Receivables Sale Agreement - Spherion Corp., Spherion Assessment Inc., Norcross Teleservices Inc., Comtex Information Systems Inc., Spherion Pacific Enterprises LLC, Spherion Atlantic Enterprises LLC, Spherion Pacific Operations LLC, and Spherion Atlantic Operations LLC, Spherion Atlantic Resources LLC, Spherion Atlantic Workforce LLC, Spherion Pacific Resources LLC, Spherion Pacific Workforce LLC and Spherion Receivables LLC
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AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
DATED AS OF AUGUST 19, 2002
BY AND AMONG
SPHERION CORPORATION, SPHERION ASSESSMENT INC.,
NORCROSS TELESERVICES INC., COMTEX INFORMATION SYSTEMS, INC.,
SPHERION PACIFIC ENTERPRISES LLC, SPHERION ATLANTIC ENTERPRISES
LLC, SPHERION PACIFIC OPERATIONS LLC, AND SPHERION ATLANTIC
OPERATIONS LLC, SPHERION ATLANTIC RESOURCES LLC, SPHERION
ATLANTIC WORKFORCE LLC, SPHERION PACIFIC RESOURCES LLC,
SPHERION PACIFIC WORKFORCE LLC AND EACH OF SPHERION
CORPORATION'S DIRECT OR INDIRECT WHOLLY-OWNED SUBSIDIARIES
THAT HEREAFTER BECOMES AN ORIGINATOR HEREUNDER,
AS ORIGINATORS,
AND
SPHERION RECEIVABLES LLC
AS BUYER
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TABLE OF CONTENTS
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ARTICLE I AMOUNTS AND TERMS OF THE PURCHASE.......................................................................2
SECTION 1.1 PURCHASE OF RECEIVABLES............................................................................2
SECTION 1.2 PAYMENT FOR THE PURCHASES..........................................................................3
SECTION 1.3 PURCHASE PRICE CREDIT ADJUSTMENTS..................................................................5
SECTION 1.4 PAYMENTS AND COMPUTATIONS, ETC.....................................................................6
SECTION 1.5 LICENSE OF SOFTWARE; TRANSFER OF RECORDS...........................................................6
SECTION 1.6 CHARACTERIZATION...................................................................................6
ARTICLE II REPRESENTATIONS AND WARRANTIES.........................................................................7
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF ORIGINATORS......................................................7
ARTICLE III CONDITIONS OF PURCHASE...............................................................................11
SECTION 3.1 CONDITIONS PRECEDENT TO PURCHASE..................................................................11
SECTION 3.2 CONDITIONS PRECEDENT TO SUBSEQUENT PURCHASES......................................................11
ARTICLE IV COVENANTS.............................................................................................12
SECTION 4.1 AFFIRMATIVE COVENANTS OF ORIGINATORS..............................................................12
SECTION 4.2 NEGATIVE COVENANTS OF ORIGINATORS.................................................................16
ARTICLE V JOINDER OF ADDITIONAL ORIGINATORS......................................................................17
SECTION 5.1 ADDITION OF NEW ORIGINATORS.......................................................................17
SECTION 5.2 DOCUMENTATION.....................................................................................17
ARTICLE VI TERMINATION EVENTS....................................................................................17
SECTION 6.1 TERMINATION EVENTS................................................................................17
SECTION 6.2 REMEDIES..........................................................................................19
ARTICLE VII INDEMNIFICATION......................................................................................19
SECTION 7.1 INDEMNITIES BY ORIGINATORS........................................................................19
SECTION 7.2 OTHER COSTS AND EXPENSES..........................................................................21
ARTICLE VIII MISCELLANEOUS.......................................................................................22
SECTION 8.1 WAIVERS AND AMENDMENTS............................................................................22
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SECTION 8.2 NOTICES...........................................................................................22
SECTION 8.3 PROTECTION OF OWNERSHIP INTERESTS OF BUYER........................................................22
SECTION 8.4 CONFIDENTIALITY...................................................................................23
SECTION 8.5 BANKRUPTCY PETITION...............................................................................24
SECTION 8.6 LIMITATION OF LIABILITY...........................................................................24
SECTION 8.7 CHOICE OF LAW.....................................................................................25
SECTION 8.8 CONSENT TO JURISDICTION...........................................................................25
SECTION 8.9 WAIVER OF JURY TRIAL..............................................................................25
SECTION 8.10 INTEGRATION; BINDING EFFECT; SURVIVAL OF TERMS....................................................25
SECTION 8.11 COUNTERPARTS; SEVERABILITY........................................................................26
SECTION 8.12 CONSTRUCTION OF THIS AGREEMENT AND CERTAIN TERMS AND PHRASES......................................26
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EXHIBITS AND SCHEDULES
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Exhibit I - Definitions
Exhibit II - Jurisdiction of Organization and Chief Executive Offices of each Originator;
Organizational Identification Number(s); Other Names
Exhibit III - Lock-Boxes; Collection Accounts; Collection Banks
Exhibit IV - Form of Compliance Certificate
Exhibit V - Copy of Credit and Collection Policy
Exhibit VI - Form of Subordinated Note
Exhibit VII - Form of Purchase Report
Exhibit VIII - Form of Joinder Agreement
Schedule A - List of Documents to Be Delivered to Buyer Prior to the Purchases
Schedule B - Monthly Accounting Periods
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AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
THIS AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT, dated as of
August 19, 2002 (this "AGREEMENT") by and among Spherion Corporation, a Delaware
corporation ("PARENT"), Spherion Assessment Inc., a North Carolina corporation,
Norcross Teleservices Inc., a Delaware corporation, Comtex Information Systems,
Inc., a Delaware corporation, Spherion Pacific Enterprises LLC, a Delaware
limited liability company, Spherion Atlantic Enterprises LLC, a Delaware limited
liability company, Spherion Pacific Operations LLC, a Delaware limited liability
company, Spherion Atlantic Operations LLC, a Delaware limited liability company,
Spherion Atlantic Resources LLC, a Delaware limited liability company, Spherion
Atlantic Workforce LLC, a Delaware limited liability company, Spherion Pacific
Resources LLC, a Delaware limited liability company, and Spherion Pacific
Workforce LLC, a Delaware limited liability company (Parent and each of the
foregoing, an "ORIGINAL ORIGINATOR" and collectively, with each direct or
indirect wholly-owned subsidiary of Parent that hereafter becomes a party
hereto, a "NEW ORIGINATOR") by executing a joinder agreement in the form of
Exhibit VIII (each, a "JOINDER AGREEMENT") as originators (the "ORIGINATORS"),
and Spherion Receivables LLC, a Delaware limited liability company, formerly
known as Spherion Receivables Corp. ("BUYER"). This Agreement amends and
restates the Receivables Sale Agreement dated as of July 31, 2002, by and among
the Original Originators and Spherion Receivables Corp. UNLESS DEFINED ELSEWHERE
HEREIN, CAPITALIZED TERMS USED IN THIS AGREEMENT SHALL HAVE THE MEANINGS
ASSIGNED TO SUCH TERMS IN EXHIBIT I (OR, IF NOT DEFINED IN EXHIBIT I, THE
MEANING ASSIGNED TO SUCH TERM IN EXHIBIT I TO THE CREDIT AND SECURITY
AGREEMENT).
PRELIMINARY STATEMENTS
Each of the Originators now owns, and from time to time hereafter will
own, Receivables. Each of the Originators wishes to sell and assign to Buyer,
and Buyer wishes to purchase from each Originator, all of such Originator's
right, title and interest in and to its Receivables, together with the Related
Security and Collections with respect thereto.
Each of the Originators and Buyer intend the Purchases of Receivables
from such Originator hereunder to be true sales to Buyer by such Originator of
the Receivables originated by it, providing Buyer with the full benefits of
ownership of such Receivables, and none of the Originators nor Buyer intends
such Purchases to be, or for any purpose to be characterized as, loans from
Buyer to such Originator.
Following the Purchase of Receivables from each Originator, Buyer will
borrow and pledge its assets pursuant to that certain Amended and Restated
Credit and Security Agreement dated as of August 19, 2002 (as the same has been
and may from time to time hereafter amended, supplemented, restated or otherwise
modified, the "CREDIT AND SECURITY AGREEMENT") by and among Buyer, as Borrower,
Parent, as initial Servicer, Blue Ridge Asset Funding Corporation ("BLUE
RIDGE"), and Wachovia Bank, National Association or any successor agent
appointed pursuant to the Credit and Security Agreement, as agent (in such
capacity, the "ADMINISTRATIVE AGENT").
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NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASE
Section 1.1 PURCHASE OF RECEIVABLES.
(a) Effective on the Initial Sale Closing Date, in consideration
for the Purchase Price paid to each Originator and upon the terms and
subject to the conditions set forth herein, each Originator does hereby
sell, assign, transfer, set-over and otherwise convey to Buyer, without
recourse (except to the extent expressly provided herein), and Buyer
does hereby purchase from such Originator, all of such Originator's
right, title and interest in and to all Receivables originated by such
Originator and existing as of the close of business on the Business Day
immediately prior to the Initial Sale Closing Date (the "INITIAL CUTOFF
DATE") and all Receivables thereafter originated by such Originator
through and including the Originator's Termination Date, together, in
each case, with all Related Security and Collections with respect
thereto. In accordance with the preceding sentence, on the Applicable
Closing Date for each Originator, Buyer shall acquire all of such
Originator's right, title and interest in and to all Receivables
existing as of the Applicable Cutoff Date and thereafter arising
through and including the Termination Date, together with all Related
Security and Collections with respect thereto. Buyer shall be obligated
to pay the Purchase Price for the Receivables purchased hereunder from
each Originator in accordance with Section 1.2.
(b) On the 15th Business Day of each monthly accounting period of
the Parent set forth on Schedule B (commencing with the first full
accounting period following its Applicable Closing Date), each
Originator shall (or shall require the Servicer to) deliver to Buyer a
report in substantially the form of Exhibit VII (each such report being
herein called a "PURCHASE REPORT") with respect to the Receivables sold
or otherwise transferred by such Originator to Buyer during the
Settlement Period then most recently ended. In addition to, and not in
limitation of, the foregoing, in connection with the payment of the
Purchase Price for any Receivables purchased hereunder, Buyer may
request that the applicable Originator deliver, and such Originator
shall deliver, such approvals, opinions, information or documents as
Buyer may reasonably request.
(c) It is the intention of the parties hereto that each Purchase
of Receivables from an Originator made hereunder shall constitute a
sale, which sale is absolute and irrevocable and provides Buyer with
the full benefits of ownership of the Receivables originated by such
Originator. Except for the Purchase Price Credits owed to such
Originator pursuant to Section 1.3, the sale of Receivables hereunder
by each Originator is made without recourse to such Originator;
PROVIDED, HOWEVER, that (i) such Originator shall be liable to Buyer
for all representations, warranties, covenants and indemnities made by
such Originator pursuant to the Transaction Documents to which such
Originator is a party, and (ii) such sale does not constitute and is
not intended to result in an assumption by Buyer or any assignee
thereof of any obligation of such Originator or
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any other Person arising in connection with the Receivables, the
related Contracts or other Related Security or any other obligations of
such Originator. In view of the intention of the parties hereto that
each Purchase of Receivables made hereunder shall constitute a sale of
such Receivables rather than loans secured thereby, each Originator
agrees that it will, on or prior to its Applicable Closing Date and in
accordance with Section 4.1(e)(ii), mark its master data processing
records relating to the Receivables originated by it with a legend
acceptable to Buyer and to the Administrative Agent (as Buyer's
assignee), evidencing that Buyer has purchased such Receivables
hereunder and to note in its financial statements that its Receivables
have been sold or otherwise transferred to Buyer. Upon the request of
Buyer or the Administrative Agent (as Buyer's assignee), each
Originator will execute and file such financing or continuation
statements, or amendments thereto or assignments thereof, and such
other instruments or notices, as may be necessary or appropriate to
perfect and maintain the perfection of Buyer's ownership interest in
the Receivables originated by such Originator and the Related Security
and Collections with respect thereto, or as Buyer or the Administrative
Agent (as Buyer's assignee) may reasonably request.
Section 1.2 PAYMENT FOR THE PURCHASES.
(a) The Purchase Price for the Purchase from each Originator of
its Receivables in existence as of the close of business on the Initial
Cutoff Date shall be payable in full by Buyer to such Originator on the
Initial Sale Closing Date, and shall be paid to such Originator in the
following manner:
(i) by delivery of immediately available funds, to the extent
of funds made available to Buyer from its borrowings under the
Credit and Security Agreement and other cash on hand;
(ii) at the election of the Buyer , by delivery of the
proceeds of a subordinated revolving loan from such Originator to
Buyer (a "SUBORDINATED LOAN") in an amount not to exceed the least
of (1) the remaining unpaid portion of such Purchase Price, (2)
the maximum Subordinated Loan that could be borrowed without
rendering Buyer's Net Worth less than the Required Capital Amount,
and (3) fifteen percent (15%) of such Purchase Price. Each
Originator is hereby authorized by Buyer to endorse on the
schedule attached to its Subordinated Note an appropriate notation
evidencing the date and amount of each advance thereunder, as well
as the date of each payment with respect thereto, PROVIDED THAT
the failure to make such notation shall not affect any obligation
of Buyer thereunder; and
(iii) by accepting such Receivables as a contribution to
Buyer's capital in an amount equal to the remaining unpaid balance
of such Purchase Price; provided that no such capital contribution
shall be made from and after the date on which any Originator
notifies Buyer in writing that such Originator has designated a
date as such Originator's Termination Date.
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The Purchase Price for each Receivable coming into existence after the Initial
Cutoff Date shall be due and owing in full by Buyer to the applicable Originator
or its designee on the date each such Receivable came into existence (except
that Buyer may, with respect to any such Purchase Price, offset against such
Purchase Price any amounts owed by such Originator to Buyer hereunder and which
have become due but remain unpaid) and shall be paid to such Originator in the
manner provided in the following paragraphs (b), (c) and (d).
(b) With respect to any Receivables coming into existence after
the Initial Cutoff Date, on each Settlement Date, Buyer shall pay the
applicable Originator the Purchase Price therefor in accordance with
Section 1.2(d) and in the following manner:
FIRST, by delivery to the applicable Originator or its
designee of immediately available funds, to the extent of funds
available to Buyer from its borrowings under the Credit and Security
Agreement or other cash on hand;
SECOND, at the Buyer's election, by delivery to the applicable
Originator or its designee of the proceeds of a Subordinated Loan,
PROVIDED THAT the making of any such Subordinated Loan shall be subject
to the provisions set forth in SECTION 1.2(a)(ii); and
THIRD, by accepting such Receivables as a contribution to
Buyer's capital in an amount equal to the remaining unpaid balance of
such Purchase Price; provided that no such capital contribution shall
be made from and after the date on which any Originator notifies Buyer
in writing that such Originator has designated a date as such
Originator's Termination Date.
Subject to the limitations set forth in SECTION 1.2(a)(ii), each Originator
irrevocably agrees to advance each Subordinated Loan requested by Buyer on or
prior to such Originator's Termination Date. The Subordinated Loans owing to
each Originator shall be evidenced by, and shall be payable in accordance with
its Subordinated Note and shall be payable solely from funds which Buyer is not
required under the Credit and Security Agreement to set aside for the benefit
of, or otherwise pay over to, the Lenders.
(c) From and after an Originator's Termination Date, each
Originator shall not be obligated to (but may, at its option) (i) sell
its Receivables to Buyer, or (ii) contribute Receivables to Buyer's
capital pursuant to clause THIRD of Section 1.2(b).
(d) Although the Purchase Price for each Receivable coming into
existence after the Initial Cutoff Date shall be due and payable in
full by Buyer to the applicable Originator on the date such Receivable
came into existence, settlement of the Purchase Price between Buyer and
such Originator shall be effected on a monthly basis on Settlement
Dates with respect to all Receivables originated by such Originator
during the same Calculation Period and based on the information
contained in the Purchase Report delivered by such Originator for the
Calculation Period then most recently ended. Although settlement shall
be effected on Settlement Dates, increases or decreases in the amount
owing under the Subordinated Note made pursuant to Section 1.2 and any
contribution of capital by Parent to Buyer made pursuant to Section
1.2(b) shall be
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deemed to have occurred and shall be effective as of the last Business
Day of the Calculation Period to which such settlement relates. During
each Calculation Period, Parent, while it is Servicer, will have the
right to withdraw funds from the Collection Accounts pursuant to the
applicable Collection Account Agreement and remit such funds to the
Originators as advance payments on account of the Purchase Price of the
Receivables Purchased from the Originators by Buyer during such
Calculation Period provided that (i) a Collection Notice has not been
delivered pursuant to Section 8.3 of the Credit and Security Agreement
or (ii) no Amortization Event has occurred or is continuing. On each
Settlement Date, Servicer shall reconcile the total amounts so remitted
to the Originators during the Calculation Period (plus the total
amounts, if any, remitted to the Originators as payment of Purchase
Price during the Calculation Period from funds made available to Buyer
under the Credit and Security Agreement) against the total Purchase
Price of all Receivables Purchased by Buyer during such Calculation
Period. To the extent the total amounts so remitted exceed such total
Purchase Price after giving effect to any Purchase Price Credit that
have not been previously granted to one or more Originators , Parent,
on behalf of all Originators, shall refund such excess to Buyer on such
Settlement Date. Although settlement shall be effected on Settlement
Dates, increases or decreases in the amount , if any, owing under the
applicable Subordinated Note made pursuant to Section 1.2(b) and any
contribution of capital by an Originator to Buyer made pursuant to
Section 1.2(b) shall be deemed to have occurred and shall be effective
as of the last Business Day of the Calculation Period to which such
settlement relates.
Section 1.3 PURCHASE PRICE CREDIT ADJUSTMENTS. If on any day:
(a) the Outstanding Balance of a Receivable purchased from any
Originator is:
(i) reduced as a result of any defective or rejected or
returned goods or services, any discount or any adjustment or
otherwise by such Originator (other than as a result of such
Receivable becoming a Defaulted Receivable or to reflect cash
Collections on account of such Receivable),
(ii) reduced or canceled as a result of a setoff in respect
of any claim by any Person (whether such claim arises out of the
same or a related transaction or an unrelated transaction), or
(b) any of the representations and warranties set forth in
Sections 2.1(h), (i), (j), (l), (r), (s), (t), (u), the second sentence
of Section 2.1(q) hereof and the last clause (relating to bulk sales
laws) of Section 2.1(c) are not true when made or deemed made with
respect to any Receivable,
then, in such event, Buyer shall be entitled to a credit (each, a "PURCHASE
PRICE CREDIT") against the Purchase Price otherwise payable to the applicable
Originator hereunder equal to the Outstanding Balance of such Receivable
(calculated before giving effect to the applicable reduction or cancellation).
If such Purchase Price Credit exceeds the Original Balance of the Receivables
originated by the applicable Originator on any day, such Originator shall pay
the
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remaining amount of such Purchase Price Credit in cash immediately, PROVIDED
THAT if the applicable Originator's Termination Date has not occurred, such
Originator shall be allowed to deduct the remaining amount of such Purchase
Price Credit from any indebtedness owed to it under its Subordinated Note.
Section 1.4 PAYMENTS AND COMPUTATIONS, ETC.. All amounts to be paid or
deposited by Buyer hereunder shall be paid or deposited in accordance with the
terms hereof on the day when due in immediately available funds to the account
of the applicable Originator designated from time to time by such Originator or
as otherwise directed by such Originator. If any payment owed by any Person
hereunder becomes due on a day that is not a Business Day, then such payment
shall be made on the next succeeding Business Day. If any Person fails to pay
any amount hereunder when due, such Person agrees to pay, on demand, the Default
Fee in respect thereof until paid in full; PROVIDED, HOWEVER, that such Default
Fee shall not at any time exceed the maximum rate permitted by applicable law.
All computations of interest payable hereunder shall be made on the basis of a
year of 360 days for the actual number of days (including the first but
excluding the last day) elapsed.
Section 1.5 LICENSE OF SOFTWARE; TRANSFER OF RECORDS.
(a) To the extent that any software used by any Originator to
account for the Receivables originated by it is non transferable, such
Originator hereby grants to each of Buyer, the Administrative Agent and
the Servicer an irrevocable, non-exclusive license to use, without
royalty or payment of any kind, all such software used by such
Originator to account for such Receivables, to the extent necessary to
administer such Receivables, whether such software is owned by such
Originator or is owned by others and used by such Originator under
license agreements with respect thereto, PROVIDED THAT should the
consent of any licensor of such software be required for the grant of
the license described herein, to be effective, such Originator hereby
agrees that upon the request of Buyer (or Buyer's assignee), such
Originator will use its reasonable efforts to obtain the consent of
such third-party licensor. The license granted hereby shall be
irrevocable until the later to occur of (i) indefeasible payment in
full of the Obligations, and (ii) the date each of this Agreement and
the Credit and Security Agreement terminates in accordance with its
terms.
(b) Each Originator (i) shall take such action requested by Buyer
or the Administrative Agent (as Buyer's assignee), from time to time
hereafter, that may be necessary or appropriate to ensure that Buyer
and its assigns under the Credit and Security Agreement have an
enforceable ownership interest in the Records relating to the
Receivables purchased from such Originator hereunder, and (ii) shall
use its reasonable efforts to ensure that Buyer, the Administrative
Agent and the Servicer each has an enforceable right (whether by
license or sublicense or otherwise) to use all of the computer software
used to account for such Receivables or to recreate such Records.
Section 1.6 CHARACTERIZATION. If, notwithstanding the intention of the
parties expressed in SECTION 1.1(c), any sale or contribution by an Originator
to Buyer of Receivables hereunder shall be characterized as a nonrecourse
secured loan and not a sale or such sale shall for any reason be ineffective or
unenforceable, then this Agreement shall be deemed to constitute a
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security agreement under the UCC and other applicable law. For this purpose and
without being in derogation of the parties' intention that the sale of
Receivables by each Originator hereunder shall constitute a true sale thereof,
such Originator hereby grants to Buyer a duly perfected security interest in all
of such Originator's right, title and interest in, to and under all Receivables
of such Originator which are now existing or hereafter arising, all Collections
and Related Security with respect thereto, each Lock-Box and Collection Account,
all other rights and payments relating to such Receivables and all proceeds of
the foregoing to secure the prompt and complete payment of a nonrecourse loan
deemed to have been made in an amount equal to the Purchase Price of the
Receivables purchased from such Originator together with all other obligations
of such Originator hereunder, which security interest shall be prior to all
other Adverse Claims thereto. Buyer and its assigns shall have, in addition to
the rights and remedies which they may have under this Agreement, all other
rights and remedies provided to a secured creditor under the UCC and other
applicable law, which rights and remedies shall be cumulative.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF ORIGINATORS. Each
Originator hereby represents and warrants to Buyer on the Initial Sale Closing
Date, on the date of the Purchase from such Originator hereunder and on each
date that any Receivable is originated by such Originator on or after the date
of such Purchase, that:
(a) EXISTENCE AND POWER. Such Originator is a corporation or
limited liability company duly organized under the laws of the state
set forth after its name in the preamble to this Agreement (the
"APPLICABLE STATE"), and no other state or jurisdiction, and as to
which such Applicable State must maintain a public record showing the
corporation or limited liability company to have been organized. Such
Originator is validly existing and in good standing under the laws of
its Applicable State and is duly qualified to do business and is in
good standing as a foreign entity, and has and holds all power and all
governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is
conducted except where the failure to so qualify or so hold would not
reasonably be expected to have a Material Adverse Effect.
(b) POWER AND AUTHORITY; DUE AUTHORIZATION, EXECUTION AND
DELIVERY. The execution and delivery by such Originator of this
Agreement and each other Transaction Document to which it is a party,
and the performance of its obligations hereunder and thereunder, and
such Originator's use of the proceeds of the Purchase made from it
hereunder, are within its organizational powers and authority and have
been duly authorized by all necessary organizational action on its
part. This Agreement and each other Transaction Document to which such
Originator is a party has been duly executed and delivered by such
Originator.
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(c) NO CONFLICT. The execution and delivery by such Originator of
this Agreement and each other Transaction Document to which it is a
party, and the performance of its obligations hereunder and thereunder
do not contravene or violate (i) its Organizational Documents, (ii) any
law, rule or regulation applicable to it, (iii) any restrictions under
any agreement, contract or instrument to which it is a party or by
which it or any of its property is bound, or (iv) any order, writ,
judgment, award, injunction or decree binding on or affecting it or its
property, and do not result in the creation or imposition of any
Adverse Claim on assets of such Originator or its Subsidiaries (except
as created by the Transaction Documents) except, in any case, where
such contravention or violation would not reasonably be expected to
have a Material Adverse Effect; and none of the Transactions requires
compliance with any bulk sales act or similar law.
(d) GOVERNMENTAL AUTHORIZATION. Other than the filing of the
financing statements required hereunder, no authorization or approval
or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution and
delivery by such Originator of this Agreement and each other
Transaction Document to which it is a party and the performance of its
obligations hereunder and thereunder.
(e) ACTIONS, SUITS. There are no actions, suits or proceedings
pending, or to the best of such Originator's knowledge, threatened,
against or affecting such Originator, or any of its properties, in or
before any court, arbitrator or other body, that would reasonably be
expected to have a Material Adverse Effect. Such Originator is not in
default with respect to any order of any court, arbitrator or
governmental body.
(f) BINDING EFFECT. This Agreement and each other Transaction
Document to which such Originator is a party constitute the legal,
valid and binding obligations of such Originator enforceable against
such Originator in accordance with their respective terms.
(g) ACCURACY OF INFORMATION. All information heretofore furnished
by such Originator or any of its Affiliates to Buyer (or its assigns)
pursuant to this Agreement or any of the other Transaction Documents or
the Transaction including Affiliates to Buyer (or its assigns) is, true
and accurate in every material respect on the date such information is
stated or certified and does not contain any material misstatement of
fact or omit to state a material fact or any fact necessary to make the
statements contained therein, taken as a whole, not misleading.
(h) USE OF PROCEEDS. No portion of any Purchase Price payment
hereunder will be used (i) for a purpose that violates, or would be
inconsistent with, any law, rule or regulation applicable to such
Originator or (ii) to acquire any security in any transaction which is
subject to Section 12, 13 or 14 of the Securities Exchange Act of 1934,
as amended.
(i) GOOD TITLE. Immediately prior to the Purchase from such
Originator hereunder and upon the creation of each Receivable
originated by such Originator after the Initial Cut-Off Date, such
Originator (i) is the legal and beneficial owner of such Receivables
and (ii) is the legal and beneficial owner of the Related Security with
respect thereto or possesses a valid and perfected security interest
therein, in each case, free and clear of any Adverse Claim, except as
created by the Transaction Documents. There have been duly filed all
financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all
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appropriate jurisdictions to perfect such Originator's ownership
interest in each such Receivable, its Collections and the Related
Security.
(j) PERFECTION. This Agreement, together with the filing of the
financing statements contemplated hereby, is effective to transfer to
Buyer (and Buyer shall acquire from such Originator) (i) legal and
equitable title to, with the right to sell and encumber each Receivable
originated by such Originator, whether now existing and hereafter
arising, together with the Collections with respect thereto, and (ii)
all of such Originator's right, title and interest in the Related
Security with respect to each such Receivable, in each case, free and
clear of any Adverse Claim, except as created by the Transactions
Documents. There have been duly filed all financing statements or other
similar instruments or documents necessary under the UCC (or any
comparable law) of all appropriate jurisdictions to perfect Buyer's
ownership interest in such Receivables, the Related Security and the
Collections.
(k) PLACES OF BUSINESS, JURISDICTION OF ORGANIZATION AND LOCATIONS
OF RECORDS. The principal places of business, jurisdictions or
organization and chief executive office of such Originator and the
offices where it keeps all of its Records are located at the
address(es) listed on EXHIBIT II or such other locations of which Buyer
has been notified in accordance with SECTION 4.2(a) in jurisdictions
where all action required by SECTION 4.2(a) has been taken and
completed. Such Originator's organizational number assigned to it by
the Applicable State Federal Employer Identification Number is
correctly set forth on EXHIBIT II. No Originator has, within a period
of one year prior to the date hereof, (i) changed the location of its
principal place of business or chief executive office or its corporate
structure, (ii) changed its legal names, (iii) become a "new debtor"
(as defined in Section 9-102(a)(56) (or similar section) of the UCC in
effect in the Applicable States or (iv) changed its jurisdiction of
organization. Each Originator is a "registered organization" (within
the meaning of Section 9-102 (or similar section) of the UCC in effect
in the Applicable State).
(l) COLLECTIONS. The conditions and requirements set forth in
SECTION 4.1(i) have at all times been satisfied and duly performed. The
names and addresses of all Collection Banks, together with the account
numbers of the Collection Accounts of such Originator at each
Collection Bank and the post office box number of each Lock-Box, are
listed on EXHIBIT III. Such Originator has not granted any Person,
other than Buyer (and its assigns) dominion and control or "control"
within the meaning of Section 9-104 of the UCC (or similar section) of
all applicable jurisdictions (other than the Administrative Agent as
contemplated by the Credit and Security Agreement) of any Lock-Box or
Collection Account, or the right to take dominion and control of any
such Lock-Box or Collection Account at a future time or upon the
occurrence of a future event.
(m) MATERIAL ADVERSE EFFECT. Except for the downgrade of the
Parent by S&P on April 10, 2002, since December 28, 2001 through and
including the Initial Sale Closing Date, no event has occurred that
would have a Material Adverse Effect.
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(n) NAMES. The name in which such Originator has executed this
Agreement is identical to the name of such Originator as indicated on
the public record of its state of organization which shows such
Originator to have been organized. In the past five (5) years, such
Originator has not used any corporate names, trade names or assumed
names other than the name in which it has executed this Agreement and
as listed on EXHIBIT II.
(o) OWNERSHIP OF BUYER. Parent owns, directly or indirectly, 100%
of the issued and outstanding Equity Interests of Buyer. Such Equity
Interests are validly issued, fully paid and nonassessable, and there
are no options, warrants or other rights to acquire securities of
Buyer.
(p) NOT A HOLDING COMPANY OR AN INVESTMENT COMPANY. Such
Originator is not a "HOLDING COMPANY" or a "SUBSIDIARY HOLDING COMPANY"
of a "HOLDING COMPANY" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or any successor statute. Such
Originator is not an "INVESTMENT COMPANY" within the meaning of the
Investment Company Act of 1940, as amended, or any successor statute.
(q) COMPLIANCE WITH LAW. Such Originator has complied in all
respects with all applicable laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject,
except where the failure to so comply would not reasonably be expected
to have a Material Adverse Effect. Each Receivable, together with the
Contract related thereto, does not contravene any laws, rules or
regulations applicable thereto (INCLUDING laws, rules and regulations
relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and
privacy), and no part of such Contract is in violation of any such law,
rule or regulation, except where such contravention or violation would
not reasonably be expected to have a Material Adverse Effect.
(r) COMPLIANCE WITH CREDIT AND COLLECTION POLICY. Such Originator
has complied in all material respects with the Credit and Collection
Policy with regard to each Receivable originated by it and the related
Contract, and has not made any material change to such Credit and
Collection Policy, except such material change as to which Buyer (or
its assigns) has been notified in accordance with SECTION 4.1(a)(vii).
(s) PAYMENTS TO SUCH ORIGINATOR. With respect to each Receivable
originated by such Originator and sold or otherwise transferred to
Buyer hereunder, the Purchase Price received by such Originator
constitutes reasonably equivalent value in consideration therefor. No
transfer hereunder by such Originator of any Receivable originated by
such Originator is voidable under any section of the Bankruptcy Reform
Act of 1978 (11 U.S.C. Sections 101 ET SEQ.), as amended.
(t) ENFORCEABILITY OF CONTRACTS. Each Contract with respect to
each Receivable is effective to create, and has created, a legal, valid
and binding obligation of the related Obligor to pay the Outstanding
Balance of the Receivable created thereunder and any accrued interest
thereon, enforceable against the Obligor in accordance with its terms.
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(u) ELIGIBLE RECEIVABLES. Each Receivable reflected in any
Purchase Report as an Eligible Receivable was an Eligible Receivable on
the date of its Purchase by Buyer hereunder.
(v) ACCOUNTING. The manner in which such Originator accounts for
the Purchases in its financial statements does not jeopardize the
characterization of the Purchases as being true sales.
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 CONDITIONS PRECEDENT TO PURCHASE. The Purchases are subject
to the conditions precedent that (a) Buyer shall have received on or before the
date of such purchase those documents listed on SCHEDULE A and (b) all of the
conditions to the initial loan under the Credit and Security Agreement shall
have been satisfied or waived in accordance therewith.
Section 3.2 CONDITIONS PRECEDENT TO SUBSEQUENT PURCHASES. Buyer's
obligation to Purchase Receivables coming into existence after each Originator's
Applicable Cutoff Date shall be subject to the further conditions precedent
that: (a) the Facility Termination Date shall not have occurred under the Credit
and Security Agreement; (b) Buyer (or its assigns) shall have received from such
Originator such other approvals, opinions or documents as Buyer may reasonably
request and (c) on the date such Receivable came into existence, the following
statements shall be true (and acceptance of the proceeds of any payment for such
Receivable shall be deemed a representation and warranty by such Originator that
such statements are then true):
(i) the representations and warranties set forth in ARTICLE II
are true and correct in all material respects on and as of the
date such Receivable came into existence as though made on and
as of such date; PROVIDED THAT the materiality threshold in the
preceding clause shall not be applicable with respect to any
representation or warranty which itself contains a materiality
threshold; and
(ii) no event has occurred and is continuing that will constitute
a Termination Event or an Unmatured Termination Event; and
(iii) no event has occurred that would reasonably be expected to
have a Material Adverse Effect.
Notwithstanding the foregoing conditions precedent, upon payment of the Purchase
Price for any Receivable (whether by payment of cash, through an increase in the
amounts outstanding under the Subordinated Note, by offset of amounts owed to
Buyer or by offset of capital contributions), title to such Receivable and the
Related Security and Collections with respect thereto shall vest in Buyer,
whether or not the conditions precedent to Buyer's obligation to pay for such
Receivable were in fact satisfied. The failure, however, of such Originator to
satisfy any of the foregoing conditions precedent shall give rise to a right of
Buyer to rescind the related Purchase and direct such Originator to pay to Buyer
an amount equal to the Purchase Price payment that shall have been made with
respect to any Receivables related thereto.
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ARTICLE IV
COVENANTS
Section 4.1 AFFIRMATIVE COVENANTS OF ORIGINATORS. From each
Originator's Applicable Closing Date until the date on which this Agreement
terminates in accordance with its terms, each Originator hereby covenants as set
forth below:
(a) FINANCIAL PURCHASE REPORTING. Such Originator will maintain,
for itself and each of its Subsidiaries, a system of accounting
established and administered in accordance with GAAP, and Parent will
furnish to Buyer (or its assigns):
(i) ANNUAL FINANCIAL REPORTING. Within 120 days after the
close of each of its respective fiscal years, audited, unqualified
financial statements (which shall include balance sheets,
statements of income and retained earnings and a statement of cash
flows) for the Parent and its Subsidiaries for such fiscal year
certified in a manner acceptable to Buyer (or its assigns) by
Deloitte & Touche, LLP or such other independent public
accountants acceptable to Buyer (or its assigns) (which acceptance
will not be unreasonably withheld).
(ii) QUARTERLY FINANCIAL REPORTING. Within 60 days after the
close of the first three quarterly periods of each of its
respective fiscal years, unaudited balance sheets of the Parent
and its Subsidiaries as at the close of each such period and
statements of income and retained earnings and an unaudited
statement of cash flows for the Parent and its Subsidiaries for
the period from the beginning of such fiscal year to the end of
such quarter, all certified by an Authorized Officer.
(iii) COMPLIANCE CERTIFICATE. Together with the financial
statements required hereunder, a compliance certificate in
substantially the form of EXHIBIT IV signed by Parent's Authorized
Officer and dated the date of such annual financial statement or
such quarterly financial statement, as the case may be.
(iv) SHAREHOLDERS STATEMENTS AND PURCHASE REPORTS. Promptly
upon the furnishing thereof to the shareholders of Parent, copies
of all financial statements, reports and proxy statements so
furnished.
(v) S.E.C. FILINGS. Promptly upon the filing thereof, copies
of all registration statements and annual, quarterly, monthly or
other regular reports which Parent files with the Securities and
Exchange Commission.
(vi) COPIES OF NOTICES. Promptly upon its receipt of any
notice, request for consent, financial statements, certification,
report or other communication under or in connection with any
Transaction Document from any Person other than Buyer, the
Administrative Agent or Blue Ridge, copies of the same.
(vii) CHANGE IN CREDIT AND COLLECTION POLICY. At least ten
(10) days prior to the effectiveness of any material change in or
material amendment to the Credit and Collection Policy, a copy of
the Credit and Collection Policy then in effect and a notice (1)
indicating such proposed change or amendment, and (2) if such
proposed change or amendment would be reasonably likely to affect
adversely the collectability of the Receivables or decrease
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the credit quality of any newly created Receivables, requesting
Buyer's (and the Administrative Agent's, as Buyer's assignee)
consent thereto.
(viii) OTHER INFORMATION. Promptly, from time to time, such
other information, documents, records or reports relating to the
Receivables originated by such Originator or the condition or
operations, financial or otherwise, of such Originator as Buyer
(or its assigns) may from time to time reasonably request in order
to protect the interests of Buyer (and its assigns) under or as
contemplated by this Agreement.
(b) NOTICES. Such Originator will notify Buyer (or its assigns) of
any of the following promptly upon learning of the occurrence thereof,
describing the same and, if applicable, the actions being taken with
respect thereto:
(i) TERMINATION EVENTS OR UNMATURED TERMINATION EVENTS. The
occurrence of each Termination Event and each Unmatured
Termination Event, by a statement of an Authorized Officer of such
Originator.
(ii) JUDGMENT AND PROCEEDINGS. (1) The entry of any judgment
or decree against any Originator or any of its Material
Subsidiaries if the aggregate amount of all judgments and decrees
then outstanding against the Originators and their Material
Subsidiaries exceeds $1,000,000 after deducting (a) the amount
with respect to which the applicable Originator or Material
Subsidiary is insured and with respect to which the insurer has
assumed responsibility in writing, and (b) the amount for which
the applicable Originator or Material Subsidiary is otherwise
indemnified if the terms of such indemnification are satisfactory
to Buyer (or its assigns), and (2) the institution of any
litigation, arbitration proceeding or governmental proceeding
against any Originator which, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect.
(iii) MATERIAL ADVERSE EFFECT. The occurrence of any event or
condition that has had, or would reasonably be expected to have, a
Material Adverse Effect.
(iv) DEFAULTS UNDER OTHER AGREEMENTS. The occurrence of a
default or an event of default under any other financing
arrangement pursuant to which any Originator is a debtor or an
obligor to the extent that any such other financing arrangement
has unsatisfied payment obligations in excess of $1,000,000.
(v) ERISA EVENTS. The occurrence of any ERISA Event.
(vi) DOWNGRADE OF PARENT. Any downgrade in the rating of any
Indebtedness of Parent by S&P or by Moody's, setting forth the
Indebtedness affected and the nature of such change.
(c) COMPLIANCE WITH LAWS AND PRESERVATION OF EXISTENCE. Such
Originator will comply in all respects with all applicable laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards
to which it may be subject, except where the failure to so comply would
not reasonably be expected to have a Material Adverse Effect. Such
Originator will preserve and maintain its legal existence, rights,
franchises and privileges in the jurisdiction of its organization, and
qualify and remain qualified in good standing as a foreign entity in
each
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jurisdiction where its business is conducted, except where the failure
to so qualify or remain in good standing would not reasonably be
expected to have a Material Adverse Effect.
(d) AUDITS. Such Originator will furnish to Buyer (or its assigns)
from time to time such information with respect to it and the
Receivables sold or otherwise transferred by it as Buyer (or its
assigns) may reasonably request. Such Originator will, from time to
time during regular business hours as requested by Buyer (or its
assigns), upon reasonable notice and at the sole cost of such
Originator, permit Buyer (or its assigns) or their respective agents or
representatives, (i) to examine and make copies of and abstracts from
all Records in the possession or under the control of such Originator
relating to the Receivables and the Related Security, including the
related Contracts, and (ii) to visit the offices and properties of such
Originator for the purpose of examining such materials described in
clause (i) above, and to discuss matters relating to such Originator's
financial condition or the Receivables and the Related Security or such
Originator's performance under any of the Transaction Documents or such
Originator's performance under the Contracts and, in each case, with
any of the officers or employees of such Originator having knowledge of
such matters (each of the foregoing examinations and visits, a
"REVIEW"); PROVIDED, HOWEVER, that, so long as no Amortization Event
has occurred and is continuing: (1) the Originators, collectively,
shall only be responsible for the reasonable costs and expenses of one
Review in any one calendar year, and (2) the Administrative Agent (as
Buyer's assignee) will not request more than four Reviews in any one
calendar year.
(e) KEEPING AND MARKING OF RECORDS AND BOOKS.
(i) Such Originator will maintain and implement
administrative and operating procedures (including an ability to
recreate records evidencing Receivables in the event of the
destruction of the originals thereof), and keep and maintain all
documents, books, records and other information reasonably
necessary or advisable for the collection of all Receivables
(including records adequate to permit the immediate identification
of each new Receivable and all Collections of and adjustments to
each existing Receivable). Such Originator will give Buyer (or its
assigns) notice of any material change in the administrative and
operating procedures referred to in the previous sentence.
(ii) Such Originator will (1) on or prior to the Initial Sale
Closing Date, mark its master data processing records and other
books and records relating to the Receivables with a legend,
acceptable to Buyer (or its assigns), describing Buyer's ownership
interests in the Receivables and further describing the Loans
under the Credit and Security Agreement and (2) upon the request
of Buyer (or its assigns): (x) mark each Contract with a legend
describing Buyer's ownership interests in the Receivables
originated by such Originator and further describing the Loans
under the Credit and Security Agreement and (y) deliver to Buyer
(or its assigns) all Contracts (including all multiple originals
of any such Contract) relating to such Receivables.
(f) COMPLIANCE WITH CONTRACTS AND CREDIT AND COLLECTION POLICY.
Such Originator will timely and fully (i) perform and comply with all
provisions, covenants and other
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promises required to be observed by it under the Contracts related to
the Receivables originated by it, and (ii) comply in all material
respects with the Credit and Collection Policy in regard to each such
Receivable and the related Contract.
(g) OWNERSHIP. Such Originator will take all necessary action to
establish and maintain, irrevocably in Buyer, (1) legal and equitable
title to the Receivables originated by such Originator and the
Collections and (2) all of such Originator's right, title and interest
in the Related Security associated with the Receivables originated by
such Originator, in each case, free and clear of any Adverse Claims
other than Adverse Claims in favor of Buyer (and its assigns)
(INCLUDING the filing of all financing statements or other similar
instruments or documents necessary under the UCC (or any comparable
law) of all appropriate jurisdictions to perfect Buyer's interest in
such Receivables, Related Security and Collections and such other
action to perfect, protect or more fully evidence the interest of Buyer
as Buyer (or its assigns) may reasonably request).
(h) LENDER'S RELIANCE. Such Originator acknowledges that the
Administrative Agent and the Lenders are entering into the transactions
contemplated by the Credit and Security Agreement in reliance upon
Buyer's identity as a legal entity that is separate from such
Originator and any Affiliates thereof. Therefore, from and after the
date of execution and delivery of this Agreement, such Originator will
take all reasonable actions including all actions that Buyer or any
assignee of Buyer may from time to time reasonably request to maintain
Buyer's identity as a separate legal entity and to make it manifest to
third parties that Buyer is an entity with assets and liabilities
distinct from those of such Originator and any Affiliates thereof and
not just a division of such Originator or any such Affiliate. Without
limiting the generality of the foregoing and in addition to the other
covenants set forth herein, such Originator (i) will not hold itself
out to third parties as liable for the debts of Buyer nor purport to
own any of the Receivables and other assets acquired by Buyer, (ii)
will take all other actions necessary on its part to ensure that Buyer
is at all times in compliance with the "separateness covenants" set
forth in SECTION 7.1(i) of the Credit and Security Agreement and (iii)
will cause all tax liabilities arising in connection with the
Transactions or otherwise to be allocated between such Originator and
Buyer on an arm's-length basis and in a manner consistent with the
procedures set forth in U.S. Treasury Regulations Sections 1.1502-33(d)
and 1.1552-1.
(i) COLLECTIONS. Such Originator will cause (1) all proceeds from
all Lock-Boxes to be directly deposited by a Collection Bank into a
Collection Account and (2) each Lock-Box and Collection Account to be
subject at all times to a Collection Account Agreement that is in full
force and effect. If any payments relating to Receivables are remitted
directly to such Originator or any Affiliate thereof, such Originator
will remit (or will cause all such payments to be remitted) directly to
a Collection Bank and deposited into a Collection Account within two
Business Days following receipt thereof and, at all times prior to such
remittance, such Originator will itself hold or, if applicable, will
cause such payments to be held in trust for the exclusive benefit of
Buyer and its assigns. Such Originator will transfer exclusive
ownership, dominion and control of each Lock-Box and Collection Account
to Buyer and, will not grant the right to take dominion and control of
any Lock-Box or Collection Account at a future time or upon the
occurrence of a future event to any Person, except to Buyer (or its
assigns) as contemplated by this Agreement and the Credit and Security
Agreement.
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(j) TAXES. Such Originator will file all tax returns and reports
required by law to be filed by it and promptly pay all taxes and
governmental charges at any time due and owing the non-filing or
non-payment of which would reasonably be expected to result in a
Material Adverse Effect, 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. Such Originator will
pay when due any taxes payable in connection with the Receivables
originated by it, exclusive of taxes on or measured by income or gross
receipts of Buyer and its assigns.
Section 4.2 NEGATIVE COVENANTS OF ORIGINATORS. From each Originator's
Applicable Closing Date until the date on which this Agreement terminates in
accordance with its terms, each Originator hereby covenants that:
(a) NAME CHANGE, JURISDICTION OF ORGANIZATION, CORPORATE
STRUCTURE, OFFICES AND RECORDS. Such Originator will not change its
jurisdiction of organization, name, identity or structure (within the
meaning of Sections 9-503 or 9-507 of the UCC of all applicable
jurisdictions) or relocate its chief executive office at any time while
the location of its chief executive office is relevant to perfection of
Buyer's interest in the Receivables or the associated Related Security
and Collections with respect thereto or any office where Records are
kept unless it shall have: (i) given Buyer (and the Administrative
Agent, as its assignee) at least 30 days' prior notice thereof and (ii)
delivered to the Administrative Agent (as Buyer's assignee) all
financing statements, instruments and other documents requested by the
Administrative Agent in connection with such change or relocation.
(b) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Such Originator
will not add or terminate any bank as a Collection Bank, or make any
change in the instructions to Obligors regarding payments to be made to
any Lock-Box or Collection Account, unless Buyer (or its assigns) shall
have received, at least 10 days before the proposed effective date
therefor, (i) notice of such addition, termination or change and (ii)
with respect to the addition of a Collection Bank or a Collection
Account or Lock-Box, an executed Collection Account Agreement with
respect to the new Collection Account or Lock-Box; PROVIDED, HOWEVER,
that such Originator may make changes in instructions to Obligors
regarding payments if such new instructions require such Obligor to
make payments to another existing Collection Account.
(c) MODIFICATIONS TO CONTRACTS AND CREDIT AND COLLECTION POLICY.
Such Originator will not make any change to the Credit and Collection
Policy that would reasonably be expected to affect adversely the
collectability of the Receivables originated by it or decrease the
credit quality of any of its newly created Receivables. Except as
otherwise permitted in its capacity as Servicer pursuant to the Credit
and Security Agreement, such Originator will not extend, amend or
otherwise modify the terms of any Receivable or any Contract related
thereto other than in accordance with the Credit and Collection Policy.
(d) SALES, LIENS. Except as otherwise provided in any Transaction
Document, such Originator will not sell, assign (by operation of law or
otherwise) or otherwise dispose of, or grant any option with respect
to, or create or suffer to exist any Adverse Claim upon (including the
filing of any financing statement) or with respect to, any Receivable,
Related Security or Collections, or upon or with respect to any
Contract under which any Receivable
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arises, or any Lock-Box or Collection Account, or assign any right to
receive income with respect thereto, and such Originator will defend
the right, title and interest of Buyer in, to and under any of the
foregoing property, against all claims of third parties claiming
through or under such Originator.
(e) ACCOUNTING FOR PURCHASE. Such Originator will not, and will
not permit any Affiliate to, financially account (whether in financial
statements or otherwise) for the Purchases in any manner other than the
sale or other outright conveyance by such Originator to Buyer of the
Receivables originated by such Originator and the associated Related
Security with respect thereto or in any other respect account for or
treat the Purchases in any manner other than as a sale of such
Receivables and Related Security by such Originator to Buyer except to
the extent that such Purchases are not recognized on account of
consolidated financial reporting in accordance with GAAP.
ARTICLE V
JOINDER OF ADDITIONAL ORIGINATORS
Section 5.1 ADDITION OF NEW ORIGINATORS. From time to time upon not
less than 30 days' prior notice to the Buyer and the Administrative Agent (or
such shorter period of time as the Administrative Agent may agree upon), Parent
may propose that one or more of its existing or hereafter acquired wholly-owned
Subsidiaries become an Originator hereunder. No such addition shall become
effective (a) if such addition constitutes a Material Proposed Addition, without
the consent of the Administrative Agent and each of the rating agencies which is
then rating Commercial Paper of Blue Ridge but may become effective prior to
such 30th day if such consent is given more promptly and (b) unless all
conditions precedent to such addition required by SECTION 5.2 are satisfied
prior to such date.
Section 5.2 DOCUMENTATION. If the Buyer and the Administrative Agent
consent to the addition of a New Originator, such New Originator will execute a
Joinder Agreement and shall deliver each of the documents, certificates and
opinions required to be delivered under SECTION 3.1 prior to such New
Originator's Closing Date, together with such updated Schedules and Exhibits as
may be necessary to ensure that after giving effect to the addition of such New
Originator, each of the representations and warranties of such New Originator
under ARTICLE II will be true and correct, and the Buyer will deliver a
Subordinated Note to such New Originator.
ARTICLE VI
TERMINATION EVENTS
Section 6.1 TERMINATION EVENTS. The occurrence of any one or more of
the following events shall constitute a Termination Event:
(a) Any Originator shall fail to make any payment or deposit
required hereunder when due; PROVIDED, HOWEVER, that no Termination
Event shall occur under this Section 6.1(a) as a result of any late
payment or deposit which is cured within one Business Day if (i) such
late payment or deposit was due to circumstances beyond such
Originator's control, (ii) such late payment or deposit do not occur
more than two times
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in any calendar year, and (iii) such Originator pays interest on the
overdue amount of such payment or deposit until paid at the Default
Rate.
(b) Any Originator shall fail to perform or observe any term,
covenant or agreement hereunder (other than as referred to in clause
(a) of Section 6.1 or any other Transaction Document to which it is a
party and such failure shall continue for ten consecutive Business
Days.
(c) Any representation, warranty, certification or statement made
by any Originator in this Agreement, any other Transaction Document or
in any other document delivered pursuant hereto or thereto shall prove
to have been incorrect in any material respect when made or deemed
made; PROVIDED THAT the materiality threshold in the preceding clause
shall not be applicable with respect to any representation or warranty
which itself contains a materiality threshold and PROVIDED FURTHER,
that any misrepresentation or certification for which Buyer has
actually received a Purchase Price Credit shall not constitute a
Termination Event hereunder.
(d) Failure of any Originator to pay any Indebtedness when due in
excess of $5,000,000; or the default by any Originator in the
performance of any term, provision or condition contained in any
agreement under which any such Indebtedness was created or is governed,
the effect of which is to cause, or to permit the holder or holders of
such Indebtedness to cause, such Indebtedness to become due prior to
its stated maturity; or any such Indebtedness of any Originator shall
be declared to be due and payable or required to be prepaid (other than
by a regularly scheduled payment) prior to the date of maturity
thereof.
(e) (i) Any Originator or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due or shall admit in
writing its inability to pay its debts generally or shall make a
general assignment for the benefit of creditors; or (ii) a case or
other proceeding shall be commenced, without the application or consent
of such Originator or any of its Material Subsidiaries, in any court,
seeking the liquidation, reorganization, debt arrangement, dissolution,
winding up, or composition or readjustment of debts of such Originator
or any of its Material Subsidiaries, the appointment of a trustee,
receiver, custodian, liquidator, assignee, sequestrator or the like for
such Originator or any of its Material Subsidiaries or all or
substantially all of its assets, or any similar action with respect to
such Originator or any of its Material Subsidiaries under any law
relating to bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, and such case or proceeding shall
continue undismissed, or unstayed and in effect, for a period of 60
consecutive days; or an order for relief in respect of such Originator
or any of its Material Subsidiaries shall be entered in an involuntary
case under the federal bankruptcy laws or other similar laws now or
hereafter in effect or (iii) any Originator or any of its Material
Subsidiaries shall take any corporate action to authorize any of the
actions set forth in the foregoing clauses (i) or (ii) of this
subsection (e).
(f) A Change of Control shall occur.
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(g) One or more final judgments for the payment of money in an
amount in excess of $5,000,000, individually or in the aggregate, shall
be entered against any Originator on claims not covered by insurance or
as to which the insurance carrier has denied its responsibility, and
such judgment shall continue unsatisfied and in effect for thirty
consecutive days without a stay of execution.
(h) An ERISA Event shall occur with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected
to result in liability of any Originator under Title IV of ERISA to
such Pension Plan, such Multiemployer Plan or the PBGC in an aggregate
amount in excess of $1,000,000; (ii) the aggregate amount of
Unfunded-Pension Liability among all Pension Plans at any time exceeds
$1,000,000; or (iii) any Originator or any ERISA Affiliate shall fail
to pay when due, after the expiration of any applicable grace period,
any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of $1,000,000.
Section 6.2 REMEDIES. Upon the occurrence and during the continuation
of a Termination Event, Buyer may take any of the following actions: (i) declare
the applicable Originator's Termination Date to have occurred, whereupon such
Originator's Termination Date shall forthwith occur, without demand, protest or
further notice of any kind, all of which are hereby expressly waived by each
Originator; PROVIDED, HOWEVER, that upon the occurrence of a Termination Event
described in Section 6.1(e), or of an actual or deemed entry of an order for
relief with respect to such Originator under the Federal Bankruptcy Code, such
Originator's Termination Date shall automatically occur, without demand, protest
or any notice of any kind, all of which are hereby expressly waived by each
Originator and (ii) to the fullest extent permitted by applicable law, declare
that the Default Fee shall accrue with respect to any amounts then due and owing
by such Originator to Buyer. The aforementioned rights and remedies shall be
without limitation and shall be in addition to all other rights and remedies of
Buyer and its assigns otherwise available under any other provision of this
Agreement, by operation of law, at equity or otherwise, all of which are hereby
expressly preserved, including all rights and remedies provided under the UCC,
all of which rights shall be cumulative.
ARTICLE VII
INDEMNIFICATION
Section 7.1 INDEMNITIES BY ORIGINATORS. Without limiting any other
rights that Buyer may have hereunder or under applicable law, each Originator
hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns,
officers, directors, agents and employees (each an "INDEMNIFIED PARTY") from and
against any and all damages, losses, claims, taxes, liabilities, costs, expenses
and for all other amounts payable, including reasonable attorneys' fees and
disbursements (all of the foregoing being collectively referred to as
"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them to the extent
arising out of or as a result of this Agreement or the acquisition, either
directly or indirectly, by Buyer of an interest in the Receivables originated by
such Originator, EXCLUDING, HOWEVER:
(a) Indemnified Amounts to the extent a final judgment of a court
of competent jurisdiction holds that such Indemnified Amounts resulted
from gross
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negligence or willful misconduct on the part of the Indemnified Party
seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in
respect of Receivables originated by such Originator that are
uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor;
(c) taxes imposed by the jurisdiction in which such Indemnified
Party's principal executive office is located, on or measured by the
overall net income of such Indemnified Party; or
(d) amounts for which Buyer has actually received a Purchase Price
Credit as required by Section 1.3;
PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the
liability of such Originator or limit the recourse of Buyer to such Originator
for amounts otherwise specifically provided to be paid by such Originator under
the terms of this Agreement. Without limiting the generality of the foregoing
indemnification, but subject in each case to clauses (a), (b), (c) and (d)
above, each Originator shall indemnify (without duplication) Buyer for
Indemnified Amounts relating to or resulting from:
(i) any representation or warranty made or deemed made by
such Originator (or any officers of Performance Guarantor or such
Originator) under or in connection with any Purchase Report, this
Agreement, any other Transaction Document or any other information or
report delivered by Performance Guarantor or such Originator pursuant
hereto or thereto for which Buyer has not received a Purchase Price
Credit that shall have been false or incorrect when made or deemed
made;
(ii) the failure by such Originator, to comply with any
applicable law, rule or regulation with respect to any Receivable or
Contract related thereto, or the nonconformity of any Receivable or
Contract included therein with any such applicable law, rule or
regulation or any failure of such Originator to keep or perform any of
its obligations, express or implied, with respect to any Contract;
(iii) any failure of Performance Guarantor or such
Originator to perform its duties, covenants or other obligations in
accordance with the provisions of this Agreement or any other
Transaction Document to which it is a party;
(iv) any products liability, personal injury or damage, suit
or other similar claim arising out of or in connection with
merchandise, insurance or services that are the subject of any Contract
or any Receivable;
(v) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment
of any Receivable (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
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any other claim resulting from the sale of the merchandise or service
related to such Receivable or the furnishing or failure to furnish such
merchandise or services;
(vi) the commingling of Collections of Receivables at any
time with other funds;
(vii) any investigation, litigation or proceeding related to
or arising from this Agreement or any other Transaction Document, the
Transactions, such Originator's use of the proceeds of the Purchase
from it hereunder, the ownership of the Receivables originated by such
Originator or any other investigation, litigation or proceeding
relating to such Originator in which any Indemnified Party becomes
involved as a result of any of the Transactions;
(viii) any inability to litigate any claim against any
Obligor in respect of any Receivable as a result of such Obligor being
immune from civil and commercial law and suit on the grounds of
sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in SECTION 6.1(e);
(xi) any failure to vest and maintain vested in Buyer, or to
transfer to Buyer, legal and equitable title to, and ownership of, the
Receivables originated by such Originator and the associated
Collections, and all of such Originator's right, title and interest in
the Related Security associated with such Receivables, in each case,
free and clear of any Adverse Claim (except as otherwise contemplated
by this Agreement or any other Transaction Document);
(xii) 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 Receivable originated by such Originator, the Related
Security and Collections with respect thereto, and the proceeds of any
thereof, whether at the time of the Purchase from such Originator
hereunder or at any subsequent time;
(xiii) any action or omission by such Originator which
reduces or impairs the rights of Buyer with respect to any Receivable
or the value of any such Receivable;
(xiv) any successful attempt by any Person to void the
Purchase from such Originator hereunder under statutory provisions or
common law or equitable action; and
(xvi) the failure of any Receivable reflected as an Eligible
Receivable on any Purchase Report prepared by such Originator to be an
Eligible Receivable at the time acquired by Buyer.
Section 7.2 OTHER COSTS AND EXPENSES. Each Originator shall pay to
Buyer on demand all costs and out-of-pocket expenses in connection with the
preparation, execution, delivery and
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administration of this Agreement, the Transactions and the other documents to be
delivered hereunder. Each Originator shall pay to Buyer on demand any and all
costs and expenses of Buyer, if any, including reasonable counsel fees and
expenses in connection with the enforcement of this Agreement and the other
documents delivered hereunder and in connection with any restructuring or
workout of this Agreement or such documents, or the administration of this
Agreement following a Termination Event.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 WAIVERS AND AMENDMENTS.
(a) No failure or delay on the part of Buyer (or its assigns), the
Servicer or any Originator in exercising any power, right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude
any other further exercise thereof or the exercise of any other power,
right or remedy. The rights and remedies herein provided shall be
cumulative and nonexclusive of any rights or remedies provided by law.
Any waiver of this Agreement shall be effective only in the specific
instance and for the specific purpose for which given.
(b) No provision of this Agreement may be amended, supplemented,
modified or waived except in writing signed by each Originator and
Buyer and, to the extent required under the Credit and Security
Agreement, the Administrative Agent and the Liquidity Banks or the
Required Liquidity Banks. Any material amendment, supplement,
modification of waiver will required satisfaction of the Rating Agency
Condition.
Section 8.2 NOTICES. All notices, consents, approvals, demands and
other communications provided for, permitted or contemplated hereunder
(including Sections 4.1(b), 4.2(a), 4.2(b), 5.1 and 8.10) shall be in writing
(including bank wire, telecopy or electronic facsimile transmission or similar
writing) and shall be given to the other parties hereto at their respective
addresses or telecopy numbers set forth on the signature pages hereof or at such
other address or telecopy number as such Person may hereafter specify for the
purpose of notice to each of the other parties hereto. Each such notice or other
communication shall be effective (a) if given by telecopy, upon the receipt
thereof, (b) if given by mail (other than certified or registered mail), five
Business Days after the time such communication is deposited in the mail with
first class postage prepaid or (c) if given by any other means, when received at
the address specified in this SECTION 8.2.
Section 8.3 PROTECTION OF OWNERSHIP INTERESTS OF BUYER.
(a) Each Originator agrees that from time to time, at its expense,
it will promptly execute and deliver all instruments and documents, and
take all actions, that may be necessary or desirable, or that Buyer (or
its assigns) may request, to perfect, protect or more fully evidence
the interest of Buyer hereunder, or to enable Buyer (or its assigns) to
exercise and enforce their rights and remedies hereunder. Without
limiting the foregoing, Originator will, upon the request of the Buyer
(or its assigns), file such
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financing or continuation statements, or amendments thereto or
assignments thereof, and execute and file such other instruments and
documents, that may be necessary or desirable, or that the Buyer may
reasonably request, to perfect, protect or evidence such interest of
the Buyer hereunder. At any time, Buyer (or its assigns) may, at such
Originator's sole cost and expense, direct such Originator to notify
the Obligors of Receivables of the ownership interests of Buyer under
this Agreement and may also direct that payments of all amounts due or
that become due under any or all Receivables be made directly to Buyer
or its designee.
(b) If any Originator fails to perform any of its obligations
hereunder, Buyer (or its assigns) may (but shall not be required to)
perform, or cause performance of, such obligations, and Buyer's (or
such assigns') costs and expenses incurred in connection therewith
shall be payable by such Originator as provided in Section 8.2. Each
Originator irrevocably authorizes Buyer (and its assigns) at any time
and from time to time in the sole discretion of Buyer (or its assigns),
and appoints Buyer (and its assigns) as its attorney(ies)-in-fact, to
act on behalf of such Originator (i) to execute on behalf of such
Originator as debtor and to file financing statements necessary or
desirable in Buyer's (or its assigns') sole discretion to perfect and
to maintain the perfection and priority of the interest of Buyer in the
Receivables originated by such Originator and the Related Security and
Collections with respect thereto and (ii) to file a carbon,
photographic or other reproduction of this Agreement or any financing
statement with respect to the Receivables as a financing statement in
such offices as Buyer (or its assigns) in its sole discretion deem
necessary or desirable to perfect and to maintain the perfection and
priority of Buyer's interests in such Receivables. This appointment is
coupled with an interest and is irrevocable. The authorization of each
Originator set forth in the second sentence of this Section 8.3(b) is
intended to meet all requirements for authorization by a debtor under
Article 9 of the UCC in effect in the Applicable State, including,
Section 9-509 thereof. Each Originator acknowledges and agrees that it
is not authorized to, and will not, file financing statements or other
filing or recording documents with respect to the Receivables or
Related Security (including any amendments thereto, or continuation or
termination statements thereof), without the express prior approval by
the Administrative Agent (as Buyer's assignee), consenting to the form
and substance of such filing or recording document. Each Originator
approves, authorizes and ratifies any filings or recordings made by or
on behalf of the Administrative Agent (as Buyer's assign) in connection
with the perfection of the ownership or security interests in favor of
Buyer or the Administrative Agent (as Buyer's assign).
Section 8.4 CONFIDENTIALITY.
(a) Each Originator and Buyer shall maintain and shall cause each
of its employees and officers to maintain the confidentiality of the
Amended and Restated Fee Letter and the other confidential or
proprietary information with respect to the Administrative Agent and
Blue Ridge and their respective businesses obtained by it or them in
connection with the structuring, negotiating and execution of the
Transactions, except that such Originator and its officers and
employees may disclose such information
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to such Originator's external accountants, attorneys and other advisors
and as required by any applicable law or order of any judicial or
administrative proceeding.
(b) Each Originator hereby consents to the disclosure of any
nonpublic information with respect to it (i) to Buyer, the
Administrative Agent, the Liquidity Banks or Blue Ridge by each other,
(ii) to any prospective or actual assignee or participant of any of the
Persons described in clause (i), and (iii) to any rating agency,
Commercial Paper dealer or provider of a surety, guaranty or credit or
liquidity enhancement to Blue Ridge or any entity organized for the
purpose of purchasing, or making loans secured by, financial assets for
which Wachovia acts as the administrative agent and to any officers,
directors, employees, outside accountants and attorneys of any of the
foregoing, PROVIDED each such Person described in the foregoing clauses
(ii) and (iii) is informed of the confidential nature of such
information. In addition, the Lenders and the Administrative Agent may
disclose any such nonpublic information pursuant to any law, rule,
regulation, direction, request or order of any judicial, administrative
or regulatory authority or proceedings (whether or not having the force
or effect of law).
Section 8.5 BANKRUPTCY PETITION.
(a) Each Originator and Buyer each hereby covenants and agrees
that, prior to the date that is one year and one day after the payment
in full of all outstanding senior indebtedness of Blue Ridge, it will
not institute against, or join any other Person in instituting against,
Blue Ridge any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of
the United States or any state of the United States.
(b) Each Originator covenants and agrees that, prior to the date
that is one year and one day after the payment in full of all
outstanding obligations of Buyer under the Credit and Security
Agreement, it will not institute against, or join any other Person in
instituting against Buyer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under
the laws of the United States or any state of the United States.
Section 8.6 LIMITATION OF LIABILITY. Except with respect to any claim
arising out of the willful misconduct or gross negligence of any Originator,
Buyer, Blue Ridge, the Administrative Agent or any Liquidity Bank, no claim may
be made by any such Person (or its Affiliates, directors, officers, employees,
attorneys or agents) against any such other Person (or its Affiliates,
directors, officers, employees, attorneys or agents) for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the Transactions,
or any act, omission or event occurring in connection therewith; and each of the
parties hereto, on behalf of itself and its Affiliates, directors, officers,
employees, attorneys, agents, successors and assigns, hereby waives, releases,
and agrees not to sue upon any claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
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Section 8.7 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF NEW YORK.
Section 8.8 CONSENT TO JURISDICTION. ORIGINATOR HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW
YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY
ORIGINATOR PURSUANT TO THIS AGREEMENT AND ORIGINATOR HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF BUYER (OR ITS ASSIGNS) TO BRING PROCEEDINGS AGAINST
ORIGINATOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
ORIGINATOR AGAINST BUYER (OR ITS ASSIGNS) OR ANY AFFILIATE THEREOF INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY ORIGINATOR PURSUANT TO
THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.
Section 8.9 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY
ORIGINATOR PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER
OR THEREUNDER.
Section 8.10 INTEGRATION; BINDING EFFECT; SURVIVAL OF TERMS. This
Agreement and each other Transaction Document contain the final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof superseding all prior
oral or written understandings.
(a) This Agreement shall be binding upon and inure to the benefit
of the Originators, Buyer and their respective successors and permitted
assigns (including any trustee in bankruptcy). Except in connection
with a Permitted Restructuring, no Originator may assign any of its
rights and obligations hereunder or any interest herein without the
prior consent of Buyer. Buyer may assign at any time its rights and
obligations hereunder and interests herein to any other Person without
the consent of any Originator. Without limiting the foregoing, each
Originator acknowledges that Buyer, pursuant to the Credit and Security
Agreement, may grant to the Administrative Agent, for the benefit of
the Lenders and as defined in the Credit and Security Agreement, a
security interest in its rights, remedies, powers and privileges
hereunder. Each Originator
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agrees that the Administrative Agent, as the assignee of Buyer, shall,
subject to the terms of the Credit and Security Agreement, have the
right to enforce this Agreement and to exercise directly all of Buyer's
rights and remedies under this Agreement (including the right to give
or withhold any consents or approvals of Buyer to be given or withheld
hereunder) and each Originator agrees to cooperate fully with the
Administrative Agent in the exercise of such rights and remedies. 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 terminated in accordance with its terms;
PROVIDED, HOWEVER, that the rights and remedies with respect to (i) any
breach of any representation and warranty made by any Originator
pursuant to Article II; (ii) the indemnification and payment provisions
of Article VII; and (iii) Section 8.5 shall be continuing and shall
survive any termination of this Agreement.
Section 8.11 COUNTERPARTS; SEVERABILITY. 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. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 8.12 CONSTRUCTION OF THIS AGREEMENT AND CERTAIN TERMS AND
PHRASES.
(a) Unless the context of this Agreement otherwise requires, (i)
words of any gender include each gender; (ii) words using the singular
or plural number also include the plural or singular number,
respectively; (iii) the terms "hereof," "herein," "hereby," and
derivative or similar words refer to this entire Agreement and not to
any particular provision of this Agreement; and (iv) the terms
"Article," "Section," "Schedule" and "Exhibit" without reference to a
specified document refer to the specified Article, Section, Schedule
and Exhibit, respectively, of this Agreement.
(b) The words "including," "include" and "includes" are not
exclusive and shall be deemed to be followed by the words "without
limitation"; if exclusion is intended, the word "compromising" is used
instead.
(c) The word "or" shall be construed to mean "and/or" unless the
context clearly prohibits that construction.
(d) Whenever this Agreement refers to a number of days, such
number shall refer to calendar days unless Business Days are specified.
(e) All accounting terms used herein and not expressly defined
herein shall have the meanings given to them under GAAP as consistently
applied by the Person whose financial statements or practices are at
issue.
(f) All terms used in Article 9 of the UCC in the State of New
York and not specifically defined herein shall have the meaning given
to them in such Article 9.
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(g) Any representation or warranty contained herein as to the
enforceability of a contract shall be subject to the effect of any
bankruptcy, insolvency, reorganization, moratorium or other similar law
affecting the enforcement of creditors' rights generally and to general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
[SIGNATURE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
SPHERION CORPORATION
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION ASSESSMENT INC.
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
NORCROSS TELESERVICES INC.
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Originator Signature Page to Spherion RSA]
<Page>
COMTEX INFORMATION SYSTEMS, INC.
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION PACIFIC ENTERPRISES LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Originator Signature Page to Spherion RSA]
<Page>
SPHERION ATLANTIC ENTERPRISES LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION PACIFIC OPERATIONS LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION ATLANTIC OPERATIONS LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Originator Signature Page to Spherion RSA]
<Page>
SPHERION ATLANTIC RESOURCES LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION ATLANTIC WORKFORCE LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION PACIFIC RESOURCES LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Originator Signature Page to Spherion RSA]
<Page>
SPHERION PACIFIC WORKFORCE LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Originator Signature Page to Spherion RSA]
<Page>
SPHERION RECEIVABLES LLC, formerly
known as Spherion Receivables Corp.
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance and
Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Buyer Signature Page to Spherion RSA]
<Page>
EXHIBIT I
DEFINITIONS
As used in this Agreement, including the Exhibits and Schedules,
capitalized terms have the meanings set forth in this Exhibit I (such meanings
to be equally applicable to the singular and plural forms thereof). IF A
CAPITALIZED TERM IS USED IN THIS AGREEMENT, INCLUDING ANY EXHIBIT OR SCHEDULE,
AND IS NOT OTHERWISE DEFINED THEREIN OR IN THIS EXHIBIT I, SUCH TERM SHALL HAVE
THE MEANING ASSIGNED THERETO IN EXHIBIT I TO THE CREDIT AND SECURITY AGREEMENT.
"ADMINISTRATIVE AGENT" has the meaning set forth in the Preliminary
Statements to this Agreement.
"AGREEMENT" has the meaning set forth in the preamble to this
Agreement.
"APPLICABLE CLOSING DATE" means (a) with respect to each Existing
Originator, the Initial Sale Closing Date, and (b) with respect to each New
Originator, its New Originator Closing Date.
"APPLICABLE CUT-OFF DATE" means (a) with respect to each Existing
Originator, the Initial Cut-Off Date, (b) with respect to each New Originator,
its New Originator Cut-Off Date, and (c) with respect to all Originators, each
Cut-Off Date after the applicable date in the preceding clause (a) or clause
(b).
"BLUE RIDGE" has the meaning set forth in the Preliminary Statements to
this Agreement.
"BUYER" has the meaning set forth in the preamble to this Agreement.
"CALCULATION PERIOD" means each accounting month or portion thereof
which elapses during the term of this Agreement. The first Calculation Period
shall commence on the date of the Purchases hereunder and the final Calculation
Period shall terminate on the Termination Date.
"CHANGE OF CONTROL" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 20% or more of the outstanding voting stock of Parent or, except
in connection Permitted Restructuring, any other Originator.
"CREDIT AND COLLECTION POLICY" means the Originators' credit and
collection policies and practices relating to Contracts and Receivables existing
on the date hereof and summarized in EXHIBIT V, as modified from time to time in
accordance with this Agreement.
"CREDIT AND SECURITY AGREEMENT" has the meaning set forth in the
Preliminary Statements to this Agreement.
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"DEFAULT FEE" means a PER ANNUM rate of interest equal to the sum of
(i) the Prime Rate, PLUS (ii) 2% per annum.
"DISCOUNT FACTOR" means a percentage calculated to provide Buyer with a
reasonable return on its investment in the Receivables Buyer Purchases hereunder
after taking account of (a) the time value of money based upon the anticipated
dates of collection of such Receivables and the cost to Buyer of financing its
investment in such Receivables during such period and (b) the risk of nonpayment
by the respective Obligors. Each Originator and Buyer may agree from time to
time to change the Discount Factor based on changes in one or more of the items
affecting the calculation thereof, PROVIDED THAT any change to the Discount
Factor shall take effect as of the commencement of a Calculation Period, shall
apply only prospectively and shall not affect the Purchase Price payment made
prior to the Calculation Period during which such Originator and Buyer agree to
make such change. As of the Initial Sale Closing Date, the Discount Factor in
respect of Eligible Receivables is 3% and the Discount Factor in respect of all
other Receivables is 3%.
"EQUITY INTERESTS" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, whether outstanding on the date
hereof or issued after the date of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with any Originator within the meaning of
Section 414(b) or (c) of the Tax Code (and Sections 414(m) and (o) of the Tax
Code for purposes of provisions relating to Section 412 of the Tax Code).
"ERISA EVENT" means (a) a Purchase Reportable Event with respect to a
Pension Plan; (b) a withdrawal by any Originator or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001 (a) (2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by any Originator or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Tide IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon any Originator or any ERISA Affiliate.
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"EXISTING ORIGINATOR" has the meaning set forth in the preamble to this
Agreement.
"INDEMNIFIED PARTY" has the meaning set forth in SECTION 7.1.
"INITIAL CUTOFF DATE" has the meaning set forth in SECTION 1.1.
"INITIAL SALE CLOSING DATE" means the date on which the Originators
have delivered a notice to the Buyer to consummate the initial Purchase
hereunder.
"JOINDER AGREEMENT" has the meaning set forth in the preamble to this
Agreement.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
financial condition or operations of the Originators and their Subsidiaries,
considered as a whole, (b) the ability of any Originator to perform its
obligations under this Agreement or any other Transaction Document to which it
is a party, (c) the legality, validity or enforceability of this Agreement or
any other Transaction Document, (d) any Originator's, Buyer's, the
Administrative Agent's or any Lender's interest in the Receivables generally or
in any significant portion of the Receivables, the Related Security or
Collections with respect thereto, or (e) the collectability of the Receivables
generally or of any material portion of the Receivables.
"MATERIAL SUBSIDIARY" means with respect to any Person (a) a Subsidiary
of such Person formed under the laws of the United States and a state or
territory within the United States and (b) a Subsidiary of such Person formed
under the laws of any jurisdiction other than the Untied States of a state or
territory within the United States to the extent such Subsidiary would be deemed
a "significant subsidiary" pursuant to the definition thereof in Rule 1-02 of
the Regulation S-X promulgated under the Securities Act of 1933, as amended.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan," within the meaning
of Section 4001 (a) (3) of ERISA, to which any Originator or any ERISA Affiliate
makes, is making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make, contributions.
"NET WORTH" means as of the last Business Day of each Calculation
Period preceding any date of determination, the excess, if any, of (a) the
aggregate Outstanding Balance of the Receivables at such time, OVER (b) the sum
of (i) the Aggregate Invested Amount outstanding at such time, PLUS (ii) the
aggregate outstanding principal balance of the Subordinated Loans (including any
Subordinated Loan proposed to be made on the date of determination).
"NEW ORIGINATOR" means any direct or indirect wholly owned Subsidiary
of Parent that hereafter becomes a Originator under this Agreement by executing
a Joinder Agreement and complying with the provisions of ARTICLE V.
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"NEW ORIGINATOR CLOSING DATE" means, as to any New Originator, the
Business Day on which each of the conditions set forth in ARTICLE V has been
satisfied.
"NEW ORIGINATOR CUT-OFF DATE" means, with respect to each New
Originator, the Cut-Off Date immediately preceding its New Originator Closing
Date.
"ORGANIZATIONAL DOCUMENTS" means, for any Person, the documents for its
formation and organization, which, for example, (a) for a corporation are its
corporate charter and bylaws, (b) for a partnership are its certificate of
partnership (if applicable) and partnership agreement, (c) for a limited
liability company are its certificate of formation or organization and its
operating agreement, regulations or the like and (d) for a trust is the trust
agreement, declaration of trust, indenture or bylaws under which it is created.
"ORIGINAL BALANCE" means, with respect to any Receivable coming into
existence after the Initial Cutoff Date, the Outstanding Balance of such
Receivable on the date it was created.
"ORIGINAL ORIGINATOR" has the meaning set forth in the preamble to this
Agreement.
"ORIGINATOR" has the meaning set forth in the preamble to this
Agreement.
"PARENT" has the meaning set forth in the preamble to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PENSION PLAN" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which any Originator sponsors or maintains,
or to which it makes, is making, or is obligated to make contributions, or in
the case of a multiple employer plan (as described in Section 4064(a) of ERISA)
has made contributions at any time during the immediately preceding five plan
years.
"PLAN" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which any Originator or any of its ERISA Affiliates sponsors or maintains
or to which any Originator or any of its ERISA Affiliates makes, is making, or
is obligated to make contributions and includes any Pension Plan, other than a
Plan maintained outside the United States primarily for the benefit of Persons
who are not U.S. residents.
"PURCHASE" means the purchase by Buyer from an Originator pursuant to
SECTION 1.1(a) of the Receivables originated by such Originator and the Related
Security and Collections with respect thereto, together with all related rights
in connection therewith.
"PURCHASE PRICE" means, with respect to the Purchase from each
Originator, the aggregate price to be paid by Buyer to such Originator for such
Purchase in accordance with SECTION 1.2 for the Receivables originated by such
Originator and the Related Security and Collections with respect thereto being
sold or otherwise transferred to Buyer, which price shall equal on any date (a)
the product of (i) the Outstanding Balance of such Receivables on such
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date, MULTIPLIED BY (ii) one minus the Discount Factor in effect on such date,
minus (ii) any Purchase Price Credits to be credited against the Purchase Price
otherwise payable in accordance with SECTION 1.3.
"PURCHASE PRICE CREDIT" has the meaning set forth in SECTION 1.3.
"PURCHASE REPORT" has the meaning set forth in SECTION 1.1(b).
"RECEIVABLE" means all indebtedness and other obligations owed to an
Originator (at the times it arises, and before giving effect to any transfer or
conveyance under this Agreement) or to Buyer (after giving effect to the
transfers under this Agreement) (including any indebtedness, obligation or
interest constituting an account, chattel paper, instrument or general
intangible) arising in connection with the sale of goods or the rendering of
services by such Originator and further includes the obligation to pay any
Finance Charges with respect thereto. Indebtedness and other rights and
obligations arising from any one transaction, including indebtedness and other
rights and obligations represented by an individual invoice, shall constitute a
Receivable separate from a Receivable consisting of the indebtedness and other
rights and obligations arising from any other transaction; PROVIDED, FURTHER,
that any indebtedness, rights or obligations referred to in the immediately
preceding sentence shall be a Receivable regardless or whether the account
debtor or such Originator treats such indebtedness, rights or obligations as a
separate payment obligation.
"RELATED SECURITY" means, with respect to any Receivable:
(i) all of the applicable Originator's interest in the
inventory and goods (including returned or repossessed inventory or
goods), if any, the sale, financing or lease of which by such
Originator gave rise to such Receivable, and all insurance contracts
with respect thereto,
(ii) all other security interests or liens and property
subject thereto from time to time, if any, purporting to secure payment
of such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all financing statements and
security agreements describing any collateral securing such Receivable,
(iii) all guaranties, letters of credit, insurance and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivable whether pursuant to
the Contract related to such Receivable or otherwise,
(iv) all service contracts and other contracts and agreements
associated with such Receivable,
(v) all Records related to such Receivable,
(vi) all of the applicable Originator's right, title and
interest in each Lock-Box and each Collection Account, and
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(vii) all proceeds of any of the foregoing.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"REQUIRED CAPITAL AMOUNT" means, as of any date of determination, an
amount equal to the greater of (a) 3% of the Aggregate Commitment under the
Credit and Security Agreement, and (b) the product of (i) 1.5 times the product
of the Default Ratio times the Default Horizon Ratio, each as determined from
the most recent Monthly Report received from the Servicer under the Credit and
Security Agreement, and (ii) the Outstanding Balance of all Receivables as of
such date, as determined from the most recent Monthly Report received from the
Servicer under the Credit and Security Agreement.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"SETTLEMENT DATE" means, with respect to each Calculation Period, the
date that is the 17th Business Day of the month following such Calculation
Period.
"SUBORDINATED LOAN" has the meaning set forth in SECTION 1.2(a).
"SUBORDINATED NOTE" means a promissory note in substantially the form
of EXHIBIT VI as more fully described in SECTION 1.2 as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"TAX CODE" means the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"TERMINATION DATE" means, as to each Originator, the earliest to occur
of (a) the Facility Termination Date, (b) the Business Day immediately prior to
the occurrence of a Termination Event set forth in SECTION 6.1(e) with respect
to such Originator or Performance Guarantor, (c) the Business Day specified in a
notice from Buyer to such Originators following the occurrence of any other
Termination Event with respect to such Originator, and (d) the date which is 10
Business Days after Buyer's receipt of notice from any such Originator that it
wishes to terminate the facility evidenced by this Agreement with respect to
such Originator.
"TERMINATION EVENT" has the meaning set forth in SECTION 6.1.
"TRANSACTIONS" means the transactions contemplated by this Agreement.
"TRANSACTION DOCUMENTS" means, collectively, this Agreement, each
Collection Account Agreement, each Subordinated Note, each Joinder Agreement,
and all other instruments, documents and agreements executed and delivered
pursuant hereto.
"UNMATURED TERMINATION EVENT" means an event which, with the passage of
time or the giving of notice, or both, would constitute a Termination Event
hereunder.
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