EXHIBIT 10.2
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RECEIVABLES PURCHASE AGREEMENT
dated as of June 5, 1998
among
FIRST BRANDS FUNDING INC.
FIRST BRANDS CORPORATION
MARKET STREET FUNDING CORPORATION
and
PNC BANK, NATIONAL ASSOCIATION
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TABLE OF CONTENTS
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1. Purchase Facility..................................................1
Section 1.2 Making Purchases...................................................1
Section 1.3 Purchased Interest Computation.....................................3
Section 1.4 Settlement Procedures..............................................3
Section 1.5 Fees...............................................................6
Section 1.6 Payments and Computations, Etc.....................................6
Section 1.7 Dividing or Combining Portions of the
Capital of the Purchased Interest..................................7
Section 1.8 Increased Costs....................................................7
Section 1.9 Requirements of Law................................................8
Section 1.10 Inability to Determine Eurodollar Rate.............................9
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section 2.1 Representations and Warranties; Covenants..........................9
Section 2.2 Termination Events.................................................9
ARTICLE III.
INDEMNIFICATION
Section 3.1 Indemnities by the Seller..........................................10
Section 3.2 Indemnities by the Servicer........................................11
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
Section 4.1 Appointment of the Servicer........................................12
Section 4.2 Duties of the Servicer.............................................13
Section 4.3 Lock-Box Arrangements..............................................14
Section 4.4 Enforcement Rights.................................................14
Section 4.5 Responsibilities of the Seller.....................................15
Section 4.6 Servicing Fee......................................................15
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ARTICLE V.
MISCELLANEOUS
Section 5.1 Amendments, Etc....................................................16
Section 5.2 Notices, Etc.......................................................16
Section 5.3 Assignability......................................................16
Section 5.4 Costs, Expenses and Taxes..........................................17
Section 5.5 No Proceedings; Limitation on Payments.............................17
Section 5.6 Confidentiality....................................................18
Section 5.7 GOVERNING LAW AND JURISDICTION.....................................18
Section 5.8 Execution in Counterparts..........................................19
Section 5.9 Survival of Termination............................................19
Section 5.10 WAIVER OF JURY TRIAL...............................................19
Section 5.11 Entire Agreement...................................................19
Section 5.12 Headings...........................................................19
Section 5.13 Issuer's Liabilities...............................................19
EXHIBIT I Definitions
EXHIBIT II Conditions of Purchases
EXHIBIT III Representations and Warranties
EXHIBIT IV Covenants
EXHIBIT V Termination Events
SCHEDULE I Credit and Collection Policy
SCHEDULE II Lock-box Banks and Lock-box Accounts
SCHEDULE III Trade Names
ANNEX A Form of Information Package
ANNEX B Form of Purchase Notice
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This RECEIVABLES PURCHASE AGREEMENT (as amended, supplemented or
otherwise modified from time to time, this "Agreement") is entered into as of
June 5, 1998, among FIRST BRANDS FUNDING INC., a Delaware corporation, as seller
(the "Seller"), FIRST BRANDS CORPORATION, a Delaware corporation ("First
Brands"), as initial servicer (in such capacity, together with its successors
and permitted assigns in such capacity, the "Servicer"), MARKET STREET FUNDING
CORPORATION, a Delaware corporation (together with its successors and permitted
assigns, the "Issuer"), and PNC BANK, NATIONAL ASSOCIATION, a national banking
association ("PNC"), as administrator (in such capacity, together with its
successors and assigns in such capacity, the "Administrator").
PRELIMINARY STATEMENTS. Certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I. References in the Exhibits
hereto to "the Agreement" refer to this Agreement, as amended, supplemented or
otherwise modified from time to time.
The Seller desires to sell, transfer and assign an undivided variable
percentage interest in a pool of receivables, and the Issuer desires to acquire
such undivided variable percentage interest, as such percentage interest shall
be adjusted from time to time based upon, in part, reinvestment payments that
are made by the Issuer.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1. Purchase Facility. (a) On the terms and conditions
hereinafter set forth, the Issuer hereby agrees to purchase, and make
reinvestments of, undivided percentage ownership interests with regard to the
Purchased Interest from the Seller from time to time from the date hereof to the
Facility Termination Date. Under no circumstances shall the Issuer make any such
purchase or reinvestment if, after giving effect to such purchase or
reinvestment, the aggregate outstanding Capital of the Purchased Interest would
exceed the Purchase Limit.
(b) The Seller may, upon at least 60 days's written notice to the
Administrator, terminate the purchase facility provided in this Section in whole
or, upon at least 30 days's written notice to the Administrator, from time to
time, irrevocably reduce in part the unused portion of the Purchase Limit;
provided, that each partial reduction shall be in the amount of at least
$10,000,000, or an integral multiple of $1,000,000 in excess thereof, and that,
unless terminated in whole, the Purchase Limit shall in no event be reduced
below $20,000,000.
Section 1.2. Making Purchases. (a) Each purchase (but not reinvestment)
of undivided percentage ownership interests with regard to the Purchased
Interest hereunder shall be made upon the Seller's irrevocable written notice in
the form of Annex B delivered to the Administrator in accordance with Section
5.2 (which notice must be received by the Administrator before 11:00 a.m., New
York City time): (i) at least three Business Days before the requested purchase
date, in the case of a purchase to be funded at the Alternate Rate and based
upon the Eurodollar Rate, (ii) at least two Business Days before the requested
purchase date, in the case of a purchase to be funded at the Alternate Rate and
based upon the Base Rate, and (iii) at least one Business Day before the
requested purchase date, in the case of a purchase to be funded at the CP Rate,
which notice shall specify: (A) the amount requested to be paid to the Seller
(such amount, which shall not be less than $1,000,000, being the Capital
relating to the undivided percentage ownership interest then being purchased),
(B) the date of such purchase (which shall be a Business Day), (C) the desired
funding basis for such purchase (which shall be based upon the Eurodollar Rate,
the Base Rate or the CP Rate) and (D) a pro forma calculation of the Purchased
Interest after giving effect to the increase in Capital. If the Seller has
requested that the purchase be funded at the CP Rate, the Administrator shall
promptly thereafter notify the Seller whether the Issuer has exercised its
discretion not to fund such purchase with the issuance of Notes because such
purchase with the issuance of Notes would be economically inadvisable to the
Issuer, the Administrator, the Seller or any other similarly situated Person, or
otherwise not permitted, in which case the Seller shall be deemed to have not
requested such purchase.
(b) On the date of each purchase (but not reinvestment) of undivided
percentage ownership interests with regard to the Purchased Interest hereunder,
the Issuer shall, upon satisfaction of the applicable conditions set forth in
Exhibit II, make available to the Seller in same day funds, at The Chase
Manhattan Bank, account number ▇▇▇-▇-▇▇▇▇▇, ABA 021-000021, an amount equal to
the Capital relating to the undivided percentage ownership interest then being
purchased.
(c) Effective on the date of each purchase pursuant to this Section and
each reinvestment pursuant to Section 1.4, the Seller hereby sells and assigns
to the Issuer an undivided percentage ownership interest in: (i) each Pool
Receivable then existing, (ii) all Related Security with respect to such Pool
Receivables and (iii) all Collections with respect to, and other proceeds of,
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such Pool Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary or otherwise)
under this Agreement and the other Transaction Documents to which it is a party,
whether now or hereafter existing or arising, due or to become due, direct or
indirect, absolute or contingent, the Seller hereby grants to the Issuer a
security interest in all of the Seller's right, title and interest (including
any undivided interest of the Seller) in, to and under all of the following,
whether now or hereafter owned, existing or arising: (i) all Pool Receivables,
(ii) all Related Security with respect to such Pool Receivables, (iii) all
Collections with respect to such Pool Receivables, (iv) the Lock-Box Accounts
and all amounts on deposit therein, and all certificates and instruments, if
any, from time to time evidencing such Lock-Box Accounts and amounts on deposit
therein, (v) all rights (but none of the obligations) of the Seller under the
Sale Agreement, and (vi) all proceeds of, and all amounts received or receivable
under any or all of, the foregoing (collectively, the "Pool Assets"). The Issuer
shall have, with respect to the Pool Assets, and in addition to all the other
rights and remedies available to the Issuer, all the rights and remedies of a
secured party under any applicable UCC.
Section 1.3. Purchased Interest Computation. The Purchased Interest
shall be initially computed on the date of the initial purchase hereunder.
Thereafter, until the Facility Termination Date, the Purchased Interest shall be
automatically recomputed (or deemed to be recomputed) on each Business Day other
than a Termination Day. The Purchased Interest as computed (or deemed
recomputed) as of the day before the Facility Termination Date shall thereafter
remain constant. The Purchased Interest shall become zero when the Capital
thereof and Discount thereon shall have been paid in full, all the amounts owed
by the Seller and the Servicer hereunder to the Issuer, the Administrator and
any other Indemnified Party or Affected Person are paid in full, and the
Servicer shall have received the accrued Servicing Fee thereon.
Section 1.4. Settlement Procedures. (a) The collection of the Pool
Receivables shall be administered by the Servicer in accordance with this
Agreement. The Seller shall provide to the Servicer on a timely basis all
information needed for such administration, including notice of the occurrence
of any Termination Day and current computations of the Purchased Interest.
(b) The Servicer shall, on each day on which Collections of Pool
Receivables are received (or deemed received) by the Seller or the Servicer:
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(i) set aside and hold in trust (and shall, at the request of the
Administrator, segregate in a separate account approved by the
Administrator) for the Issuer, out of the Issuer's Share of such
Collections, first, an amount equal to the Discount accrued through such
day for each Portion of Capital and not previously set aside, second, an
amount equal to the fees set forth in the Fee Letter accrued and unpaid
through such day, and third, to the extent funds are available therefor,
an amount equal to the Issuer's Share of the Servicing Fee accrued
through such day and not previously set aside,
(ii) subject to Section 1.4(f), if such day is not a Termination
Day, remit to the Seller, on behalf of the Issuer, the remainder of the
Issuer's Share of such Collections; such remainder shall be
automatically reinvested in Pool Receivables, and in the Related
Security, Collections and other proceeds with respect thereto; provided,
however, that if the Purchased Interest would exceed 100%, then the
Servicer shall not reinvest, but shall set aside and hold in trust for
the Issuer (and shall, at the request of the Administrator, segregate in
a separate account approved by the Administrator) a portion of such
Collections that, together with the other Collections set aside pursuant
to this paragraph, shall equal the amount necessary to reduce the
Purchased Interest to 100%,
(iii) if such day is a Termination Day, set aside, segregate and
hold in trust (and shall, at the request of the Administrator, segregate
in a separate account approved by the Administrator) for the Issuer the
entire remainder of the Issuer's Share of the Collections; provided,
that if amounts are set aside and held in trust on any Termination Day
of the type described in clause (a) of the definition of "Termination
Day" and, thereafter, the conditions set forth in Section 2 of Exhibit
II are satisfied or waived by the Administrator, such previously set
aside amounts shall be reinvested in accordance with clause (ii) on the
day of such subsequent satisfaction or waiver of conditions, and
(iv) subject to the Issuer's security interest under Section
1.2(d), release to the Seller (subject to Section 1.4(f)) for its own
account any Collections in excess of: (x) amounts required to be
reinvested in accordance with clause (ii) or the proviso to clause (iii)
plus (y) the amounts that are required to be set aside pursuant to
clause (i), the proviso to clause (ii) and clause (iii) plus (z) the
Seller's Share of the Servicing Fee accrued and unpaid through such day
and all reasonable and appropriate out-of-pocket costs and expenses of
the Servicer for servicing, collecting and administering the Pool
Receivables.
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(c) The Servicer shall deposit into the Administration Account (or such
other account designated by the Administrator), on each Monthly Settlement Date
Collections held for the Issuer pursuant to clause (b)(i) or (f) plus the amount
of Collections then held for the Issuer pursuant to clauses (b)(ii) and (iii) of
Section 1.4 provided, that if First Brands or an Affiliate thereof is the
Servicer, such day is not a Termination Day and the Administrator has not
notified First Brands (or such Affiliate) that such right is revoked, First
Brands (or such Affiliate) may retain the portion of the Collections set aside
pursuant to clause (b)(i) that represents the Issuer's Share of the Servicing
Fee. On the last day of each Settlement Period, the Administrator will notify
the Servicer by facsimile of the amount of Discount accrued with respect to each
Portion of Capital during such Settlement Period or portion thereof.
(d) Upon receipt of funds deposited into the Administration Account
pursuant to clause (c), the Administrator shall cause such funds to be
distributed as follows:
(i) if such distribution occurs on a day that is not a
Termination Day and the Purchased Interest does not exceed 100%, first
to the Issuer in payment in full of all accrued Discount and fees (other
than Servicing Fees) with respect to each Portion of Capital, and
second, if the Servicer has set aside amounts in respect of the
Servicing Fee pursuant to clause (b)(i) and has not retained such
amounts pursuant to clause (c), to the Servicer (payable in arrears on
each Monthly Settlement Date) in payment in full of the Issuer's Share
of accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on a day
when the Purchased Interest exceeds 100%, first to the Issuer in payment
in full of all accrued Discount with respect to each Portion of Capital,
second to the Issuer in payment in full of Capital (or, if such day is
not a Termination Day, the amount necessary to reduce the Purchased
Interest to 100%), third, if First Brands or an Affiliate thereof is not
the Servicer, to the Servicer in payment in full of all accrued
Servicing Fees, fourth, if the Capital and accrued Discount with respect
to each Portion of Capital have been reduced to zero, and all accrued
Servicing Fees payable to the Servicer (if other than First Brands or an
Affiliate thereof) have been paid in full, to the Issuer, the
Administrator and any other Indemnified Party or Affected Person in
payment in full of any other amounts owed thereto by the Seller
hereunder and, fifth, unless such amount has been retained by the
Servicer pursuant to clause (c), then to the Servicer (if the Servicer
is First Brands or an Affiliate thereof) in payment in full of the
Issuer's Share of all accrued Servicing Fees.
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After the Capital, Discount, fees payable pursuant to the Fee Letter and
Servicing Fees with respect to the Purchased Interest, and any other amounts
payable by the Seller and the Servicer to the Issuer, the Administrator or any
other Indemnified Party or Affected Person hereunder, have been paid in full,
all additional Collections with respect to the Purchased Interest shall be paid
to the Seller for its own account.
(e) For the purposes of this Section 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable
is reduced or adjusted as a result of any defective, rejected, returned,
repossessed or foreclosed goods or services, or any revision,
cancellation, allowance, discount or other adjustment made by the Seller
or any Affiliate of the Seller, or any setoff or dispute between the
Seller or any Affiliate of the Seller and an Obligor, the Seller shall
be deemed to have received on such day a Collection of such Pool
Receivable in the amount of such reduction or adjustment ("Deemed
Collection");
(ii) if on any day any of the representations or warranties in
Section 1(g) or (n) of Exhibit III is not true with respect to any Pool
Receivable, the Seller shall be deemed to have received on such day a
Collection of such Pool Receivable in full;
(iii) except as provided in clause (i) or (ii), or as otherwise
required by applicable law or the relevant Contract, all Collections
received from an Obligor of any Receivable shall be applied to the
Receivables of such Obligor in the order of the age of such Receivables,
starting with the oldest such Receivable, unless such Obligor designates
in writing its payment for application to specific Receivables; and
(iv) if and to the extent the Administrator or the Issuer shall
be required for any reason to pay over to an Obligor (or any trustee,
receiver, custodian or similar official in any Insolvency Proceeding)
any amount received by it hereunder, such amount shall be deemed not to
have been so received by the Administrator or the Issuer but rather to
have been retained by the Seller and, accordingly, the Administrator or
the Issuer, as the case may be, shall have a claim against the Seller
for such amount, payable when and to the extent that any distribution
from or on behalf of such Obligor is made in respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of
Capital (but not to commence the liquidation, or reduction to zero, of the
entire Capital of the Purchased
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Interest), the Seller may do so as follows:
(i) the Seller shall give the Administrator and the Servicer (A)
at least two Business Days' prior written notice thereof for any
reduction of Capital less than or equal to $20,000,000 and (B) at least
ten Business Days' prior written notice thereof for any reduction of
Capital greater than $20,000,000 (in each case such notice shall include
the amount of such proposed reduction and the proposed date on which
such reduction will commence);
(ii) on the proposed date of commencement of such reduction and
on each day thereafter, the Servicer shall cause Collections not to be
reinvested until the amount thereof not so reinvested shall equal the
desired amount of reduction; and
(iii) the Servicer shall hold such Collections in trust for the
Issuer, for payment to the Administrator on the next Monthly Settlement
Date immediately following the current Settlement Period and Capital
shall be deemed reduced in the amount to be paid to the Administrator
only when in fact finally so paid;
provided, that:
(A) the amount of any such reduction shall be not less than
$5,000,000 and shall be an integral multiple of $1,000,000, and the
entire Capital of the Purchased Interest after giving effect to such
reduction shall be not less than $20,000,000 and shall be in an integral
multiple of $1,000,000 (unless Capital shall have been reduced to zero);
and
(B) the Seller shall choose a reduction amount, and the date of
commencement thereof, so that to the extent practicable such reduction
shall commence and conclude in the same Settlement Period.
Section 1.5. Fees. The Seller shall pay to the Administrator certain
fees in the amounts and on the dates set forth in a letter, dated the date
hereof, among First Brands, the Seller and the Administrator (as such letter
agreement may be amended, supplemented or otherwise modified from time to time,
the "Fee Letter").
Section 1.6. Payments and Computations, Etc. (a) All amounts to be paid
or deposited by the Seller or the Servicer hereunder shall be made without
reduction for offset or counterclaim and shall be paid or deposited no later
than 2:00 p.m. (New York City time) on the day when due in same day funds
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to the Administration Account. All amounts received after noon (New York City
time) will be deemed to have been received on the next Business Day.
(b) The Seller or the Servicer, as the case may be, shall, to the extent
permitted by law, pay interest on any amount not paid or deposited by the Seller
or the Servicer, as the case may be, when due hereunder, at an interest rate
equal to 2.0% per annum above the Base Rate, payable on demand.
(c) All computations of interest under clause (b) and all computations
of Discount, fees and other amounts hereunder shall be made on the basis of a
year of 360 (or 365 or 366, as applicable, with respect to Discount or other
amounts calculated by reference to the Base Rate) days for the actual number of
days elapsed. Whenever any payment or deposit to be made hereunder shall be due
on a day other than a Business Day, such payment or deposit shall be made on the
next Business Day and such extension of time shall be included in the
computation of such payment or deposit.
Section 1.7. Dividing or Combining Portions of the Capital of the
Purchased Interest. The Seller may, on the last day of any Settlement Period,
pursuant to written notice delivered to the Administrator in accordance with
Section 5.2: (a) at least three Business Days before such last day in the case
of a Portion of Capital to be funded based upon the Eurodollar Rate and (b) at
least two Business Days before such last day in all other cases, either: (i)
divide the Capital of the Purchased Interest into two or more portions (each a
"Portion of Capital"), which Portions of Capital may accrue Discount by
reference to different rates, equal, in aggregate, to the Capital of the
Purchased Interest; provided, that after giving effect to such division the
amount of each such Portion of Capital shall be not less than $5,000,000 and
shall be an integral multiple of $1,000,000, or (ii) combine any two or more
Portions of Capital outstanding on such last day and having Settlement Periods
ending on such last day into a single Portion of Capital equal to the aggregate
of the Capital of such Portions of Capital.
Section 1.8. Increased Costs. (a) If the Administrator, the Issuer, any
Purchaser, any other Program Support Provider or any of their respective
Affiliates (each an "Affected Person") reasonably determines that the existence
of or compliance with: (i) any law or regulation or any change therein or in the
interpretation or application thereof, in each case adopted, issued or occurring
after the date hereof, or (ii) any request, guideline or directive from any
central bank or other Governmental Authority (whether or not having the force of
law) issued or occurring after the date of this Agreement, affects or would
affect the amount of capital required or expected to be
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maintained by such Affected Person, and such Affected Person determines that the
amount of such capital is increased by or based upon the existence of any
commitment to make purchases of (or otherwise to maintain the investment in)
Pool Receivables related to this Agreement or any related liquidity facility,
credit enhancement facility and other commitments of the same type, then, upon
demand by such Affected Person (with a copy to the Administrator), the Seller
shall promptly pay to the Administrator, for the account of such Affected
Person, from time to time as specified by such Affected Person, additional
amounts sufficient to compensate such Affected Person in the light of such
circumstances, to the extent that such Affected Person reasonably determines
such increase in capital to be allocable to the existence of any of such
commitments. A certificate as to such amounts submitted to the Seller and the
Administrator by such Affected Person shall be conclusive and binding for all
purposes, absent manifest error.
(b) If, due to either: (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) compliance with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to any Affected Person of agreeing to purchase or purchasing, or
maintaining the ownership of, the Purchased Interest in respect of which
Discount is computed by reference to the Eurodollar Rate, then, upon demand by
such Affected Person, the Seller shall promptly pay to such Affected Person,
from time to time as specified by such Affected Person, additional amounts
sufficient to compensate such Affected Person for such increased costs. A
certificate as to such amounts submitted to the Seller and the Administrator by
such Affected Person shall be conclusive and binding for all purposes, absent
manifest error.
(c) If such increased costs affect the related Affected Person's
portfolio of financing transactions, such Affected Person shall use reasonable
averaging and attribution methods to allocate such increased costs to the
transactions contemplated by this Agreement.
Section 1.9. Requirements of Law. If any Affected Person reasonably
determines that the existence of or compliance with: (a) any law or regulation
or any change therein or in the interpretation or application thereof, in each
case adopted, issued or occurring after the date hereof, or (b) any request,
guideline or directive from any central bank or other Governmental Authority
(whether or not having the force of law) issued or occurring after the date of
this Agreement:
(i) does or shall subject such Affected Person to any tax of any
kind whatsoever with respect to this Agreement,
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any increase in the Purchased Interest or in the amount of Capital
relating thereto, or does or shall change the basis of taxation of
payments to such Affected Person on account of Collections, Discount or
any other amounts payable hereunder (excluding taxes imposed on the
overall pre-tax net income of such Affected Person, and franchise taxes
imposed on such Affected Person, by the jurisdiction under the laws of
which such Affected Person is organized or a political subdivision
thereof),
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
purchases, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Affected Person that
are not otherwise included in the determination of the Eurodollar Rate
or the Base Rate hereunder, or
(iii) does or shall impose on such Affected Person any other
condition,
and the result of any of the foregoing is: (A) to increase the cost to such
Affected Person of acting as Administrator, or of agreeing to purchase or
purchasing or maintaining the ownership of undivided percentage ownership
interests with regard to the Purchased Interest (or interests therein) or any
Portion of Capital, or (B) to reduce any amount receivable hereunder (whether
directly or indirectly), then, in any such case, upon demand by such Affected
Person, the Seller shall promptly pay to such Affected Person additional amounts
necessary to compensate such Affected Person for such additional cost or reduced
amount receivable. All such amounts shall be payable as incurred. A certificate
from such Affected Person to the Seller and the Administrator certifying, in
reasonably specific detail, the basis for, calculation of, and amount of such
additional costs or reduced amount receivable shall be conclusive and binding
for all purposes, absent manifest error; provided, however, that no Affected
Person shall be required to disclose any confidential or tax planning
information in any such certificate.
Section 1.10. Inability to Determine Eurodollar Rate. If the
Administrator shall have determined before the first day of any Settlement
Period (which determination shall be conclusive and binding upon the parties
hereto), by reason of circumstances affecting the interbank Eurodollar market,
either that: (a) dollar deposits in the relevant amounts and for the relevant
Settlement Period are not available, (b) adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Settlement Period or (c) the
Eurodollar Rate determined pursuant hereto does not accurately reflect the cost
to the Issuer (as
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conclusively determined by the Administrator) of maintaining any Portion of
Capital during such Settlement Period, the Administrator shall promptly give
telephonic notice of such determination, confirmed in writing, to the Seller
before the first day of such Settlement Period. Upon delivery of such notice:
(i) no Portion of Capital shall be funded thereafter at the Alternate Rate
determined by reference to the Eurodollar Rate unless and until the
Administrator shall have given notice to the Seller that the circumstances
giving rise to such determination no longer exist, and (ii) with respect to any
outstanding Portions of Capital then funded at the Alternate Rate determined by
reference to the Eurodollar Rate, such Alternate Rate shall automatically be
converted to the Alternate Rate determined by reference to the Base Rate at the
respective last days of the then-current Settlement Periods relating to such
Portions of Capital.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section 2.1 Representations and Warranties; Covenants. Each of the
Seller, First Brands and the Servicer hereby makes the representations and
warranties, and hereby agrees to perform and observe the covenants, applicable
to it set forth in Exhibits III and IV, respectively.
Section 2.2. Termination Events. If any of the Termination Events set
forth in Exhibit V shall occur, the Administrator may by notice to the Seller,
declare the Facility Termination Date to have occurred (in which case the
Facility Termination Date shall be deemed to have occurred); provided, that
automatically upon the occurrence of any event (without any requirement for the
passage of time or the giving of notice) described in paragraph (f) of Exhibit
V, the Facility Termination Date shall occur. Upon any such declaration,
occurrence or deemed occurrence of the Facility Termination Date, the Issuer and
the Administrator shall have, in addition to the rights and remedies that they
may have under this Agreement, all other rights and remedies provided after
default under the Connecticut UCC and under other applicable law, which rights
and remedies shall be cumulative.
ARTICLE III.
INDEMNIFICATION
Section 3.1. Indemnities by the Seller. Without limiting any other
rights that the Administrator, the Issuer, any Program Support Provider or any
of their respective Affiliates,
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employees, officers, directors, agents, counsel, successors, transferees or
assigns (each, an "Indemnified Party") may have hereunder or under applicable
law, the Seller hereby agrees to indemnify each Indemnified Party from and
against any and all claims, damages, expenses, costs, losses and liabilities
(including Attorney Costs) (all of the foregoing being collectively referred to
as "Indemnified Amounts") arising out of or resulting from this Agreement
(whether directly or indirectly), the use of proceeds of purchases or
reinvestments, the ownership of the Purchased Interest, or any interest therein,
or in respect of any Receivable, Related Security or Contract, excluding,
however: (a) Indemnified Amounts to the extent resulting from gross negligence
or willful misconduct on the part of such Indemnified Party or its officers,
directors, agents or counsel, (b) recourse (except as otherwise specifically
provided in this Agreement) for Receivables, or (c) any overall net income taxes
or franchise taxes imposed on such Indemnified Party by the jurisdiction under
the laws of which such Indemnified Party is organized or any political
subdivision thereof. Without limiting or being limited by the foregoing, and
subject to the exclusions set forth in the preceding sentence, the Seller shall
pay on demand (which demand shall be accompanied by documentation of the
Indemnified Amounts, in reasonable detail) to each Indemnified Party any and all
amounts necessary to indemnify such Indemnified Party from and against any and
all Indemnified Amounts relating to or resulting from any of the following:
(i) the failure of any Receivable included in the calculation of
the Net Receivables Pool Balance as an Eligible Receivable to be an
Eligible Receivable, the failure of any information contained in an
Information Package to be true and correct, or the failure of any other
information provided to the Issuer or the Administrator with respect to
Receivables or this Agreement to be true and correct,
(ii) the failure of any representation, warranty or statement
made or deemed made by the Seller (or any of its officers) under or in
connection with this Agreement to have been true and correct as of the
date made or deemed made in all respects when made,
(iii) the failure by the Seller to comply with any applicable
law, rule or regulation with respect to any Pool Receivable or the
related Contract, or the failure of any Pool Receivable or the related
Contract to conform to any such applicable law, rule or regulation,
(iv) the failure to vest in the Issuer a valid and enforceable:
(A) perfected undivided percentage ownership interest, to the extent of
the Purchased Interest, in the
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Receivables in, or purporting to be in, the Receivables Pool and the
other Pool Assets, or (B) first priority perfected security interest in
the Pool Assets, in each case, free and clear of any Adverse Claim,
(v) 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
Receivables in, or purporting to be in, the Receivables Pool and the
other Pool Assets, whether at the time of any purchase or reinvestment
or at any subsequent time,
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy of the Obligor) of the Obligor to the payment of any
Receivable in, or purporting to be in, the Receivables Pool (including a
defense based on such Receivable or the related Contract not being a
legal, valid and binding obligation of such Obligor enforceable against
it in accordance with its terms), or any other claim resulting from the
sale of the goods or services related to such Receivable or the
furnishing or failure to furnish such goods or services or relating to
collection activities with respect to such Receivable (if such
collection activities were performed by the Seller or any of its
Affiliates acting as Servicer or by any agent or independent contractor
retained by the Seller or any of its Affiliates),
(vii) any failure of the Seller (or any of its Affiliates acting
as the Servicer) to perform its duties or obligations in accordance with
the provisions hereof or under the Contracts,
(viii) any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with
merchandise, insurance or services that are the subject of any Contract,
(ix) the commingling of Collections at any time with other funds,
(x) the use of proceeds of purchases or reinvestments, or
(xi) any reduction in Capital as a result of the distribution of
Collections pursuant to Section 1.4(d), if all or a portion of such
distributions shall thereafter be rescinded or otherwise must be
returned for any reason.
Section 3.2. Indemnities by the Servicer. Without limiting any other
rights that the Administrator, the Issuer or any other
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Indemnified Party may have hereunder or under applicable law, the Servicer
hereby agrees to indemnify each Indemnified Party from and against any and all
Indemnified Amounts arising out of or resulting from (whether directly or
indirectly): (a) the failure of any information contained in an Information
Package to be true and correct, or the failure of any other information provided
to the Issuer or the Administrator by, or on behalf of, the Servicer to be true
and correct, (b) the failure of any representation, warranty or statement made
or deemed made by the Servicer (or any of its officers) under or in connection
with this Agreement to have been true and correct as of the date made or deemed
made in all respects when made, (c) the failure by the Servicer to comply with
any applicable law, rule or regulation with respect to any Pool Receivable or
the related Contract, (d) any dispute, claim, offset or defense of the Obligor
to the payment of any Receivable in, or purporting to be in, the Receivables
Pool resulting from or related to the collection activities with respect to such
Receivable, or (e) any failure of the Servicer to perform its duties or
obligations in accordance with the provisions hereof.
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
Section 4.1. Appointment of the Servicer. (a) The servicing,
administering and collection of the Pool Receivables shall be conducted by the
Person so designated from time to time as the Servicer in accordance with this
Section. Until the Administrator gives notice to First Brands (in accordance
with this Section) of the designation of a new Servicer, First Brands is hereby
designated as, and hereby agrees to perform the duties and obligations of, the
Servicer pursuant to the terms hereof. Upon the occurrence of a Termination
Event, the Administrator may designate as Servicer any Person (including itself)
to succeed First Brands or any successor Servicer, on the condition in each case
that any such Person so designated shall agree to perform the duties and
obligations of the Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Servicer as set forth in clause
(a), First Brands agrees that it will terminate its activities as Servicer
hereunder in a manner that the Administrator determines will facilitate the
transition of the performance of such activities to the new Servicer, and First
Brands shall cooperate with and assist such new Servicer. Such cooperation shall
include access to and transfer of related records and use by the new Servicer of
all licenses, hardware or software necessary or desirable to collect the Pool
Receivables and the Related Security.
(c) First Brands acknowledges that, in making their decision
Receivables Purchase Agreement -14-
to execute and deliver this Agreement, the Administrator and the Issuer have
relied on First Brands' agreement to act as Servicer hereunder. Accordingly,
First Brands agrees that it will not voluntarily resign as Servicer.
(d) The Servicer may delegate its duties and obligations hereunder to
any subservicer (each a "Sub-Servicer"); provided, that, in each such
delegation: (i) such Sub-Servicer shall agree in writing to perform the duties
and obligations of the Servicer pursuant to the terms hereof, (ii) the Servicer
shall remain primarily liable for the performance of the duties and obligations
so delegated, (iii) the Seller, the Administrator and the Issuer shall have the
right to look solely to the Servicer for performance and (iv) the terms of any
agreement with any Sub-Servicer shall provide that the Administrator may
terminate such agreement upon the termination of the Servicer hereunder by
giving notice of its desire to terminate such agreement to the Servicer (and the
Servicer shall provide appropriate notice to each such Sub-Servicer); provided,
however, that if any such delegation is to any Person other than an Originator,
the Administrator shall have consented in writing in advance to such delegation.
Section 4.2. Duties of the Servicer. (a) The Servicer shall take or
cause to be taken all such action as may be necessary or advisable to administer
and collect each Pool Receivable from time to time, all in accordance with this
Agreement and all applicable laws, rules and regulations, with reasonable care
and diligence, and in accordance with the Credit and Collection Policies. The
Servicer shall set aside for the accounts of the Seller and the Issuer the
amount of the Collections to which each is entitled in accordance with Article
I. The Servicer may, in accordance with the applicable Credit and Collection
Policy, extend the maturity of any Pool Receivable (but not beyond 30 days) and
extend the maturity or adjust the Outstanding Balance of any Defaulted
Receivable as the Servicer may determine to be appropriate to maximize
Collections thereof; provided, however, that: (i) such extension or adjustment
shall not alter the status of such Pool Receivable as a Delinquent Receivable or
a Defaulted Receivable or limit the rights of the Issuer or the Administrator
under this Agreement and (ii) if a Termination Event has occurred and First
Brands or an Affiliate thereof is serving as the Servicer, First Brands or such
Affiliate may make such extension or adjustment only upon the prior written
approval of the Administrator. The Seller shall deliver to the Servicer and the
Servicer shall hold for the benefit of the Seller and the Administrator (for the
benefit of the Issuer and individually), in accordance with their respective
interests, all records and documents (including computer tapes or disks) with
respect to each Pool Receivable. Notwithstanding anything to the contrary
contained herein, the Administrator may direct the Servicer
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(whether the Servicer is First Brands or any other Person) to commence or settle
any legal action to enforce collection of any Pool Receivable or to foreclose
upon or repossess any Related Security; provided, however, that no such
direction may be given unless either: (A) a Termination Event has occurred or
(B) the Administrator believes in good faith that failure to commence, settle or
effect such legal action, foreclosure or repossession could adversely affect
Receivables constituting a material portion of the Pool Receivables.
(b) The Servicer shall, as soon as practicable following actual receipt
of collected funds, turn over to the Seller the collections of any indebtedness
that is not a Pool Receivable, less, if First Brands or an Affiliate thereof is
not the Servicer, all reasonable and appropriate out-of-pocket costs and
expenses of such Servicer of servicing, collecting and administering such
collections. The Servicer, if other than First Brands or an Affiliate thereof,
shall, as soon as practicable upon demand, deliver to the Seller all records in
its possession that evidence or relate to any indebtedness that is not a Pool
Receivable, and copies of records in its possession that evidence or relate to
any indebtedness that is a Pool Receivable.
(c) The Servicer's obligations hereunder shall terminate on the later
of: (i) the Facility Termination Date and (ii) the date on which all amounts
required to be paid to the Issuer, the Administrator and any other Indemnified
Party or Affected Person hereunder shall have been paid in full.
After such termination, if First Brands or an Affiliate thereof was not
the Servicer on the date of such termination, the Servicer shall promptly
deliver to the Seller all books, records and related materials that the Seller
previously provided to the Servicer, or that have been obtained by the Servicer,
in connection with this Agreement.
Section 4.3. Lock-Box Arrangements. Before the initial purchase
hereunder, the Seller shall enter into Lock-Box Agreements with all of the
Lock-Box Banks and deliver original counterparts thereof to the Administrator.
Upon the occurrence of a Termination Event, the Administrator may at any time
thereafter give notice to each Lock-Box Bank that the Administrator is
exercising its rights under the Lock-Box Agreements to do any or all of the
following: (a) to have the exclusive ownership and control of the Lock-Box
Accounts transferred to the Administrator and to exercise exclusive dominion and
control over the funds deposited therein, (b) to have the proceeds that are sent
to the respective Lock-Box Accounts be redirected pursuant to the
Administrator's instructions rather than deposited in the applicable Lock-Box
Account, and (c) to take any or all other actions permitted under the applicable
Lock-Box Agreement. The
Receivables Purchase Agreement -16-
Seller hereby agrees that if the Administrator at any time takes any action set
forth in the preceding sentence, the Administrator shall have exclusive control
of the proceeds (including Collections) of all Pool Receivables and the Seller
hereby further agrees to take any other action that the Administrator may
reasonably request to transfer such control. Any proceeds of Pool Receivables
received by the Seller or the Servicer thereafter shall be sent immediately to
the Administrator. The parties hereto hereby acknowledge that if at any time the
Administrator takes control of any Lock-Box Account, the Administrator shall not
have any rights to the funds therein in excess of the unpaid amounts due to the
Administrator, the Issuer or any other Person hereunder and the Administrator
shall distribute or cause to be distributed such funds in accordance with
Section 4.2(b) and Article I (in each case as if such funds were held by the
Servicer thereunder).
Section 4.4. Enforcement Rights. (a) At any time following the
occurrence of a Termination Event:
(i) the Administrator may direct the Obligors that payment of all
amounts payable under any Pool Receivable is to be made directly to the
Administrator or its designee,
(ii) the Administrator may instruct the Seller or the Servicer to
give notice of the Issuer's interest in Pool Receivables to each
Obligor, which notice shall direct that payments be made directly to the
Administrator or its designee, and the Seller or the Servicer, as the
case may be, shall give such notice at the expense of the Seller or the
Servicer, as the case may be; provided, that if the Seller or the
Servicer, as the case may be, fails to so notify each Obligor, the
Administrator (at the Seller's or the Servicer's, as the case may be,
expense) may so notify the Obligors, and
(iii) the Administrator may request the Servicer to, and upon
such request the Servicer shall: (A) assemble all of the records
necessary or desirable to collect the Pool Receivables and the Related
Security, and transfer or license to a successor Servicer the use of all
software necessary or desirable to collect the Pool Receivables and the
Related Security, and make the same available to the Administrator or
its designee at a place selected by the Administrator, and (B) segregate
all cash, checks and other instruments received by it from time to time
constituting Collections in a manner acceptable to the Administrator
and, promptly upon receipt, remit all such cash, checks and instruments,
duly endorsed or with duly executed instruments of transfer, to the
Administrator or its designee.
Receivables Purchase Agreement -17-
(b) The Seller hereby authorizes the Administrator, and irrevocably
appoints the Administrator as its attorney-in-fact with full power of
substitution and with full authority in the place and stead of the Seller, which
appointment is coupled with an interest, to take any and all steps in the name
of the Seller and on behalf of the Seller necessary or desirable, in the
determination of the Administrator, after the occurrence of a Termination Event,
to collect any and all amounts or portions thereof due under any and all Pool
Assets, including endorsing the name of the Seller on checks and other
instruments representing Collections and enforcing such Pool Assets.
Notwithstanding anything to the contrary contained in this subsection, none of
the powers conferred upon such attorney-in-fact pursuant to the preceding
sentence shall subject such attorney-in-fact to any liability if any action
taken by it shall prove to be inadequate or invalid, nor shall they confer any
obligations upon such attorney-in-fact in any manner whatsoever.
Section 4.5. Responsibilities of the Seller. (a) Anything herein to the
contrary notwithstanding, the Seller shall: (i) perform all of its obligations,
if any, under the Contracts related to the Pool Receivables to the same extent
as if interests in such Pool Receivables had not been transferred hereunder, and
the exercise by the Administrator or the Issuer of their respective rights
hereunder shall not relieve the Seller from such obligations, and (ii) pay when
due any taxes, including any sales taxes payable in connection with the Pool
Receivables and their creation and satisfaction. The Administrator and the
Issuer shall not have any obligation or liability with respect to any Pool
Asset, nor shall either of them be obligated to perform any of the obligations
of the Seller, First Brands or the Originators thereunder.
(b) First Brands hereby irrevocably agrees that if at any time it shall
cease to be the Servicer hereunder, it shall act (if the then-current Servicer
so requests) as the data-processing agent of the Servicer and, in such capacity,
First Brands shall conduct the data-processing functions of the administration
of the Receivables and the Collections thereon in substantially the same way
that First Brands conducted such data-processing functions while it acted as the
Servicer.
Section 4.6. Servicing Fee. (a) Subject to clause (b), the Servicer
shall be paid a fee equal to 0.25% per annum (the "Servicing Fee Rate") of the
daily average aggregate Outstanding Balance of the Pool Receivables. The
Issuer's Share of such fee shall be paid through the distributions contemplated
by Section 1.4(d), and the Seller's Share of such fee shall be paid by the
Seller.
(b) If the Servicer ceases to be First Brands or an
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Affiliate thereof, the servicing fee shall be the greater of: (i) the amount
calculated pursuant to clause (a) and (ii) an alternative amount specified by
the successor Servicer not to exceed 110% of the aggregate reasonable costs and
expenses incurred by such successor Servicer in connection with the performance
of its obligations as Servicer.
ARTICLE V.
MISCELLANEOUS
Section 5.1. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Transaction Document, or consent to any departure by
the Seller or the Servicer therefrom, shall be effective unless in a writing
signed by the Administrator, and, in the case of any amendment, by the other
parties thereto; and then such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no such material amendment shall be effective until both
Moody's and Standard & Poor's have notified the Servicer and the Administrator
in writing that such action will not result in a reduction or withdrawal of the
rating of any Notes. No failure on the part of the Issuer or the Administrator
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
Section 5.2. Notices, Etc. All notices and other communications
hereunder shall, unless otherwise stated herein, be in writing (which shall
include facsimile communication) and be sent or delivered to each party hereto
at its address set forth under its name on the signature pages hereof or at such
other address as shall be designated by such party in a written notice to the
other parties hereto. Notices and communications by facsimile shall be effective
when sent (and shall be followed by hard copy sent by first class mail), and
notices and communications sent by other means shall be effective when received.
Section 5.3. Assignability. (a) This Agreement and the Issuer's rights
and obligations herein (including ownership of the Purchased Interest or an
interest therein) shall be assignable, in whole or in part, by the Issuer and
its successors and assigns with the prior written consent of the Seller;
provided, however, that such consent shall not be unreasonably withheld; and
provided further, that no such consent shall be required if the assignment is
made to PNC, any Affiliate of PNC, any Purchaser or other Program Support
Provider or any Person that is: (i) in the business of issuing Notes and (ii)
associated
Receivables Purchase Agreement -19-
with or administered by PNC or any Affiliate of PNC. Each assignor may, in
connection with the assignment, disclose to the applicable assignee (that shall
have agreed to be bound by Section 5.6) any information relating to the
Servicer, the Seller or the Pool Receivables furnished to such assignor by or on
behalf of the Servicer, the Seller, the Issuer or the Administrator. The
Administrator shall give prior written notice of any assignment of the Issuer's
rights and obligations (including ownership of the Purchased interest to any
Person other than a Program Support Provider).
(b) The Issuer may at any time grant to one or more banks or other
institutions (each a "Purchaser") party to the Liquidity Agreement, or to any
other Program Support Provider, participating interests in the Purchased
Interest. In the event of any such grant by the Issuer of a participating
interest to a Purchaser or other Program Support Provider, the Issuer shall
remain responsible for the performance of its obligations hereunder. The Seller
agrees that each Purchaser or other Program Support Provider shall be entitled
to the benefits of Sections 1.8 and 1.9.
(c) This Agreement and the rights and obligations of the Administrator
hereunder shall be assignable, in whole or in part, by the Administrator and its
successors and assigns; provided, that, unless: (i) such assignment is to an
Affiliate of PNC, (ii) it becomes unlawful for PNC to serve as the Administrator
or (iii) a Termination Event exists, the Seller has consented to such
assignment, which consent shall not be unreasonably withheld.
(d) Except as provided in Section 4.1(d), none of the Seller, First
Brands or the Servicer may assign its rights or delegate its obligations
hereunder or any interest herein without the prior written consent of the
Administrator.
(e) Without limiting any other rights that may be available under
applicable law, the rights of the Issuer may be enforced through it or by its
agents.
Section 5.4. Costs, Expenses and Taxes. (a) In addition to the rights of
indemnification granted under Section 3.1, the Seller agrees to pay on demand
(which demand shall be accompanied by documentation thereof in reasonable
detail) all reasonable costs and expenses in connection with the preparation,
execution, delivery and administration (including periodic internal audits by
the Administrator of Pool Receivables) of this Agreement, the other Transaction
Documents and the other documents and agreements to be delivered hereunder (and
all reasonable costs and expenses in connection with any amendment, waiver or
modification of any thereof), including: (i) Attorney Costs for
Receivables Purchase Agreement -20-
the Administrator, the Issuer and their respective Affiliates and agents with
respect thereto and with respect to advising the Administrator, the Issuer and
their respective Affiliates and agents as to their rights and remedies under
this Agreement and the other Transaction Documents, and (ii) all reasonable
costs and expenses (including Attorney Costs), if any, of the Administrator, the
Issuer and their respective Affiliates and agents in connection with the
enforcement of this Agreement and the other Transaction Documents.
(b) In addition, the Seller shall pay on demand any and all stamp and
other taxes and fees payable in connection with the execution, delivery, filing
and recording of this Agreement or the other documents or agreements to be
delivered hereunder, and agrees to save each Indemnified Party harmless from and
against any liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
Section 5.5. No Proceedings; Limitation on Payments. Each of the Seller,
First Brands, the Servicer, the Administrator, each assignee of the Purchased
Interest or any interest therein, and each Person that enters into a commitment
to purchase the Purchased Interest or interests therein, hereby covenants and
agrees that it will not institute against, or join any other Person in
instituting against, the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and one day after the latest
maturing Note issued by the Issuer is paid in full. The provision of this
Section 5.5 shall survive any termination of this Agreement.
Section 5.6. Confidentiality. Unless otherwise required by applicable
law, each of the Seller and the Servicer agrees to maintain the confidentiality
of this Agreement and the other Transaction Documents (and all drafts thereof)
in communications with third parties and otherwise; provided, that this
Agreement may be disclosed to: (a) third parties to the extent such disclosure
is made pursuant to a written agreement of confidentiality in form and substance
reasonably satisfactory to the Administrator and (b) the Seller's legal counsel
and auditors if they agree to hold it confidential. Unless otherwise required by
applicable law, each of the Administrator and the Issuer agrees to maintain the
confidentiality of non-public financial information regarding First Brands and
its Subsidiaries and other non-public information marked as confidential by the
Servicer or the Seller; provided, that such information may be disclosed to: (i)
third parties to the extent such disclosure is made pursuant to a written
agreement of confidentiality in form and substance reasonably satisfactory to
First Brands, (ii) legal counsel and auditors of the Issuer or the Administrator
if they
Receivables Purchase Agreement -21-
agree to hold it confidential, (iii) the rating agencies rating the Notes to the
extent such information relates to the Receivables Pool or the transactions
contemplated by this Agreement, or if not so related, upon obtaining the prior
consent of First Brands (such consent not to be unreasonably withheld), (iv) any
Program Support Provider or potential Program Support Provider to the extent
such information relates to the Receivables Pool or the transactions
contemplated by this Agreement, or if not so related, upon obtaining the prior
consent of First Brands (such consent not to be unreasonably withheld), (v) any
placement agent placing the Notes and (vi) any regulatory authorities having
jurisdiction over PNC, the Issuer, any Program Support Provider or any
Purchaser.
Section 5.7. GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CONNECTICUT (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF)
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF CONNECTICUT OR OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT; AND, BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY
LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH SERVICE MAY
BE MADE BY ANY OTHER MEANS PERMITTED BY CONNECTICUT LAW.
Section 5.8. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and the
same agreement.
Section 5.9. Survival of Termination. The provisions of Sections 1.8,
1.9, 3.1, 3.2, 5.4, 5.5, 5.6, 5.7, 5.10 and 5.13 shall survive any termination
of this Agreement.
Section 5.10. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH OF THE
Receivables Purchase Agreement -22-
PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES
HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 5.11. Entire Agreement. This Agreement and the other Transaction
Documents embody the entire agreement and understanding between the parties
hereto, and supersede all prior or contemporaneous agreements and understandings
of such Persons, verbal or written, relating to the subject matter hereof and
thereof, except for any prior arrangements made with respect to the payment by
the Issuer of (or any indemnification for) any fees, costs or expenses payable
to or incurred (or to be incurred) by or on behalf of the Seller, the Servicer
and the Administrator.
Section 5.12. Headings. The captions and headings of this Agreement and
in any Exhibit, Schedule or Annex hereto are for convenience of reference only
and shall not affect the interpretation hereof or thereof.
Section 5.13. Issuer's Liabilities. The obligations of the Issuer under
the Transaction Documents are solely the corporate obligations of the Issuer. No
recourse shall be had for any obligation or claim arising out of or based upon
any Transaction Document against any stockholder, employee, officer, director or
incorporator of the Issuer; provided, however, that this Section shall not
relieve any such Person of any liability it might otherwise have for its own
gross negligence or willful misconduct.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
FIRST BRANDS FUNDING INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Title: President
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Address: First Brands Funding Inc.
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FIRST BRANDS CORPORATION
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Name: ▇▇▇▇▇ ▇. ▇▇▇
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Title: Vice President
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Address: First Brands Funding Inc.
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Receivables Purchase Agreement -▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDING CORPORATION
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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Address:
Market Street Funding Corporation
c/o AMACAR Group, L.L.C.
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With a copy to:
PNC Bank, National Association
One PNC Plaza
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
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Address:
PNC Bank, National Association
One PNC Plaza
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Receivables Purchase Agreement -25-
EXHIBIT I
DEFINITIONS
As used in the Agreement (including its Exhibits, Schedules and
Annexes), the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined). Unless otherwise indicated, all Section, Annex, Exhibit and Schedule
references in this Exhibit are to Sections of and Annexes, Exhibits and
Schedules to the Agreement.
"A&M" means A&M Products Inc., a Texas corporation.
"Administration Account" means the account (account number 1002422076)
of the Administrator maintained at the office of PNC at One PNC Plaza, ▇▇▇ ▇▇▇▇▇
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designated in writing by the Administrator to the Servicer.
"Administrator" has the meaning set forth in the preamble to the
Agreement.
"Adverse Claim" means a lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement; it being understood
that any thereof in favor of the Issuer or the Administrator (for the benefit of
the Issuer) shall not constitute an Adverse Claim.
"Affected Person" has the meaning set forth in Section 1.8 of the
Agreement.
"Affiliate" means, as to any Person: (a) any Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person, or (b) who is a director or officer: (i) of such Person or (ii) of
any Person described in clause (a), except that with respect to the Issuer,
Affiliate shall mean the holder(s) of its capital stock. For purposes of this
definition, control of a Person shall mean the power, direct or indirect: (x) to
vote 25% or more of the securities having ordinary voting power for the election
of directors of such Person or (y) to direct or cause the direction of the
management and policies of such Person, in either case whether by ownership of
securities, contract, proxy or otherwise.
"Agreement" has the meaning set forth in the preamble to the Agreement.
Receivables Purchase Agreement -I-1-
"Alternate Rate" for any Settlement Period for any Portion of Capital of
the Purchased Interest means an interest rate per annum equal to, at the
Seller's option: (a) 0.75% per annum above the Eurodollar Rate for such
Settlement Period, or (b) the Base Rate for such Settlement Period; provided,
however, that in the case of:
(i) any Settlement Period on or before the first day of which the
Administrator shall have been notified by the Issuer, a Purchaser or any
other Program Support Provider that the introduction of or any change in
or in the interpretation of any law or regulation makes it unlawful, or
any central bank or other Governmental Authority asserts that it is
unlawful, for the Issuer, such Purchaser or other Program Support
Provider, as applicable, to fund any Portion of Capital based on the
Eurodollar Rate (and the Issuer, such Purchaser or other Program Support
Provider shall not have subsequently notified the Administrator that
such circumstances no longer exist),
(ii) any Settlement Period of one to (and including) 30 days,
(iii) any Settlement Period as to which: (A) the Administrator
does not receive notice before noon (New York City time) on: (1) the
first Business Day preceding the first day of such Settlement Period
that the Seller desires that the related Portion of Capital be funded at
the CP Rate or (2) the third Business Day preceding the first day of
such Settlement Period that the Seller desires that the related Portion
of Capital be funded at the Alternate Rate and based on the Eurodollar
Rate, or (B) the Seller has given the notice contemplated by clause
(A)(1) and the Administrator shall have notified the Seller that funding
the related Portion of Capital at the CP Rate is (in the Administrator's
sole discretion) economically inadvisable to the Issuer, the
Administrator, the Seller or any similarly situated Person or the Issuer
is not permitted to issue Notes to fund the Purchased Interest
hereunder, or
(iv) any Settlement Period relating to a Portion of Capital that
is less than $5,000,000,
the "Alternate Rate" for each such Settlement Period shall be an interest rate
per annum equal to the Base Rate in effect on each day of such Settlement
Period. The "Alternate Rate" for any day while a Termination Event exists shall
be an interest rate equal to 2% per annum above the Base Rate in effect on such
day.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the
Receivables Purchase Agreement -I-2-
reasonable allocated cost of internal legal services and all reasonable
disbursements of internal counsel.
"Autozone" means Autozone Inc.
"Bankruptcy Code" means the United States Bankruptcy Reform Act of 1978
(11 U.S.C. 'SS' 101, et seq.), as amended from time to time.
"Base Rate" means for any day, a fluctuating interest rate per annum as
shall be in effect from time to time, which rate shall be at all times equal to
the higher of:
(a) the rate of interest in effect for such day as publicly
announced from time to time by PNC in Pittsburgh, Pennsylvania as its
"prime rate." Such "prime rate" is set by PNC based upon various
factors, including PNC's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such
announced rate, and
(b) 0.50% per annum above the latest Federal Funds Rate.
"Benefit Plan" means any employee benefit pension plan as defined in
Section 3(2) of ERISA in respect of which the Seller, any Originator, First
Brands or any ERISA Affiliate is, or at any time during the immediately
preceding six years was, an "employer" as defined in Section 3(5) of ERISA.
"Business Day" means any day (other than a Saturday or Sunday) on which:
(a) banks are not authorized or required to close in New York City, New York or
Pittsburgh, Pennsylvania, and (b) if this definition of "Business Day" is
utilized in connection with the Eurodollar Rate, dealings are carried out in the
London interbank market.
"Capital" means the amount paid to the Seller in respect of the
Purchased Interest by the Issuer pursuant to the Agreement, or such amount
divided or combined in accordance with Section 1.7 of the Agreement, in each
case reduced from time to time by Collections distributed and applied on account
of such Capital pursuant to Section 1.4(d) of the Agreement; provided, that if
such Capital shall have been reduced by any distribution and thereafter all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason, such Capital shall be increased by the amount of such rescinded or
returned distribution as though it had not been made.
Receivables Purchase Agreement -I-3-
"Cash Discount" means, at any time, the amount of payments made or owed
by the Seller pursuant to Section 1.4(e)(i) of the Agreement as a result of any
discount offered by the Seller or an Affiliate of the Seller to any Obligor.
"Cash Discount Ratio" means the ratio (expressed as a percentage and
rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward),
computed as of the last day of each calendar month by dividing: (a) the
aggregate amount of Cash Discounts arising during such calendar month, by (b)
the aggregate credit sales made by all the Originators during the calendar month
that is one month prior to such calendar month.
"Change in Control" means that First Brands ceases to own, directly or
indirectly, 100% of the capital stock of the Seller free and clear of all
Adverse Claims or a majority of the capital stock of any Originator.
"Chargeback" means, at any time, the amount of payments made or owed by
the Seller pursuant to Section 1.4(e)(i) of the Agreement as a result of any
chargeback between the Seller or an Affiliate of the Seller and an Obligor.
"Chargeback and Cash Discount Reserve" means, at any time, the product
of (a) the aggregate Capital at such time multiplied by (b)(i) the Chargeback
and Cash Discount Reserve Percentage, divided by (ii) 100% minus the Chargeback
and Cash Discount Reserve Percentage.
"Chargeback and Cash Discount Reserve Percentage" means, as of any date,
the product of: (a) the sum of (i) 2 times the highest average of the Chargeback
Ratios for any three consecutive calendar months during the twelve most recent
calendar months and (ii) the greater of (A) 2% and (B) and the Cash Discount
Ratio, and (b) the Dilution Horizon.
"Chargeback Ratio" means the ratio (expressed as a percentage and
rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward),
computed as of the last day of each calendar month by dividing: (a) the
aggregate amount of Chargebacks arising during such calendar month, by (b) the
aggregate credit sales made by all the Originators during the calendar month
that is one month prior to such calendar month.
"Closing Date" means June 5, 1998.
"Collections" means, with respect to any Pool Receivable: (a) all funds
that are received by any Originator, First Brands, the Seller or the Servicer in
payment of any amounts owed in respect of such Receivable (including purchase
price, finance charges, interest and all other charges), or applied to amounts
Receivables Purchase Agreement -I-4-
owed in respect of such Receivable (including insurance payments and net
proceeds of the sale or other disposition of repossessed goods or other
collateral or property of the related Obligor or any other Person directly or
indirectly liable for the payment of such Pool Receivable and available to be
applied thereon), (b) all Collections deemed to have been received pursuant to
Section 1.4(e) of the Agreement and (c) all other proceeds of such Pool
Receivable.
"Company Note" has the meaning set forth in Section 3.1 of the Purchase
and Sale Agreement.
"Concentration Percentage" means: (a) for any Group A Obligor, 30%, (b)
for any Group B Obligor, 14%, (c) for any Group C Obligor, 7% and (d) for any
Group D Obligor, 3.5%; provided, however, that the Issuer may, with prior
written consent from the Administrator and the Liquidity Agent and if the Rating
Agency Condition is satisfied, approve higher Concentration Percentages for
selected Obligors
"Concentration Reserve" means, at any time: (a) the aggregate Capital at
such time multiplied by (b)(i) the Concentration Reserve Percentage divided by
(ii) 100% minus the Concentration Reserve Percentage.
"Concentration Reserve Percentage" means, at any time, the largest of:
(a) the sum of four largest Group D Obligor Percentages, (b) the sum of the two
largest Group C Obligor Percentages and (c) the largest Group B Obligor
Percentage.
"Contract" means, with respect to any Receivable, any and all contracts,
instruments, agreements, leases, invoices, notes or other writings pursuant to
which such Receivable arises or that evidence such Receivable or under which an
Obligor becomes or is obligated to make payment in respect of such Receivable.
"CP Rate" for any Settlement Period for any Portion of Capital means a
rate calculated by the Administrator equal to: (a) the rate (or if more than one
rate, the weighted average of the rates) at which Notes of the Issuer on each
day during such period have been sold by any placement agent or commercial paper
dealer selected by the Administrator on behalf of the Issuer; provided, that if
such rate(s) is a discount rate(s), then the CP Rate shall be the rate (or if
more than one rate, the weighted average of the rates) resulting from converting
such discount rate(s) to an interest-bearing equivalent rate plus (b) the
commissions and charges charged by such placement agent or commercial paper
dealer with respect to such Notes, expressed as a percentage of the face amount
of such Notes and converted to an interest-bearing equivalent rate per annum.
Notwithstanding the foregoing, the "CP Rate" for any day while a Termination
Event
Receivables Purchase Agreement -I-5-
exists shall be an interest rate equal to 2% above the Base Rate in effect on
such day.
"Credit and Collection Policy" means, as the context may require, those
receivables credit and collection policies and practices of each Originator in
effect on the date of the Agreement and described in Schedule I to the
Agreement, as modified in compliance with the Agreement.
"Cut-off Date" has the meaning set forth in the Sale Agreement.
"Days' Sales Outstanding" means, for any Settlement Period: (a) the
Outstanding Balance of all Pool Receivables at the end of such Settlement Period
divided by (b)(i) the aggregate credit sales made by all the Originators during
the three calendar months ended on or before the last day of such Settlement
Period divided by (ii) the number of days in such three-month period.
"Debt" means: (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases that shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, and (e) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (a) through (d).
"Debt-to-Capital Ratio" means, with respect to Autozone, the ratio
(expressed as a percentage and rounded to the nearest 1/100 of 1% with 5/1000 of
1% rounded upward) computed as of the last day of each fiscal quarter by
dividing (a) Autozone's total debt (as reported in its most recent 10Q), by (b)
the sum of (i) Autozone's total debt (as reported in its most recent 10Q), plus
(ii) the total shareholder's equity of Autozone.
"Defaulted Receivable" means a Receivable:
(a) as to which any payment, or part thereof, remains unpaid for
more than 60 days from the original due date for such payment, or
(b) without duplication, (i) as to which an Event of Bankruptcy
shall have occurred with respect to the Obligor thereof or any other
Person obligated thereon or owning any Related Security with respect
thereto or (ii) that has been written off the Seller's books as
uncollectible.
Receivables Purchase Agreement -I-6-
"Default Ratio" means the ratio (expressed as a percentage and rounded
to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of
the last day of each calendar month by dividing: (a) the aggregate Outstanding
Balance (excluding credit balances) of all Pool Receivables that became
Defaulted Receivables during such month plus, without double counting, the
aggregate Outstanding Balance of all Pool Receivables as to which a payment, or
part thereof, remained unpaid for less than 61 days from the original due date
for such payment and that was written off as uncollectible during such month, by
(b) the aggregate credit sales made by all the Originators during the month that
is three calendar months before such month.
"Delinquency Ratio" means the ratio (expressed as a percentage and
rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed
as of the last day of each calendar month by dividing: (a) the aggregate
Outstanding Balance of all Pool Receivables as to which a payment, or part
thereof, became unpaid for more than 30 days from the original due date for such
payment on such day by (b) the aggregate Outstanding Balance of all Pool
Receivables on such day.
"Delinquent Receivable" means a Receivable (other than a Defaulted
Receivable) as to which any payment, or part thereof, remains unpaid for more
than 60 days from the original due date for such payment.
"Dilution Horizon" means, for any calendar month, the ratio (expressed
as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1%
rounded upward) computed as of the last day of such calendar month of: (a) the
aggregate credit sales made by all the Originators during the most recent
calendar month to (b) the aggregate Outstanding Balance of the Eligible
Receivables at the last day of such calendar month.
"Dilution Ratio" means the ratio (expressed as a percentage and rounded
to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward), computed as
of the last day of each calendar month by dividing: (a) the aggregate amount of
payments made or owed by the Seller pursuant to Section 1.4(e)(i) of the
Agreement during such calendar month (including without limitation Chargebacks,
Cash Discounts and Radar Receivables) by (b) the aggregate credit sales made by
all the Originators during the calendar month that is one month prior to such
calendar month.
"Dilution Reserve" means, on any day, an amount equal to the greater of
: (a) 11.11% of the Capital at the close of business of the Servicer on such
date and (b) the sum of (i) the Chargeback and Cash Discount Reserve and (ii)
the Radar Reserve.
Receivables Purchase Agreement -I-7-
"Discount" means:
(a) for the Portion of Capital for any Settlement Period to the
extent the Issuer will be funding such Portion of Capital during such
Settlement Period through the issuance of Notes,
CPR x C x ED/360
(b) for the Portion of Capital for any Settlement Period to the
extent the Issuer will not be funding such Portion of Capital during
such Settlement Period through the issuance of Notes:
AR x C x ED/Year + TF
where:
AR = the Alternate Rate for the Portion of Capital for
such Settlement Period,
C = the Portion of Capital during such Settlement
Period,
CPR = the CP Rate for the Portion of Capital for such
Settlement Period,
ED = the actual number of days during such Settlement
Period,
Year = if such Portion of Capital is funded based upon:
(i) the Eurodollar Rate, 360 days, and (ii) the
Base Rate, 365 or 366 days, as applicable, and
TF = the Termination Fee, if any, for the Portion of
Capital for such Settlement Period;
provided, that no provision of the Agreement shall require the payment or permit
the collection of Discount in excess of the maximum permitted by applicable law;
and provided further, that Discount for the Portion of Capital shall not be
considered paid by any distribution to the extent that at any time all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
"Eligible Receivable" means, at any time, a Pool Receivable:
(a) the Obligor of which is (i) a United States resident, (ii)
not a government or a governmental subdivision, affiliate or agency,
(iii) not subject to any
Receivables Purchase Agreement -I-8-
action of the type described in paragraph (f) of Exhibit V to the
Agreement and (iv) not an Affiliate of First Brands or any other
Originator,
(b) that is denominated and payable only in U.S. dollars in the
United States,
(c) that has a stated maturity that is not more than 90 days
after the original invoice date of such Receivable; provided, however,
that up to 4% of the Net Receivables Pool Balance may have a stated
maturity that is greater than 90 days after the original invoice date
but less than 120 days from such original invoice date of such
Receivable.
(d) that arises under a duly authorized Contract for the sale and
delivery of goods and services in the ordinary course of an Originator's
business,
(e) that arises under a duly authorized Contract that is in full
force and effect and that is a legal, valid and binding obligation of
the related Obligor, enforceable against such Obligor in accordance with
its terms,
(f) that conforms in all material respects with all applicable
laws, rulings and regulations in effect,
(g) that is not the subject of any asserted dispute, offset, hold
back defense, Adverse Claim or other claim,
(h) that satisfies all applicable requirements of the applicable
Credit and Collection Policy,
(i) that has not been modified, waived or restructured since its
creation, except as permitted pursuant to Section 4.2 of the Agreement,
(j) in which the Seller owns good and marketable title, free and
clear of any Adverse Claims, and that is freely assignable by the Seller
(including without any consent of the related Obligor),
(k) for which the Issuer shall have a valid and enforceable
undivided percentage ownership or security interest, to the extent of
the Purchased Interest, and a valid and enforceable first priority
perfected security interest therein and in the Related Security and
Collections with respect thereto, in each case free and clear of any
Adverse Claim,
(l) that constitutes an account as defined in the UCC, and that
is not evidenced by instruments or chattel paper,
Receivables Purchase Agreement -I-9-
(m) that is neither a Defaulted Receivable nor a Delinquent
Receivable,
(n) for which neither the Originator thereof, the Seller nor the
Servicer has established any offset arrangements with the related
Obligor,
(o) for which Defaulted Receivables of the related Obligor do not
exceed 25% of the Outstanding Balance of all such Obligor's Receivables,
and
(p) that represents amounts earned and payable by the Obligor
that are not subject to the performance of additional services by the
Originator thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"ERISA Affiliate" means: (a) any corporation that is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Seller, any Originator or First Brands, (b) a
trade or business (whether or not incorporated) under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the Seller, any
Originator or First Brands, (c) a member of the same affiliated service group
(within the meaning of Section 414(m) of the Internal Revenue Code) as the
Seller, any Originator, First Brands, any corporation described in clause (a) or
any trade or business described in clause (b), or (d) as to the Seller or any of
its Affiliates, Eagle Industrial Products Corporation and all other Person(s)
that are members of Eagle Industrial Products Corporation's controlled group or
under common control therewith (within the meaning of Sections 414(b) and (c) of
the Internal Revenue Code), but only until the termination of the Agreement
dated as of October 24, 1994 among the Pension Benefit Guaranty Corporation,
First Brands and certain of its Affiliates.
"Eurodollar Rate" means, for any Settlement Period, an interest rate per
annum (rounded upward to the nearest 1/16th of 1%) determined pursuant to the
following formula:
LIBOR
-------------------------------------------
100% - Eurodollar Rate Reserve Percentage
where "Eurodollar Rate Reserve Percentage" means, for any Settlement Period, the
maximum reserve percentage (expressed as a decimal, rounded upward to the
nearest 1/100th of 1%) in effect
Receivables Purchase Agreement -I-10-
on the date LIBOR for such Settlement Period is determined under regulations
issued from time to time by the Federal Reserve Board for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to "Eurocurrency" funding (currently
referred to as "Eurocurrency liabilities") having a term comparable to such
Settlement Period.
"Event of Bankruptcy" means (a) any case, action or proceeding before
any court or other governmental authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors or (b) any general assignment for the benefit of creditors
of a Person composition, marshalling of assets for creditors of a Person, or
other similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; in each of cases (a) and (b) undertaken
under U.S. Federal, state or foreign law, including the U.S. Bankruptcy Code.
"Excess Concentration" means the sum of the amounts by which the
Outstanding Balance of Eligible Receivables of each Obligor then in the
Receivables Pool exceeds an amount equal to: (a) the Concentration Percentage
for such Obligor multiplied by (b) the Outstanding Balance of all Eligible
Receivables then in the Receivables Pool.
"Extended Term Receivable" means, at any time, a Receivable that has a
stated maturity greater than 30 days after the date on which such Receivable was
invoiced.
"Facility Termination Date" means the earliest to occur of: (a) June 4,
2001, (b) the date determined pursuant to Section 2.2 of the Agreement, (c) the
date the Purchase Limit reduces to zero pursuant to Section 1.1(b) of the
Agreement and (d) the date that the commitments of the Purchasers terminate
under the Liquidity Agreement.
"Federal Funds Rate" means, for any day, the per annum rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)." If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective Rate." If
on any relevant day the appropriate rate is
Receivables Purchase Agreement -I-11-
not yet published in either H.15(519) or the Composite 3:30 p.m. Quotations, the
rate for such day will be the arithmetic mean as determined by the Administrator
of the rates for the last transaction in overnight Federal funds arranged before
9:00 a.m. (New York time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Administrator.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
"Fee Letter" has the meaning set forth in Section 1.5 of the Agreement.
"First Brands" has the meaning set forth in the preamble to the
Agreement.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including any court, and any Person owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Group A Obligor" means any Obligor with a short-term rating of at
least: (a) "A-1" by Standard & Poor's, or if such Obligor does not have a
short-term rating from Standard & Poor's, a rating of "A+" or better by Standard
& Poor's on its long-term senior unsecured and uncredit-enhanced debt
securities, and (b) "P-1" by Moody's, or if such Obligor does not have a
short-term rating from ▇▇▇▇▇'▇, "▇▇" or better by Moody's on its long-term
senior unsecured and uncredit-enhanced debt securities.
"Group B Obligor" means (i) an Obligor, not a Group A Obligor, with a
short-term rating of at least: (a) "A-2" by Standard & Poor's, or if such
Obligor does not have a short-term rating from Standard & Poor's, a rating of
"BBB+" to "A" by Standard & Poor's on its long-term senior unsecured and
uncredit-enhanced debt securities, and (b) "P-2" by Moody's, or if such Obligor
does not have a short-term rating from Moody's, "Baa1" to "A2" by Moody's on its
long-term senior unsecured and uncredit-enhanced debt securities and (ii)
Autozone, if Autozone remains unrated by the Rating Agencies and maintains a
Debt-to-Capital Ratio of not greater than 25%.
"Group B Obligor Percentage" means, at any time, for each Group B
Obligor, the percentage equivalent of: (a) the aggregate Outstanding Balance of
the Eligible Receivables of such Group B
Receivables Purchase Agreement -I-12-
Obligor less any Excess Concentrations of such Obligor, divided by (b) the
aggregate Outstanding Balance of all Eligible Receivables at such time.
"Group C Obligor" means an Obligor, not a Group A Obligor or a Group B
Obligor, with a short-term rating of at least: (a) "A-3" by Standard & Poor's,
or if such Obligor does not have a short-term rating from Standard & Poor's, a
rating of "BBB-" to "BBB" by Standard & Poor's on its long-term senior unsecured
and uncredit-enhanced debt securities, and (b) "P-3" by Moody's, or if such
Obligor does not have a short-term rating from Moody's, "Baa3" to "Baa2" by
Moody's on its long-term senior unsecured and uncredit-enhanced debt securities.
"Group C Obligor Percentage" means, at any time, for each Group C
Obligor, the percentage equivalent of: (a) the aggregate Outstanding Balance of
the Eligible Receivables of such Group C Obligor less any Excess Concentrations
of such Obligor, divided by (b) the aggregate Outstanding Balance of all
Eligible Receivables at such time.
"Group D Obligor" means any Obligor that is not a Group A Obligor, Group
B Obligor or Group C Obligor.
"Group D Obligor Percentage" means, at any time, for each Group D
Obligor: (a) the aggregate Outstanding Balance of the Eligible Receivables of
such Group D Obligor less any Excess Concentrations of such Obligor, divided by
(b) the aggregate Outstanding Balance of all Eligible Receivables at such time.
"Himolene" means Himolene Incorporated, a Delaware corporation.
"Indemnified Amounts" has the meaning set forth in Section 3.1 of the
Agreement.
"Indemnified Party" has the meaning set forth in Section 3.1 of the
Agreement.
"Independent Director" has the meaning set forth in paragraph 3(c) of
Exhibit IV to the Agreement.
"Information Package" means a report, in substantially the form of Annex
A to the Agreement, furnished to the Administrator pursuant to (i) Section
2(j)(iii) of Exhibit IV of the Agreement (a) as of the last day of each calendar
month, not later than the eighth Business Day after the last day of such
calendar month or (b) for such periods as is specified by the Administrator
(including on a semi-monthly, weekly or daily basis) within six Business Days of
a request by the Administrator, and (ii) Section
Receivables Purchase Agreement -I-13-
1(j) and 2(a) of Exhibit II to the Agreement as a condition to the respective
initial and subsequent purchases thereunder.
"Insolvency Proceeding" means: (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidations, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors, in each case undertaken under U.S. Federal, state or foreign law,
including the Bankruptcy Code.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute of similar import, together
with the regulations thereunder, in each case as in effect from time to time.
References to sections of the Internal Revenue Code also refer to any successor
sections.
"Issuer" has the meaning set forth in the preamble to the Agreement.
"Issuer's Share" of any amount means such amount multiplied by the
Purchased Interest at the time of determination.
"LIBOR" means the rate of interest per annum determined by the
Administrator to be the arithmetic mean (rounded upward to the nearest 1/16th of
1%) of the rates of interest per annum notified to the Administrator by each
Reference Bank as the rate of interest at which dollar deposits in the
approximate amount of the Portion of Capital to be in funded at the Eurodollar
Rate during such Settlement Period would be offered by major banks in the London
interbank market to such Reference Bank at its request at or about 11:00 a.m.
(London time) on the second Business Day before the commencement of such
Settlement Period.
"Liquidity Agent" means PNC in its capacity as the Liquidity Agent
pursuant to the Liquidity Agreement.
"Liquidity Agreement" means the Liquidity Asset Purchase Agreement,
dated as of June 5, 1998 between the purchasers from time to time party thereto,
the Issuer and PNC, as Administrator and Liquidity Agent, as the same may be
further amended, supplemented or otherwise modified from time to time.
"Lock-Box Account" means an account maintained at a bank or other
financial institution for the purpose of receiving Collections.
"Lock-Box Agreement" means an agreement, in substantially
Receivables Purchase Agreement -I-14-
the form of Annex A to the Agreement, among the Seller, the Servicer and a
Lock-Box Bank.
"Lock-Box Bank" means any of the banks or other financial institutions
holding one or more Lock-Box Accounts.
"Loss Reserve" means, on any date, an amount equal to: (a) the Capital
at the close of business of the Servicer on such date multiplied by (b)(i) the
Loss Reserve Percentage on such date divided by (ii) 100% minus the Loss Reserve
Percentage on such date.
"Loss Reserve Percentage" means, on any date, the greater of: (a) 4% or
(b) a percentage (calculated as of the end of each calendar month) equal to (i)
the product of (A) 2 times the highest average of the Default Ratios for any
three consecutive calendar months during the twelve most recent calendar months
multiplied by (B) the sum of (I) the aggregate credit sales made during the four
most recent calendar months and (II) the product of (x) the aggregate credit
sales made during the fifth preceding calendar month, and (y) a fraction
(expressed as a percentage) the numerator of which is the Outstanding Balance of
Eligible Receivables then in the Receivables Pool that are Extended Term
Receivables and the denominator of which is the Outstanding Balance of
Receivables then in the Receivables Pool, divided by (ii) the aggregate
Outstanding Balance of Eligible Receivables as of such date.
"Material Adverse Effect" means, relative to any Person with respect to
any event or circumstance, a material adverse effect on:
(a) the assets, operations, business or financial condition of
such Person,
(b) the ability of any of such Person to perform its obligations
under the Agreement or any other Transaction Document to which it is a
party,
(c) the validity or enforceability of any other Transaction
Document, or the validity, enforceability or collectibility of a
material portion of the Pool Receivables or
(d) the status, perfection, enforceability or priority of the
Issuer's or the Seller's interest in the Pool Assets.
"Monthly Settlement Date" means the tenth Business Day of each calendar
month.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
Receivables Purchase Agreement -I-15-
"Net Receivables Pool Balance" means, at any time: (a) the Outstanding
Balance of Eligible Receivables then in the Receivables Pool minus (b) the
Excess Concentration.
"Notes" means short-term promissory notes issued or to be issued by the
Issuer to fund its investments in accounts receivable or other financial assets.
"Obligor" means, with respect to any Receivable, the Person obligated to
make payments pursuant to the Contract relating to such Receivable.
"Originator" has the meaning set forth in the Sale Agreement.
"Originator Assignment Certificate" means each assignment, in
substantially the form of Exhibit C to the Sale Agreement, evidencing Seller's
ownership of the Receivables generated by a particular Originator, as the same
may be amended, supplemented, amended and restated, or otherwise modified from
time to time in accordance with the Sale Agreement.
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
"Payment Date" has the meaning set forth in Section 2.1 of the Sale
Agreement.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"PNC" has the meaning set forth in the preamble to the Agreement.
"Pool Assets" has the meaning set forth in Section 1.2(d) of the
Agreement.
"Pool Receivable" means a Receivable in the Receivables Pool.
"Portion of Capital" has the meaning set forth in Section 1.7 of the
Agreement. In addition, at any time when the Capital of the Purchased Interest
is not divided into two or more such portions, APortion of Capital" means 100%
of the Capital.
"Program Support Agreement" means and includes the Liquidity Agreement
and any other agreement entered into by any Program
Receivables Purchase Agreement -I-16-
Support Provider providing for: (a) the issuance of one or more letters of
credit for the account of the Issuer, (b) the issuance of one or more surety
bonds for which the Issuer is obligated to reimburse the applicable Program
Support Provider for any drawings thereunder, (c) the sale by the Issuer to any
Program Support Provider of the Purchased Interest (or portions thereof) and/or
(d) the making of loans and/or other extensions of credit to the Issuer in
connection with the Issuer's Receivables-securitization program contemplated in
the Agreement, together with any letter of credit, surety bond or other
instrument issued thereunder (but excluding any discretionary advance facility
provided by the Administrator).
"Program Support Provider" means and includes any Purchaser and any
other Person (other than any customer of the Issuer) now or hereafter extending
credit or having a commitment to extend credit to or for the account of, or to
make purchases from, the Issuer pursuant to any Program Support Agreement.
"Purchase and Sale Indemnified Amounts" has the meaning set forth in
Section 9.1 of the Sale Agreement.
"Purchase and Sale Indemnified Party" has the meaning set forth in
Section 9.1 of the Sale Agreement.
"Purchase and Sale Termination Date" has the meaning set forth in
Section 1.4 of the Sale Agreement.
"Purchase and Sale Termination Event" has the meaning set forth in
Section 8.1 of the Sale Agreement.
"Purchase Facility" has the meaning set forth in Section 1.1 of the Sale
Agreement.
"Purchase Limit" means $100,000,000, as such amount may be reduced
pursuant to Section 1.1(b) of the Agreement. References to the unused portion of
the Purchase Limit shall mean, at any time, the Purchase Limit minus the then
outstanding Capital.
"Purchase Price" has the meaning set forth in Section 2.1 of the Sale
Agreement.
"Purchase Report" has the meaning set forth in Section 2.1 of the Sale
Agreement.
"Purchased Interest" means, at any time, the undivided percentage
ownership interest in: (a) each and every Pool Receivable now existing or
hereafter arising, other than any Pool Receivable that arises on or after the
Facility Termination Date, (b) all Related Security with respect to such Pool
Receivables and (c) all Collections with respect to, and other proceeds of,
Receivables Purchase Agreement -I-17-
such Pool Receivables and Related Security. Such undivided percentage interest
shall be computed as:
Capital + Total Reserves
----------------------------------
Net Receivables Pool Balance
The Purchased Interest shall be determined from time to time pursuant to Section
1.3 of the Agreement.
"Purchaser" has the meaning set forth in Section 5.3(b) of the
Agreement.
"Purchaser's Yield" means, for any Settlement Period, the Discount plus
all Fees payable under the Fee Letter accrued or to accrue during such
Settlement Period, expressed as a percentage of Capital and converted to an
interest-bearing equivalent rate per annum.
"Radar Receivable" means each Receivable of any Originator which is
identified on the books and records of such Originator as a Radar Receivable.
"Radar Reserve" means, at any time, the product of (a) the aggregate
Outstanding Balance of Radar Receivables originated during the current calendar
month, times (b) the Turnover Rate.
"Rating Agency Condition" means, with respect to any event or
occurrence, receipt by the Issuer of written confirmation from Standard & Poor's
and Moody's that such event or occurrence shall not cause the rating on the then
outstanding Notes to be downgraded or withdrawn.
"Receivable" means any indebtedness and other obligations owed to the
Seller or any Originator by, or any right of the Seller or any Originator to
payment from or on behalf of, an Obligor (other than an Obligor which is not a
U.S. Obligor), whether 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 includes the obligation to pay any
finance charges, fees and other charges with respect thereto. Indebtedness and
other obligations arising from any one transaction, including indebtedness and
other obligations represented by an individual invoice or agreement, shall
constitute a Receivable separate from a Receivable consisting of the
indebtedness and other obligations arising from any other transaction.
"Receivables Pool" means, at any time, all of the then outstanding
Receivables purchased by the Seller pursuant to the Sale Agreement.
Receivables Purchase Agreement -I-18-
"Reference Bank" means PNC.
"Related Rights" has the meaning set forth in Section 1.1 of the Sale
Agreement.
"Related Security" means, with respect to any Receivable:
(a) all of the Seller's and the Originator thereof's interest in
any goods (including returned goods), and documentation of title
evidencing the shipment or storage of any goods (including returned
goods), relating to any sale giving rise to such Receivable,
(b) all other security interests or liens and property subject
thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable
or otherwise, together with all UCC financing statements or similar
filings relating thereto, and
(c) all of the Seller's and Originator's rights, interests and
claims under the Contracts and all guaranties, indemnities, insurance
and other agreements (including the related Contract) or arrangements of
whatever character from time to time supporting or securing payment of
such Receivable or otherwise relating to such Receivable, whether
pursuant to the Contract related to such Receivable or otherwise.
"Sale Agreement" means the Purchase and Sale Agreement, dated as of June
5, 1998, between the Seller and the Originators as such agreement may be
amended, amended and restated, supplemented or otherwise modified from time to
time.
"Seller" has the meaning set forth in the preamble to the Agreement.
"Seller Party" means any of the Seller, Servicer or any Originator or
any of their respective successors or assigns.
"Seller's Share" of any amount means the greater of: (a) $0 and (b) such
amount minus the Issuer's Share.
"Servicer" has the meaning set forth in the preamble to the Agreement.
"Servicing Fee" shall mean the fee referred to in Section 4.6 of the
Agreement.
"Servicing Fee Rate" shall mean the rate referred to in
Receivables Purchase Agreement -I-19-
Section 4.6 of the Agreement.
"Servicing Fee Reserve" for the Purchased Interest at any time means the
sum of (i) the unpaid Servicing Fee accrued to such time, plus (ii) an amount
equal to (a) the Net Receivables Pool Balance at the time of computation
multiplied by (b) the product of (x) the percentage per annum at which the
Servicing Fee is accruing on such date and (y) a fraction having the sum of 2
times the Days' Sales Outstanding as its numerator and 360 as its denominator.
"Settlement Period" means: (a) before the Facility Termination Date: (i)
initially the period commencing on the date of the initial purchase pursuant to
Section 1.2 of the Agreement (or in the case of any fees payable hereunder,
commencing on the Closing Date) and ending on (but not including) the next
Monthly Settlement Date, and (ii) thereafter, each period commencing on such
Monthly Settlement Date and ending on (but not including) the next Monthly
Settlement Date, and (b) on and after the Facility Termination Date, such period
(including a period of one day) as shall be selected from time to time by the
Administrator or, in the absence of any such selection, each period of 30 days
from the last day of the preceding Settlement Period.
"Solvent" means, with respect to any Person at any time, a condition
under which:
(i) the fair value and present fair saleable value of such
Person's total assets is, on the date of determination, greater than
such Person's total liabilities (including contingent and unliquidated
liabilities) at such time;
(ii) the fair value and present fair saleable value of such
Person's assets is greater than the amount that will be required to pay
such Person's probable liability on its existing debts as they become
absolute and matured ("debts," for this purpose, includes all legal
liabilities, whether matured or unmatured, liquidated or unliquidated,
absolute, fixed, or contingent);
(iii) such Person is and shall continue to be able to pay all of
its liabilities as such liabilities mature; and
(iv) such Person does not have unreasonably small capital with
which to engage in its current and in its anticipated business.
For purposes of this definition:
(A) the amount of a Person's contingent or unliquidated
liabilities at any time shall be that amount
Receivables Purchase Agreement -I-20-
which, in light of all the facts and circumstances then existing,
represents the amount which can reasonably be expected to become an
actual or matured liability;
(B) the "fair value" of an asset shall be the amount which may be
realized within a reasonable time either through collection or sale of
such asset at its regular market value;
(C) the "regular market value" of an asset shall be the amount
which a capable and diligent business person could obtain for such asset
from an interested buyer who is willing to Purchase such asset under
ordinary selling conditions; and
(D) the "present fair saleable value" of an asset means the
amount which can be obtained if such asset is sold with reasonable
promptness in an arm's-length transaction in an existing and not
theoretical market.
"Spike Factor" means, for any calendar month the positive difference, if
any, between: (a) the highest Dilution Ratio for any calendar month during the
twelve most recent calendar months and (b) the arithmetic average of the
Dilution Ratios for such twelve months.
"Standard & Poor's" means Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Subsidiary" means, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock of each class
or other interests having ordinary voting power (other than stock or other
interests having such power only by reason of the happening of a contingency) to
elect a majority of the Board of Directors or other managers of such entity are
at the time owned, or management of which is otherwise controlled: (a) by such
Person, (b) by one or more Subsidiaries of such Person or (c) by such Person and
one or more Subsidiaries of such Person.
"Termination Day" means: (a) each day on which the conditions set forth
in Section 2 of Exhibit II to the Agreement are not satisfied or (b) each day
that occurs on or after the Facility Termination Date.
"Termination Event" has the meaning specified in Exhibit V to the
Agreement.
"Termination Fee" means, for any Settlement Period during which a
Termination Day occurs, the amount, if any, by which: (a) the additional
Discount (calculated without taking into account
Receivables Purchase Agreement -I-21-
any Termination Fee or any shortened duration of such Settlement Period pursuant
to the definition thereof) that would have accrued during such Settlement Period
on the reductions of Capital relating to such Settlement Period had such
reductions not been made, exceeds (b) the income, if any, received by the Issuer
from investing the proceeds of such reductions of Capital, as determined by the
Administrator, which determination shall be binding and conclusive for all
purposes, absent manifest error.
"Total Reserves" means, at any time the sum of : (a) the Yield Reserve,
plus (b) the greatest of (i) the sum of (A) the Loss Reserve, plus (B) the
Dilution Reserve, or (ii) the Concentration Reserve.
"Transaction Documents" means the Agreement, the Lock-Box Agreements,
the Liquidity Agreement, the Fee Letter, the Sale Agreement and all other
certificates, instruments, UCC financing statements, reports, notices,
agreements and documents executed or delivered under or in connection with the
Agreement, in each case as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the Agreement.
"Transfer Event" has the meaning set forth in Section 1(e) of Exhibit IV
to the Agreement.
"Turnover Rate" means, for any Settlement Period: (a) the Outstanding
Balance of all Pool Receivables at the end of such Settlement Period divided by
(b)(i) the aggregate credit sales made by all the Originators during the three
calendar months ended on or before the last day of such Settlement Period
divided by (ii) three.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the applicable jurisdiction.
"Unmatured Purchase and Sale Termination Event" means any event which,
with the giving of notice or lapse of time, or both, would become a Purchase and
Sale Termination Event.
"Unmatured Termination Event" means an event that, with the giving of
notice or lapse of time, or both, would constitute a Termination Event.
"U.S. Obligor" means an Obligor that is organized under the laws of the
United States or any State thereof and whose principal place of business is
located in the United States.
Receivables Purchase Agreement -I-22-
"Yield Reserve" means, at any time:
(BR + 2.0% + SFR x 1.5(TR) x Capital)
---------------
12
where:
BR = the Base Rate in effect at such time,
TR = the Turnover Rate, and
SFR = the Servicing Fee Rate
Other Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles. All
terms used in Article 9 of the UCC in the State of Connecticut, and not
specifically defined herein, are used herein as defined in such Article 9.
Unless the context otherwise requires, "or" means "and/or," and "including" (and
with correlative meaning "include" and "includes") means including without
limiting the generality of any description preceding such term.
EXHIBIT II
CONDITIONS OF PURCHASES
1. Conditions Precedent to Initial Purchase. The Initial Purchase under
this Agreement is subject to the conditions precedent that the Administrator
shall have received on or before the date of such purchase the following, each
in form and substance (including the date thereof) satisfactory to the
Administrator:
(a) A counterpart of the Agreement and the other Transaction Documents
executed by the parties thereto.
(b) Certified copies of: (i) the resolutions of the Board of Directors of
each of the Seller, the Originators and First Brands authorizing the execution,
delivery and performance by the Seller, such Originator and First Brands, as the
case may be, of the Agreement and the other Transaction Documents to which it is
a party, (ii) all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to the Agreement and the other
Transaction Documents and (iii) the certificate of incorporation and by-laws of
each of the Seller, each Originator and First Brands.
(c) A certificate of the Secretary or Assistant Secretary of each of the
Seller, the Originators and First Brands certifying the names and true
signatures of its officers who are authorized to sign the Agreement and the
other Transaction Documents. Until the Administrator receives a subsequent
incumbency certificate from the Seller, an Originator or First Brands, as the
case may be, the Administrator shall be entitled to rely on the last such
certificate delivered to it by the Seller, an Originator or First Brands, as the
case may be.
(d) Acknowledgment copies, or time stamped receipt copies, of proper
financing statements, duly filed on or before the date of such initial purchase
under the UCC of all jurisdictions that the Administrator may deem necessary or
desirable in order to perfect the interests of the Seller, First Brands and the
Issuer contemplated by the Agreement and the Sale Agreement.
(e) Acknowledgment copies, or time-stamped receipt copies, of proper
financing 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 the Originators, First Brands or the Seller.
(f) Completed UCC search reports, dated on or shortly before the date of
the initial purchase hereunder, listing the financing
Receivables Purchase Agreement - II-1
statements filed all applicable the jurisdictions referred to in subsection (e)
above that name the Originators or the Seller as debtor, together with copies of
such other financing statements, and similar search reports with respect to
judgment liens, federal tax liens and liens of the Pension Benefit Guaranty
Corporation in such jurisdictions, as the Administrator may request, showing no
Adverse Claims on any Pool Assets.
(g) Copies of executed Lock-Box Agreements with the Lock-Box Banks.
(h) Favorable opinions, in form and substance reasonably satisfactory to
the Administrator, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Seller, the
Originators, First Brands and the Servicer.
(i) Satisfactory results of a review and audit (performed by
representatives of the Administrator) of the Servicer's collection, operating
and reporting systems, the Credit and Collection Policy of each Originator,
historical receivables data and accounts, including satisfactory results of a
review of the Servicer's operating location(s) and satisfactory review and
approval of the Eligible Receivables in existence on the date of the initial
purchase under the Agreement.
(j) A pro forma Information Package representing the performance of the
Receivables Pool for the calendar month before closing.
(k) Evidence of payment by the Seller of all accrued and unpaid fees
(including those contemplated by the Fee Letter), costs and expenses to the
extent then due and payable on the date thereof, including any such costs, fees
and expenses arising under or referenced in Section 5.4 of the Agreement and the
Fee Letter.
(l) The Fee Letter duly executed by the Seller and the Servicer.
(m) Good standing certificates with respect to each of the Seller, the
Originators and the Servicer issued by the Secretaries of State (or similar
official) of the states of each such Person's organization and principal place
of business.
(n) Letters from each of the rating agencies then rating the Notes
confirming the rating of such Notes after giving effect to the transaction
contemplated by the Agreement.
(o) The Liquidity Agreement and all other Transaction Documents duly
executed by the parties thereto.
Receivables Purchase Agreement - II-2
(p) A computer file containing all information with respect to the
Receivables as the Administrator or the Issuer may reasonably request.
(q) Such other approvals, opinions or documents as the Administrator or the
Issuer may reasonably request.
2. Conditions Precedent to All Purchases and Reinvestments. Each purchase
(except as to clause (a), including the initial purchase) and each reinvestment
shall be subject to the further conditions precedent that:
(a) in the case of each purchase, the Servicer shall have delivered to the
Administrator on or before such purchase, in form and substance satisfactory to
the Administrator, a completed pro forma Information Package to reflect the
level of Capital and related reserves after such subsequent purchase, and
(b) on the date of such purchase or reinvestment the following statements
shall be true (and acceptance of the proceeds of such purchase or reinvestment
shall be deemed a representation and warranty by the Seller that such statements
are then true):
(i) the representations and warranties contained in Exhibit III to the
Agreement are true and correct in all material respects on and as of the
date of such purchase or reinvestment as though made on and as of such
date; and
(ii) no event has occurred and is continuing, or would result from
such purchase or reinvestment, that constitutes a Termination Event or an
Unmatured Termination Event.
Receivables Purchase Agreement - II-3
EXHIBIT III
REPRESENTATIONS AND WARRANTIES
1. Representations and Warranties of the Seller. The Seller represents and
warrants as follows:
(a) The Seller is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, and is duly qualified to
do business, and is in good standing, as a foreign corporation in every
jurisdiction where the nature of its business requires it to be so qualified,
except where the failure to be so qualified would not have a Material Adverse
Effect.
(b) The execution, delivery and performance by the Seller of the Agreement
and the other Transaction Documents to which it is a party, including its use of
the proceeds of purchases and reinvestments: (i) are within its corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
do not contravene or result in a default under or conflict with: (A) its charter
or by-laws, (B) any law, rule or regulation applicable to it, (C) any
contractual restriction binding on or affecting it or any of its property or (D)
any order, writ, judgment, award, injunction or decree binding on or affecting
it or any of its property, and (iv) do not result in or require the creation of
any Adverse Claim upon or with respect to any of its properties. The Agreement
and the other Transaction Documents to which it is a party have been duly
executed and delivered by the Seller.
(c) No authorization, approval or other action by, and no notice to or
filing with, any Governmental Authority or other Person is required for its due
execution, delivery and performance by the Seller of the Agreement or any other
Transaction Document to which it is a party, other than the Uniform Commercial
Code filings referred to in Exhibit II to the Agreement, all of which shall have
been filed on or before the date of the first purchase hereunder.
(d) Each of the Agreement and the other Transaction Documents to which the
Seller is a party constitutes its legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
Receivables Purchase Agreement - III-1
(e) There is no pending or, to Seller's best knowledge, threatened action
or proceeding affecting Seller or any of its properties before any Governmental
Authority or arbitrator.
(f) No proceeds of any purchase or reinvestment will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of the
Securities Exchange Act of 1934.
(g) The Seller is the legal and beneficial owner of the Pool Receivables
and Related Security, free and clear of any Adverse Claim. Upon each purchase or
reinvestment, the Issuer shall acquire a valid and enforceable perfected
undivided percentage ownership or security interest, to the extent of the
Purchased Interest, in each Pool Receivable then existing or thereafter arising
and in the Related Security, Collections and other proceeds with respect
thereto, free and clear of any Adverse Claim. The Agreement creates a security
interest in favor of the Issuer in the Pool Assets, and the Issuer has a first
priority perfected security interest in the Pool Assets, free and clear of any
Adverse Claims. No effective financing statement or other instrument similar in
effect covering any Pool Asset is on file in any recording office, except those
filed in favor of the Seller pursuant to the Sale Agreement and the Issuer
relating to the Agreement.
(h) Each Information Package (if prepared by the Seller or one of its
Affiliates, or to the extent that information contained therein is supplied by
the Seller or an Affiliate), information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Seller to the Administrator in connection with the Agreement or
any other Transaction Document to which it is a party is or will be complete and
accurate in all material respects as of its date or (except as otherwise
disclosed to the Administrator at such time) as of the date so furnished,
(i) The Seller's principal place of business and chief executive office (as
such terms are used in the UCC) and the office where it keeps its records
concerning the Receivables are located at the address referred to in Sections
1(b) and 2(b) of Exhibit IV to the Agreement.
(j) The names and addresses of all the Lock-Box Banks, together with the
account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified
in Schedule II to the Agreement (or at such other Lock-Box Banks and/or with
such other Lock-Box Accounts as have been notified to the Administrator in
accordance with the Agreement) and all Lock-Box Accounts are subject to Lock-Box
Agreements.
Receivables Purchase Agreement - III-2
(k) The Seller is not in violation of any order of any court, arbitrator or
Governmental Authority that is likely to have a Material Adverse Effect.
(l) Neither the Seller nor any of its Affiliates has any direct or indirect
ownership or other financial interest in the Issuer.
(m) No proceeds of any purchase or reinvestment will be used for any
purpose that violates any applicable law, rule or regulation, including
Regulations G or U of the Federal Reserve Board.
(n) Each Pool Receivable included as an Eligible Receivable in the
calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) No event has occurred and is continuing, or would result from a
purchase in respect of, or reinvestment in respect of, the Purchased Interest or
from the application of the proceeds therefrom, that constitutes a Termination
Event or an Unmatured Termination Event.
(p) The Seller has accounted for each sale of undivided percentage
ownership interests in Receivables in its books and financial statements as
sales, consistent with generally accepted accounting principles.
(q) The Seller has complied in all material respects with the Credit and
Collection Policy of each Originator with regard to each Receivable originated
by such Originator.
(r) The Seller has complied in all material respects with all of the terms,
covenants and agreements contained in the Agreement and the other Transaction
Documents that are applicable to it.
(s) The Seller's complete corporate name is set forth in the preamble to
the Agreement, and it does not use and has not during the last six years used
any other corporate name, trade name, doing-business name or fictitious name,
except as set forth on Schedule III to the Agreement and except for names first
used after the date of the Agreement and set forth in a notice delivered to the
Administrator pursuant to Section 1(l)(iv) of Exhibit IV to the Agreement.
(t) The Seller is not an "investment company," or a company "controlled" by
an "investment company," within the meaning of the Investment Company Act of
1940, as amended. In addition, the Seller is not a "holding company," a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company" or of a
Receivables Purchase Agreement - III-3
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
2. Representations and Warranties of First Brands (including in its
capacity as the Servicer). First Brands, individually and in its capacity as the
Servicer, represents and warrants as follows:
(a) First Brands is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and is duly qualified
to do business, and is in good standing, as a foreign corporation in every
jurisdiction where the nature of its business requires it to be so qualified,
except where the failure to be so qualified would not have a Material Adverse
Effect.
(b) The execution, delivery and performance by First Brands of the
Agreement and the other Transaction Documents to which it is a party, including
the Servicer's use of the proceeds of purchases and reinvestments: (i) are
within its corporate powers, (ii) have been duly authorized by all necessary
corporate action, (iii) do not contravene or result in a default under or
conflict with: (A) its charter or by-laws, (B) any law, rule or regulation
applicable to it, (C) any contractual restriction binding on or affecting it or
any of its property or (D) any order, writ, judgment, award, injunction or
decree binding on or affecting it or any of its property, and (iv) do not result
in or require the creation of any Adverse Claim upon or with respect to any of
its properties. The Agreement and the other Transaction Documents to which First
Brands is a party have been duly executed and delivered by First Brands.
(c) No authorization, approval or other action by, and no notice to or
filing with, any Governmental Authority or other Person is required for the due
execution, delivery and performance by First Brands of the Agreement or any
other Transaction Document to which it is a party.
(d) Each of the Agreement and the other Transaction Documents to which
First Brands is a party constitutes the legal, valid and binding obligation of
First Brands enforceable against First Brands in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws from time to time in effect affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(e) The balance sheets of First Brands and its consolidated Subsidiaries as
at December 31, 1997, and the related statements of income and retained earnings
for the fiscal year then ended,
Receivables Purchase Agreement - III-4
copies of which have been furnished to the Administrator, fairly present the
financial condition of First Brands and its consolidated Subsidiaries as at such
date and the results of the operations of First Brands and its Subsidiaries for
the period ended on such date, all in accordance with generally accepted
accounting principles consistently applied, and since December 31, 1997 there
has been no event or circumstances which have had a Material Adverse Effect.
(f) Except as disclosed in the most recent audited financial statements of
First Brands furnished to the Administrator, there is no pending or, to its best
knowledge, threatened action or proceeding affecting it or any of its
Subsidiaries before any Governmental Authority or arbitrator that could have a
Material Adverse Effect.
(g) No proceeds of any purchase or reinvestment will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of the
Securities Exchange Act of 1934.
(h) Each Information Package (if prepared by First Brands or one of its
Affiliates, or to the extent that information contained therein is supplied by
First Brands or an Affiliate), information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Servicer to the Administrator in connection with the Agreement
is or will be complete and accurate in all material respects as of its date or
(except as otherwise disclosed to the Administrator at such time) as of the date
so furnished.
(i) The principal place of business and chief executive office (as such
terms are used in the UCC) of First Brands and the office where it keeps its
records concerning the Receivables are located at the address referred to in
Section 2(b) of Exhibit IV to the Agreement.
(j) First Brands is not in violation of any order of any court, arbitrator
or Governmental Authority, which could have a Material Adverse Effect.
(k) Neither First Brands nor any of its Affiliates has any direct or
indirect ownership or other financial interest in the Issuer.
(l) The Servicer has complied in all material respects with the Credit and
Collection Policy of each Originator with regard to each Receivable originated
by such Originator.
(m) First Brands has complied in all material respects with all of the
terms, covenants and agreements contained in the Agreement and the other
Transaction Documents that are applicable
Receivables Purchase Agreement - III-5
to it.
(n) First Brands is not an "investment company," or a company "controlled"
by an "investment company," within the meaning of the Investment Company Act of
1940, as amended. In addition, First Brands is not a "holding company," a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
Receivables Purchase Agreement - III-6
EXHIBIT IV
COVENANTS
1. Covenants of the Seller. Until the latest of the Facility Termination
Date, the date on which no Capital of or Discount in respect of the Purchased
Interest shall be outstanding or the date all other amounts owed by the Seller
under the Agreement to the Issuer, the Administrator and any other Indemnified
Party or Affected Person shall be paid in full:
(a) Compliance with Laws, Etc. The Seller shall comply in all material
respects with all applicable laws, rules, regulations and orders, and preserve
and maintain its corporate existence, rights, franchises, qualifications and
privileges, except to the extent that the failure so to comply with such laws,
rules and regulations or the failure so to preserve and maintain such rights,
franchises, qualifications and privileges would not have a Material Adverse
Effect.
(b) Offices, Records and Books of Account, Etc. The Seller: (i) shall keep
its principal place of business and chief executive office (as such terms or
similar terms are used in the UCC) and the office where it keeps its records
concerning the Receivables at the address of the Seller set forth under its name
on the signature page to the Agreement or, pursuant to clause (l)(iv) below, at
any other locations in jurisdictions where all actions reasonably requested by
the Administrator to protect and perfect the interest of the Issuer in the
Receivables and related items (including the Pool Assets) have been taken and
completed and (ii) shall provide the Administrator with at least 30 days'
written notice before making any change in the Seller's name or making any other
change in the Seller's identity or corporate structure (including a Change in
Control) that could render any UCC financing statement filed in connection with
this Agreement "seriously misleading" as such term (or similar term) is used in
the UCC; each notice to the Administrator pursuant to this sentence shall set
forth the applicable change and the effective date thereof. The Seller also will
maintain and implement (or cause the Servicer to maintain and implement)
administrative and operating procedures (including an ability to recreate
records evidencing Receivables and related Contracts in the event of the
destruction of the originals thereof), and keep and maintain (or cause the
Servicer to keep and maintain) all documents, books, records, computer tapes and
disks and other information reasonably necessary or advisable for the collection
of all Receivables (including records adequate to permit the daily
identification of each Receivable and all Collections of and adjustments to each
existing Receivable). Notwithstanding the above, in no event shall the Seller
have or maintain, or be a
Receivables Purchase Agreement - IV-1
partner in any partnership that has or maintains, its jurisdiction of
organization, principal place of business or principal assets in any of the
states of Colorado, Kansas, New Mexico, Oklahoma, Utah or Wyoming.
(c) Performance and Compliance with Contracts and Credit and Collection
Policy. The Seller shall (and shall cause the Servicer to), at its expense,
timely and fully perform and comply with all material provisions, covenants and
other promises required to be observed by it under the Contracts related to the
Receivables, and timely and fully comply in all material respects with the
applicable Credit and Collection Policies with regard to each Receivable and the
related Contract.
(d) Ownership Interest, Etc. The Seller shall (and shall cause the Servicer
to), at its expense, take all action necessary or desirable to establish and
maintain a valid and enforceable undivided percentage ownership or security
interest, to the extent of the Purchased Interest, in the Pool Receivables, the
Related Security and Collections with respect thereto, and a first priority
perfected security interest in the Pool Assets, in each case free and clear of
any Adverse Claim, in favor of the Issuer, including taking such action to
perfect, protect or more fully evidence the interest of the Issuer as the
Issuer, through the Administrator, may reasonably request.
(e) Sales, Liens, Etc. The Seller shall not sell, assign (by operation of
law or otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim upon or with respect to, any or all of its right, title or
interest in, to or under any Pool Assets (including the Seller's undivided
interest in any Receivable, Related Security or Collections, or upon or with
respect to any account to which any Collections of any Receivables are sent), or
assign any right to receive income in respect of any items contemplated by this
paragraph; provided, however, if (i) a Change in Control shall occur with
respect to Himolene or A&M, (ii) Himolene or A&M becomes a party to any merger
or consolidation where First Brands, Himolene or A&M is not the surviving
corporation or (iii) Himolene or A&M sells all or substantially all of its
assets (the occurrence of any event described in clauses (i), (ii) and (iii) is
herein referred to as a "Transfer Event"), then upon 30 days prior written
notice to the Administrator, the Seller may, in connection with such Transfer
Event, sell or assign to any Person, without recourse, all of the Receivables
and Related Rights then in the Receivables Pool that were originated by either
Himolene or A&M, as applicable; provided, however, that after giving effect to
such sale or assignment, and the application of the proceeds thereof in
accordance with Section 1.4, no Unmatured Termination Event or Termination Event
shall have occurred.
Receivables Purchase Agreement - IV-2
(f) Extension or Amendment of Receivables. Except as provided in the
Agreement, the Seller shall not, and shall not permit the Servicer to, extend
the maturity or adjust the Outstanding Balance or otherwise modify the terms of
any Pool Receivable, or amend, modify or waive any term or condition of any
related Contract.
(g) Change in Business or Credit and Collection Policy. The Seller shall
not make (or permit any Originator to make) any material change in the character
of its business or in any Credit and Collection Policy, or any change in any
Credit and Collection Policy that would have a Material Adverse Effect with
respect to the Receivables. The Seller shall not make (or permit any Originator
to make) any other change in any Credit and Collection Policy without giving
prior written notice thereof to the Administrator.
(h) Audits. The Seller shall (and shall cause each Originator to), from
time to time during regular business hours as reasonably requested in advance
(unless a Termination Event or Unmatured Termination Event exists) by the
Administrator, permit the Administrator, or its agents or representatives: (i)
to examine and make copies of and abstracts from all books, records and
documents (including computer tapes and disks) in the possession or under the
control of the Seller (or any such Originator) relating to Receivables and the
Related Security, including the related Contracts, and (ii) to visit the offices
and properties of the Seller and the Originators for the purpose of examining
such materials described in clause (i) above, and to discuss matters relating to
Receivables and the Related Security or the Seller's, First Brands' or the
Originators' performance under the Transaction Documents or under the Contracts
with any of the officers, employees, agents or contractors of the Seller, First
Brands or the Originators having knowledge of such matters.
(i) Change in Lock-Box Banks, Lock-Box Accounts and Payment Instructions to
Obligors. The Seller shall not, and shall not permit the Servicer or any
Originator to, add or terminate any bank as a Lock-Box Bank or any account as a
Lock-Box Account from those listed in Schedule II to the Agreement, or make any
change in its instructions to Obligors regarding payments to be made to the
Seller, the Originators, the Servicer or any Lock-Box Account (or related post
office box), unless the Administrator shall have consented thereto in writing
and the Administrator shall have received copies of all agreements and documents
(including Lock-Box Agreements) that it may request in connection therewith.
(j) Deposits to Lock-Box Accounts. The Seller shall (or shall cause the
Servicer to): (i) instruct all Obligors to make payments of all Receivables to
one or more Lock-Box Accounts or to post office boxes to which only Lock-Box
Banks have access
Receivables Purchase Agreement - IV-3
(and shall instruct the Lock-Box Banks to cause all items and amounts relating
to such Receivables received in such post office boxes to be removed and
deposited into a Lock-Box Account on a daily basis), and (ii) deposit, or cause
to be deposited, any Collections received by it, the Servicer or any Originator
into Lock-Box Accounts not later than one Business Day after receipt thereof.
Each Lock-Box Account shall at all times be subject to a Lock-Box Agreement. The
Seller will not (and will not permit the Servicer to) deposit or otherwise
credit, or cause or permit to be so deposited or credited, to any Lock-Box
Account cash or cash proceeds other than Collections.
(k) Marking of Records. At its expense, the Seller shall: (i) ▇▇▇▇ (or
cause the Servicer to ▇▇▇▇) its master data processing records relating to Pool
Receivables and related Contracts, including with a legend evidencing that the
undivided percentage ownership interests with regard to the Purchased Interest
related to such Receivables and related Contracts have been sold in accordance
with the Agreement, and (ii) cause each Originator so to ▇▇▇▇ their master data
processing records pursuant to the Sale Agreement.
(l) Reporting Requirements. The Seller will provide to the Administrator
(in multiple copies, if requested by the Administrator) the following:
(i) as soon as available and in any event within 90 days after the end
of each fiscal year of the Seller, a copy of the annual report for such
year for the Seller, containing unaudited financial statements for such
year certified as to accuracy by the chief financial officer or treasurer
of the Seller;
(ii) as soon as possible and in any event within five days after the
occurrence of each Termination Event or Unmatured Termination Event, a
statement of the chief financial officer of the Seller setting forth
details of such Termination Event or Unmatured Termination Event and the
action that the Seller has taken and proposes to take with respect thereto;
(iii) promptly after the filing or receiving thereof, copies of all
reports and notices that the Seller or any Affiliate files under ERISA with
the Internal Revenue Service, the Pension Benefit Guaranty Corporation or
the U.S. Department of Labor or that the Seller or any Affiliate receives
from any of the foregoing or from any multiemployer plan (within the
meaning of Section 4001(a)(3) of ERISA) to which the Seller or any of its
Affiliates is or was, within the preceding five years, a contributing
employer, in each case in respect of the assessment of withdrawal liability
or
Receivables Purchase Agreement - IV-4
an event or condition that could, in the aggregate, result in the
imposition of liability on the Seller and/or any such Affiliate;
(iv) at least thirty days before any change in the Seller's name or
any other change requiring the amendment of UCC financing statements, a
notice setting forth such changes and the effective date thereof;
(v) promptly after the Seller obtains knowledge thereof, notice of
any: (A) litigation, investigation or proceeding that may exist at any time
between the Seller and any Person or (B) litigation or proceeding relating
to any Transaction Document;
(vi) promptly after the occurrence thereof, notice of a material
adverse change in the business, operations, property or financial or other
condition of the Seller, the Servicer or any Originator; and
(vii) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of the Seller or any of
its Affiliates as the Administrator may from time to time reasonably
request.
(m) Certain Agreements. Without the prior written consent of the
Administrator, the Seller will not (and will not permit any Originator to)
amend, modify, waive, revoke or terminate any Transaction Document to which it
is a party or any provision of Seller's certificate of incorporation or by-laws.
(n) Restricted Payments. (i) Except pursuant to clause (ii) below, the
Seller will not: (A) purchase or redeem any shares of its capital stock, (B)
declare or pay any dividend or set aside any funds for any such purpose, (C)
prepay, purchase or redeem any Debt, (D) lend or advance any funds or (E) repay
any loans or advances to, for or from any of its Affiliates (the amounts
described in clauses (A) through (E) being referred to as "Restricted
Payments").
(ii) Subject to the limitations set forth in clause (iii) below, the
Seller may make Restricted Payments so long as such Restricted Payments are
made only in one or more of the following ways: (A) the Seller may make
cash payments (including prepayments) on the Company Note in accordance
with its terms, and (B) if no amounts are then outstanding under the
Company Note, the Seller may declare and pay dividends.
(iii) The Seller may make Restricted Payments only out of the funds it
receives pursuant to Sections 1.4(b)(ii) and
Receivables Purchase Agreement - IV-5
(iv) of the Agreement. Furthermore, the Seller shall not pay, make or
declare: (A) any dividend if, after giving effect thereto, the Seller's
tangible net worth would be less than $5,000,000, or (B) any Restricted
Payment (including any dividend) if, after giving effect thereto, any
Termination Event or Unmatured Termination Event shall have occurred and be
continuing.
(o) Other Business. The Seller will not: (i) engage in any business other
than the transactions contemplated by the Transaction Documents, (ii) create,
incur or permit to exist any Debt of any kind (or cause or permit to be issued
for its account any letters of credit or bankers' acceptances) other than
pursuant to this Agreement or the Company Note, or (iii) form any Subsidiary or
make any investments in any other Person; provided, however, that the Seller
shall be permitted to incur minimal obligations to the extent necessary for the
day-to-day operations of the Seller (such as expenses for stationery, audits,
maintenance of legal status, etc.).
(p) Use of Seller's Share of Collections. The Seller shall apply the
Seller's Share of Collections to make payments in the following order of
priority: (i) the payment of its expenses (including all obligations payable to
the Issuer and the Administrator under the Agreement and under the Fee Letter),
(ii) the payment of accrued and unpaid interest on the Company Note and (iii)
other legal and valid corporate purposes.
(q) Tangible Net Worth. The Seller will not permit its tangible net worth,
at any time, to be less than $5,000,000.
2. Covenants of the Servicer and First Brands. Until the latest of the
Facility Termination Date, the date on which no Capital of or Discount in
respect of the Purchased Interest shall be outstanding or the date all other
amounts owed by the Seller under the Agreement to the Issuer, the Administrator
and any other Indemnified Party or Affected Person shall be paid in full:
(a) Compliance with Laws, Etc. The Servicer and, to the extent that it
ceases to be the Servicer, First Brands shall comply (and shall cause each
Originator to comply) in all material respects with all applicable laws, rules,
regulations and orders, and preserve and maintain its corporate existence,
rights, franchises, qualifications and privileges, except to the extent that the
failure so to comply with such laws, rules and regulations or the failure so to
preserve and maintain such existence, rights, franchises, qualifications and
privileges would not have a Material Adverse Effect.
(b) Offices, Records and Books of Account, Etc. The Servicer and, to the
extent that it ceases to be the Servicer, First
Receivables Purchase Agreement - IV-6
Brands shall keep (and shall cause each Originator to keep) its principal place
of business and chief executive office (as such terms or similar terms are used
in the applicable UCC) and the office where it keeps its records concerning the
Receivables at the address of the Servicer set forth under its name on the
signature page to the Agreement or, upon at least 30 days' prior written notice
of a proposed change to the Administrator, at any other locations in
jurisdictions where all actions reasonably requested by the Administrator to
protect and perfect the interest of the Issuer in the Receivables and related
items (including the Pool Assets) have been taken and completed. The Servicer
and, to the extent that it ceases to be the Servicer, First Brands also will
(and will cause each Originator to) maintain and implement administrative and
operating procedures (including an ability to recreate records evidencing
Receivables and related Contracts in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records,
computer tapes and disks and other information reasonably necessary or advisable
for the collection of all Receivables (including records adequate to permit the
daily identification of each Receivable and all Collections of and adjustments
to each existing Receivable).
(c) Performance and Compliance with Contracts and Credit and Collection
Policy. The Servicer and, to the extent that it ceases to be the Servicer, First
Brands shall (and shall cause each Originator to), at its expense, timely and
fully perform and comply with all material provisions, covenants and other
promises required to be observed by it under the Contracts related to the
Receivables, and timely and fully comply in all material respects with the
Credit and Collection Policy with regard to each Receivable and the related
Contract.
(d) Extension or Amendment of Receivables. Except as provided in the
Agreement, the Servicer and, to the extent that it ceases to be the Servicer,
First Brands shall not extend (and shall not permit any Originator to extend)
the maturity or adjust the Outstanding Balance or otherwise modify the terms of
any Pool Receivable, or amend, modify or waive any term or condition of any
related Contract.
(e) Change in Business or Credit and Collection Policy. The Servicer and,
to the extent that it ceases to be the Servicer, First Brands shall not make
(and shall not permit any Originator to make) any material change in the
character of its business or in any Credit and Collection Policy, or any change
in any Credit and Collection Policy that would have a Material Adverse Effect.
The Servicer and, to the extent that it ceases to be the Servicer, First Brands
shall not make (and shall not permit any Originator to make) any other change in
any Credit and Collection Policy without giving prior written notice thereof to
the
Receivables Purchase Agreement - IV-7
Administrator.
(f) Audits. The Servicer and, to the extent that it ceases to be the
Servicer, First Brands shall (and shall cause each Originator to), from time to
time during regular business hours as reasonably requested in advance (unless a
Termination Event or Unmatured Termination Event exists) by the Administrator,
permit the Administrator, or its agents or representatives: (i) to examine and
make copies of and abstracts from all books, records and documents (including
computer tapes and disks) in its possession or under its control relating to
Receivables and the Related Security, including the related Contracts, and (ii)
to visit its offices and properties for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to Receivables
and the Related Security or its performance hereunder or under the Contracts
with any of its officers, employees, agents or contractors having knowledge of
such matters.
(g) Change in Lock-Box Banks, Lock-Box Accounts and Payment Instructions to
Obligors. The Servicer and, to the extent that it ceases to be the Servicer,
First Brands shall not (and shall not permit any Originator to) add or terminate
any bank as a Lock-Box Bank or any account as a Lock-Box Account from those
listed in Schedule II to the Agreement, or make any change in its instructions
to Obligors regarding payments to be made to the Servicer or any Lock-Box
Account (or related post office box), unless the Administrator shall have
consented thereto in writing and the Administrator shall have received copies of
all agreements and documents (including Lock-Box Agreements) that it may request
in connection therewith.
(h) Deposits to Lock-Box Accounts. The Servicer shall: (i) instruct all
Obligors to make payments of all Receivables to one or more Lock-Box Accounts or
to post office boxes to which only Lock-Box Banks have access (and shall
instruct the Lock-Box Banks to cause all items and amounts relating to such
Receivables received in such post office boxes to be removed and deposited into
a Lock-Box Account on a daily basis), and (ii) deposit, or cause to be
deposited, any Collections received by it into Lock-Box Accounts not later than
one Business Day after receipt thereof. Each Lock-Box Account shall at all times
be subject to a Lock-Box Agreement. The Servicer will not deposit or otherwise
credit, or cause or permit to be so deposited or credited, to any Lock-Box
Account cash or cash proceeds other than Collections.
(i) Marking of Records. At its expense, the Servicer shall ▇▇▇▇ its master
data processing records relating to Pool Receivables and related Contracts,
including with a legend evidencing that the undivided percentage ownership
interests with regard to the Purchased Interest related to such Receivables and
Receivables Purchase Agreement - IV-8
related Contracts have been sold in accordance with the Agreement.
(j) Reporting Requirements. First Brands shall provide to the Administrator
(in multiple copies, if requested by the Administrator) the following:
(i) as soon as available and in any event within 45 days after the end
of the first three quarters of each fiscal year of First Brands, balance
sheets of First Brands and its consolidated Subsidiaries as of the end of
such quarter and statements of income, retained earnings and cash flow of
First Brands and its consolidated Subsidiaries for the period commencing at
the end of the previous fiscal year and ending with the end of such
quarter, certified by the chief financial officer of such Person;
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of such Person, a copy of the annual report for
such year for such Person and its consolidated Subsidiaries, containing
financial statements for such year audited by independent certified public
accountants of nationally recognized standing;
(iii) as to the Servicer only, as soon as available and in any event
not later than the eighth Business Day after the last day of each calendar
month, an Information Package as of the last day of such month, or, within
six Business Days of a request by the Administrator, an Information Package
for such periods as is specified by the Administrator (including on a
semi-monthly, weekly or daily basis);
(iv) as soon as possible and in any event within five days after
becoming aware of the occurrence of each Termination Event or Unmatured
Termination Event, a statement of the chief financial officer of First
Brands setting forth details of such Termination Event or Unmatured
Termination Event and the action that such Person has taken and proposes to
take with respect thereto;
(v) promptly after the sending or filing thereof, copies of all
reports that First Brands sends to any of its security holders, and copies
of all reports and registration statements that First Brands or any
Subsidiary files with the Securities and Exchange Commission or any
national securities exchange; provided, that any filings with the
Securities and Exchange Commission that have been granted "confidential"
treatment shall be provided promptly after such filings have become
publicly available;
Receivables Purchase Agreement - IV-9
(vi) promptly after the filing or receiving thereof, copies of all
reports and notices that First Brands or any of its Affiliate files under
ERISA with the Internal Revenue Service, the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or that such Person or any of
its Affiliate receives from any of the foregoing or from any multiemployer
plan (within the meaning of Section 4001(a)(3) of ERISA) to which such
Person or any of its Affiliate is or was, within the preceding five years,
a contributing employer, in each case in respect of the assessment of
withdrawal liability or an event or condition that could, in the aggregate,
result in the imposition of liability on First Brands and/or any such
Affiliate;
(vii) at least thirty days before any change in First Brands' or any
Originator's name or any other change requiring the amendment of UCC
financing statements, a notice setting forth such changes and the effective
date thereof;
(viii) promptly after First Brands obtains knowledge thereof, notice
of any: (A) litigation, investigation or proceeding that may exist at any
time between First Brands or any of its Subsidiaries and any Governmental
Authority that, if not cured or if adversely determined, as the case may
be, would have a Material Adverse Effect, (B) litigation or proceeding
adversely affecting such Person or any of its Subsidiaries in which the
amount involved is $5,000,000 or more and not covered by insurance or in
which injunctive or similar relief is sought, or (C) litigation or
proceeding relating to any Transaction Document;
(ix) promptly after the occurrence thereof, notice of a material
adverse change in the business, operations, property or financial or other
condition of First Brands or any of its Subsidiaries;
(x) such other information respecting the Receivables or the condition
or operations, financial or otherwise, of First Brands or any of its
Affiliates as the Administrator may from time to time reasonably request.
3. Separate Existence. Each of the Seller and First Brands hereby
acknowledges that the Purchasers, the Issuer and the Administrator are entering
into the transactions contemplated by this Agreement and the other Transaction
Documents in reliance upon the Seller's identity as a legal entity separate from
First Brands and its Affiliates. Therefore, from and after the date hereof, each
of the Seller and First Brands shall take all steps specifically required by the
Agreement or reasonably required by the Administrator to continue the Seller's
identity as a separate
Receivables Purchase Agreement - IV-10
legal entity and to make it apparent to third Persons that the Seller is an
entity with assets and liabilities distinct from those of First Brands and any
other Person, and is not a division of First Brands, its Affiliates or any other
Person. Without limiting the generality of the foregoing and in addition to and
consistent with the other covenants set forth herein, each of the Seller and
First Brands shall take such actions as shall be required in order that:
(a) The Seller will be a limited purpose corporation whose primary
activities are restricted in its certificate of incorporation to: (i)
purchasing or otherwise acquiring from the Originators, owning, holding,
granting security interests or selling interests in Pool Assets, (ii)
entering into agreements for the selling and servicing of the Receivables
Pool, and (iii) conducting such other activities as it deems necessary or
appropriate to carry out its primary activities;
(b) The Seller shall not engage in any business or activity, or incur
any indebtedness or liability, other than as expressly permitted by the
Transaction Documents;
(c) Not less than one member of the Seller's Board of Directors (the
"Independent Director") shall be an individual who is not a direct,
indirect or beneficial stockholder, officer, director, employee, affiliate,
associate or supplier of First Brands or any of its Affiliates. The
certificate of incorporation of the Seller shall provide that: (i) the
Seller's Board of Directors shall not approve, or take any other action to
cause the filing of, a voluntary bankruptcy petition with respect to the
Seller unless the Independent Director shall approve the taking of such
action in writing before the taking of such action, and (ii) such provision
cannot be amended without the prior written consent of the Independent
Director;
(d) The Independent Director shall not at any time serve as a trustee
in bankruptcy for the Seller, First Brands or any Affiliate thereof;
(e) Any employee, consultant or agent of the Seller will be
compensated from the Seller's funds for services provided to the Seller.
The Seller will not engage any agents other than its attorneys, auditors
and other professionals, and a servicer and any other agent contemplated by
the Transaction Documents for the Receivables Pool, which servicer will be
fully compensated for its services by payment of the Servicing Fee, and a
manager, which manager will be fully compensated from the Seller's funds;
Receivables Purchase Agreement - IV-11
(f) The Seller will contract with the Servicer to perform for the
Seller all operations required on a daily basis to service the Receivables
Pool. The Seller will pay the Servicer the Servicing Fee pursuant hereto.
The Seller will not incur any material indirect or overhead expenses for
items shared with First Brands (or any other Affiliate thereof) that are
not reflected in the Servicing Fee. To the extent, if any, that the Seller
(or any Affiliate thereof) shares items of expenses not reflected in the
Servicing Fee or the manager's fee, such as legal, auditing and other
professional services, such expenses will be allocated to the extent
practical on the basis of actual use or the value of services rendered, and
otherwise on a basis reasonably related to the actual use or the value of
services rendered; it being understood that First Brands shall pay all
expenses relating to the preparation, negotiation, execution and delivery
of the Transaction Documents, including legal, agency and other fees;
(g) The Seller's operating expenses will not be paid by First Brands
or any other Affiliate thereof;
(h) The Seller will have its own separate stationery;
(i) The Seller's books and records will be maintained separately from
those of First Brands and any other Affiliate thereof;
(j) All financial statements of First Brands or any Affiliate thereof
that are consolidated to include Seller will contain detailed notes clearly
stating that: (i) a special purpose corporation exists as a Subsidiary of
First Brands, and (ii) the Originators have sold receivables and other
related assets to such special purpose Subsidiary that, in turn, has sold
undivided interests therein to certain financial institutions and other
entities;
(k) The Seller's assets will be maintained in a manner that
facilitates their identification and segregation from those of First Brands
or any Affiliate thereof;
(l) The Seller will strictly observe corporate formalities in its
dealings with First Brands or any Affiliate thereof, and funds or other
assets of the Seller will not be commingled with those of First Brands or
any Affiliate thereof except as permitted by the Agreement in connection
with servicing the Pool Receivables. The Seller shall not maintain joint
bank accounts or other depository accounts to which First Brands or any
Affiliate thereof (other than First Brands in its capacity as the Servicer)
has independent access. The Seller is not named, and has not
Receivables Purchase Agreement - IV-12
entered into any agreement to be named, directly or indirectly, as a direct
or contingent beneficiary or loss payee on any insurance policy with
respect to any loss relating to the property of First Brands or any
Subsidiary or other Affiliate of First Brands. The Seller will pay to the
appropriate Affiliate the marginal increase or, in the absence of such
increase, the market amount of its portion of the premium payable with
respect to any insurance policy that covers the Seller and such Affiliate;
and
(m) The Seller will maintain arm's-length relationships with First
Brands (and any Affiliate thereof). Any Person that renders or otherwise
furnishes services to the Seller will be compensated by the Seller at
market rates for such services it renders or otherwise furnishes to the
Seller. Neither the Seller nor First Brands will be or will hold itself out
to be responsible for the debts of the other or the decisions or actions
respecting the daily business and affairs of the other. The Seller and
First Brands will immediately correct any known misrepresentation with
respect to the foregoing, and they will not operate or purport to operate
as an integrated single economic unit with respect to each other or in
their dealing with any other entity.
Receivables Purchase Agreement - IV-13
EXHIBIT V
TERMINATION EVENTS
Each of the following shall be a "Termination Event":
(a)(i) the Seller, First Brands, any Originator or the Servicer (if First
Brands or any of its Affiliates) shall fail to perform or observe any term,
covenant or agreement under the Agreement or any other Transaction Document and,
except as otherwise provided herein, such failure shall continue for 30 days
after knowledge or notice thereof, (ii) the Seller or the Servicer shall fail to
make when due any payment or deposit to be made by it under the Agreement and
such failure shall continue unremedied for two Business Days or (iii) First
Brands shall resign as Servicer, and no successor Servicer reasonably
satisfactory to the Administrator shall have been appointed;
(b) First Brands (or any Affiliate thereof) shall fail to transfer to any
successor Servicer when required any rights pursuant to the Agreement that First
Brands (or such Affiliate) then has as Servicer;
(c) any representation or warranty made or deemed made by the Seller, First
Brands or any Originator (or any of their respective officers) under or in
connection with the Agreement or any other Transaction Document, or any
information or report delivered by the Seller, First Brands or any Originator or
the Servicer pursuant to the Agreement or any other Transaction Document, shall
prove to have been incorrect or untrue in any material respect when made or
deemed made or delivered;
(d) the Seller or the Servicer shall fail to deliver the Information
Package pursuant to the Agreement, and such failure shall remain unremedied for
five days;
(e) the Agreement or any purchase or reinvestment pursuant to the Agreement
shall for any reason: (i) cease to create, or the Purchased Interest shall for
any reason cease to be, a valid and enforceable perfected undivided percentage
ownership or security interest to the extent of the Purchased Interest in each
Pool Receivable, the Related Security and Collections with respect thereto, free
and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool
Assets, or the interest of the Issuer with respect to such Pool Assets shall
cease to be, a valid and enforceable first priority perfected security interest,
free and clear of any Adverse Claim,
(f) the Seller, First Brands or any Originator shall generally not pay its
debts as such debts become due, or shall
Receivables Purchase Agreement - V-1
admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Seller, First Brands or any Originator seeking to
adjudicate it a 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, custodian or other similar official for it
or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 days, or any
of the actions sought in such proceeding (including the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall
occur; or the Seller, First Brands or any Originator shall take any corporate
action to authorize any of the actions set forth above in this paragraph;
(g)(i) the (A) Default Ratio shall exceed 1.75% (B) the Delinquency Ratio
shall exceed 2.31% or (ii) the average for three consecutive calendar months of:
(A) the Default Ratio shall exceed 0.90%, (B) the Delinquency Ratio shall exceed
1.51%, or (C) the Dilution Ratio shall exceed 15.10%.
(h) a Change in Control shall occur (other than a Change in Control with
respect to Himolene or A&M as to which the Seller shall have complied with
Section 1(e) of Exhibit IV to the Agreement).
(i) the Purchased Interest shall exceed 100% and such circumstance shall
not have been cured within five Business Days,
(j) First Brands or any of its Subsidiaries shall fail to pay any principal
of or premium or interest on any of its Debt that is outstanding in a principal
amount of at least $5,000,000 in the aggregate when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement, mortgage, indenture or instrument
relating to such Debt (and shall have not been waived); or any other event shall
occur or condition shall exist under any agreement, mortgage, indenture or
instrument relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement, mortgage, indenture or
instrument (and shall have not been waived), if, in either case: (a) the effect
of such non-payment, event or condition is to give the applicable debtholders
the right (whether acted upon or not) to accelerate the maturity of
Receivables Purchase Agreement - V-2
such Debt, or (b) any such Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased, or an offer to repay, redeem,
purchase or defease such Debt shall be required to be made, in each case before
the stated maturity thereof;
(k) either: (i) a contribution failure shall occur with respect to any
Benefit Plan sufficient to give rise to a lien under Section 302(f) of ERISA,
(ii) the Internal Revenue Service shall, or shall indicate its intention in
writing to the Seller, any Originator, First Brands or any ERISA Affiliate to,
file a notice of lien asserting a claim or claims of $100,000 or more in the
aggregate pursuant to the Internal Revenue Code with regard to any of the assets
of Seller, any Originator, First Brands or any ERISA Affiliate and such lien
shall have been filed and not released within 10 days, or (iii) the Pension
Benefit Guaranty Corporation shall, or shall indicate its intention in writing
to the Seller, any Originator, First Brands or any ERISA Affiliate to, either
file a notice of lien asserting a claim pursuant to ERISA with regard to any
assets of the Seller, any Originator, First Brands or any ERISA Affiliate or
terminate any Benefit Plan that has unfunded benefit liabilities, or any steps
shall have been taken to terminate any Benefit Plan subject to Title IV of ERISA
so as to result in any liability in excess of $100,000 and such lien shall have
been filed and not released within 10 days.
Receivables Purchase Agreement - V-3
SCHEDULE I
CREDIT AND COLLECTION POLICY
Receivables Purchase Agreement - Schedule I-1
SCHEDULE II
LOCK-BOX BANKS AND LOCK-BOX ACCOUNTS
LOCK-BOX BANK LOCK-BOX ACCOUNTS LOCK-BOX
------------- ----------------- --------
NUMBER
------
Receivables Purchase Agreement - Schedule II-1
SCHEDULE III
TRADE NAMES
None
Receivables Purchase Agreement - Schedule III-1
ANNEX A
TO RECEIVABLES PURCHASE AGREEMENT
FORM OF INFORMATION PACKAGE
Receivables Purchase Agreement - Annex B-1