such U.S. Receivable
whether pursuant to the Contract or Invoice related to such U.S.
Receivable or otherwise,
(iv) all Records related to such Receivable, and
(v) all proceeds of any of the foregoing;
PROVIDED, HOWEVER, that in no event shall "RELATED SECURITY" include any right,
duty or obligation under any Contract other than that the right to receive
payments thereunder (and any collateral for, guaranty of or letter of credit,
surety bond or other credit support for any such payment right).
31
36
"SALE TERMINATION DATE" means, with respect to each
Originator, the earliest to occur of (i) the Facility Termination Date under the
U.S. Receivables Purchase Agreement, (ii) the Business Day immediately prior to
the date on which a Termination Event of the type described in Section 6.1(d)
occurs with respect to such Originator or the Performance Guarantor, (iii) the
Business Day specified in a written notice from W1R to such Originator following
the occurrence of any other Termination Event, and (iv) the date which is ten
(10) Business Days after W1R's receipt of written notice from such Originator
that it wishes to terminate the facility evidenced by this Agreement.
"SUBORDINATED LOAN" means a subordinated revolving loan from
an Originator to W1R which is evidenced by a Subordinated Note.
"SUBORDINATED NOTE" means a subordinated promissory note in
the form of Exhibit B hereto issued by W1R to an Originator, 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.
"TERMINATION EVENT" has the meaning set forth in Section 6.1
of this Agreement.
"TRANSACTION DOCUMENTS" means, collectively, this Agreement,
each Collection Account Agreement to which any Originator is a party, the
Performance Undertaking, the Subordinated Notes and all other instruments,
documents and agreements executed and delivered by any of the Originators or the
Performance Guarantor in connection with any of the foregoing.
"U.S. RECEIVABLE" means all payment obligations owed to an
Originator (at the time it arises, and before giving effect to any transfer or
conveyance under this Agreement) or in which any Originator has a security
interest or other interest, including, without limitation, any such
indebtedness, obligation or interest constituting an account, chattel paper,
instrument or general intangible, arising in connection with the sale of goods
or the rendering of services by an Originator, and further includes, without
limitation, the obligation to pay any Finance Charges with respect thereto.
Indebtedness and other rights and obligations arising from any one transaction,
including, without limitation, indebtedness and other rights and obligations
represented by an individual invoice, shall constitute a U.S. Receivable
separate from a U.S. Receivable consisting of the indebtedness and other rights
and obligations arising from any other transaction; provided further, that any
indebtedness, rights or obligations referred to in the immediately preceding
sentence shall be a U.S. Receivable regardless of whether the Obligor, the
applicable Originator or W1R treats such indebtedness, rights or obligations as
a separate payment obligation.
"U.S. RECEIVABLES PURCHASE AGREEMENT" means that certain U.S.
Receivables Purchase Agreement dated as of July 2, 2001, by and among W1R, as
Seller, Weatherford, as initial Servicer, Conduit, the financial institutions
from time to time party thereto, and the Agent, as amended, restated or
otherwise modified from time to time in accordance with the terms thereof.
"W1R" has the meaning specified in the preamble of this
Agreement.
32
37
"WEATHERFORD" means ▇▇▇▇▇▇▇▇▇▇▇ International, Inc., a
Delaware corporation, and its successors.
ALL ACCOUNTING TERMS NOT SPECIFICALLY DEFINED HEREIN SHALL BE
CONSTRUED IN ACCORDANCE WITH GAAP. ALL TERMS USED IN ARTICLE 9 OF THE UCC IN THE
STATE OF
TEXAS, AND NOT SPECIFICALLY DEFINED HEREIN, ARE USED HEREIN AS DEFINED
IN SUCH ARTICLE 9.
33
38
EXHIBIT B
FORM OF
SUBORDINATED NOTE
(NON-NEGOTIABLE)
July 2, 2001
1. Note. FOR VALUE RECEIVED, the undersigned, W1
RECEIVABLES, L.P., a
Texas limited partnership ("W1R"), hereby unconditionally
promises to pay to [▇▇▇▇▇▇▇▇▇▇▇ Artificial Lift Systems, Inc., a Delaware
corporation/Weatherford U.S., L.P., a Louisiana limited partnership]
("ORIGINATOR"), in lawful money of the United States of America and in
immediately available funds, on the date following such Originator's Sale
Termination Date which is one year and one day after the date on which (i) the
Outstanding Balance of all U.S. Receivables sold under the "Sale Agreement"
referred to below has been reduced to zero and (ii) Originator has paid to the
W1R all indemnities, adjustments and other amounts which may be owed thereunder
in connection with the Purchases (the "COLLECTION DATE"), the aggregate unpaid
principal sum outstanding of all "Subordinated Loans" made from time to time by
Originator to W1R pursuant to and in accordance with the terms of that certain
U.S. Receivables Sale Agreement dated as of July 2, 2001 among ▇▇▇▇▇▇▇▇▇▇▇
Artificial Lift Systems, Inc., Weatherford U.S., L.P. and W1R (as amended,
restated, supplemented or otherwise modified from time to time, the "SALE
AGREEMENT"). Reference to Section 1.2 of the Sale Agreement is hereby made for a
statement of the terms and conditions under which the loans evidenced hereby
have been and will be made. All terms which are capitalized and used herein and
which are not otherwise specifically defined herein shall have the meanings
ascribed to such terms in the Sale Agreement.
2. Interest. W1R further promises to pay interest on the
outstanding unpaid principal amount hereof from the date hereof until payment in
full hereof at a rate equal to the Prime Rate; provided, however, that if W1R
shall default in the payment of any principal hereof, W1R promises to pay, on
demand, interest at the rate of the Prime Rate plus 2.00% per annum on any such
unpaid amount, from the date such payment is due to the date of actual payment.
Interest shall be payable on the first Business Day of each month in arrears;
provided, however, that W1R may elect on the date any interest payment is due
hereunder to defer such payment and upon such election the amount of interest
due but unpaid on such date shall constitute principal under this Subordinated
Note. The outstanding principal of any loan made under this Subordinated Note
shall be due and payable on the Collection Date and may be repaid or prepaid at
any time without premium or penalty.
It is the intent of Originator and W1R in the execution and
performance of this Subordinated Note to remain in strict compliance with
Applicable Law (hereinafter defined) from time to time in effect. In furtherance
thereof, Originator and W1R stipulate and agree that none of the terms and
provisions contained in this Subordinated Note shall ever be construed to create
a contract to pay for the use, forbearance or detention of money with interest
at a rate or in an amount in excess of the Maximum Rate (hereinafter defined) or
amount of interest permitted to be charged under Applicable Law. For purposes of
this Subordinated Note "interest" shall
34
39
include the aggregate of all charges which constitute interest under Applicable
Law that are contracted for, charged, reserved, received or paid under this
Subordinated Note. W1R shall never be required to pay unearned interest and
shall never be required to pay interest at a rate or in an amount in excess of
the Maximum Rate or amount of interest that may be lawfully charged under
Applicable Law, and the provisions of this paragraph shall control over all
other provisions of this Subordinated Note, and of any other instrument
pertaining to or securing this Subordinated Note, which may be in actual or
apparent conflict herewith. If this Subordinated Note is prepaid, or if the
maturity of this Subordinated Note is accelerated for any reason, or if under
any other contingency the effective rate or amount of interest which would
otherwise be payable under this Subordinated Note would exceed the Maximum Rate
or amount of interest Originator or any other holder of this Subordinated Note
is allowed by Applicable Law to charge, contract for, take, reserve or receive,
or in the event Originator or any holder of this Subordinated Note shall charge,
contract for, take, reserve or receive monies that are deemed to constitute
interest which would, in the absence of this provision, increase the effective
rate or amount of interest payable under this Subordinated Note to a rate or
amount in excess of that permitted to be charged, contracted for, taken,
reserved or received under Applicable Law then in effect, then the principal
amount of this Subordinated Note or the amount of interest which would otherwise
be payable under this Subordinated Note or both shall be reduced to the amount
allowed under Applicable Law as now or hereinafter construed by the courts
having jurisdiction, and all such moneys so charged, contracted for, taken,
reserved or received that are deemed to constitute interest in excess of the
Maximum Rate or amount of interest permitted by Applicable Law shall immediately
be returned to or credited to the account of W1R upon such determination.
Originator and W1R further stipulate and agree that, without limitation of the
foregoing, all calculations of the rate or amount of interest contracted for,
charged, taken, reserved or received under this Subordinated Note which are made
for the purpose of determining whether such rate or amount exceeds the Maximum
Rate or amount, shall be made to the extent not prohibited by Applicable Law, by
amortizing, prorating, allocating and spreading during the period of the full
stated term of this Subordinated Note, all interest at any time contracted for,
charged, taken, reserved or received from W1R or otherwise by Originator or any
other holder of this Subordinated Note.
FOR PURPOSES OF THE FOREGOING, THE FOLLOWING TERMS HAVE THE
FOLLOWING MEANINGS:
"APPLICABLE LAW" shall mean the law in effect from time to
time and applicable to the transactions between Originator and W1R
pursuant to this Subordinated Note which lawfully permits the charging
and collection of the highest permissible lawful non-usurious rate of
interest on such transactions, including laws of the State of
Texas,
and to the extent controlling and providing for a higher lawful rate of
interest, laws of the United States of America. It is intended that the
Texas Finance Code shall be included in the laws of the State of
Texas
in determining Applicable Law; and for the purpose of applying the
Texas Finance Code, the interest ceiling applicable to transactions
under the
Texas Finance Code shall be the applicable weekly ceiling
from time to time in effect as described in and computed in accordance
with Section 303 of the Texas Finance Code (V.T.C.A, Finance Code
Section 303).
35
40
"MAXIMUM RATE" shall mean the maximum lawful non-usurious rate
of interest, if any, which under Applicable Law Originator is permitted
to charge W1R on the loans evidenced by this Subordinated Note from
time to time. If, however, during any period interest accruing on this
Subordinated Note is not limited to any maximum lawful non-usurious
rate of interest under Applicable Law, then during each such period the
"Maximum Rate" shall be equal to a per annum rate of 2% plus the Prime
Rate.
3. Principal Payments. Originator is authorized and
directed by W1R to enter on the grid attached hereto, or, at its option, in its
books and records, the date and amount of each loan made by it which is
evidenced by this Subordinated Note and the amount of each payment of principal
made by W1R, and absent manifest error, such entries shall constitute prima
facie evidence of the accuracy of the information so entered; provided that
neither the failure of Originator to make any such entry or any error therein
shall expand, limit or affect the obligations of W1R hereunder.
4. Subordination. Originator shall have the right to
receive, and W1R shall make, any and all payments relating to the loans made
under this Subordinated Note provided that, after giving effect to any such
payment, the aggregate Outstanding Balance of U.S. Receivables (as each such
term is defined in the U.S. Receivables Purchase Agreement hereinafter referred
to) owned by W1R at such time exceeds the sum of (a) the Aggregate Unpaids (as
defined in the U.S. Receivables Purchase Agreement) outstanding at such time
under the U.S. Receivables Purchase Agreement, plus (b) the aggregate
outstanding principal balance of all loans made under this Subordinated Note.
Originator hereby agrees that at any time during which the conditions set forth
in the proviso of the immediately preceding sentence shall not be satisfied,
Originator shall be subordinate in right of payment to the prior payment of any
indebtedness or obligation of W1R owing to the Agent or any Purchaser under that
certain U.S. Receivables Purchase Agreement dated as of July 2, 2001 by and
among W1R, ▇▇▇▇▇▇▇▇▇▇▇ International, Inc., as initial Servicer, various
"Purchasers" from time to time party thereto, and Bank One, NA (Main Office
Chicago), as the "Agent" (as amended, restated, supplemented or otherwise
modified from time to time, the "U.S. RECEIVABLES PURCHASE AGREEMENT"). The
subordination provisions contained herein are for the direct benefit of, and may
be enforced by, the Agent and the Purchasers and/or any of their respective
assignees (collectively, the "SENIOR CLAIMANTS") under the U.S. Receivables
Purchase Agreement. Until the date on which all "Capital" outstanding under the
U.S. Receivables Purchase Agreement has been repaid in full and all other
obligations of W1R and/or the Servicer thereunder and under the "Fee Letter"
referenced therein (all such obligations, collectively, the "SENIOR CLAIM") have
been indefeasibly paid and satisfied in full, Originator shall not institute
against W1R any proceeding of the type described in the definition of "Event of
Bankruptcy" in the Sale Agreement unless and until the Collection Date has
occurred. Should any payment, distribution or security or proceeds thereof be
received by Originator in violation of this Section 4, Originator agrees that
such payment shall be segregated, received and held in trust for the benefit of,
and deemed to be the property of, and shall be immediately paid over and
delivered to the Agent for the benefit of the Senior Claimants.
5. Bankruptcy; Insolvency. Upon the occurrence of any
Event of Bankruptcy involving W1R as debtor, then and in any such event the
Senior Claimants shall receive payment
36
41
in full of all amounts due or to become due on or in respect of the Aggregate
Capital and the Senior Claim (including "CP Costs" and "Yield" as defined and as
accruing under the U.S. Receivables Purchase Agreement after the commencement of
any such proceeding, whether or not any or all of such CP Costs or Yield is an
allowable claim in any such proceeding) before Originator is entitled to receive
payment on account of this Subordinated Note, and to that end, any payment or
distribution of assets of W1R of any kind or character, whether in cash,
securities or other property, in any applicable insolvency proceeding, which
would otherwise be payable to or deliverable upon or with respect to any or all
indebtedness under this Subordinated Note, is hereby assigned to and shall be
paid or delivered by the Person making such payment or delivery (whether a
trustee in bankruptcy, a receiver, custodian or liquidating trustee or
otherwise) directly to the Agent for application to, or as collateral for the
payment of, the Senior Claim until such Senior Claim shall have been paid in
full and satisfied.
6. Amendments. This Subordinated Note shall not be
amended or modified except in accordance with Section 7.1 of the Sale Agreement.
The terms of this Subordinated Note may not be amended or otherwise modified
without the prior written consent of the Agent for the benefit of the
Purchasers.
7. GOVERNING LAW. THIS SUBORDINATED NOTE HAS BEEN MADE
AND DELIVERED AT HOUSTON, TEXAS, AND SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS AND
JUDICIAL DECISIONS OF THE STATE OF TEXAS. WHEREVER POSSIBLE EACH PROVISION OF
THIS SUBORDINATED NOTE SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE
AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS SUBORDINATED NOTE
SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE ONLY TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
SUBORDINATED NOTE.
8. Waivers. All parties hereto, whether as makers,
endorsers, or otherwise, severally waive presentment for payment, demand,
protest, notice of dishonor, notice of intention to accelerate and notice of
acceleration. Originator additionally expressly waives all notice of the
acceptance by any Senior Claimant of the subordination and other provisions of
this Subordinated Note and expressly waives reliance by any Senior Claimant upon
the subordination and other provisions herein provided.
9. Assignment. This Subordinated Note may not be
assigned, pledged or otherwise transferred to any party other than Originator
without the prior written consent of the Agent, and any such attempted transfer
shall be void.
37
42
W1 RECEIVABLES, L.P.
BY: W1 GENERAL PARTNER, INC., ITS GENERAL PARTNER
By:
---------------------------------------------
Name:
Title:
38
43
SCHEDULE TO SUBORDINATED NOTE
MADE BY W1 RECEIVABLES, L.P.
AMOUNT OF AMOUNT OF UNPAID
SUBORDINATED PRINCIPAL PRINCIPAL NOTATION
DATE LOAN PAID BALANCE MADE BY
---- ------------ --------- --------- --------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
39
44
EXHIBIT C
JOINDER AGREEMENT
THIS JOINDER AGREEMENT is executed and delivered by
_______________________, a _______________ ("NEW ORIGINATOR") in favor of W1
Receivables, L.P., a Texas limited partnership, as purchaser ("W1R"), with
respect to that certain
U.S. Receivables Sale Agreement dated as of July 2, 2001
by and among various subsidiaries of W1R as "Originators" and W1R (as amended,
supplemented, joined, restated and/or otherwise modified from time to time, the
"SALE AGREEMENT"). Capitalized terms used and not otherwise defined herein are
used with the meanings attributed thereto in the Sale Agreement.
Subject to receipt of counterparts hereof signed by the
signatories below, by its signature below, New Originator hereby absolutely and
unconditionally agrees to become a party to the Sale Agreement as an Originator
thereunder and to be bound by the provisions thereof including, without
limitation, the provisions of Article VII thereof.
Attached hereto is an amended and restated version of Exhibit
D to the Sale Agreement. After giving effect to the amendments and restatements
embodied therein, each of the representations and warranties contained in
Article II of the Sale Agreement will be true and correct as to New Originator.
Delivered herewith are each of the documents, certificates and
opinions required to be delivered by New Originator pursuant to Articles III and
V of the Sale Agreement.
The provisions of Article VIII of the Sale Agreement are
incorporated in this Joinder Agreement by this reference with the same force and
effect as if set forth in full herein except that references in such Article
VIII to "this Agreement" shall be deemed to refer to "this Joinder Agreement and
to the Sale Agreement is modified by this Joinder Agreement."
Please acknowledge your consent to New Originator's joinder in
the Sale Agreement by signing the enclosed copy hereof in the appropriate space
provided below and faxing a copy of such counterpart to (a) the Agent, at fax
no. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Credit Manager, and (b) to New Originator at the
fax no. set forth below its signature hereto.
40
45
IN WITNESS WHEREOF, New Originator has executed this Joinder
Agreement as of the ___ day of _________________.
--------------------------------
By:
----------------------------
Title:
[Please fax executed counterparts of this
Joinder Agreement to ____________________
at Fax No. ( ) ______________]
EACH OF THE UNDERSIGNED HEREBY CONSENTS
TO NEW ORIGINATOR'S JOINDER IN THE SALE AGREEMENT:
BANK ONE, NA, AS AGENT
By:
----------------------------------
Title:
W1 Receivables, L.P.
BY: W1 GENERAL PARTNER, INC., ITS GENERAL PARTNER
By:
----------------------------------
Title:
41
46
EXHIBIT D
ORIGINATORS' CHIEF EXECUTIVE OFFICES, RECORDS LOCATIONS, FEDERAL
EMPLOYER ID NUMBERS AND PRIOR NAMES
▇▇▇▇▇▇▇▇▇▇▇ ARTIFICIAL LIFT SYSTEMS, INC.
Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Records Locations: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(except for archives)
Federal Employer Number: #▇▇-▇▇▇▇▇▇▇
Prior Names: EVI Oil Tools, Inc.
WEATHERFORD U.S., L.P.
Chief Executive Office: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Records Locations: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(except for archives)
Federal Employer Number: #▇▇-▇▇▇▇▇▇▇
Prior Names: none
42
47
SCHEDULE A
CLOSING DOCUMENTS
1.
U.S. Receivables Sale Agreement, duly executed by the
parties hereto.
2. Copy of the Resolutions of the Board of Directors of each
Originator certified by its Secretary, authorizing each Originator's execution,
delivery and performance of the
U.S. Receivables Sale Agreement and the other
documents to be delivered by it thereunder.
3. Certificate of Incorporation/Limited Partnership of each
Originator certified by the Secretary of State of the jurisdiction of
organization of each Originator on or within thirty (30) days prior to the
initial Purchase.
4. Good Standing Certificate for each Originator issued by the
Secretaries of State of (a) its state of organization and (b) if different, the
State of Texas.
5. A certificate of the Secretary of each Originator
certifying: (i) the names and signatures of the officers authorized on its
behalf to execute the
U.S. Receivables Sale Agreement and any other documents to
be delivered by it thereunder and (ii) a copy of each Originator's By-Laws or
limited partnership agreement, as applicable.
6. Pre-filing state and federal tax lien, judgment lien and
UCC lien searches against each Originator from the following jurisdictions:
▇. ▇▇▇▇▇▇▇▇▇▇▇ ARTIFICIAL LIFT SYSTEMS, INC.: Delaware (Secretary
of State) and Texas (Secretary of State and ▇▇▇▇▇▇ County, TX, as
applicable); and
▇. ▇▇▇▇▇▇▇▇▇▇▇ U.S., L.P.: Louisiana (Terrebone Parish and
Statewide Index); and Texas (Secretary of State and ▇▇▇▇▇▇ County, TX, as
applicable)
7. Time stamped receipt copies of proper financing statements,
duly filed under the UCC on or before the date of the initial Purchase in all
jurisdictions as may be necessary or, in the opinion of W1R (or its assigns),
reasonably desirable, under the UCC of all appropriate jurisdictions or any
comparable law in order to perfect the ownership interests contemplated by the
U.S. Receivables Sale Agreement.
8. Time stamped receipt copies of proper UCC termination
statements, if any, necessary to release all security interests and other rights
of any Person in the Receivables, Contracts or Related Security previously
granted by such Originator.
9. Executed Collection Account Agreements for each Lock-Box
and Collection Account (due not later than August 15, 2001).
10. A favorable opinion of legal counsel for each Originator
reasonably acceptable to W1R (or its assigns) which addresses the following
matters and such other matters as W1R (or its assigns) may reasonably request:
43
48
--Such Originator is a corporation duly incorporated, validly
existing, and in good standing under the laws of its state of incorporation.
--Such Originator has all requisite authority to conduct its
business in each jurisdiction where failure to be so qualified would have a
material adverse effect on such Originator's business.
--The execution and delivery by each Originator of the U.S.
Receivables Sale Agreement and each other Transaction Document to which it is a
party and its performance of its obligations thereunder have been duly
authorized by all necessary corporate action and proceedings on the part of each
Originator and will not:
(a) require any action by or in respect of, or filing with,
any governmental body, agency or official (other than the filing of UCC
financing statements);
(b) contravene, or constitute a default under, any provision
of applicable law or regulation or of its articles or certificate of
incorporation or bylaws or of any agreement, judgment, injunction, order, decree
or other instrument binding upon each Originator; or
(c) result in the creation or imposition of any Adverse Claim
on assets of each Originator or any of its Subsidiaries (except as contemplated
by the Transaction Documents).
--The U.S. Receivables Sale Agreement and each other
Transaction Document to which it is a party has been duly executed and delivered
by each Originator and constitutes the legal, valid, and binding obligation of
each Originator enforceable in accordance with its terms, except to the extent
the enforcement thereof may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and subject also to the
availability of equitable remedies if equitable remedies are sought.
--The provisions of the U.S. Receivables Sale Agreement are
effective to create a valid security interest in favor of W1R in all Receivables
and upon the filing of financing statements, W1R shall acquire a first priority,
perfected security interest in such Receivables. Such security interest has been
assigned, of record, to the Agent.
11. A "TRUE SALE" opinion and "SUBSTANTIVE CONSOLIDATION"
opinion of counsel for each Originator with respect to the transactions
contemplated by the U.S. Receivables Sale Agreement.
12. A certificate signed by either (a) each Originator's, or
(b) the Performance Guarantor's vice president-finance, chief financial officer
or its chief accounting officer certifying that no Sale Termination Event exists
as of the date of the initial Purchase.
13. Executed copies of the Subordinated Notes by W1R in favor
of each Originator.
44
49
14. If applicable, executed copies of (i) all consents from
and authorizations by any Persons and (ii) all waivers and amendments to
existing credit facilities, that are necessary in connection with the U.S.
Receivables Sale Agreement.
45