Purchase and Sale Agreement - Bax Funding Corp. and Bax Global Inc.
PURCHASE AND SALE AGREEMENT
Dated as of December 15, 2000
among
THE ORIGINATORS NAMED HEREIN
BAX FUNDING CORPORATION
and
BAX GLOBAL INC.
as the initial Servicer
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TABLE OF CONTENTS
PAGE
ARTICLE I AGREEMENT TO PURCHASE AND SELL
1.1. Agreement to Purchase and Sell..............................................................................2
1.2. Timing of Purchases.........................................................................................3
1.3. Consideration for Purchases.................................................................................3
1.4. Purchase and Sale Termination Date..........................................................................3
1.5. Intention of the Parties....................................................................................3
ARTICLE II CALCULATION OF PURCHASE PRICE
2.1. Calculation of Purchase Price...............................................................................4
ARTICLE III CONTRIBUTION OF RECEIVABLES;PAYMENT OF PURCHASE PRICE
3.1. Contribution of Receivables.................................................................................5
3.2. Initial Purchase Price Payment..............................................................................5
3.3. Subsequent Purchase Price Payments..........................................................................5
3.4. Settlement as to Specific Receivables.......................................................................5
3.5. Reconveyance of Receivables.................................................................................7
ARTICLE IV CONDITIONS OF PURCHASES
4.1. Conditions Precedent to Initial Purchase....................................................................7
4.2. Certification as to Representations and Warranties..........................................................9
4.3. Addition of Originators.....................................................................................9
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
5.1. Organization and Good Standing.............................................................................10
5.2. Due Qualification..........................................................................................10
5.3. Power and Authority; Due Authorization.....................................................................10
5.4. Valid Sale or Contribution; Binding Obligations............................................................10
5.5. No Violation...............................................................................................10
5.6. Proceedings................................................................................................11
5.7. Bulk Sales Act.............................................................................................11
5.8. Government Approvals.......................................................................................11
5.9. Financial Condition........................................................................................11
5.10. Margin Regulations........................................................................................11
5.11. Quality of Title..........................................................................................12
5.12. Accuracy of Information...................................................................................12
5.13. Offices...................................................................................................12
5.14. Trade Names...............................................................................................13
5.15. Taxes.....................................................................................................13
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5.16. Licenses and Labor Controversies..........................................................................13
5.17. Compliance with Applicable Laws...........................................................................13
5.18. Reliance on Separate Legal Identity.......................................................................13
5.19. Purchase Price............................................................................................13
ARTICLE VI COVENANTS OF THE ORIGINATORS
6.1. Affirmative Covenants......................................................................................14
6.2. Reporting Requirements.....................................................................................16
6.3. Negative Covenants.........................................................................................16
ARTICLE VII ADDITIONAL RIGHTS AND OBLIGATIONS INRESPECT OF THE RECEIVABLES
7.1. Rights of the Company......................................................................................18
7.2. Responsibilities of Each Originator........................................................................18
7.3. Further Action Evidencing Purchases........................................................................18
7.4. Application of Collections.................................................................................19
ARTICLE VIII PURCHASE AND SALE TERMINATION EVENTS
8.1. Purchase and Sale Termination Events.......................................................................19
8.2. Remedies...................................................................................................20
ARTICLE IX INDEMNIFICATION
9.1. Indemnities by the Originators.............................................................................21
ARTICLE X MISCELLANEOUS
10.1. Amendments, etc...........................................................................................22
10.2. Notices, etc..............................................................................................23
10.3. No Waiver; Cumulative Remedies............................................................................23
10.4. Binding Effect; Assignability.............................................................................23
10.5. Governing Law.............................................................................................23
10.6. Costs, Expenses and Taxes.................................................................................23
10.7. Submission to Jurisdiction................................................................................24
10.8. Waiver of Jury Trial......................................................................................24
10.9. Captions and Cross References; Incorporation by Reference.................................................24
10.10. Execution in Counterparts................................................................................25
10.11. Acknowledgment and Agreement.............................................................................25
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SCHEDULES
SCHEDULE 5.13 Office Locations
SCHEDULE 5.14 Trade Names
EXHIBITS
EXHIBIT A Form of Purchase Report
EXHIBIT B Form of Company Note
EXHIBIT C Form of Joinder Agreement
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (as amended, supplemented or modified
from time to time, this "Agreement"), dated as of December 15, 2000, is among
BAX GLOBAL INC. ("BAX"), a Delaware corporation, as initial Servicer (in such
capacity, the "Servicer") and as an Originator (BAX, and together with each of
the other Person that from time to time becomes an Originator pursuant to
Section 4.3 hereof, collectively, the "Originators" and each, individually, an
"Originator") and BAX FUNDING CORPORATION, a California corporation (the
"Company"), as purchaser and contributee.
Definitions
Unless otherwise indicated, certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I to the Receivables Purchase
Agreement of even date herewith (as amended, supplemented or otherwise modified
from time to time, the "Receivables Purchase Agreement"), among the Company,
BAX, as initial Servicer, LIBERTY STREET FUNDING CORP. (the "Issuer"), and THE
BANK OF NOVA SCOTIA, as Administrator (together with its successors and assigns,
the "Administrator").
Background
1. The Company is a special purpose corporation, all of the capital
stock of which is wholly-owned by BAX.
2. In order to finance their respective businesses, the Originators
wish to sell certain Receivables and Related Rights from time to time to the
Company, and the Company is willing, on the terms and subject to the conditions
set forth herein, to purchase such Receivables and Related Rights from such
Originators.
3. The Company intends to sell to Issuer an undivided variable
percentage interest in its Receivables and Related Rights pursuant to the
Receivables Purchase Agreement in order to finance its purchases of certain
Receivables and Related Rights hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
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ARTICLE I
AGREEMENT TO PURCHASE AND SELL
1.1. Agreement to Purchase and Sell. On the terms and subject to the
conditions set forth in this Agreement (including Article IV), and in
consideration of the Purchase Price, each Originator agrees to sell to the
Company, and does hereby sell to the Company, and the Company agrees to purchase
from such Originator, and does hereby purchase from such Originator, without
recourse and without regard to collectibility, all of such Originator's right,
title and interest in and to:
(a) each Receivable of such Originator that existed and was
owing to such Originator as of the close of such Originator's business
on December 15, 2000 (the "Closing Date") (other than the Receivables
and Related Rights contributed by BAX to the Company pursuant to
Section 3.1 (the "Contributed Receivables"));
(b) each Receivable created or originated by such Originator
from the close of such Originator's business on the Closing Date to and
including the Purchase and Sale Termination Date;
(c) all rights to, but not the obligations under, all Related
Security;
(d) all monies due or to become due with respect to any of the
foregoing;
(e) all books and records related to any of the foregoing; and
(f) all proceeds thereof (as defined in the applicable UCC)
received on or after the date hereof including, without limitation, all
funds which either are received by such Originator, the Company or the
Servicer from or on behalf of the Obligors in payment of any amounts
owed (including, without limitation, finance charges, interest and all
other charges) in respect of Receivables, or are applied to such
amounts owed by the Obligors (including, without limitation, insurance
payments, if any, that such Originator or the Servicer (if other than
Originator) applies in the ordinary course of its business to amounts
owed in respect of any Receivable).
All purchases and contributions hereunder shall be made without recourse, but
shall be made pursuant to and in reliance upon the representations, warranties
and covenants of each Originator set forth in this Agreement and each other
Transaction Document. The Company's foregoing commitment to purchase such
Receivables and the proceeds and rights described in subsections (c) through (f)
of this Section 1.1 (collectively, the "Related Rights") is herein called the
"Purchase Facility."
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1.2. Timing of Purchases.
(a) Closing Date Purchases. Each Originator's entire right, title and
interest in (i) each Receivable that existed and was owing to Originator as of
the close of such Originator's business on the Closing Date, (other than the
Contributed Receivables), and (ii) all Related Rights with respect thereto shall
be deemed to have been sold to the Company on the Closing Date.
(b) Regular Purchases. After the Closing Date, each Receivable created
or originated by each Originator and described in Section 1.1(b) hereof and all
Related Rights shall be purchased and owned by the Company (without any further
action) upon the creation or origination of such Receivable.
(c) Foreign Receivables. Notwithstanding anything in this Agreement to
the contrary, no Receivable, the Obligor of which is a resident of a
jurisdiction other than the United States, Canada or Mexico, shall be sold,
transferred or otherwise assigned by any Originator to the Company hereunder
unless and until Company shall have notified such Originator in writing that
such Receivable is acceptable for purchase hereunder.
1.3. Consideration for Purchases. On the terms and subject to the
conditions set forth in this Agreement, the Company agrees to make all Purchase
Price payments to the respective Originators, and to reflect all contributions,
in accordance with Article III.
1.4. Purchase and Sale Termination Date. The "Purchase and Sale
Termination Date" shall be the earlier to occur of (a) the date of the
termination of this Agreement pursuant to Section 8.2 and (b) the Payment Date
immediately following the day on which the Servicer shall have given notice to
the Company that the Originators desire to terminate this Agreement.
As used herein, "Payment Date" means (i) the Closing Date and (ii) each
Business Day thereafter that the Originators are open for business.
1.5. Intention of the Parties. It is the express intent of the parties
hereto that the transfers of the Receivables and Related Rights by each
Originator to the Company, as contemplated by this Agreement be, and be treated
as, sales or contributions, as applicable, and not as loans secured by the
Receivables and Related Rights. If, however, notwithstanding the intent of the
parties, such transfers are deemed to be loans, such Originator hereby grants to
the Company a first priority security interest in all of such Originator's
right, title and interest in and to the Receivables and the Related Rights now
existing and hereafter created, all monies due or to become due and all amounts
received with respect thereto, and all proceeds thereof, to secure all of such
Originator's obligations hereunder.
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ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1. Calculation of Purchase Price. On the tenth Business Day after
the last day of each calendar month (the "Servicer Report Date"), the Servicer
shall deliver to the Company, the Administrator and each Originator a report in
substantially the form of Exhibit A (each such report being herein called a
"Purchase Report") with respect to the matters set forth therein and the
Company's purchases of Receivables from each Originator
(a) that are to be made on the Closing Date (in the case of
the Purchase Report to be delivered on the Closing Date), or
(b) that were made during the period commencing on the
Servicer Report Date immediately preceding such Servicer Report Date to
(but not including) such Servicer Report Date (in the case of each
subsequent Purchase Report).
The "Purchase Price" (to be paid to each Originator in accordance with the terms
of Article III) for the Receivables and the Related Rights that are purchased
hereunder shall be determined in accordance with the following formula:
PP = OB X FMVD
where:
PP = Purchase Price for each Receivable as calculated on
the relevant Payment Date.
OB = the Outstanding Balance of such Receivable.
FMVD = Fair Market Value Discount, as measured on such
Payment Date, which is equal to the quotient
(expressed as percentage) of (a) one divided by
(b) the sum of (i) one, plus (ii) the product of
(A) the Prime Rate on such Payment Date, and (B) a
fraction, the numerator of which is the Days'
Sales Outstanding (calculated as of the last day
of the calendar month next preceding such Payment
Date) and the denominator of which is 365.
"Prime Rate" means a per annum rate equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal or such other
publication as determined by the Administrator in its sole discretion.
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ARTICLE III
CONTRIBUTION OF RECEIVABLES;
PAYMENT OF PURCHASE PRICE
3.1. Contribution of Receivables. On the Closing Date, BAX shall, and
hereby does, contribute to the capital of the Company, Receivables and Related
Rights with respect thereto consisting of each Receivable of BAX that existed
and was owing to BAX on the Closing Date, beginning with the oldest of such
Receivables and continuing chronologically thereafter, and all or an undivided
interest in the most recent of such contributed Receivables such that the
aggregate Outstanding Balance of all such contributed Receivables shall be equal
to $1,500,000.
3.2. Initial Purchase Price Payment. On the terms and subject to the
conditions set forth in this Agreement, the Company agrees to pay to each
Originator the Purchase Price for the purchase of Receivables to be made on the
Closing Date (other than Contributed Receivables), partially in cash in the
amount of the proceeds of the purchase made by the Issuer on the Closing Date
under the Receivables Purchase Agreement, and partially by issuing a promissory
note in the form of Exhibit B to such Originator with an initial principal
balance equal to the remaining Purchase Price (as each such promissory note may
be amended, supplemented, indorsed or otherwise modified from time to time,
together with all promissory notes issued from time to time in substitution
therefor or renewal thereof in accordance with the Transaction Documents, being
herein called the "Company Note").
3.3. Subsequent Purchase Price Payments. On each Business Day falling
after the Closing Date and on or prior to the Purchase and Sale Termination
Date, on the terms and subject to the conditions set forth in this Agreement,
the Company shall pay to each Originator the Purchase Price for the Receivables
sold by such Originator to the Company on such Business Day, in cash, to the
extent provided under the terms of the Receivables Purchase Agreement, and to
the extent any of such Purchase Price remains unpaid, such remaining portion of
such Purchase Price shall be paid by means of an automatic increase to the
outstanding principal amount of the Company Note issued to such Originator.
Servicer shall make all appropriate record keeping entries with respect
to the Company Notes or otherwise to reflect the foregoing payments and to
reflect adjustments pursuant to Section 3.4, and Servicer's books and records
shall constitute rebuttable presumptive evidence of the principal amount of and
accrued interest on any Company Note at any time. Furthermore, Servicer shall
hold the Company Notes for the benefit of the Originators, and all payments
under the Company Notes shall be made to the Servicer for the account of the
applicable payee thereof. Each Originator hereby irrevocably authorizes Servicer
to mark the Company Notes "CANCELLED" and to return such Company Notes to the
Company upon the final payment thereof after the occurrence of the Purchase and
Sale Termination Date.
3.4. Settlement as to Specific Receivables and Dilution.
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(a) If on the day of purchase or contribution of any Receivable from
any Originator hereunder, any of the representations or warranties set forth in
Section 5.4 or 5.11 of such Originator is not true with respect to such
Receivable or as a result of any action or inaction of such Originator, on any
day any of such representations or warranties set forth in Section 5.4 or 5.11
is no longer true with respect to such a Receivable (other than a representation
or warranty set forth in Section 5.11(c) which is no longer true as a result of
an Obligor's payment obligation being discharged in bankruptcy), then the
Purchase Price (or in the case of a Contributed Receivable, the Outstanding
Balance of such Receivable (the "Contributed Value")) with respect to such
Receivables shall be reduced by an amount equal to the Outstanding Balance of
such Receivable and shall be accounted to such Originator as provided in
subsection (c) below; provided, that if the Company thereafter receives payment
on account of Collections due with respect to such Receivable, the Company
promptly shall deliver such funds to such Originator.
(b) If, on any day, the Outstanding Balance of any Receivable
(including any Contributed Receivable) purchased (or contributed) hereunder is
reduced or adjusted as a result of any defective, rejected, returned goods or
services, or any discount or other adjustment made by any Originator, the
Company or the Servicer or any offset, setoff or dispute between such Originator
or the Servicer and an Obligor as indicated on the books of the Company (or, for
periods prior to the Closing Date, the books of such Originator), then the
Purchase Price or the Contributed Value, as the case may be, with respect to
such Receivable shall be reduced by the amount of such net reduction and shall
be accounted to Originator as provided in subsection (c) below.
(c) Any reduction in the Purchase Price (or Contributed Value) of any
Receivable pursuant to subsection (a) or (b) above shall be applied as a credit
for the account of the Company against the Purchase Price of Receivables
subsequently purchased by the Company from such Originator hereunder; provided,
however if there are no purchases of Receivables from such Originator (or
insufficiently large purchases of Receivables) to create a Purchase Price
sufficient to so apply such credit against, the amount of such credit
(i) shall be paid in cash to the Company by such Originator in
the manner and for application as described in the following proviso,
or
(ii) shall be deemed to be a payment under, and shall be
deducted from the principal amount outstanding under, the Company Note
payable to such Originator to the extent permitted under Section 1(m)
of Exhibit IV of the Receivables Purchase Agreement;
provided, further, that at any time (x) when a Termination Event or Unmatured
Termination Event exists under the Receivables Purchase Agreement or (y) on or
after the Purchase and Sale Termination Date, the amount of any such credit
shall be paid by such Originator to the Company by deposit in immediately
available funds into the Collection Account for application by Servicer
to the same extent as if Collections of the applicable Receivable in such amount
had actually been received on such date.
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(d) Each Purchase Report (other than the Purchase Report delivered on
the Closing Date) shall include, in respect of the Receivables previously
generated by each Originator (including the Contributed Receivables), a
calculation of the aggregate reductions described in subsection (a) or (b)
relating to such Receivables since the last Purchase Report delivered hereunder,
as indicated on the books of the Company (or, for such period prior to the
Closing Date, the books of the Originators).
3.5. Reconveyance of Receivables. In the event that an Originator has
paid to the Company the full Outstanding Balance of any Receivable pursuant to
Section 3.4, the Company shall reconvey such Receivable to such Originator,
without representation or warranty, but free and clear of all liens created by
the Company.
ARTICLE IV
CONDITIONS OF PURCHASES
4.1. Conditions Precedent to Initial Purchase. The initial purchase
hereunder is subject to the condition precedent that the Company shall have
received, on or before the Closing Date, the following, each (unless otherwise
indicated) dated the Closing Date, and each in form, substance and date
satisfactory to the Company:
(a) A copy of the resolutions of the Board of Directors of
each Originator approving the Transaction Documents to be delivered by
it and the transactions contemplated hereby and thereby, certified by
the Secretary or Assistant Secretary of such Originator;
(b) Good standing certificates for each Originator issued as
of a recent date acceptable to Servicer by the Secretary of State of
the jurisdiction of such Originator's incorporation and the
jurisdiction where such Originator's chief executive office is located;
(c) A certificate of the Secretary or Assistant Secretary of
each Originator certifying the names and true signatures of the
officers authorized on such Originator's behalf to sign the Transaction
Documents to be delivered by it (on which certificate the Company and
Servicer (if other than such Originator) may conclusively rely until
such time as the Company and the Servicer shall receive from Originator
a revised certificate meeting the requirements of this subsection (c));
(d) The articles of incorporation of each Originator, duly
certified by the Secretary of State of the jurisdiction of such
Originator's incorporation as of a recent date acceptable to Servicer,
together with a copy of the by-laws of such Originator, each duly
certified by the Secretary or an Assistant Secretary of such
Originator;
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(e) Copies of the proper financing statements (Form UCC-1)
that have been duly executed and name each Originator as the
debtor/seller and the Company as the secured party/purchaser (and
Issuer as assignee of the Company) of the Receivables generated by such
Originator and Related Rights or other, similar instruments or
documents, as may be necessary or, in Servicer's or the Administrator's
opinion, desirable under the UCC of all appropriate jurisdictions or
any comparable law of all appropriate jurisdictions to perfect the
Company's ownership interest in all Receivables and Related Rights in
which an ownership interest may be assigned to it hereunder;
(f) A written search report from a Person satisfactory to
Servicer and the Administrator listing all effective financing
statements that name any Originator as debtor or assignor and that are
filed in the jurisdictions in which filings were made pursuant to the
foregoing subsection (e), together with copies of such financing
statements (none of which, except for those described in the foregoing
subsection (e), shall cover any Receivable or any Related Right), and
tax and judgment lien search reports from a Person satisfactory to
Servicer and the Administrator showing no evidence of any liens filed
against any Originator with respect to the Receivables or Related
Rights;
(g) Favorable opinions of general counsel to the Originators,
in form and substance satisfactory to the Company and the
Administrator;
(h) Evidence (i) of the execution and delivery by each of the
parties thereto of each of the other Transaction Documents to be
executed and delivered in connection herewith and (ii) that each of the
conditions precedent to the execution, delivery and effectiveness of
such other Transaction Documents has been satisfied to the Company's
satisfaction; and
(i) A certificate from an officer of each Originator to the
effect that Servicer and Originator have placed on the most recent, and
have taken all steps reasonably necessary to ensure that there shall be
placed on subsequent, summary master control data processing reports
the following legend (or the substantive equivalent thereof): "THE
RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO BAX FUNDING CORPORATION
PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF DECEMBER 15,
2000, AMONG BAX GLOBAL INC., THE ORIGINATORS NAMED THEREIN AND BAX
FUNDING CORPORATION; AND AN INTEREST IN THE RECEIVABLES DESCRIBED
HEREIN HAS BEEN GRANTED TO LIBERTY STREET FUNDING CORP., PURSUANT TO A
RECEIVABLES PURCHASE AGREEMENT, DATED AS OF DECEMBER 15, 2000, AMONG
BAX GLOBAL INC., BAX FUNDING CORPORATION, LIBERTY STREET FUNDING CORP.,
AND THE BANK OF NOVA SCOTIA, AS ADMINISTRATOR."
4.2. Certification as to Representations and Warranties. Each
Originator, by accepting the Purchase Price related to each purchase of
Receivables (and Related Rights) generated by
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such Originator, shall be deemed to have certified that the representations and
warranties contained in Article V are true and correct on and as of such day,
with the same effect as though made on and as of such day.
4.3. Addition of Originators. Additional Persons may be added as
Originators hereunder, with the consent of the Company and the Administrator;
provided that the following conditions are satisfied on or before the date of
such addition:
(i) The Servicer shall have given the Administrator and the
Company at least thirty (30) days prior written notice of such proposed
addition and the identity of the proposed additional Originator and
shall have provided such information with respect to the receivables of
such additional Originator as the Administrator shall have reasonably
requested;
(ii) such proposed additional Originator has executed and
delivered to the Company and the Administrator an agreement
substantially in the form attached hereto as Exhibit C (each, a
"Joinder Agreement");
(iii) such proposed additional Originator has delivered to the
Company and the Administrator each of the documents with respect to
such Originator described in Section 4.1;
(iv) unless the receivables intended to be sold by such
Originator to the Company hereunder are Receivables, the related
underlying goods of which, are and will continue to be generated by an
already existing Originator, the Administrator shall have received a
written statement from each of Moody's and Standard & Poor's confirming
that the addition of such Originator will not result in a downgrade or
withdrawal of the current ratings of the Notes; and
(v) the Purchase and Sale Termination Date shall not have
occurred.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATORS
In order to induce the Company to enter into this Agreement and to make
purchases and accept contributions hereunder, each Originator, hereby makes with
respect to itself the representations and warranties set forth in this Article
V.
5.1. Organization and Good Standing. Such Originator has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the state of its incorporation, with power and authority to own its
properties and to conduct its business as such properties are presently owned
and such business is presently conducted.
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5.2. Due Qualification. Such Originator is duly licensed or qualified
to do business as a foreign corporation in good standing in the jurisdiction
where its chief executive office and principal place of business are located and
in all other jurisdictions in which (a) the ownership or lease of its property
or the conduct of its business requires such licensing or qualification and (b)
the failure to be so licensed or qualified would not have a Material Adverse
Effect.
5.3. Power and Authority; Due Authorization. Such Originator has (a)
all necessary corporate power, authority and legal right (i) to execute and
deliver, and perform its obligations under, each Transaction Document to which
it is a party, and (ii) to generate, own, sell, contribute and assign
Receivables and Related Rights on the terms and subject to the conditions herein
and therein provided; and (b) duly authorized such execution and delivery and
such sale, contribution and assignment and the performance of such obligations
by all necessary corporate action.
5.4. Valid Sale or Contribution; Binding Obligations. Each sale or
contribution, as the case may be, of Receivables and Related Rights made by such
Originator pursuant to this Agreement shall constitute a valid sale or
contribution, as the case may be, transfer, and assignment thereof to the
Company, enforceable against creditors of, and purchasers from, such Originator;
and this Agreement constitutes, and each other Transaction Document to be signed
by such Originator, when duly executed and delivered, will constitute, a legal,
valid, and binding obligation of such Originator, enforceable in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
5.5. No Violation. The consummation of the transactions contemplated by
this Agreement and the other Transaction Documents and the fulfillment of the
terms hereof or thereof will not (a) conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without notice or lapse
of time or both) a default under (i) such Originator's certificate of
incorporation or by-laws, or (ii) any material indenture, loan agreement,
mortgage, deed of trust, or other material agreement or instrument to which it
is a party or by which it is bound, (b) result in the creation or imposition of
any Adverse Claim upon any of its properties pursuant to the terms of any such
material indenture, loan agreement, mortgage, deed of trust, or other material
agreement or instrument, other than the Transaction Documents, or (c) violate
any law or any order, rule, or regulation applicable to it of any court or of
any federal, state or foreign regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over it or any of its
properties.
5.6. Proceedings. There is no litigation or, to such Originator's
knowledge, any proceeding or investigation pending before any court, regulatory
body, arbitrator, administrative agency, or other tribunal or governmental
instrumentality (a) asserting the invalidity of any Transaction Document, (b)
seeking to prevent the sale or contribution of Receivables and Related Rights to
the Company or the consummation of any of the other transactions
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contemplated by any Transaction Document, or (c) seeking any determination or
ruling that would have a Material Adverse Effect.
5.7. Bulk Sales Act. No transaction contemplated hereby requires
compliance with any bulk sales act or similar law.
5.8. Government Approvals. Except for the filing of the UCC financing
statements referred to in Article IV, all of which, at the time required in
Article IV, shall have been duly made and shall be in full force and effect, no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for such Originator's
due execution, delivery and performance of any Transaction Document to which it
is a party, as seller.
5.9. Financial Condition.
(a) On the date hereof, and on the date of each sale of Receivables by
each Originator to the Company (both before and after giving effect to such
sale), such Originator shall be Solvent.
(b) The unaudited consolidated balance sheets of BAX and its
subsidiaries as of December 31, 1999 and the related statements of operations
and cash flows for the fiscal year then ended, copies of which have been
furnished to the Company, present fairly the consolidated financial position of
BAX and its subsidiaries at such date and the consolidated results of their
operations for the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied; and since such date no
event has occurred that has had, or would have, a Material Adverse Effect.
5.10. Margin Regulations. No use of any funds acquired by such
Originator under this Agreement will conflict with or contravene any of
Regulations T, U and X promulgated by the Board of Governors of the Federal
Reserve System from time to time.
5.11. Quality of Title.
(a) Each Receivable (together with the Related Rights) which is to be
sold or contributed to the Company hereunder is or shall be owned by such
Originator, free and clear of any Adverse Claim (other than any Adverse Claim
arising solely as a result of any action taken by the Company). Whenever the
Company makes a purchase, or accepts a contribution, hereunder, it shall have
acquired a valid and perfected ownership interest (free and clear of any Adverse
Claim) in all Receivables generated by such Originator and all Collections
related thereto, and in such Originator's entire right, title and interest in
and to the other Related Rights with respect thereto.
(b) No effective financing statement or other instrument similar in
effect covering any Receivable generated by such Originator or any right related
to any such Receivable is on
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file in any recording office except such as may be filed in favor of the
Company or the Originators, as the case may be, in accordance with this
Agreement or in favor of the Issuer in accordance with the Receivables
Purchase Agreement.
(c) Each Receivable purchased or contributed hereunder and included in
the Net Receivables Pool Balance was, on the date of purchase or contribution,
an Eligible Receivable.
5.12. Accuracy of Information. No factual written information furnished
or to be furnished in writing by a Responsible Officer of such Originator, to
the Company, the Issuer or the Administrator for purposes of or in connection
with any Transaction Document or any transaction contemplated hereby or thereby
is, and no other such factual written information hereafter furnished (and
prepared) by a Responsible Officer of such Originator, to the Company, the
Issuer, or the Administrator pursuant to or in connection with any Transaction
Document, taken as a whole, will be inaccurate in any material respect as of the
date it was furnished or (except as otherwise disclosed to the Company at or
prior to such time) as of the date as of which such information is dated or
certified, or shall contain any material misstatement of fact or omitted or will
omit to state any material fact necessary to make such information, in the light
of the circumstances under which any statement therein was made, not materially
misleading on the date as of which such information is dated or certified.
5.13. Offices. Such Originator's principal place of business and chief
executive office is located at the address set forth under such Originator's
signature hereto (or in the Joinder Agreement pursuant to which such Originator
becomes a party hereto, as an Originator), and the offices where such Originator
keeps all its books, records and documents evidencing the Receivables, the
related Contracts and all other agreements related to such Receivables are
located at the addresses specified on Schedule 5.13 (or at such other locations,
notified to Servicer and the Administrator in accordance with Section 6.1(f), in
jurisdictions where all action required by Section 7.3 has been taken and
completed).
5.14. Trade Names. Except as disclosed on Schedule 5.14, such
Originator does not use any trade name other than its actual corporate name.
From and after the date that fell five (5) years before the date hereof, such
Originator has not been known by any legal name other than its corporate name as
of the date hereof, nor has such Originator been the subject of any merger or
other corporate reorganization except as disclosed on Schedule 5.14.
5.15. Taxes. Such Originator has filed all material tax returns and
reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes which are
not yet delinquent or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books.
5.16. Licenses and Labor Controversies.
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(a) Such Originator has not failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the ownership of
its properties or to the conduct of its business, which violation or failure to
obtain would have a Material Adverse Effect; and
(b) There are no labor controversies pending against such Originator
that have had (or would have) a Material Adverse Effect.
5.17. Compliance with Applicable Laws. Such Originator is in
compliance, in all material respects, with the requirements of (i) all
applicable laws, rules, regulations, and orders of all governmental authorities
(including, without limitation, laws, rules and regulations relating to usury,
truth in lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy and all other consumer
laws applicable to the Receivables and related Contracts) which would have a
Material Adverse Effect (excluding with respect to environmental matters which
are covered by clause (ii)), and (ii) to the best of its knowledge, all
applicable environmental laws, rules, regulations and orders of all governmental
authorities which would have a Material Adverse Effect.
5.18. Reliance on Separate Legal Identity. Such Originator is aware
that Issuer and the Administrator are entering into the Transaction Documents to
which they are parties in reliance upon the Company's identity as a legal entity
separate from any Originator.
5.19. Purchase Price. The purchase price payable by the Company to such
Originator hereunder is intended by such Originator and Company to be consistent
with the terms that would be obtained in an arm's length sale.
ARTICLE VI
COVENANTS OF THE ORIGINATORS
6.1. Affirmative Covenants. From the date hereof until the first day
following the Purchase and Sale Termination Date, each Originator will, unless
the Company and the Administrator shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material respects with all
applicable laws, rules, regulations and orders, including those with respect to
the Receivables generated by it and the related Contracts and other agreements
related thereto, except to the extent that failure to comply with such laws,
rules and regulations would not have a Material Adverse Effect.
(b) Preservation of Corporate Existence. Preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of
its incorporation, and qualify and remain qualified in good standing as a
foreign corporation in each jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and qualification could
would have a Material Adverse Effect.
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(c) Receivables Review. (i) At any time and from time to time (but, (a)
prior to the occurrence of a Purchase and Sale Termination Event or Unmatured
Purchase and Sale Termination Event or (b) unless, in the opinion of the
Administrator reasonable grounds for insecurity exist with respect to the
collectibility of the Receivables or such Originator's performance or ability to
perform its obligations under this Agreement, no more frequently than annually)
during regular business hours, upon reasonable prior notice, permit the Company
and/or the Administrator, or their respective agents or representatives, (A) to
examine, to audit and make copies of and abstracts from all books, records and
documents (including, without limitation, computer tapes and disks) in the
possession or under the control of such Originator relating to the Receivables
and Related Rights, including, without limitation, the Contracts and other
agreements related thereto, and (B) to visit such Originator's offices and
properties for the purpose of examining such materials described in the
foregoing clause (A) and discussing matters relating to the Receivables and
Related Rights or such Originator's performance hereunder with any of the
officers or employees of such Originator having knowledge of such matters; and
(ii) without limiting the provisions of clause (i) next above, from time to time
during regular business hours, upon five (5) Business Days prior written notice
from the Administrator, permit certified public accountants or other auditors
acceptable to the Administrator to conduct a review of its books and records
with respect to the Receivables and Related Rights. Each of the parties hereto
hereby agrees that (x) in the absence of a Termination Event or an Unmatured
Termination Event, audits, of the type described in clause (ii) of this
paragraph (c), shall be conducted only as reasonably necessary, as determined in
the sole discretion of the Administrator, and all reasonable costs and expenses
of any such audit, examination or review performed or otherwise prepared
pursuant to this paragraph (c) shall be paid by such Originator and (y) each
party receiving information with respect to this paragraph (c) shall be subject
to the standard of confidentiality provided for such information as set forth in
Section 5.13 of the Receivables Purchase Agreement.
(d) Keeping of Records and Books of Account. Maintain an ability to
recreate records evidencing the Receivables in the event of the destruction of
the originals thereof.
(e) Performance and Compliance with Receivables and Contracts. At its
expense timely and fully perform and comply with all provisions, covenants and
other promises required to be observed by it under the related Contracts and all
other agreements related to the Receivables and Related Rights.
(f) Location of Records. Keep its principal place of business and chief
executive office, and the offices where it keeps its records concerning or
related to Receivables and Related Rights, at the address(es) referred to in
Schedule 5.13 or, upon 30 days' prior written notice to the Company and the
Administrator, at such other locations in jurisdictions where all action
required by Section 7.3 shall have been taken and completed.
(g) Credit and Collection Policies. Comply in all material respects
with its Credit and Collection Policy in connection with the Receivables and the
related Contracts.
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(h) Separate Corporate Existence of the Company. Take such actions as
shall be required in order that:
(i) the Company's operating expenses (other than certain
organization expenses and expenses incurred in connection with the
preparation, negotiation and delivery of the Transaction Documents)
will not be paid by such Originator;
(ii) the Company's books and records will be maintained
separately from those of such Originator;
(iii) all financial statements of such Originator that are
consolidated to include the Company will contain a disclosure
describing this transaction and that will indicate that (A) all of the
Company's assets are owned by the Company, and (B) the Company is a
separate entity with creditors who have received interests in the
Company's assets;
(iv) such Originator will strictly observe corporate
formalities in its dealing with the Company;
(v) except as otherwise provided in the Receivables Purchase
Agreement in connection with the servicing of Receivables, such
Originator shall not commingle its funds with any funds of the Company;
(vi) such Originator will maintain arm's length relationships
with the Company, and such Originator will be compensated at market
rates for any services it renders or otherwise furnishes to the
Company; and
(vii) such Originator will not be, and will not hold itself
out to be, responsible for the debts of the Company or the decisions or
actions in respect of the daily business and affairs of the Company.
(i) Post Office Boxes. Within 30 days after the date hereof, deliver to
the Administrator a certificate from an authorized officer of such Originator to
the effect that (i) the name of the renter of all post office boxes into which
Collections may from time to time be mailed have been changed to the name of the
Company (unless such post office boxes are in the name of the relevant Lock-Box
Banks) and (ii) all relevant postmasters have been notified that each of
Servicer and the Administrator are authorized to collect mail delivered to such
post office boxes (unless such post office boxes are in the name of the relevant
Lock-Box Banks).
6.2. Reporting Requirements. From the date hereof until the first day
following the Purchase and Sale Termination Date, each Originator shall, unless
the Administrator and the Company shall otherwise consent in writing, furnish to
the Company and the Administrator:
(a) Proceedings. Promptly after such Originator has knowledge
thereof, written notice to the Company and the Administrator of (i) all
pending proceedings and
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investigations of the type described in Section 5.6 not previously
disclosed to the Company and/or the Administrator and (ii) all
material adverse developments that have occurred with respect to any
previously disclosed proceedings and investigations.
(b) Other. Promptly, from time to time, such other
information, documents, records or reports respecting the Receivables,
the Related Rights or such Originator's performance hereunder that the
Company or the Administrator may from time to time reasonably request
in order to protect the interests of the Company, the Issuer, the
Administrator or any other Affected Person under or as contemplated by
the Transaction Documents.
6.3. Negative Covenants. From the date hereof until the date following
the Purchase and Sale Termination Date, each Originator agrees that, unless the
Administrator and the Company shall otherwise consent in writing (which consent
shall not be unreasonably withheld), it shall not:
(a) Sales, Liens, Etc. Except as otherwise provided herein or
in any other Transaction Document, sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim upon or with respect to, any Receivable or related
Contract, Collections or Related Security, or any interest therein, or
assign any right to receive income in respect thereof.
(b) Extension or Amendment of Receivables. Except as otherwise
permitted in Section 4.2(a) of the Receivables Purchase Agreement or in
accordance with the Credit and Collection Policy, extend, amend or
otherwise modify the terms of any Receivable in any material respect,
or amend, modify or waive, in any material respect, any term or
condition of any Contract related thereto (which term or condition
relates to payments under, or the enforcement of, such Contract).
(c) Change in Business or Credit and Collection Policy. Make
any change in the character of its business or materially alter its
Credit and Collection Policy, which change would, in either case,
materially change the credit standing required of particular Obligors
or potential Obligors or which would have a Material Adverse Effect on
the collectibility of the Receivables generated by it.
(d) Receivables Not to be Evidenced by Promissory Notes or
Chattel Paper. Take any action to cause or permit any Receivable
generated by it to become evidenced by any "instrument" or "chattel
paper" (as defined in the applicable UCC) unless such "instrument" or
"chattel paper" shall be delivered to the Company (which in turn shall
deliver the same to the Issuer (or the Administrator on its behalf)).
(e) Mergers, Acquisitions, Sales, etc. Merge or consolidate
with another Person (except pursuant to a merger or consolidation
involving such Originator where such Originator is the surviving
corporation), or convey, transfer, lease or otherwise
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dispose of (whether in one or in a series of transactions), all or
substantially all of its assets (whether now owned or hereafter
acquired), other than pursuant to this Agreement.
(f) Lock-Box Banks. Make any changes in its instructions to
Obligors regarding Collections or add or terminate any Lock-Box Bank
unless the requirements of Section 1(i) of Exhibit IV to the
Receivables Purchase Agreement have been met.
(g) Accounting for Purchases. Account for or treat (whether in
financial statements or otherwise) the transactions contemplated hereby
in any manner other than as sales of the Receivables and Related
Security by such Originator to the Company.
(h) Transaction Documents. Enter into, execute, deliver or
otherwise become bound by any agreement, instrument, document or other
arrangement that restricts the right of such Originator to amend,
supplement, amend and restate or otherwise modify, or to extend or
renew, or to waive any right under, this Agreement or any other
Transaction Documents.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
7.1. Rights of the Company. Each Originator hereby authorizes the
Company and the Servicer or their respective designees to take any and all steps
in such Originator's name necessary or desirable, in their respective
determination, to collect all amounts due under any and all Receivables and
Related Rights, including, without limitation, endorsing such Originator's name
on checks and other instruments representing Collections and enforcing such
Receivables and the provisions of the related Contracts that concern payment
and/or enforcement of rights to payment.
7.2. Responsibilities of Each Originator. Anything herein to the
contrary notwithstanding:
(a) Each Originator agrees to (A) direct, and hereby grants to
each of the Company and the Administrator the authority to direct, all
Obligors of Receivables originated by such Originator to make payments
of such Receivables directly to a Lock-Box Account at a Lock-Box Bank,
and (B) to transfer any Collections that it receives directly, to
Servicer (for deposit to such a Lock-Box Account) within two Business
Days of receipt thereof, and agrees that all such Collections shall be
deemed to be received in trust for the Company.
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(b) Each Originator shall perform its obligations hereunder,
and the exercise by the Company or its designee of its rights hereunder
shall not relieve such Originator from such obligations.
(c) None of the Company, Servicer, Issuer or the Administrator
shall have any obligation or liability to any Obligor or any other
third Person with respect to any Receivables, Contracts related thereto
or any other related agreements, nor shall the Company, Servicer,
Issuer or the Administrator be obligated to perform any of the
obligations of any Originator thereunder.
(d) Each Originator hereby grants to Administrator an
irrevocable power of attorney, with full power of substitution, coupled
with an interest, to take in the name of such Originator all steps
necessary or advisable to indorse, negotiate or otherwise realize on
any writing or other right of any kind held or transmitted by such
Originator or transmitted or received by the Company (whether or not
from such Originator) in connection with any Receivable or Related
Right.
7.3. Further Action Evidencing Purchases. Each Originator agrees that
from time to time, at its expense, it will promptly execute and deliver all
further instruments and documents, and take all further action that the Company
or Servicer may reasonably request in order to perfect, protect or more fully
evidence the Receivables (and the Related Rights) purchased by, or contributed
to, the Company hereunder, or to enable the Company to exercise or enforce any
of its rights hereunder or under any other Transaction Document. Without
limiting the generality of the foregoing, upon the request of the Company, each
Originator will:
(a) execute and file such financing or continuation
statements, or amendments thereto or assignments thereof, and such
other instruments or notices, as may be necessary or appropriate; and
(b) mark the summary master control data processing records
with the legend set forth in Section 4.1(i).
Each Originator hereby authorizes the Company or its designee to file one or
more financing or continuation statements, and amendments thereto and
assignments thereof, relative to all or any of the Receivables (and the Related
Rights) now existing or hereafter generated by such Originator. If any
Originator fails to perform any of its agreements or obligations under this
Agreement, the Company or its designee may (but shall not be required to) itself
perform, or cause performance of, such agreement or obligation, and the expenses
of the Company or its designee incurred in connection therewith shall be payable
by such non-performing Originator as provided in Section 9.1.
7.4. Application of Collections. Any payment by an Obligor in respect
of any indebtedness owed by it to any Originator shall, except as otherwise
specified by such Obligor or otherwise required by contract or law and unless
otherwise instructed by the Company or the
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Administrator, be applied first, as a Collection of any Receivables of such
Obligor, in the order of the age of such Receivables, starting with the oldest
of such Receivables, and second, to any other indebtedness of such Obligor.
ARTICLE VIII
PURCHASE AND SALE TERMINATION EVENTS
8.1. Purchase and Sale Termination Events. Each of the following
events or occurrences described in this Section 8.1 shall constitute a "Purchase
and Sale Termination Event":
(a) The Facility Termination Date (as defined in the
Receivables Purchase Agreement) shall have occurred; or
(b) Any Originator shall fail to make any payment or deposit
to be made by it hereunder when due; or
(c) Any representation or warranty made or deemed to be made
by any Originator (or any of its officers) under or in connection with
this Agreement, any other Transaction Document or any other information
or report delivered pursuant hereto or thereto shall prove to have been
false or incorrect in any material respect when made or deemed made; or
(d) Any Originator shall fail to perform or observe in any
material respect any agreement contained in any of Sections 6.1(h) or
6.3; or
(e) Except as otherwise specifically provided in this Section
8.1, any Originator shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed and such failure shall continue unremedied for a
period of 30 days; or
(f) (i) Any Originator shall 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 such 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, or other similar
official for it or for all or any substantial part of its property and,
in the case of any such proceeding instituted against it (but not
instituted by it), such proceeding shall remain undismissed or unstayed
for a period of 60 days; or (ii) any Originator shall take any
corporate action to authorize any of the actions set forth in clause
(i) above in this Section 8.1(f); or
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(g) A contribution failure shall occur with respect to any
benefit plan sufficient to give rise to a lien under Section 302(f) of
ERISA, or the Internal Revenue Service shall, or shall indicate its
intention in writing to any Originator to, file notice of a lien
asserting a claim or claims pursuant to the Code with regard to any of
the assets of such Originator, or the Pension Benefit Guaranty
Corporation shall, or shall indicate its intention in writing to such
Originator or an ERISA Affiliate to, either file notice of a lien
asserting a claim pursuant to ERISA with regard to any assets of such
Originator or an ERISA Affiliate or terminate any benefit plan that has
unfunded benefit liabilities.
8.2. Remedies.
(a) Optional Termination. Upon the occurrence of a Purchase and Sale
Termination Event, the Company shall have the option by notice to the
Originators (with a copy to the Administrator) to declare the Purchase and Sale
Termination Date to have occurred.
(b) Remedies Cumulative. Upon any termination of the Purchase Facility
pursuant to this Section 8.2, the Company shall have, in addition to all other
rights and remedies under this Agreement or otherwise, all other rights and
remedies provided under the UCC of each applicable jurisdiction and other
applicable laws, which rights shall be cumulative.
ARTICLE IX
INDEMNIFICATION
9.1. Indemnities by the Originators. Without limiting any other rights
which the Company may have hereunder or under applicable law, each Originator,
severally and for itself alone, hereby agrees to indemnify the Company and each
of its assigns, officers, directors, employees and agents (each of the foregoing
Persons being individually called a "Purchase and Sale Indemnified Party"),
forthwith on demand, from and against any and all damages, losses, claims,
judgments, liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being collectively
called "Purchase and Sale Indemnified Amounts") awarded against or incurred by
any of them arising out of or as a result of the following:
(a) the transfer by such Originator of an interest in any
Receivable or Related Right to any Person other than the Company;
(b) the breach of any representation or warranty made by such
Originator under this Agreement or any other Transaction Document, or
any information or report delivered by such Originator pursuant hereto
or thereto which shall have been false or incorrect in any respect when
made or deemed made;
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(c) the failure by such Originator to comply with any
applicable law, rule or regulation with respect to any Receivable or
the related Contract, or the nonconformity of any Receivable or the
related Contract with any such applicable law, rule or regulation;
(d) the failure to vest in the Company an ownership interest
in the Receivables generated by such Originator and the Related Rights
free and clear of any Adverse Claim;
(e) the failure of such Originator to file with respect to
itself, or any delay by such Originator in filing, financing statements
or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any
Receivables or purported Receivables generated by such Originator or
any Related Rights, whether at the time of any purchase or contribution
or at any subsequent time;
(f) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of the Obligor to the payment of any
Receivable or purported Receivable generated by such Originator
(including, without limitation, 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 goods or services related to any
such Receivable or the furnishing of or failure to furnish such goods
or services;
(g) any litigation, proceeding or investigation against such
Originator;
(h) any tax or governmental fee or charge (other than any tax
excluded pursuant to the proviso below), all interest and penalties
thereon or with respect thereto, and all out-of-pocket costs and
expenses, including the reasonable fees and expenses of counsel in
defending against the same, which may arise by reason of the purchase,
contribution or ownership of the Receivables or any Related Right
connected with any such Receivables;
(i) any failure of such Originator to perform its duties or
obligations in accordance with the provisions of this Agreement or any
other Transaction Document; and
(j) the commingling of Collections on Receivables of such
Originator, at any time with other funds;
excluding, however, (i) Purchase and Sale Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of such
Purchase and Sale Indemnified Party, (ii) any indemnification which has the
effect of recourse for non-payment of the Receivables due to credit reasons to
any indemnitor (except as otherwise specifically provided under this Section
9.1) and (iii) any overall net income taxes or franchise taxes imposed on such
Purchase and Sale
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Indemnified Party by the jurisdiction under the laws of which
such Purchase and Sale Indemnified Party is organized or any political
subdivision thereof.
If for any reason the indemnification provided above in this Section
9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient
to hold such Purchase and Sale Indemnified Party harmless, then each of the
Originators, severally and for itself alone, shall contribute to the amount paid
or payable by such Purchase and Sale Indemnified Party as a result of such loss,
claim, damage or liability to the maximum extent permitted under applicable law.
ARTICLE X
MISCELLANEOUS
10.1. Amendments, etc.
(a) The provisions of this Agreement may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Company, the Administrator and the Originators (with respect
to an amendment) or by the Company (with respect to a waiver or consent by it);
provided, however, that no such material amendment shall be effective unless the
Rating Agency Condition shall have been satisfied with respect thereto.
(b) No failure or delay on the part of the Company, Servicer, any
Originator or any third party beneficiary in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the Company, Servicer, or any Originator in any case shall entitle it to any
notice or demand in similar or other circumstances. No waiver or approval by the
Company or Servicer under this Agreement shall, except as may otherwise be
stated in such waiver or approval, be applicable to subsequent transactions. No
waiver or approval under this Agreement shall require any similar or dissimilar
waiver or approval thereafter to be granted hereunder.
10.2. Notices, etc. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by express
mail or courier or by certified mail, postage-prepaid, or by facsimile, to the
intended party at the address or facsimile number of such party set forth under
its name on the signature pages hereof or at such other address or facsimile
number as shall be designated by such party in a written notice to the other
parties hereto. All such notices and communications shall be effective, (i) if
personally delivered or sent by express mail or courier or if sent by certified
mail, when received, and (ii) if transmitted by facsimile, when sent, receipt
confirmed by telephone.
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10.3. No Waiver; Cumulative Remedies. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
10.4. Binding Effect; Assignability. This Agreement shall be binding
upon and inure to the benefit of the Company and each Originator and their
respective successors and permitted assigns; provided, however, that no
Originator may assign its rights hereunder or any interest herein or delegate
its duties hereunder without the prior consent of the Company and the
Administrator. This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall remain
in full force and effect until the date after the Purchase and Sale Termination
Date on which the Originators have received payment in full for all Receivables
and Related Rights purchased pursuant to Section 1.1 hereof. The rights and
remedies with respect to any breach of any representation and warranty made by
any Originator pursuant to Article V and the indemnification and payment
provisions of Article IX and Section 10.6 shall be continuing and shall survive
any termination of this Agreement.
10.5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10.6. Costs, Expenses and Taxes. In addition to the obligations of the
Originators under Article IX, each Originator agrees to pay on demand:
(a) all reasonable costs and expenses in connection with the
enforcement of this Agreement and the other Transaction Documents; and
(b) all stamp and other similar taxes and fees payable or
determined to be payable in connection with the execution, delivery,
filing and recording of this Agreement or the other Transaction
Documents, and agrees to indemnify each Purchase and Sale Indemnified
Party against any liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees.
10.7. Submission to Jurisdiction. EACH PARTY HERETO HEREBY IRREVOCABLY
(a) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, OVER ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b)
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c) WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d) CONSENTS
TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN
SECTION 10.2; AND (e) TO THE EXTENT ALLOWED BY LAW, AGREES THAT A NONAPPEALABLE
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
23
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MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS SECTION 10.7 SHALL AFFECT THE COMPANY'S
RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
ANY ACTION OR PROCEEDING AGAINST ANY ORIGINATOR OR ITS RESPECTIVE PROPERTY IN
THE COURTS OF ANY OTHER JURISDICTIONS.
10.8. Waiver of Jury Trial. EACH PARTY HERETO EXPRESSLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR UNDER ANY
AMENDMENT, INSTRUMENT OR DOCUMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
10.9. Captions and Cross References; Incorporation by Reference. The
various captions (including, without limitation, the table of contents) in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to any underscored Section or Exhibit are to such Section or Exhibit of this
Agreement, as the case may be. The Exhibits hereto are hereby incorporated by
reference into and made a part of this Agreement.
10.10. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same Agreement.
10.11. Acknowledgment and Agreement. By execution below, each
Originator expressly acknowledges and agrees that all of the Company's rights,
title, and interests in, to, and under this Agreement shall be assigned by the
Company to the Issuer pursuant to the Receivables Purchase Agreement, and such
Originator consents to such assignment. Each of the parties hereto acknowledges
and agrees that the Administrator and the Issuer are third party beneficiaries
of the rights of the Company arising hereunder and under the other Transaction
Documents to which such Originator is a party.
(SIGNATURE PAGE TO FOLLOW)
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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.
BAX FUNDING CORPORATION
By: /s/ James Hartough
............................................
Name: James Hartough
Title: President
Address:
BAX Funding Corporation
16808 Armstrong Avenue
Irvine, California 92713
Attention: Daniel Crowley
Telephone: 949-752-4000
Facsimile: 949-260-2305
with a copy to:
BAX Funding Corporation
c/o The Pittston Company
1801 Bayberry Court
Richmond, Virginia 23226-8100
Attention: James Hartough, President
Telephone: 804-289-9622
Facsimile: 804-289-9760
BAX GLOBAL INC.,
as initial Servicer
By: /s/ James Hartough
.............................................
Name: James Hartough
Title: Treasurer
Address:
BAX Global Inc.
16808 Armstrong Avenue
Irvine, California 92713
Attention: Daniel Crowley, Executive Vice President
and Chief Financial Officer
Telephone: 949-752-4000
Facsimile: 949-260-2305
with a copy to:
S-1 Purchase and Sale Agreement
<PAGE>
BAX Global Inc.
c/o The Pittston Company
ORIGINATOR:
BAX GLOBAL INC.,
as an Originator
By: /s/ James Hartough
.............................................
Name: James Hartough
Title: Treasurer
Address:
BAX Global Inc.
16808 Armstrong Avenue
Irvine, California 92713
Attention: Daniel Crowley, Executive Vice President
and Chief Financial Officer
Telephone: 949-752-4000
Facsimile: 949-260-2305
with a copy to:
BAX Global Inc.
c/o The Pittston Company
S-2 Purchase and Sale Agreement