Exhibit 99.1
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RECEIVABLES PURCHASE AGREEMENT
This Receivables Purchase Agreement (this "Agreement") is made and entered
into as of November 29, 2005, by and between CONEXANT USA, LLC, a Delaware
limited liability company ("Purchaser"), and CONEXANT SYSTEMS, INC., a Delaware
corporation ("Seller").
WITNESSETH:
On the terms and subject to the conditions set forth herein, Seller has
agreed to sell, and Purchaser has agreed to purchase, on a "true sale" basis,
certain of Seller's Accounts Receivable.
ARTICLE I DEFINITIONS
Section 1.1 Definitions. Unless otherwise defined herein, all terms with
their initial letters capitalized shall have the meanings given such terms in
that certain Credit and Security Agreement dated the date hereof (as the same
may be amended, restated, supplemented, or otherwise modified from time to time,
the "Credit Agreement"), by and between Purchaser and Wachovia Bank, National
Association (the "Lender").
Section 1.2 Accounting Terms and Determinations. Unless otherwise specified
herein, all terms of an accounting character used herein shall be interpreted,
all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared, in accordance
with GAAP, applied on a basis consistent (except for changes concurred in by the
Public Accountants or otherwise required by a change in GAAP) with the most
recent audited consolidated financial statements of Seller and its Subsidiaries.
Section 1.3 References. Unless otherwise indicated, references in this
Agreement to "articles," "exhibits," "schedules," "sections," and other
subdivisions are references to articles, exhibits, schedules, sections and other
subdivisions hereof.
Section 1.4 Terminology. The terms "herein," "hereof," and "hereunder" and
other words of similar import refer to this Agreement as a whole and not to any
particular section, paragraph or subdivision. Any pronoun used shall be deemed
to cover all genders. Unless the context otherwise clearly indicates, words used
in the singular include the plural and words used in the plural include the
singular. In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding." All references to statutes and
related regulations shall include any amendments of same and any successor
statutes and regulations. All references to any of the Program Documents shall
include any and all amendment or modifications thereto and any and all
restatements, extensions or renewals thereof. All references to any Person shall
mean and include the successors and permitted assigns of such Person. All
references to "including" and "include" shall be understood to mean "including,
without limitation." All references to the time of day shall mean the time of
day on the day in question in Philadelphia, Pennsylvania, unless otherwise
expressly provided in this Agreement. A Default or an Event of Default shall be
deemed to exist at all times during the period commencing on the date that such
Default or Event of Default occurs to the date on which such Default or Event of
Default is waived in writing pursuant to this Agreement or, in the case of a
Default, is cured within any period of cure expressly provided in this
Agreement; and an Event of Default shall "continue," be "continuing," or "in
existence" until such Event of Default has been waived in writing by Lender or
cured.
Whenever the phrase "to the best of Purchaser's knowledge" or words of
similar import relating to the knowledge or the awareness of any Purchaser are
used herein, such phrase shall mean and refer to the actual knowledge of a
Senior Officer of Purchaser. All references to "acceptable" or "satisfactory"
shall, unless expressly provided otherwise, be deemed to mean "reasonably
acceptable" or "reasonably satisfactory." All calculations of money values shall
be in Dollars. To the extent that any party hereto shall have the right to
consent to the taking of any action hereunder, such consent shall not be
unreasonably withheld or delayed (unless otherwise specifically indicated).
ARTICLE II PURCHASE AND SALE OF ACCOUNTS RECEIVABLE
Section 2.1 Agreement to Sell and Purchase Certain Accounts Receivable.
From time to time before the Purchase Termination Date but not during the
continuation of any Default or Event of Default, Seller may on any Preparation
Date offer to sell, and Purchaser may, in its discretion, purchase on the
Settlement Date immediately following such Preparation Date, certain of Seller's
Accounts Receivable which arose before such Preparation Date, subject to the
terms and conditions set forth herein.
Section 2.2 Offering Accounts Receivable for Sale. On or before each
Preparation Date, Seller will notify Purchaser and Lender of those Accounts
Receivable it desires to sell to Purchaser on the immediately following
Settlement Date by delivering written notice to Purchaser, with a copy to Lender
(each, a "Purchase Notice"), which Purchase Notice may be in the form of an
executed ▇▇▇▇ of Sale dated as of, and which will be effective as of, such
Settlement Date. Such Purchase Notice shall specifically identify each of
Seller's Accounts Receivable it desires to sell and shall include the date such
Account Receivable arose, its Face Value, Uncollected Value, invoice number, the
Account Debtor, its due date, and any Deductions (both with respect to such
Account Receivable and the Account Debtor related thereto) granted prior to the
date of such Purchase Notice (including, where applicable, the amount of any
Earned Rebates), all determined as of such Preparation Date, as applicable;
provided, however, that Seller will notify Purchaser in writing on such
Settlement Date if there is any change in any of the foregoing information
relating to any of the Accounts Receivable identified in such Purchase Notice.
Section 2.3 Accepting Accounts Receivable. Purchaser, in its discretion,
may purchase none, one or more, or all of Seller's Accounts Receivable listed on
a Purchase Notice by notifying Seller, on such Preparation Date, of those it
desires to purchase. Seller will not offer for sale, and Purchaser shall not
agree to purchase, and shall not purchase, any Account Receivable if it does
not, at the time of Purchaser's purchase thereof, constitute an Eligible
Receivable in every respect, according to the definition of Eligible Receivable.
Section 2.4 Purchase Transaction. On each Settlement Date, Seller, if
selling any Accounts Receivable to Purchaser on such Settlement Date, will
execute and deliver to Purchaser a ▇▇▇▇ of sale dated as of such Settlement
Date, which ▇▇▇▇ of sale will be substantially in the form of Exhibit A,
attached hereto and made a part hereof (each, a "▇▇▇▇ of Sale"); provided that,
if Seller delivered an executed ▇▇▇▇ of Sale in accordance with Section 2.2,
Seller need not execute and deliver a new ▇▇▇▇ of Sale, but the ▇▇▇▇ of Sale
delivered in accordance with Section 2.2 shall become effective on such
Settlement Date.
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In any event, Purchaser will deliver, or cause to be delivered, a copy of such
▇▇▇▇ of Sale to Lender on such Settlement Date. Such ▇▇▇▇ of Sale will list only
those of Seller's Accounts Receivable which Purchaser may, and has elected
to, purchase in accordance with Section 2.3. The sale of the Accounts
Receivable identified on a ▇▇▇▇ of Sale shall not be deemed consummated until
Lender shall have received a copy of such ▇▇▇▇ of Sale, fully executed by
Seller.
Section 2.5 Payment of Purchase Price; Application of Deductions.
(a) The Purchase Price for any Account Receivable purchased from Seller by
Purchaser on any Settlement Date shall be paid on such Settlement Date in cash
to the extent of the Cash Price of such Account Receivable and by an accrual on
the Subordinated Note in an amount equal to the Deferred Price of such Account
Receivable. The parties acknowledge and agree that the aggregate amount of any
Deductions relating to any Purchased Receivable (to the extent such Deductions
(a) were not otherwise taken into account in determining the Uncollected Value
of such Purchased Receivable at the time of its initial purchase hereunder and
(b) have not otherwise been accounted for under this Section 2.5) shall be
accounted for by deducting the aggregate amount of such Deductions
dollar-for-dollar from the Uncollected Value of all Accounts Receivable being
purchased on the Settlement Date following the Preparation Date on which such
Deductions were reported, and the Purchase Price for all such Accounts
Receivable being so purchased shall be based on such reduced amount; provided,
however, that, to the extent the amount of such Deductions exceeds the
Uncollected Value of the Accounts Receivable being purchased on such Settlement
Date, such excess Deductions shall, subject to the satisfaction of all other
applicable terms and conditions of the Program Documents, be carried forward to
the next succeeding Settlement Date, and so on until accounted for hereunder.
(b) In addition to the preceding subclause (a), the provisions of this
subclause (b) apply, without duplication, with respect to Deductions in the form
of Earned Rebates:
(i) Seller and Purchaser acknowledge and agree that:
(A) Seller has established certain incentive programs with certain
Account Debtors and such incentive programs from time to time allow
each such Account Debtor to accrue Earned Rebates;
(B) as to Purchaser, these Earned Rebates constitute Deductions,
although neither Seller nor Purchaser knows with any certainty when
or against which of the Accounts Receivable such Earned Rebates
will be applied by the related Account Debtor; and
(C) all Earned Rebates will be taken into account (on a
dollar-for-dollar basis) as Deductions in determining the Purchase
Price to be paid by Purchaser with respect to the Purchaser's
purchase of Accounts Receivable as further provided in Section
2.5(a), above.
(ii) Because of the Purchase Price adjustment described above (i.e., the
taking into account of all Earned Rebates) and the uncertainty over
when or against which of the Accounts Receivable such Earned Rebates will
be applied by the related Account Debtor, Purchaser may receive payment
from Account Debtors greater than that contemplated by the Purchase
Price paid for Accounts Receivable, and Purchaser shall be entitled
to maintain in the Purchaser's Account and otherwise account for such
excess payment as cash collateral against the future application of
Earned Rebates by Account Debtors, subject to the following:
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(A) if an Account Debtor applies all or any portion of its Earned
Rebates to a Purchased Receivable, Purchaser shall pay to itself an
equivalent portion of such cash collateral in accordance with the
following subclause (iii) to compensate it for such Earned Rebate;
(B) if an Account Debtor applies all or any portion of its Earned
Rebate to an Account Receivable which was not sold to Purchaser, then
Purchaser shall, on request of Seller, pay over to Seller in accordance
with the following subclause (iii) all or such portion of such cash
collateral equal to the amount of such Earned Rebate actually applied
by such Account Debtor; and
(C) if Purchaser does not own any Purchased Receivables payable
by an Account Debtor for whom Purchaser holds cash collateral,
then, on request of Seller, Purchaser will pay such cash collateral
attributable to such Account Debtor over to Seller in accordance with
the following subclause (iii).
(iii) Application or disposition of cash collateral pursuant to the
immediately preceding subclause (ii) shall be made on the Settlement
Date immediately following the Preparation Date on which application or
disposition is accounted for. Purchaser shall have no obligation to
apply any cash collateral in favor of Seller to the extent doing so
would cause the aggregate amount of such cash collateral to be less
than the amount of Earned Rebates existing, without duplication, with
respect to all Purchased Receivables and all Account Debtors relating to
the Purchased Receivables. Any application of cash collateral in favor of
Seller may be made and accounted for by an accrual on the Subordinated
Note.
Section 2.6 True Sale of Purchased Receivables. The sale of each Account
Receivable will constitute a "true sale" of all of Seller's right, title and
interest in and to such Account Receivable and its Related Rights and Property,
and Purchaser shall take title to such Account Receivable and its Related Rights
and Property without recourse to Seller except in the event such Account
Receivable becomes a Designated Receivable.
Section 2.7 Repurchase of Designated Receivables.
(a) If a Purchased Receivable becomes a Designated Receivable:
(i) The party which makes the determination that such Purchased
Receivable has become a Designated Receivable will promptly notify
the other party and Lender (which notice may be telephonic) and
specifically identify such Designated Receivable and the event or
condition which has caused it to become a Designated Receivable;
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(ii) On the next occurring Settlement Date (or the second
following Settlement Date, if such Designated Receivable arises after
the Preparation Date for the next occurring Settlement Date), Seller
will repurchase such Designated Receivable, without recourse,
with the Settlement Price therefor being paid pursuant to the
following, in the following order, as applicable:
(A) by a credit from Seller to Purchaser in an amount
equal to the Settlement Price for such Designated Receivable,
which credit Purchaser shall apply to the purchase of new
Eligible Receivables on such Settlement Date, provided,
however, that, to the extent the amount of such new
Eligible Receivables to be purchased on such Settlement Date are
insufficient to cause the full expenditure of such credit as the
Purchase Price therefor (with such credit being applied first,
before the application of any other cash, to the purchase of new
Eligible Receivables), then the excess Settlement Price shall be
paid pursuant to subclause (B), below; and
(B) at Seller's option, by (it being agreed that if Seller
fails to exercise such option within the time limits set forth
in subclause (1)(x), below, it shall be conclusively deemed to
have elected subclause (2), below):
(1) a reduction in the principal amount of the Subordinated
Note in the amount of the excess of the Settlement Price,
provided, however, if Seller elects the option in this
subclause (1), (x) it must first notify Lender in writing
of such election on or before the next occurring Preparation
Date after the applicable Purchased Receivable became a
Designated Receivable and, thereafter, cooperate with
Lender in ensuring the Settlement Report is properly
documented to reflect such reduction in the principal amount
of the Subordinated Note and (y) to the extent the principal
amount of the Subordinated Note is less than the amount of the
excess of the Settlement Price, then an amount equal to the
amount by which the excess of the Settlement Price exceeds
the principal amount of the Subordinated Note shall be paid
by pursuant to subclause (2) below; or
(2) Seller in cash by wire transfer to Purchaser on such
Settlement Date; and
(iii) If requested by Seller, Purchaser will, on such Settlement
Date, execute and deliver a ▇▇▇▇ of sale for such Designated
Receivable in form substantially similar to a ▇▇▇▇ of Sale.
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(b) Any Policy claim which may have been submitted on a Designated
Receivable shall be withdrawn immediately after such Designated Receivable is
identified as such, and Seller, after repurchasing such Designated Receivable,
shall not make any claim under the Policy for payment of the Designated
Receivable.
Section 2.8 Power of Attorney; Limited License. Effective upon the Closing
Date and thereafter, Seller hereby irrevocably names, constitutes, and appoints
Purchaser and Purchaser's officers, agents, employees and representatives its
duly authorized attorney and agent with full power and authority to endorse in
Seller's name any checks or other instruments relating to (a) the Purchased
Receivables purchased from Seller, including, without limitation, any Designated
Receivable until such Designated Receivable is repurchased by Seller and (b) the
Unsold Receivables. Seller grants Purchaser a license to use any of its
tradenames, trademarks, or service marks for the limited purposes of billing,
collecting, settling, compromising, or otherwise disposing of any Purchased
Receivable purchased from Seller and its Related Rights and Property; provided,
however, that Purchaser shall have no right to exploit such license in its own
right but rather shall be entitled only to assign such limited license to any
other person or entity which then or thereafter has any interest in and to such
Purchased Receivable or any applicable Related Rights and Property and to
Servicer for purposes of Servicer's performing its duties under the Servicing
Agreement.
Section 2.9 Servicing of Accounts Receivable.
(a) On and after each Settlement Date, Purchaser shall have the sole right
to receive all collections with respect to all Purchased Receivables it
purchased on such Settlement Date. The foregoing notwithstanding, Purchaser and
Seller agree to engage Seller's services as initial Servicer for all the
Purchased Receivables pursuant to the terms set forth in the Servicing
Agreement. Seller agrees to notify all Account Debtors of its respective
Purchased Receivables to tender all payments on such Purchased Receivables to
the Lockbox and to cooperate fully with the Servicer in all respects regarding
the servicing of the Purchased Receivables. Collections received in the Lockbox
shall be deposited in the Purchaser's Account on each Business Day or at such
other frequency as set forth in the agreements relating to the establishment and
administration of the Lockbox. All collections on an Account Receivable received
by a Person who is not the Obligee of such Account Receivable shall be held in
trust for the Obligee and, in the case of a Purchased Receivable, promptly
deposited into Purchaser's Account or delivered to Servicer with proper
endorsement for deposit by Servicer into the Purchaser's Account.
(b) Purchaser and Seller acknowledge that certain, but not necessarily all,
of the Accounts Receivable from time to time owing by a given Account Debtor may
be sold to Purchaser and that each such Account Debtor may experience confusion
at a given time over to whom it should make payment on such Accounts Receivable.
To mitigate this risk of confusion and the associated delay in collecting such
Accounts Receivable (both Purchased Receivables and Unsold Receivables),
Purchaser and Seller agree that, with respect to those Account Debtors who have
been pre-approved by the Underwriter and whose Accounts Receivable are nominally
eligible for purchase by Purchaser, the Seller may direct such Account Debtors
to make payment on Unsold Receivables to the Lockbox.
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Any items of payment or other collections on Unsold Receivables received
into the Lockbox will be endorsed over to Purchaser and deposited in the
Purchaser's Account and, on each Settlement Date, such items of payment and
collections will be paid over to Seller, in full, in accordance with Seller's
lawful instructions provided from time to time to Purchaser, Servicer, and
Lender, to the extent such items of payment and other collections (i) have been
reasonably identified as payment on an Unsold Receivable and (ii) have cleared
the customary bank collection process for payments of like kind. Purchaser will
direct Servicer to notify Purchaser, Seller, and Lender of any items of payment
or other collections received in the Lockbox which are not identifiable as to
any given Account Receivable, and Purchaser and Seller agree to cooperate in
identifying the Person to whom such items of payment or other collections should
be paid. If requested by Purchaser, Lender, or Servicer, Seller agrees from time
to time to provide any of them with a listing of all Unsold Receivables with
respect to which Seller has directed the Account Debtor thereof to make payment
to the Lockbox. Seller agrees that the power of attorney granted to Purchaser
under Section 2.8, above, shall apply with equal force to Unsold Receivables;
provided, however, that none of Purchaser, Servicer, or Lender shall be under
any obligation whatsoever to enforce payment of any Unsold Receivable and that
none of Purchaser, Servicer, or Lender will have any duty or obligation with
respect to any Unsold Receivable other than as expressly set forth in this
Section 2.9. In the event any item of payment received with respect to an Unsold
Receivable is paid over to Seller and, thereafter, such item is returned unpaid
or uncollected, or the depository institution which made the funds available to
Seller for such item of payment is by law forced to disgorge the amount thereof
to any Person other than Seller, then such depository institution may offset
against Purchaser's funds in the Purchaser's Account, and Seller shall promptly
reimburse Purchaser in an amount equal thereto upon Seller's receipt of
reasonably satisfactory evidence thereof.
Section 2.10 Recharacterization. The parties hereto intend that Purchaser's
purchase of the Purchased Receivables shall constitute an absolute sale,
conveying good title, free and clear of any Liens other than Permitted
Encumbrances. It is the intention of the parties that the initial funding of the
Minimum Balance constitutes a contribution of capital to Purchaser, and not a
loan. In the event, however, that it were to be determined that the transactions
evidenced hereby and by the other Program Documents constitute a loan and not a
contribution of capital or purchase and sale, then (a) Purchaser shall cease
purchasing any additional Accounts Receivable, (b) this Agreement shall
constitute a security agreement under applicable law, and (c) Seller does hereby
grant Purchaser a security interest in and to all of Seller's right, title, and
interest, whether now owned or hereafter acquired, in, to, and under the
Purchased Receivables and their Related Rights and Property to secure the
obligations of Seller hereunder.
Section 2.11 Related Rights and Property. In all cases hereunder where an
Account Receivable is sold or conveyed to a Person who then becomes the Obligee
of such Account Receivable, the sale or conveyance of such Account Receivable
shall be deemed to include the sale and conveyance of all of the Related Rights
and Property relating to such Account Receivable.
ARTICLE III THE CLOSING
Section 3.1 The Closing. The closing of the transactions set forth herein
shall occur on the Closing Date, contemporaneously with the closing of the
Credit Agreement. In any event, this Agreement will not be effective until the
Effective Date. Facsimile signatures of the parties hereto shall be sufficient
to close this Agreement; provided that Seller and Purchaser agree to deliver
fully executed, original counterparts of this Agreement and the other Program
Documents to Lender's counsel for receipt by Lender's counsel no later than two
Business Days following the Closing Date.
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ARTICLE IV REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of Seller. Seller hereby
represents and warrants to Purchaser as follows (each of which representations
and warranties shall be deemed to have been restated upon the delivery of each
▇▇▇▇ of Sale to Purchaser):
(a) Organization; Location. Seller is a corporation validly existing and in
good standing under the laws of the state of its formation or organization and
is authorized under such laws to conduct its business as currently conducted and
to own its assets (including but not limited to its Accounts Receivable) as
currently owned. The location of Seller's chief executive office and all of its
Books and Records relating to its Accounts Receivable, the state of
incorporation of the Seller, the Seller's federal tax identification number, and
the Seller's organizational identification number are identified in that certain
Collateral Disclosure Certificate delivered by Seller as of even date herewith
(the "Collateral Disclosure Certificate").
(b) Capacity; Authority; Validity. Seller has all necessary corporate power
and authority to enter into this Agreement and to perform all of the obligations
to be performed by it under this Agreement. This Agreement and the consummation
by Seller of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action of Seller. This Agreement has been
duly executed and delivered by Seller and constitutes the valid and binding
obligations of Seller, enforceable against Seller in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
generally or by general principles of equity.
(c) Conflict; Defaults. Neither the execution and delivery of this
Agreement by Seller, nor the consummation of the transactions contemplated
hereby and thereby will (i) conflict with, result in the breach of, constitute a
default under, or accelerate the performance required by, the terms of any law,
regulation, judgment, order, writ, decree, permit, license, agreement, contract,
instrument, or commitment to which Seller is a party or by which Seller or its
assets are bound, where such conflict, breach, default or acceleration could
reasonably be expected to have a material adverse effect on the Seller and its
Subsidiaries (taken as a whole), the consummation of the transactions
contemplated herein, the enforceability of the Program Documents to which Seller
is a party, or the perfection and priority of the Purchaser's (or Lender's, as
assignee of Purchaser) security interest in and to the Purchased Receivables and
the Related Rights and Property, (ii) violate Seller's articles of
incorporation, bylaws, or other constitutional or charter documents, as the case
may be, or (iii) require any consent, approval, authorization or filing (which,
in each case, has not already been obtained or made) under any law, regulation,
judgment, order, writ, decree, permit, license, agreement, contract, instrument,
or commitment to which Seller is a party or by which Seller or any of its assets
are bound, where the failure to obtain such consent, approval, authorization or
filing could reasonably be expected to have a material adverse effect on the
Seller and its Subsidiaries (taken as a whole), the consummation of the
transactions contemplated herein, the enforceability of the Program Documents to
which Seller is a party, or the perfection and priority of the Purchaser's (or
Lender's, as assignee of Purchaser) security interest in and to the Purchased
Receivables and the Related Rights and Property.
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Seller is not subject to any agreement with any regulatory authority which
would prevent the consummation by Seller of the transactions contemplated by
this Agreement. Seller is not in default under, and no event has occurred which
with the lapse of time or action by a third party could result in a default
under, the terms of any judgment, order, writ, decree, permit or license of any
Governmental Body, whether at law or in equity, which could reasonably be
expected to have a material adverse effect on the Seller and its Subsidiaries
(taken as a whole), the consummation of the transactions contemplated herein,
the enforceability of the Program Documents to which Seller is a party, or the
perfection and priority of the Purchaser's (or Lender's, as assignee of
Purchaser) security interest in and to the Purchased Receivables and the Related
Rights and Property.
(d) Title to Purchased Receivables. Seller has good and marketable title to
its Accounts Receivable as the same arise, free and clear of any Lien except for
Permitted Encumbrances. Execution and delivery of this Agreement and each ▇▇▇▇
of Sale by the parties thereto (i) will vest in Purchaser good and marketable
title to all the Accounts Receivable set forth from time to time in such Bills
of Sale, free and clear of any Lien, other than Permitted Encumbrances, and (ii)
constitute a valid, binding and enforceable sale and assignment of Seller's
interest in the Purchased Receivables set forth on such Bills of Sale.
(e) Litigation. There is no claim, or any litigation, proceeding,
arbitration, investigation, or controversy pending or, to the Seller's best
knowledge, threatened against or affecting Seller, which could reasonably be
expected to have a material adverse effect on (i) the Purchased Receivables or
(ii) the ability of Seller to consummate the transactions contemplated hereby.
(f) Finders or Brokers. Seller has not agreed to pay any fee or commission
to any agent, broker, finder, or other person retained by it, for or on account
of services rendered as a broker or finder in connection with this Agreement or
the transactions contemplated hereby which would give rise to any valid claim
against Purchaser for the payment of any such fee or commission.
(g) Effect of Law on Closing. There is no foreign, federal, or state
statute, rule or regulation, or order or rule of any Governmental Body which
would prevent Seller from selling its Accounts Receivable to Purchaser as
contemplated by this Agreement or which would prevent Seller from performing its
obligation under this Agreement, the Servicing Agreement, or any other Program
Document.
(h) [Intentionally Omitted.]
(i) [Intentionally Omitted.]
(j) Nature of Purchased Receivables. Each Purchased Receivable constitutes
an "account," "chattel paper," or "general intangible," as such terms are
defined in the UCC.
(k) Purchased Receivables.
(i) Subject to the following subclause (iii), each Account
Receivable purchased by Purchaser pursuant to a ▇▇▇▇ of Sale
constituted an Eligible Receivable in every respect (according to the
definition of Eligible Receivable) at the time it was so purchased.
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(ii) Subject to the following subclause (iii), each Account
Receivable purchased by Purchaser pursuant to a ▇▇▇▇ of Sale
satisfies, as of each Settlement Date, each criterion in the
definition of "Eligible Receivable" other than those criteria set
forth in clauses (d), (g), (h), and (i) of the definition of
"Eligible Receivable."
(iii) The preceding subclauses (i) and (ii) are subject to the
following:
(A) the representation and warranty set forth in the preceding
subclause (ii) shall not apply with respect to any such
Account Receivable which has become a Discharged Receivable;
(B) with respect to any such Account Receivable which has
become a Designated Receivable, the sole remedy available to
Purchaser for any breach of the representations and warranties set
forth in the preceding subclauses (i) and (ii) (absent intentional
misconduct, fraud, or illegality on Seller's part)shall be the
provisions regarding the repurchase thereof pursuant to Section
2.7; and
(C) with respect to any such Account Receivable which has become
subject to a Deduction not otherwise disclosed when such Account
Receivable was purchased, the sole remedy available to Purchaser
for any breach of the representations and warranties set forth
in the preceding subclauses (i) and (ii) (absent
intentional misconduct, fraud, or illegality on Seller's
part) shall be the provisions regarding the application of
Deductions pursuant to Section 2.5.
(l) No Misrepresentation. All information heretofore furnished by Seller or
any of its Affiliates to Purchaser (or to the Lender, as Purchaser's assignee)
for purposes of or in connection with this Agreement, any of the other Program
Documents or any transaction contemplated hereby or thereby is, and all such
information hereafter furnished by Seller or any of its Affiliates to Purchaser
(or to the Lender, as Purchaser's assignee) will be, true and accurate in all
material respects 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
material fact or any fact necessary to make the statements contained therein not
misleading.
(m) No Default. Seller is not in default under or with respect to any
agreement, instrument, or undertaking to which it is a party or by which it or
any of its property is bound which could reasonably be expected to have or cause
a material adverse effect on Seller and its Subsidiaries taken as a whole.
(n) Perfection. This Agreement, each applicable ▇▇▇▇ of Sale, and the due
filing of the financing statements contemplated herein, together, are effective
to transfer to Purchaser (and Purchaser shall acquire from Seller) legal and
equitable title to, with the right to sell and encumber, each such Purchased
Receivable existing and hereafter arising, together with the Related Rights and
Property with respect thereto, free and clear of any Liens, except Permitted
Encumbrances. There have been duly filed all financing statements or other
similar instruments or documents necessary under the UCC (or any comparable law)
of all appropriate jurisdictions to perfect Purchaser's ownership interest in
the Purchased Receivables and the Related Rights and Property.
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(o) Not a Holding Company or an Investment Company. Seller 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. Seller is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or any successor
statute.
Section 4.2 Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller as follows (each of which representations and
warranties shall be deemed to have been restated upon the delivery of each ▇▇▇▇
of Sale to Purchaser):
(a) Organization. Purchaser is a limited liability company, validly
existing and in good standing under the laws of the State of Delaware.
(b) Capacity; Authority; Validity. Purchaser has all necessary limited
liability company power and authority to enter into this Agreement and to
perform all of the obligations to be performed by it under this Agreement. This
Agreement and the consummation by Purchaser of the transactions contemplated
hereby and thereby have been duly and validly authorized by all necessary
limited liability company action of Purchaser. This Agreement has been duly
executed and delivered by Purchaser and constitutes the valid and binding
obligations of Purchaser, enforceable against Purchaser in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
generally or by general principles of equity.
(c) Conflicts; Defaults. The execution and delivery of this Agreement by
Purchaser and the consummation of the transactions contemplated hereby or
thereby by Purchaser will not (i) conflict with, result in the breach of,
constitute a default under or accelerate the performance required by, the terms
of any law, regulation, judgment, order, writ, decree, permit, license,
agreement, contract, instrument, or commitment to which Purchaser is a party or
by which Purchaser or its assets are bound, (ii) violate the certificate of
formation or operating agreement of Purchaser, or (iii) require any consent,
approval, authorization or filing (which, in each case, has not already been
obtained or made) under any law, regulation, judgment, order, writ, decree,
permit, license, agreement, contract, instrument, or commitment to which
Purchaser is a party or by which Purchaser or its assets are bound. Purchaser is
not subject to any agreement or understanding with any Governmental Body which
would prevent the consummation by Purchaser of the transactions contemplated by
this Agreement.
(d) Effect of Law on Closing. There is no foreign, federal, or state
statute, rule or regulation, or order or rule of any Governmental Body which
would prevent Purchaser from purchasing Accounts Receivable as contemplated
herein.
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ARTICLE V CERTAIN COVENANTS
Section 5.1 Mutual Covenants and Agreements. Subject to the terms and
conditions herein provided, each party to this Agreement shall use its
commercially reasonable efforts to take, or cause to be taken, all action, and
to do, or cause to be done, all things necessary, appropriate or desirable
hereunder and under applicable laws and regulations to consummate, make
effective, and carry out the purposes of, the transactions contemplated by this
Agreement. Each party to this Agreement will use its commercially reasonable
efforts to obtain consents of all third parties and Governmental Bodies
necessary for the consummation of the transactions contemplated by this
Agreement.
Section 5.2 Certain Covenants of Seller. Seller hereby agrees with
Purchaser as follows:
(a) Financing Statements; UCC Matters. Seller authorizes Purchaser to
prepare and file (at Seller's cost) Financing Statements in any jurisdictions
where Purchaser deems such filings to be reasonably necessary to give notice of
Purchaser's interest in and to the Purchased Receivables, and, if requested by
Purchaser, Seller will promptly execute such Financing Statements and return
them to Purchaser or its designee for filing. Seller will not change its name,
identity, state of incorporation or corporate structure (within the meaning of
Section 9-507(c) of the UCC) or relocate its chief executive office or any
office where its Books and Records are kept unless it shall have (i) given
Purchaser (and the Lender, as Purchaser's assignee) at least thirty (30) days'
prior written notice thereof and (ii) delivered to Purchaser (and the Lender, as
Purchaser's assignee) all financing statements, instruments and other documents
reasonably requested by Purchaser (or the Lender, as Purchaser's assignee) in
connection with such change or relocation.
(b) Access. Seller shall (i) so long as there is then no Event of Default
in existence, during Seller's regular business hours and with reasonable prior
notice, not more than two (2) times per Fiscal Year, and during the existence of
an Event of Default, at any time without prior notice, permit Purchaser, Lender,
and Underwriter, and their respective authorized representatives, full access to
its Books and Records as they relate to the Purchased Receivables and (ii)
furnish Purchaser and, upon request, Lender and Underwriter with true, accurate
and complete copies of the Underlying Contracts and other such records and all
other information in its possession with respect to the Purchased Receivables as
Purchaser, Lender, or Underwriter may request. Seller shall cause its personnel
and its agents to provide Purchaser, Lender, and Underwriter, and their
respective authorized representatives, assistance in each of their investigation
of the matters set forth in clauses (i) and (ii) of the preceding sentence, all
for purposes of monitoring compliance with this Agreement and the other Program
Documents. No Person shall be granted such access or furnished with such
materials unless such Person is bound (directly or indirectly) by the terms of
Section 8.5 or by an effective confidentiality agreement containing terms
substantively similar to the terms set forth in Section 8.5, with such
conforming changes as are necessary to reflect the agreement of Seller and such
Person; provided, however, that such Person and Seller may, but neither shall be
obligated to, agree on different terms respecting such confidential treatment.
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(c) Further Assurances and Assistance. On or after the Closing Date, Seller
shall give such further assurances to Purchaser, execute, acknowledge and
deliver all such acknowledgments and other instruments and take such further
action as may be reasonably necessary or appropriate to fully and effectively
carry out the transactions contemplated hereby, including, without limitation,
any additional Financing Statements. As reasonably requested by Purchaser,
Lender, or Underwriter, Seller will provide reasonable assistance to Purchaser,
Lender, and Underwriter, and their respective authorized representatives in
obtaining access to information to assist Purchaser in financing and insuring
the Purchased Receivables (or any portion thereof) as any of them may reasonably
request, including, without limitation, access to reports currently prepared by
Seller in the ordinary course of business in accordance with the Policies and
Procedures, the Settlement Reports and other reports required of Purchaser by
Lender under the Credit Agreement or Underwriter under the Policy, and any
additional reports that Seller is obligated to provide under the Servicing
Agreement. Seller shall (i) comply with all requirements under the Policy which
are applicable to it in its capacity as Seller or originator of the Purchased
Receivables and (ii) respond completely and accurately to all questionnaires,
polls, surveys, or audits of its Policies and Procedures, Standard Terms, Books
and Records, the Purchased Receivables and their Related Rights and Property,
and other items delivered to or required of Seller by Lender or Underwriter.
Except as otherwise provided in this Agreement, Seller shall take no action
after the Closing Date which would be inconsistent with the effective transfer
by Seller to Purchaser hereunder of Seller's entire right, title and interest in
and to the Purchased Receivables and their Related Rights and Property or which
would demean or diminish Purchaser's rights under the Policy.
(d) Changes to Policies and Procedures; Standard Terms; Underlying
Contracts. Seller agrees that it will not, without the prior written consent of
Purchaser, Lender, and Underwriter, (i) change any of its Policies and
Procedures in any material respect or in any way which cause the Policy to
become ineffective in whole or in part or (ii) change, alter, amend, or
otherwise modify (A) the Standard Terms applicable to a given Account Debtor, to
the extent such Standard Terms have been approved by the Underwriter, except to
the extent otherwise permitted by the Policy, or (B) the terms and conditions of
any Underlying Contract, to the extent such Underlying Contract relates to any
Purchased Receivable, other than, in each of the foregoing cases, the granting
of Deductions as permitted by the Program Documents.
(e) Granting Deductions. Seller agrees that it will not grant or consent to
any Deductions to the Purchased Receivables without promptly notifying Purchaser
thereof in writing, no later than the Settlement Date next occurring after the
granting of such Deduction; provided, however, that with respect to Deductions
in the form of Earned Rebates, Seller may grant such Earned Rebates in
accordance with the terms of the incentive programs established by Seller, so
long as Seller notifies Purchaser of such Earned Rebates in writing (which
requirement may be satisfied by including the same on the relevant IRPF
Receivables Report) no later than the Settlement Date next occurring after such
rebates become Earned Rebates.
(f) Reasonable Assistance. Seller agrees that it will provide reasonable
assistance to Purchaser in recovering, repossessing, reclaiming, or procuring
the return of any goods represented by a Purchased Receivable and that it will
set aside, ▇▇▇▇ with Purchaser's name, and hold such goods for Purchaser's
account. Seller will promptly notify Purchaser of any such goods. Seller agrees
to allow such goods to be stored without cost in a reasonably safe and secure
location on Seller's property and grants Purchaser, Lender, and Underwriter, and
their respective authorized representatives, the right to enter upon its
premises (i) in accordance with Section 5.2(b) and (ii) during the existence of
any Event of Default at any time and without notice to inspect or remove such
goods.
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(g) Treatment of Transactions. Seller will maintain its records and books
of account in a manner that clearly reflects the true sale of all Purchased
Receivables sold to Purchaser hereunder and shall not prepare any financial
statements for accounting or financial reporting purposes which would account
for the transfer of such Purchased Receivables in any manner other than as a
true sale.
(h) Lender's Reliance. Seller acknowledges that the Lender is entering into
the transactions contemplated by the Program Documents in reliance upon
Purchaser's identity as a legal entity that is separate from Seller and any
Affiliates thereof. Therefore, from and after the date of execution and delivery
of this Agreement, Seller shall take all reasonable steps including, without
limitation, all steps that Purchaser (or the Lender, as Purchaser's assignee)
may from time to time reasonably request to maintain Purchaser's identity as a
separate legal entity and to make it manifest to third parties that Purchaser is
an entity with assets and liabilities distinct from those of Seller and any
Affiliates thereof and not just a division of Seller. Without limiting the
generality of the foregoing and in addition to the other covenants set forth
herein, Seller (i) will not hold itself out to third parties as liable for the
debts of Purchaser nor purport to own any Purchased Receivables and other assets
acquired by Purchaser from Seller, (ii) will take all other actions necessary on
its part to ensure that Purchaser is at all times in compliance with the
covenants set forth in Section 5.10 of the Credit Agreement, and (iii) will
cause all tax liabilities arising in connection with the transactions
contemplated herein or otherwise to be allocated between Seller and Purchaser on
an arm's-length basis and in a manner consistent with the procedures set forth
in U.S. Treasury Regulations ss.ss.1.1502-33(d) and 1.1552-1, as applicable.
(i) Taxes. Seller will file all tax returns and reports required by law to
be filed by it and 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 generally accepted accounting principles
shall have been set aside on its books, unless the failure to make any such
payment could reasonably be expected to have a material adverse effect on the
Seller and its Subsidiaries (taken as a whole), the consummation of the
transactions contemplated herein, the enforceability of the Program Documents to
which Seller is a party, or the perfection and priority of the Purchaser's (or
Lender's, as assignee of Purchaser) security interest in and to the Purchased
Receivables and the Related Rights and Property.
(j) Change in Payment Instructions to Obligors. Except as set forth in the
Program Documents, Seller will not make any change in the instructions to
Account Debtors regarding payments to be made to the Lockbox.
(k) Sales, Liens. Seller will not sell, assign (by operation of law or
otherwise) or otherwise dispose of, or grant any option with respect to, or
create or suffer to exist any Lien upon (including, without limitation, the
filing of any financing statement) or with respect to, any Purchased Receivable
or Related Rights or Property, or upon or with respect to any Underlying
Contract under which any Purchased Receivable arises (to the extent of such
Purchased Receivable), or assign any right to receive income with respect
thereto (other than, in each case, the creation of the interests therein in
favor of Purchaser provided for herein), and Seller will defend the right, title
and interest of Purchaser (and the Lender, as Purchaser's assignee) in, to and
under any of the foregoing property, against all claims of third parties
claiming through or under Seller.
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(l) Use of Proceeds. Seller will not use any of the proceeds of any sale of
Accounts Receivables hereunder for a purpose that violates, or would be
inconsistent with, Regulations T, U or X promulgated by the Board of Governors
of the Federal Reserve System from time to time.
ARTICLE VI CONDITIONS OF CLOSING
Section 6.1 Conditions Precedent. The parties' respective obligations to
consummate and perform the transactions contemplated by this Agreement are
subject to the satisfaction or waiver of each of the conditions precedent that
(i) each of the representations and warranties of each of the parties hereto
shall be true and correct on the Closing Date, (ii) each of the conditions
precedent set forth in the Credit Agreement shall have been satisfied or waived
by Lender, and (iii) the Seller shall have delivered the Collateral Disclosure
Certificate in form and substance satisfactory to the Purchaser.
ARTICLE VII INDEMNIFICATION AND RELATED TERMS
Section 7.1 Seller's Indemnification Obligations. Seller shall be liable to
and shall indemnify, defend and hold Purchaser, Lender, and Underwriter, and
their respective officers, directors, employees, subcontractors, and permitted
assigns, harmless from and against any and all Losses arising from or relating
to (i) Seller's breach of any representation, warranty or covenant expressly
made by Seller hereunder or under any other Program Document or (ii) Seller's
failure to perform its obligations hereunder; provided, however, that (x) Seller
shall not be required to indemnify any of the aforementioned indemnitees (each,
and "Indemnitee") for Losses arising from such Indemnitee's own gross negligence
or willful misconduct and (y) nothing in this Article VII shall be deemed to
provide indemnification to Purchaser from Seller, or recourse by Purchaser to
Seller, for credit losses due to defaulted or otherwise uncollectable Accounts
Receivable.
Section 7.2 Survival of Indemnification Obligations.Seller's
indemnification of Purchaser, Lender, and Underwriter shall survive Closing and
the Program Termination Date.
ARTICLE VIII MISCELLANEOUS
Section 8.1 Survival of Representations and Warranties. The representations
and warranties of each party contained in this Agreement or in any certificates
or other instruments delivered pursuant to this Agreement will survive Closing
and the Program Termination Date.
Section 8.2 Notices. All notices and other communications by Purchaser,
Seller, or Lender hereunder shall be in writing to the other parties (and to
Lender) and shall be deemed to have been duly given when delivered in person or
to an overnight courier service, receipt requested, or sent via telecopy
transmission, receipt requested or when posted by the United States registered
or certified mail, with postage prepaid, addressed as follows:
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To Seller:
Conexant Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Director, Finance, WorldWide Sales
Controller
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
To Purchaser:
Conexant USA, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and Treasurer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
In any case, with copy to:
Wachovia Bank, National Association
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, Structured Trade Finance
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation: ▇▇▇-▇▇▇-▇▇▇▇
or to such other addresses as a party or Lender may from time to time
designate by notice as provided herein (or which Lender may provide to the
parties), except that notices of change of address shall be effective only upon
actual receipt.
Section 8.3 Assignment.
(a) The rights of any party under this Agreement shall not be assigned or
transferred by any party without the prior written approval of the other party
hereto and Lender; provided, however, that the parties hereto acknowledge and
agree that:
(i) Purchaser intends (A) to finance, in part, its purchase of
the Purchased Receivables through extensions of credit from Lender and
(B) to insure the collection of such Purchased Receivables under the
Policy;
(ii) that Purchaser may assign its rights under this Agreement, each
other Program Document, and the Purchased Receivables to Lender in
connection with such financing; and
16
(iii) to the extent a Purchased Receivable is paid under the
Policy, Purchaser may, with respect to such Purchased Receivable,
assign its rights under this Agreement, each other Program Document,
and such Purchased Receivable to Underwriter, to the extent such
rights affect, or are related to, such Purchased Receivable;
(b) During the continuation of any Event of Default, Seller agrees that
Lender shall have all the rights (but none of the obligations) of Purchaser
hereunder, to the same extent as Purchaser, and that Seller shall continue to be
bound by the terms of this Agreement as against Lender and Underwriter until the
Program Termination Date.
(c) Seller agrees that Lender and Underwriter are third-party beneficiaries
to this Agreement (in each case, to the extent described in this Section 8.3)
and shall be entitled to and have standing to enforce the rights of Purchaser
hereunder (in each case, to the extent described in this Section 8.3). Any
attempt by any party to assign or transfer this Agreement contrary to the terms
and conditions of this section shall be null and void.
Section 8.4 Entire Agreement, Limited Third Party Beneficiaries. This
Agreement, together with the exhibits attached hereto, constitutes the entire
agreement by the parties and supersedes any other agreement, whether written or
oral, that may have been made or entered into between Seller and Purchaser (or
by any of their respective officers, agents, or representatives) relating to the
matters contemplated herein. Except as described in Section 8.3 hereof, no other
person or entity shall be a third party beneficiary of this Agreement.
Section 8.5 Confidentiality.
(a) Each party hereto agrees to the following confidentiality terms (with
it being understood that, for purposes of this Section 8.5, the "Recipient"
shall mean the Person to whom any Confidential Information is provided, the
"Provider" means the Person who provides such Confidential Information to the
Recipient, and "Confidential Information" (as further defined below) means the
Confidential Information of the Provider):
(i) The Recipient will receive, maintain and hold the
Confidential Information in confidence and will use at least the
same level of care in safeguarding the Confidential Information
that it uses with respect to other confidential information in its
possession but in no event less than reasonable care under the
circumstances;
(ii) The Recipient agrees to take all steps reasonably necessary
and appropriate to ensure that its employees or other persons to whom
disclosure is authorized hereunder treat the Confidential Information
as confidential and to ensure that such employees or other persons to
whom disclosure is authorized hereunder act in accordance with and
abide by the terms of this Section 8.5 regarding the Confidential
Information;
(iii) The Recipient will use the Confidential Information solely
for purposes of the Program and matters reasonably related thereto and
may disclose Confidential Information to the Underwriter; and
17
(iv) The Recipient will not disclose, reproduce, distribute,
transmit, reverse engineer, decompile, disassemble or transfer,
directly or indirectly, the Confidential Information, except as
authorized in this Section 8.5, as otherwise authorized in writing by
the Provider in conjunction with the Program, or unless otherwise
agreed by the Provider.
(b) The Recipient agrees that it shall not (without the prior written
consent of the Provider) disclose to any third party, except (i) its affiliates,
officers, employees and legal counsel on a confidential basis, (ii) as required
by law, regulation or other applicable judicial or governmental order, (iii) on
a limited basis as is reasonably necessary to prepare any claim or defense
arising from or in connection with the Program or the Program Documents, or (iv)
as expressly contemplated in the Program Documents: (A) the Confidential
Information or (B) the fact that Confidential Information with respect to the
Program has been disclosed or made available.
(c) As used herein, "Confidential Information" means all information
disclosed or provided by the Provider to the Recipient or its agents or
representatives in connection with the Program and all information regarding the
Provider's business, assets, affiliates, and customers, so long as such
information is marked confidential or otherwise of a type considered
confidential in the ordinary course of business, but does not include
information that: (i) is generally available to the public, (ii) hereafter,
through no breach of this Section 8.5 by the Recipient or its agents or
representatives, becomes generally available to the public, (iii) corresponds in
substance to information furnished to the Recipient hereafter on a
non-confidential basis by any third party having a legal right to do so, or (iv)
was developed by, or for, the Recipient independently of any disclosure or use
of the Confidential Information.
(d) At any time upon the written request of the Provider, the Confidential
Information, including all copies and embodiments thereof (including all copies
and/or any other form or reproduction and/or description thereof made by the
Recipient), in the possession of the Recipient, shall, at Recipient's option, be
promptly returned to the Provider or promptly destroyed, except that the portion
of the Confidential Information that may be found in analyses, compilations,
studies or other documents prepared by the Recipient or its agents, attorneys or
employees, oral or electronic Confidential Information, and any Confidential
Information not so requested and returned will be held by the Recipient and kept
subject to the terms of this Section 8.5 or destroyed to the extent practicable
and permitted by law. Whether the Confidential Information or other embodiments
of the Confidential Information is to be returned or destroyed pursuant to this
paragraph, such return or destruction shall, upon written request of the
Provider, be certified in writing by an authorized officer of the Recipient. The
return or destruction of the Confidential Information or other embodiments of
the Confidential Information shall not relieve the Recipient of its
confidentiality obligations contained in this Section 8.5.
(e) The Recipient acknowledges that the disclosure or unauthorized use of
all or any part of the Confidential Information disclosed could result in
irreparable harm to the Provider, for which there may be no adequate remedy at
law. In the event of an unauthorized disclosure of the Confidential Information
by the Recipient, or other unauthorized use thereof, the Provider shall be
entitled to seek equitable relief, including an injunction to restrain the
unauthorized disclosure or unauthorized use and to prevent further breach of
this Section 8.5. The foregoing remedy of injunctive relief shall not be the
sole and exclusive remedy available to the Provider, and the Provider shall be
entitled to damages occasioned by the unauthorized disclosure or use to the
extent determined by law.
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(f) Neither this Section 8.5 nor any disclosure made hereunder by the
Provider shall be deemed, by implication or otherwise, to vest in the Recipient
any license or other ownership rights to or under any of the Confidential
Information, patents, copyrights, trademark rights, intellectual property,
know-how or trade secrets, or any other proprietary rights whatsoever.
(g) The confidentiality provisions set forth in this Section 8.5 shall (i)
survive the Program Termination Date and (ii) terminate upon the earliest to
occur of five (5) years after the Program Termination Date or such other date
mutually agreed upon by the parties hereto.
Section 8.6 Amendments and Waivers. This Agreement may be amended,
modified, superseded, or canceled, and any of the terms, representations,
warranties or covenants hereof may be waived, only by written instrument
executed by each of the parties or, in the case of a waiver, by the party
waiving compliance, and, in any event with the prior written consent of Lender
and, to the extent such amendment, modification, superseding agreement, or
cancellation relates to the Policy or the administration thereof, or the
satisfaction of any requirements or conditions contained in the Policy,
Underwriter. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. No waiver by any party of any condition or of
any breach of any term, representation, warranty or covenant under this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be or construed as a further or continuing waiver of any other
condition or of any breach of any such condition of breach or waiver of any
other condition or of any breach of any other term, representation, warranty or
covenant under this Agreement.
Section 8.7 Expenses. Seller and Purchaser shall each bear their respective
legal, accounting, and other costs in connection with the transactions herein
and in the other Program Documents.
Section 8.8 Captions; Counterparts. The captions in this Agreement are for
convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Agreement. This
Agreement may be executed in two or more counterparts (and by each of the
parties on separate signature pages), each of which shall be an original, but
all of which together shall constitute one and the same instrument.
Section 8.9 Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the internal laws of the State of
New York, without regard to principles of conflict of laws (other than Section
5-1401 of the New York General Obligations Laws).
Section 8.10 Severability. If any provision of this Agreement or portion
thereof is held invalid, illegal, void or unenforceable by reason of any rule of
law, administrative or judicial provision or public policy, such provision shall
be ineffective only to the extent invalid, illegal, void or unenforceable, and
the remainder of such provision and all other provisions of this Agreement shall
nevertheless remain in full force and effect.
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Section 8.11 WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THIS
AGREEMENT OR ANY OTHER PROGRAM DOCUMENT; (B) SUBMITS TO THE NONEXCLUSIVE
PERSONAL JURISDICTION IN THE ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ AND THE
SOUTHERN DISTRICT OF NEW YORK FOR THE ENFORCEMENT OF THIS AGREEMENT AND THE
OTHER PROGRAM DOCUMENTS; (C) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF
ANY JURISDICTION TO OBJECT ON ANY BASIS (INCLUDING, WITHOUT LIMITATION,
INCONVENIENCE OF FORUM) TO JURISDICTION OR VENUE WITHIN THE STATE AND DISTRICT
DESCRIBED ABOVE FOR THE PURPOSE OF LITIGATION TO ENFORCE THIS AGREEMENT OR THE
OTHER PROGRAM DOCUMENTS; AND (D) AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON
IT IN THE MANNER PRESCRIBED IN SECTION 8.2. NOTHING HEREIN CONTAINED, HOWEVER,
SHALL PREVENT ANY PARTY FROM BRINGING ANY ACTION OR EXERCISING ANY RIGHTS
AGAINST ANY SECURITY AND AGAINST ANY OTHER PARTY PERSONALLY, AND AGAINST ANY
ASSETS OF SUCH OTHER PARTY, WITHIN ANY OTHER STATE OR JURISDICTION.
[Signatures on following page]
20
IN WITNESS WHEREOF, each of Seller and Purchaser have caused this
Receivables Purchase Agreement to be duly executed as of the date first above
written.
PURCHASER:
CONEXANT USA, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasuer
SELLER:
CONEXANT SYSTEMS, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
EXHIBIT A TO PURCHASE AGREEMENT
▇▇▇▇ OF SALE
Settlement Date: _______________________
THIS ▇▇▇▇ OF SALE is made as of the date above written by Conexant Systems,
Inc., a corporation organized under the laws of the State of Delaware
("Seller"), and is delivered pursuant to that certain Receivables Purchase
Agreement dated as of November 29, 2005, by and among Seller and Conexant USA,
LLC (the "Purchase Agreement"). Unless otherwise defined herein, capitalized
terms used in this ▇▇▇▇ of Sale have the meanings given such terms in the
Purchase Agreement and that certain Credit and Security Agreement dated as of
November 29, 2005, by and between Wachovia Bank, National Association, and
Purchaser (as amended, restated, supplemented, or otherwise modified from time
to time, the "Credit Agreement").
By these presents, and for good and valuable consideration, the receipt of
which is hereby acknowledged, Seller hereby does sell, convey, transfer, assign,
and set over unto Purchaser all of Seller's right, title, and interest in and to
those of Seller's Accounts Receivable shown on Exhibit A, attached hereto and
made a part hereof, and all of their respective Related Rights and Property
(each, a "Purchased Receivable" and, collectively, the "Purchased Receivables"),
the sale, conveyance, transfer, assignment, and setting over hereunder being
made under and subject to the Purchase Agreement. Seller hereby represents and
warrants to Purchaser, that:
(a) Seller (i) is the true, lawful, and sole owner of the Purchased
Receivables; (ii) has good, absolute, and marketable title to the Purchased
Receivables free of all Liens other than Permitted Encumbrances; and (iii) has
the right to sell, convey, transfer, assign, and set over unto Purchaser each of
the Purchased Receivables without restriction;
(b) Each Purchased Receivable qualifies as an "Eligible Receivable" in
every respect, in accordance with the definition of "Eligible Receivable" as set
forth in the Credit Agreement; and
(c) Each of the representations and warranties made by Seller in the
Purchase Agreement are true and correct in all material respects on this date,
as if made on this date, and Seller is in material compliance with all the
terms, conditions, and covenants set forth in the Purchase Agreement.
IN WITNESS WHEREOF, Seller has caused its duly authorized Senior Officer to
execute this ▇▇▇▇ of Sale as of the date first above written.
Conexant Systems, Inc., a Delaware corporation
By: _________________________________
Title:_______________________________
EXHIBIT A TO ▇▇▇▇ OF SALE
[Attach list of those of Seller's Accounts Receivables
which are being purchased by Purchaser on this Settlement Date]
