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EXHIBIT 99.8
RECEIVABLES PURCHASE AND SALE AGREEMENT
Dated as of May 20, 1994
among
WYMAN-GORDON COMPANY,
WYMAN-GORDON INVESTMENT CASTINGS, INC.
and
PRECISION FOUNDERS INC.
as the Sellers
WYMAN-GORDON COMPANY,
as the Servicer
and
WYMAN-GORDON RECEIVABLES CORPORATION
as the Purchaser
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TABLE OF CONTENTS
SECTION PAGE
Parties 1
Preambles 1
ARTICLE I DEFINITIONS 1
1.01 Certain Definitions 1
1.02 Accounting Terms 1
1.03 Other Terms 2
1.04 Computation of Time Periods 2
ARTICLE II AMOUNTS AND TERMS OF THE PURCHASES 2
2.01 Agreement to Purchase 2
2.02 Effective Date Transactions; Sellers'
Representations 4
2.03 Calculation of Purchase Price 7
2.04 Payments and Computations, etc. 8
2.05 Transfer of Records to WGRC 8
2.06 Additional Sellers 9
ARTICLE III REPRESENTATIONS AND WARRANTIES 10
3.01 Representations and Warranties of the
Sellers 10
3.02 Representations and Warranties of WGRC 14
3.03 Representations and Warranties of the
Servicer 15
ARTICLE IV GENERAL COVENANTS OF THE SELLERS 16
4.01 Affirmative Covenants of the Sellers 16
4.02 General Reporting Requirements of the
Sellers 20
4.03 Negative Covenants of the Sellers 22
ARTICLE V ADMINISTRATION AND COLLECTION 24
5.01 Collection of Receivables 24
5.02 Designation of Servicer 25
5.03 Duties of the Servicer; Daily Reports and
Settlement Statements; Servicer Fee 26
5.04 Responsibilities of the Sellers 28
5.05 Further Action Evidencing Purchases 28
5.06 Application of Collections 29
ARTICLE VI INDEMNIFICATION 29
6.01 Indemnities by the Sellers 29
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SECTION PAGE
ARTICLE VII MISCELLANEOUS 32
7.01 Amendments, etc. 32
7.02 Notices, etc. 33
7.03 No Waiver; Remedies 33
7.04 Binding Effect; Assignability 33
7.05 GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF PERSONAL SERVICE AND VENUE;
WAIVER OF JURY TRIAL 34
7.06 Costs, Expenses and Taxes 35
7.07 Confidentiality 35
7.08 Execution in Counterparts; Severability 36
7.09 Termination Date 36
7.10 No Recourse 37
7.11 No Proceedings 37
7.12 Entire Agreement 37
7.13 Survival of Agreement 37
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RECEIVABLES PURCHASE AND SALE AGREEMENT
Dated as of May 20, 1994
THIS RECEIVABLES PURCHASE AND SALE AGREEMENT (the
"Agreement"), dated as of May 20, 1994 is among Wyman-Gordon
Company, a Massachusetts corporation ("Wyman"), Wyman-Gordon
Investment Castings, Inc., a Delaware corporation ("WGIC"),
Precision Founders Inc., a California corporation ("PFI") and
Wyman-Gordon Receivables Corporation, a Delaware corporation
("WGRC") (Wyman, WGIC and PFI, the "Initial Sellers" and, together
with each other corporation that may hereafter become a party
hereto pursuant to Section 2.06, being hereinafter referred to
collectively as the "Sellers.")
WITNESSETH:
WHEREAS, all of the issued and outstanding capital
stock of WGRC is or, pursuant to the terms of Section 2.02 hereof,
will be owned by the Initial Sellers;
WHEREAS, WGRC was formed for the purpose of
purchasing accounts receivable and certain related assets from the
Sellers and engaging in other activities incidental thereto;
WHEREAS, the Initial Sellers and WGRC have agreed to
enter into this Agreement to evidence the terms and conditions
under which such purchases shall take place; and
WHEREAS, the Initial Sellers and WGRC have agreed
that Cameron Forged Products Company ("Cameron"), shall become a
"Seller" hereunder following the date after which (i) all of the
outstanding stock of Cameron has been acquired by Wyman and (ii)
the accounts receivable factoring arrangements entered into by
Cameron and Cooper Industries, Inc. ("Cooper") in connection with
such acquisition have been terminated and Cameron has repurchased
such accounts from Cooper;
NOW THEREFORE, for valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each
party hereto, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Definitions. For all purposes
of this Agreement, except as otherwise specifically provided
herein, capitalized terms used in this Agreement without definition
shall have the meanings ascribed to such terms in Annex 1 hereto.
SECTION 1.02. Accounting Terms. Under this Agree-
ment, all accounting terms not specifically defined herein shall be
interpreted, all accounting determinations made and all financial
statements prepared in accordance with GAAP.
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SECTION 1.03. Other Terms. All other undefined
terms contained in this Agreement shall, unless the context
indicates otherwise, have the meanings provided for by the UCC to
the extent the same are used or defined therein. The words
"herein," "hereof," and "hereunder" and other words of similar
import refer to this Agreement as a whole, including the annexes,
exhibits and schedules hereto, as the same may from time to time be
amended or supplemented and not to any particular section,
subsection, or clause contained in this Agreement, and all
references to Sections, Annexes, Exhibits and Schedules shall mean,
unless the context clearly indicates otherwise, the Sections hereof
and the Annexes, Exhibits and Schedules attached hereto, the terms
of which Annexes, Exhibits and Schedules are hereby incorporated
into this Agreement. Whenever appropriate, in the context, terms
used herein in the singular also include the plural, and vice
versa.
SECTION 1.04. Computation of Time Periods. In this
Agreement, in the computation of a period of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but
excluding."
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01. Agreement to Purchase. (a) On the
terms and conditions hereinafter set forth, on each Business Day
from and after the Initial Purchase Date applicable to any Seller
until the occurrence of the Termination Date, WGRC agrees (except
as otherwise provided in Section 2.01(c)) to purchase from such
Seller, and each such Seller agrees to sell to WGRC, all of such
Seller's right, title and interest in and to all of its Receivables
outstanding as of the Business Day before such date, which have not
been previously purchased by WGRC, together with all of the Related
Security relating to such Receivables and all Collections with
respect to and other proceeds of such Receivables and Related
Security (including, without limitation, all Receivables Notes
received in respect thereof). For purposes of the foregoing
sentence, a Receivable with respect to which an invoice has been
withheld from mailing due to perceived billing errors shall not be
deemed outstanding and shall not be purchased by WGRC hereunder
until such invoice has been internally approved by the appropriate
Seller. Until the Termination Date, each Purchase described in the
preceding sentence shall occur no later than 4:00 p.m. (Boston
time) on the date of such Purchase concurrently with payment of the
Purchase Price required under Section 2.02 (or, in the case of the
initial Purchase hereunder, concurrently with such payment, the
making of the loans under the Long-Term Notes and the contribution
to capital by each Initial Seller described herein). Prior to
making any Purchase hereunder, WGRC may request from any Seller,
and such Seller shall promptly deliver, such approvals, opinions,
information, reports or documents as WGRC may reasonably request.
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(b) It is the intention of the parties hereto that
each Purchase of Receivables to be made hereunder shall constitute
a "sale of accounts," as such term is used in Article 9 of the UCC,
and not a loan secured by such accounts and Seller shall have no
rights or obligations hereunder to repurchase or otherwise
reacquire any of the Receivables. Except for Noncomplying
Receivables Adjustments and Dilution Adjustments, each sale of
Receivables by a Seller to WGRC is made without recourse to such
Seller; provided, however, that (i) each Seller shall be liable to
WGRC for all representations, warranties and covenants made by such
Seller pursuant to the terms of Section 6.01 of this Agreement, and
(ii) such sale does not constitute and is not intended to result in
an assumption by WGRC or any assignee thereof of any obligation of
any Seller or any other Person arising in connection with the
Receivables, the Related Security and the related Invoices, or any
other obligations of the Sellers. In view of the intention of the
parties hereto that the Purchases of Receivables to be made
hereunder shall constitute a sale of such Receivables rather than a
loan secured by such Receivables, each Seller agrees to note in its
financial statements that its Receivables have been sold to WGRC.
(c) Notwithstanding any other provision of this
Article II, WGRC shall not purchase from any Seller nor shall any
Seller sell to WGRC any Receivables on or after the earlier of (i)
the Termination Date, (ii) the date of any Insolvency Event
occurring with respect to such Seller or WGRC or (iii) the
discovery by Wyman, WGRC or any Seller of any Liquidation Event
described in clause (m) of the definition thereof with respect to
the Receivables to be sold by such Seller; provided, however that
if:
(A) such Insolvency Event arises as a result of an
involuntary bankruptcy or other proceeding filed
against a Seller, and such proceeding is dismissed
or otherwise terminated prior to the Termination
Date; or
(B) such Insolvency Event arises as a result of an
involuntary bankruptcy or other proceeding filed
against a Seller, and (1) WGRC, the Facility Agent
and the Rating Agency shall have received an order
from the court having jurisdiction of such matter,
which order (x) is satisfactory to the Facility
Agent and the Rating Agency, (y) approves the
continuation of sales of Receivables by such Seller
or Sellers to WGRC hereunder and (z) provides that
WGRC and its assigns (including the Banks and the
Agents) can rely on such order for the validity and
nonavoidance of such sales and (2) the Rating Agency
shall have issued a reconfirmation of its rating
with respect to the Facility; or
(C) such Liquidation Event is cured prior to the
Termination Date;
then, in any such case, WGRC shall automatically resume its
purchase of Receivables from such Seller or the Sellers hereunder
unless and until the Termination Date has otherwise occurred in
accordance with the terms hereof.
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SECTION 2.02. Effective Date Transactions; Sellers'
Representations; Payment for Purchases; Adjustments to Purchase
Price. (a) On the Effective Date, each Initial Seller shall make
a contribution to the capital of WGRC equal to the Purchase Price
of all of its Receivables which are not paid for in cash or by
delivery of a Long-Term Note, in exchange for which contribution
the Initial Sellers shall collectively receive all of the common
stock of WGRC. Each Long-Term Note shall be substantially in the
form of Exhibit A-3 attached hereto. WGRC hereby agrees that it
shall, subject to the terms and provisions of the Revolving Credit
Agreement and upon the request of any Seller from time to time,
request the Banks to make a Borrowing of Revolving Loans under the
Revolving Credit Agreement. All proceeds received by WGRC from
such Borrowings shall be remitted to, and shall be applied by, the
Sellers in the same manner and to the same extent as if such
proceeds constituted Available Cash to be distributed and applied
pursuant to Section 9.07(c) of the Revolving Credit Agreement. If,
after the Effective Date, any Seller elects to advance to WGRC and
WGRC agrees to borrow additional loans (other than the loans
evidenced by the Short-Term Notes and the L/C Note described
below), then such Seller may make such additional loans under its
Long-Term Note, the terms of which shall govern the repayment of
such loans. The applicable Seller may evidence the making of any
such additional loan or loans by recording the date and amount
thereof on the grid attached to its Long-Term Note; provided that
failure to make any such recordation on such grid or any error in
such grid shall not adversely affect such Seller's rights to
recover the outstanding amount of such loan. It is expressly
acknowledged and agreed that nothing in this Section 2.02(a) shall
require any Seller to advance, or require WGRC to borrow, any such
additional loans (other than the loans evidenced by the Short-Term
Notes and the L/C Note described below).
(b) Each Purchase of Receivables hereunder shall be
consummated through WGRC's payment of the applicable Purchase Price
therefor in cash, except (i) as otherwise provided in Section
2.02(d) or (e) below, and (ii) that WGRC may set off against the
amount of any such payment amounts then owing to WGRC as Dilution
Adjustments and Noncomplying Receivables Adjustments as provided in
Section 2.02(f) below and/or other uncontested amounts owing to
WGRC under this Agreement.
(c) It shall be a condition precedent to each Purchase
hereunder from a Seller that (i) the representations and warranties
of such Seller contained in Section 3.01 are correct in all
material respects as to it and as to the Receivables purchased from
it in such Purchase on and as of such day as though made on and as
of such date (except for representations and warranties which
relate to a specific date only), and (ii) no event has occurred and
is continuing, or would result from such Purchase, which
constitutes a Liquidation Event. Each Seller, by accepting the
proceeds of the Purchase Price for a Purchase, shall be deemed to
have certified to WGRC the satisfaction of the foregoing conditions
precedent; provided, however, that such Seller shall not be deemed
to have certified the non-existence of a Liquidation Event of which
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it does not have knowledge which Liquidation Event may have arisen
solely on account of actions or omissions of WGRC. Upon the
payment of the Purchase Price for any Purchase, title to the
Purchased Assets included in such Purchase shall vest in WGRC,
whether or not the conditions precedent to such Purchase were in
fact satisfied.
(d) WGRC may elect to pay all or part of the applicable
Purchase Price for all Purchases of Receivables to be made on any
day by paying cash or, at the request of the Sellers, by causing
the Issuing Bank or the Banks severally (as applicable) to issue a
Letter of Credit in favor of beneficiaries selected by the Sellers
and in form and substance acceptable to WGRC. In the event that
the Sellers request that any purchases be paid for by issuance of a
Letter of Credit, the Sellers shall on a timely basis provide WGRC
with such information as is necessary for WGRC to obtain such
Letter of Credit from the Issuing Bank or the Banks. No Seller
shall have any reimbursement obligations in respect of any draws
under any Letter of Credit. The face amount of each Letter of
Credit shall be applied in the following order of priority: (i) as
a deduction from the applicable Purchase Price otherwise payable by
WGRC; (ii) to the extent such face amount exceeds such Purchase
Price, as a reduction in the principal amounts owed under the
Short-Term Notes (allocated among the Short-Term Notes as Wyman
shall direct); (iii) to the extent the aggregate principal amount
outstanding under the Short Term Notes has been reduced to zero, as
a reduction in the principal amounts owed under the Long-Term Notes
(allocated among the Long-Term Notes as Wyman shall direct); and
(iv) to the extent the aggregate principal amount outstanding under
the Long-Term Notes has been reduced to zero, as a credit against
the Purchase Price payable to the Sellers for future purchases of
Receivables; provided, however, that if such credit is not fully
utilized on the earlier of (i) the Termination Date and (ii) the
date on which such particular Letter of Credit is drawn, then the
Sellers shall pay to WGRC, in consideration of the applicable
portion of the L/C Note, cash in an amount equal to the unutilized
amount of such credit. The aggregate amount of deductions,
reductions and credits described in clauses (i) through (iv) of the
immediately preceding sentence shall be evidenced by an L/C Note in
the form of Exhibit A-1 hereto in a notional principal amount of
$35,000,000 and in an initial principal amount equal to the sum of
such deductions, reductions and credits, and shall be payable to
Wyman, for the benefit of the Sellers, in accordance with the terms
and provisions of the L/C Note, this Agreement and Article IX of
the Revolving Credit Agreement. The principal amount of the L/C
Note shall be increased by the amount of each subsequent deduction,
reduction and credit described above and reduced by the amount of
each draw on any Letter of Credit. Any payments or credits made on
or with respect to the L/C Note shall be allocated among the
Sellers as the Sellers may mutually agree. In the event that a
Letter of Credit (as the same may be extended, replaced or renewed
and after giving effect to any partial draws) expires or is
otherwise terminated undrawn, a portion of the principal amount of
the L/C Note equal to the undrawn face amount of such Letter of
Credit shall be payable to Wyman, for the benefit of the Sellers,
within 15 Business Days thereafter.
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(e) If, on any day, WGRC has insufficient funds to pay in
full the Purchase Price owed on such day, or if the Sellers
otherwise consent, WGRC may pay all or part of the applicable
Purchase Price to be made on such day by borrowing under its Short-
Term Notes, each in the form of Exhibit A-2 attached hereto and
issued in favor of each Seller, and each Seller shall have
irrevocably agreed to advance, and shall be deemed to have
advanced, a revolving loan in the amount so specified by WGRC;
provided, however, that WGRC may not make payments of Purchase
Prices through the use of such revolving loans if, as a result
thereof, either (i) the aggregate unpaid principal amount of the
Short-Term Notes would exceed the lesser of (A) $15,000,000 and (B)
10% of the aggregate Outstanding Balance of Receivables of all the
Sellers or (ii) the aggregate unpaid principal amount of any
Seller's Short-Term Note would exceed the maximum stated amount
thereof, and subject (in either case) to the requirements set forth
in Section 8.02 of the Revolving Credit Agreement. Each such
revolving loan shall be payable in accordance with the terms and
provisions of the Short-Term Notes, this Agreement and Article IX
of the Revolving Credit Agreement. Each Seller may evidence the
making of each revolving loan by recording the date and amount
thereof on the grid attached to its Short-Term Note; provided, that
failure to make any such recordation on such grid or any error in
such grid shall not adversely affect such Seller's rights to
recover the outstanding unpaid principal amount of the revolving
loans made under its Short-Term Note. WGRC hereby agrees, to the
extent reasonably practicable, to use its best efforts to allocate
the amount of revolving loans made on any day under the Short-Term
Notes ratably among the Sellers according to the respective
Purchase Prices owed to each Seller for Receivables sold on such
date.
(f) On each Business Day after its Initial Purchase Date,
each Seller shall (or shall cause the Servicer to) report the
amount of Dilution which occurred with respect to such Seller's
Receivables on the prior Business Day, and the Dilution Adjustment
owing on account of such Dilution shall be deducted from the
applicable Purchase Price which would, but for this Section
2.02(f), otherwise be payable to such Seller on such date. If any
such Dilution relates to goods which are returned to a Seller or
repossessed by a Seller, then, concurrently with payment of such
Dilution Adjustment (whether through offset or otherwise), WGRC
shall assign and transfer to such Seller, without any further
action or consideration, all of WGRC's right, title and interest in
and to such returned or repossessed goods. In addition, if, on the
Business Day immediately preceding such date, WGRC has (i) notified
any Seller that any Receivables previously sold to WGRC under this
Agreement have been discovered to be Noncomplying Receivables and
(ii) requested that such Seller pay to WGRC a Noncomplying
Receivables Adjustment on account of such Noncomplying Receivables,
then such Noncomplying Receivables Adjustment shall also be
deducted from the applicable Purchase Price which would, but for
this Section 2.02(f), otherwise be payable to such Seller on such
date. If the sum of the applicable Dilution Adjustment and the
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Noncomplying Receivables Adjustment on any date exceeds the
applicable Purchase Price otherwise owing to a Seller, WGRC shall
be entitled to a reduction in the principal amount outstanding
under the applicable Short-Term Note in an amount equal to such
excess and, in the event the principal amount outstanding under
such Short-Term Note has been reduced to zero, to a credit against
the Purchase Price otherwise payable for future purchases of
Receivables from such Seller; provided, however, that if any such
credit is not fully utilized within five Business Days, such Seller
shall pay to WGRC the remaining amount of any such credit on the
next following Business Day in cash. If, on any date, the Servicer
notifies WGRC that WGRC has received Collections on account of a
Noncomplying Receivable for which a Noncomplying Receivables
Adjustment was previously made, then the amount of such Collections
must be added to the Purchase Price otherwise payable to the
applicable Seller on such date.
SECTION 2.03. Calculation of Purchase Price. (a) The Purchase
Price Percentage applicable to Purchases from each Seller hereunder
shall be set forth in Schedule 1 of Annex I hereto for the period
from the Effective Date until the first Settlement Date.
Thereafter and from and after each subsequent Settlement Date, the
Purchase Price Percentage applicable to Purchases from each Seller
hereunder shall be as set forth in the most recent Settlement
Statement prepared by the Servicer pursuant to Section 5.03(b) (or,
in the case of any Seller other than an Initial Seller, for the
period from such Seller's Initial Purchase Date until the next
Settlement Date, as set forth in such Seller's Assumption
Agreement) and the Purchase Prices owed to each Seller for any
Business Day shall be as set forth in the Daily Report prepared by
the Servicer pursuant to Section 5.03(b). Each Seller agrees to
provide to the Servicer on a timely basis all information necessary
to calculate the applicable Purchase Price Percentage and the
applicable Purchase Price.
(b) Until WGRC shall notify any Seller or the Servicer of any
exceptions to the calculations contained in any Daily Report or
Settlement Statement (copies of which notices shall be concurrently
sent to the Agents), each such Daily Report and Settlement
Statement shall be deemed to be correct as originally delivered.
If WGRC shall have notified any Seller or the Servicer and the
Agents of any exceptions to the Daily Report or Settlement
Statement, such Seller, the Servicer, WGRC and the Agents shall
promptly endeavor to resolve the matters set forth in such notice.
Until such resolution is agreed upon, however, the Daily Report or
Settlement Statement originally delivered by the Servicer shall,
absent manifest error, continue to be presumed correct for purposes
of calculating the applicable Purchase Price payable hereunder
until a resolution is reached to the contrary. Nothing contained
in this Section 2.03(b), however, shall be deemed to limit the
rights of WGRC under Section 6.01.
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SECTION 2.04. Payments and Computations, Etc. All amounts to
be paid by WGRC to any Seller or by any Seller to WGRC hereunder
shall be paid in accordance with the terms hereof no later than
4:00 p.m. (Boston time) on the day when due in Dollars in
immediately available funds to such account as such Seller or WGRC,
as applicable, may from time to time specify in writing. Payments
received by any Seller or WGRC after such time shall be deemed to
have been received on the next Business Day. In the event that any
payment becomes due on a day which is not a Business Day, then such
payment shall be made on the next succeeding Business Day. Each
party hereto shall, to the extent permitted by law, pay to the
other party interest on all amounts not paid when due hereunder,
from and after the Business Day immediately following the Business
Day such party receives notice thereof from the other party until
such amounts are paid in full, at 2% per annum above the Discount
Rate in effect on the date such payment was due (subject, in the
case of payments owing by WGRC, to the provisions of Section 9.07
and 9.08 of the Revolving Credit Agreement); provided, however,
that such interest rate 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 365 or,
as applicable, 366 days for the actual number of days (including
the first but excluding the last day) elapsed.
SECTION 2.05. Transfer of Records to WGRC. (a) Each Purchase
of Receivables hereunder shall include the transfer to WGRC of all
of the applicable Seller's right and title to and interest in the
Records relating to such Receivables, and each Seller hereby agrees
that such transfer shall be effected automatically with each such
Purchase, without any further documentation. In connection with
such transfer, each Seller hereby grants to WGRC an irrevocable,
non-exclusive license to use, without royalty or payment of any
kind, all software used by such Seller to account for the
Receivables, to the extent necessary to administer the Receivables,
whether such software is owned by such Seller or is owned by others
and used by such Seller under license agreements with respect
thereto. The license granted hereby shall be irrevocable, and
shall terminate on the Collection Date.
(b) Each Seller shall take such action requested by WGRC,
from time to time hereafter, that may be necessary or appropriate
in the opinion of WGRC on the part of such Seller to ensure that
WGRC has (i) an enforceable ownership interest in the Records
relating to the Receivables purchased from the Sellers hereunder
and (ii) an enforceable right (whether by license or sublicense or
otherwise) to use all of the computer software used to account for
the Receivables and/or to recreate such Records.
(c) Notwithstanding the foregoing, it is expressly understood
and agreed by the parties hereto that, as of the date hereof: (i)
Cameron utilizes software (the "Cameron Software") owned by
Computer Associates to account for its Receivables, and (ii)
Computer Associates is not willing to grant to WGRC or the Servicer
an enforceable right to use such Cameron Software. WGRC agrees
that, upon the addition of Cameron as a Seller hereunder, Cameron
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shall not be required to grant WGRC or the Servicer an enforceable
right to use the Cameron Software, provided that (y) if each of
WGRC and the Servicer has not been granted such a right on or
before March 31, 1995, then Cameron shall cease to use the Cameron
Software to account for the Receivables and shall process all data
relating to the Receivables pursuant to software programs which
WGRC and the Servicer each has an enforceable right to use and (z)
unless and until WGRC and the Servicer each has an enforceable
right to use Cameron's accounts receivable software, Cameron shall,
(1) on each Business Day, download from the Cameron Software all
information relating to the Receivables generated by it and program
such information into a spreadsheet which will be readable pursuant
to "Excel," "Lotus," or similar software program and in a format
which is consistent with the other Sellers' computer records
relating to the Receivables; and (2) as frequently as the Servicer,
WGRC or the Collateral Agent may request, forward to the Servicer,
WGRC and/or the Collateral Agent computer disks containing such
spreadsheet information. If, by March 31, 1995, Cameron has not
satisfied the conditions described in clause (y) of the immediately
preceding sentence, then the Receivables sold by Cameron hereunder
shall thereafter not constitute Eligible Receivables unless and
until such conditions are satisfied.
SECTION 2.06. Additional Sellers. At any time prior to the
Termination Date, Wyman may designate any U.S. Subsidiary of which
it owns (directly or indirectly) at least 80% of the issued and
outstanding stock as an additional "Seller" hereunder and such
Subsidiary shall, subject to the conditions precedent set forth
below, become a "Seller" for all purposes and to the same extent as
if originally a party hereto and shall be bound by and entitled to
the benefits of this Agreement. Without limiting the foregoing, it
is expressly understood and agreed by the parties hereto that
Cameron shall become a "Seller" hereunder when the conditions set
forth herein and in the recitals to this Agreement with respect
thereto have been satisfied. The addition of any Subsidiary as a
"Seller" hereunder shall be subject to the satisfaction of the
conditions precedent that (i) such additional Seller shall have
executed an Assumption Agreement substantially in the form of
Exhibit F attached hereto (with the annexes thereto appropriately
completed); (ii) except as otherwise contemplated in Section
2.05(c), the representations and warranties made by the Initial
Sellers as of the Effective Date shall be made by such additional
Seller as of its Initial Purchase Date and shall be true and
correct as to such additional Seller in all respects as of such
date; (iii) WGRC, the Facility Agent and the Rating Agency shall
have received, in form and substance satisfactory to each of them,
an executed copy of such Assumption Agreement and such evidence of
corporate existence and good standing, secretary's certificates,
UCC lien search reports, UCC financing statements, legal opinions
and similar documentation required of the Initial Sellers on or
prior to the Effective Date (with sufficient copies of all such
documentation for delivery to the Banks) and such other
documentation as may be reasonably required by WGRC, the Facility
Agent or the Rating Agency; and (iv) in the case of any additional
Seller other than Cameron, the Rating Agency shall have confirmed
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in writing that such addition will not cause its rating of the
Facility to be reduced or withdrawn. Upon the satisfaction of all
such conditions precedent with respect to any such additional
Seller, each of the applicable schedules and exhibits hereto shall
be automatically deemed amended in accordance with the applicable
Assumption Agreement, without any further action on the part of any
of the parties hereto. Prior to or within a reasonable time
following the addition of any new Seller under this Section 2.06,
WGRC (or the Facility Agent as its designee) shall have the right
to conduct a review of any additional Seller's books and records
relating to the Receivables sold or to be sold by such Seller, the
costs and expenses of which review shall be borne by Wyman and/or
such new Seller as Wyman and such Seller may mutually agree.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Sellers.
Each Seller represents and warrants that as of the Initial Purchase
Date with respect to such Seller and (except for representations
and warranties which relate to a specific date only) as of the date
of each Purchase:
(a) Such Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of its state of
incorporation and has all governmental licenses, authorizations,
consents and approvals required to carry on its business, and is in
good standing in each jurisdiction in which its business is now
conducted, except where the absence of such licenses,
authorizations, consents, approvals or good standing would not have
a Material Adverse Effect.
(b) The execution, delivery and performance by such Seller of
this Agreement, the other Facility Documents to which it is a party
and all other agreements, instruments and documents executed and
delivered by such Seller hereunder and thereunder, and the
transactions contemplated hereby and thereby, are within such
Seller's corporate powers, have been duly authorized by all
necessary corporate action, and do not and will not (i) result in
or require the creation of any Lien upon or with respect to any
Purchased Assets except as created in favor of WGRC hereunder nor
result in or require the creation of any material Lien with respect
to its other properties; (ii) violate, conflict with or result in a
breach or default under such Seller's charter or by-laws; (iii)
violate, conflict with or result in a breach or default under any
law, rule or regulation applicable to such Seller or its property;
(iv) violate, conflict with or result in a breach or default under
any contractual restriction contained in any indenture, loan,
credit agreement or bond; (v) violate, conflict with or result in a
breach or default under any lease, mortgage, security agreement,
note, or other agreement or instrument binding on such Seller or to
which its property is subject, which violation, breach or default
would have a Material Adverse Effect; or (vi) violate, conflict
with or result in a breach of any order, writ, judgment, award,
injunction or decree binding on such Seller or to which its
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property is subject. No transaction contemplated hereby requires
compliance with any bulk sales act or similar law. This Agreement
has been duly executed and delivered on behalf of such Seller.
(c) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or
regulatory body, governmental agency or official or other Person is
required for the due execution, delivery and performance by such
Seller of this Agreement, any other Facility Document to which it
is a party or any other agreement, document or instrument delivered
hereunder or thereunder except for the filing of UCC Financing
Statements to evidence WGRC's ownership interests in the
Receivables and other Purchased Assets purchased hereunder and all
proceeds thereof, which filings have been duly made and are, and on
or prior to each Purchase will be, in full force and effect, and
for other consents which have been duly obtained.
(d) This Agreement and each of the other Facility Documents
to which such Seller is a party each constitutes the legal, valid
and binding obligation of such Seller enforceable against such
Seller in accordance with its terms.
(e) Immediately prior to WGRC's Purchase of each Purchased
Asset sold by such Seller hereunder, such Seller is or will be the
lawful owner of, and have good title to, such Purchased Asset, free
and clear of all Liens except Permitted Liens. Upon the Purchase
of each Receivable sold by such Seller hereunder, WGRC shall
acquire all of the right and title to and interest of such Seller
in such Receivable and all other Purchased Assets relating thereto,
free and clear of any Liens (except Permitted Liens) and shall have
a valid, perfected first priority ownership interest in such
Receivables, subject only to Permitted Liens. The Purchases of the
Purchased Assets by WGRC constitute true and valid sales and
transfers for consideration (and not merely a pledge of such
Purchased Assets for security purposes), enforceable against
creditors of such Seller and no Purchased Assets shall constitute
property of such Seller. No effective financing statement or other
instrument similar in effect covering all or any part of such
Purchased Assets naming such Seller as assignor or debtor shall at
such time be on file in any filing or recording office except as
may be filed in favor of WGRC or its assigns pursuant to the
Facility Documents.
(f) The use of all funds received by such Seller under this
Agreement will not violate Regulations G, T, U and X, as in effect
from time to time.
(g) No information, exhibit, financial statement, document,
book, record or report (including, without limitation, the
Information Memorandum) furnished or to be furnished by such Seller
(whether individually or in its capacity as Servicer or sub-
servicer, as the case may be) to WGRC, the Agents, the Banks and/or
the Issuing Bank in connection with this Agreement or any of the
other Facility Documents is or shall be inaccurate in any material
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respect, or contains or shall contain any material misstatement of
fact, or omits or shall omit to state a material fact or any fact
necessary to make the statements contained therein not materially
misleading in light of the circumstances under which they were
made, in each case, as of the date it is or shall be dated or
(except as otherwise disclosed to WGRC or the foregoing parties, as
the case may be, at such time) as of the date so furnished.
(h) The principal place of business and chief executive
office of such Seller are located at the address of such Seller
referred to in Section 7.02 hereof and the locations of the offices
where the Records and computer software are kept, together with
each other location within the states of Massachusetts and New
Hampshire where the Sellers conduct business, are listed on
Schedule 3.01(h) (or at such other locations, notified to WGRC and
the Agents in accordance with Section 4.01(d), in jurisdictions
where all action required by Section 5.05 has been taken and
completed).
(i) Each Obligor has been instructed to remit payment on the
Receivables either to (1) one of the Lock-Box Accounts to be
utilized by WGRC or (2) via wire transfer, directly to the
Collection Account. From and after its Initial Purchase Date, such
Seller will have no right, title and/or interest to any of the
Lock-Box Accounts and will maintain no lock-box accounts in its own
name for the collection of such Receivables. The account numbers
of all Lock-Box Accounts, together with the names and addresses of
all the Lock-Box Banks maintaining such Lock-Box Accounts, are
specified in Schedule 3.01(i).
(j) During the five-year period prior to the Initial Purchase
Date, such Seller has had no trade names, fictitious names, assumed
names or any other names under which it has done or is doing
business except as set forth in Schedule 3.01(j).
(k) There are no actions, suits or proceedings pending, or to
the knowledge of such Seller, threatened, against it or affecting
it or its property in any court, or before any arbitrator of any
kind, or before or by any governmental body, which (i) challenge
the validity, legality or enforceability of this Agreement or any
of the other Facility Documents, or (ii) would have a Material
Adverse Effect.
(l) All of the computer software used by such Seller to
account for the Receivables is set forth in Schedule 3.01(l)
hereto. The Servicer, WGRC and their respective assigns (including
any successor Servicers) have (or will have, concurrently with the
effectiveness hereof) an enforceable right (whether pursuant to
Section 2.05 hereunder or by separate sublicense and except as
otherwise contemplated by Section 2.05(c)) to use all such computer
software to the extent necessary for administering the Receivables.
(m) On the date of Purchase thereof, each Receivable is,
unless otherwise identified in the Daily Report, an Eligible
Receivable.
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(n) Such Seller, on its Initial Purchase Date, (i) is not
"insolvent" (as such term is defined in Section 101(31)(A) of the
Bankruptcy Code); (ii) is able to pay its debts as they mature and
(iii) does not have unreasonably small capital for the business in
which it is engaged or for any business or transaction in which it
is about to engage.
(o) Such Seller is entering into the transactions
contemplated by this Agreement in reliance on WGRC's identity as a
separate legal entity from each Seller and each of its Affiliates
other than WGRC, and acknowledges that WGRC and the other parties
to the Facility Documents are similarly entering into the
transactions contemplated by the other Facility Documents in
reliance on WGRC's identity as a separate legal entity from each
Seller and each such other Affiliate.
(p) Such Seller is not (i) an "investment company" registered
or required to be registered under the Investment Company Act of
1940, as amended, or (ii) a "holding company", or a "subsidiary
company" or an "affiliate" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as
amended.
(q) Wyman has delivered to WGRC complete and correct copies
of the audited consolidated balance sheet of Wyman as of December
31, 1993 and the unaudited consolidated balance sheet of Wyman as
of March 31, 1994 and related consolidated statements of income and
cash flows for the twelve-month and three-month periods then ended,
respectively. Such balance sheets and statements of income and
cash flows have been prepared in accordance with GAAP consistently
applied (subject to changes in application which were approved by
Wyman's independent public accountants and were disclosed therein
and subject to normal year-end adjustments in the case of the
unaudited statements), and present fairly in all material respects
Wyman's financial position as of the dates indicated above and the
results of its operations for the periods then ended.
(r) None of the inventory the sale of which has given or may
hereafter give rise to a Receivable, is subject to any Lien (other
than Permitted Liens).
(s) All of the Receivables are evidenced by an Invoice
substantially in one of the forms collectively attached hereto as
Exhibit B hereto, or such other written contract and/or form of
invoice approved by WGRC (or, to the extent required under the
Revolving Credit Agreement, by its assigns) in writing.
(t) As of its Initial Purchase Date, such Seller is not in
default under any indenture or any loan, credit or other agreement
with respect to Indebtedness, the effect of which is to cause, or
to permit (or would, with the giving of notice or the lapse of time
or both, permit) the holder or holders of such Indebtedness to
cause, such Indebtedness to become due prior to its stated
maturity.
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(u) Such Seller currently maintains, and shall continue to
maintain, such liability and casualty insurance as may be required
by applicable law, as is necessary for the continued operation of
its businesses and as is customarily maintained by companies
engaged in similar businesses.
(v) No accumulated funding deficiency (as defined in Section
302(a)(2) of ERISA or Section 412(a) of the IRC) exists with
respect to any Benefit Plan, and such Seller has not failed to
satisfy the minimum funding requirements under ERISA or the IRC
with respect to any Benefit Plan which deficiency or failure would
cause any Lien (other than a Permitted Lien) to attach to the
Purchased Assets under Title IV of ERISA. As of its Initial
Purchase Date, such Seller has no intent to terminate or to permit
any ERISA Affiliate to terminate any Benefit Plan which would cause
any Lien (other than a Permitted Lien) to attach to the Purchased
Assets under Title IV of ERISA.
(w) Wyman and, where applicable, each Seller, has filed or
caused to be filed all federal, state and local tax returns which
are required to be filed by it, and has paid or caused to be paid
all taxes shown to be due and payable on such returns or in any
assessments received by it, other than taxes or assessments, the
validity of which are being contested in good faith by appropriate
proceedings and with respect to which Wyman or each Seller, as
applicable, has set aside adequate reserves on its books in
accordance with GAAP and which proceedings would not have a
Material Adverse Effect.
(x) The transactions contemplated by this Agreement and by
each of the Facility Documents are being consummated by each Seller
in furtherance of such Seller's ordinary business, with no
contemplation of insolvency and with no intent to hinder, delay or
defraud any of its present or future creditors. As of the
Effective Date, and as of each Purchase Date, the Sellers shall
have received reasonably equivalent value for the Receivables sold
or otherwise conveyed to WGRC under this Agreement.
(y) (i) As of the Effective Date, Wyman owns 100% of the
issued and outstanding stock of the other Initial Sellers, (ii) as
of Cameron's Initial Purchase Date, Wyman shall own 100% of the
issued and outstanding stock of Cameron and (iii) as of the date of
each Purchase, Wyman shall own (directly or indirectly) at least
80% of the issued and outstanding stock of each other Seller.
SECTION 3.02. Representations and Warranties of WGRC. WGRC
represents and warrants that as of the Effective Date and (except
for representations and warranties which relate to a specific date
only) as of the date of each Purchase:
(a) WGRC is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and is
duly qualified to do business, and is in good standing, in every
applicable jurisdiction except where the failure to be so qualified
and to be in good standing could not reasonably be expected to have
a Material Adverse Effect.
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(b) The execution, delivery and performance by WGRC of this
Agreement, the other Facility Documents to which it is a party and
all other agreements, instruments and documents delivered by WGRC
hereunder and thereunder, and the transactions contemplated hereby
and thereby, are within WGRC's corporate powers, and have been duly
authorized by all necessary corporate action, and do not and will
not (i) result in or require the creation of any Lien upon or with
respect to any of its properties except as created in favor of the
Collateral Agent for the benefit of the Agents and the Banks or
(ii) violate, conflict with or result in a breach or default under
any of the following: WGRC's charter or by-laws; any law, rule or
regulation applicable to WGRC or its property; any contractual
restriction contained in any indenture, loan or credit agreement,
lease, mortgage, security agreement, bond, note, or other agreement
or instrument binding on WGRC or to which its property is subject;
or any order, writ, judgment, award, injunction or decree binding
on WGRC or to which its property is subject. This Agreement has
been duly executed and delivered on behalf of WGRC.
(c) No authorization or approval or other action by, and no
notice to or filing with, any government authority or regulatory
body or other Person is required for the due execution, delivery
and performance by WGRC of this Agreement, any other Facility
Document executed between the Sellers and WGRC or any other
agreement, document or instrument delivered hereunder or thereunder
except for the filing of UCC Financing Statements to evidence
WGRC's ownership interests in the Receivables purchased hereunder
and all proceeds thereof and to evidence the Collateral Agent's
security interest in the Purchased Assets under the Revolving
Credit Agreement.
(d) This Agreement and each of the other Facility Documents
to which WGRC is a party constitutes the legal, valid and binding
obligation of WGRC enforceable against WGRC in accordance with its
terms.
SECTION 3.03. Representations and Warranties of the Servicer.
The Servicer represents and warrants that as of the Effective Date
and continuing through the Collection Date:
(a) The Servicer is a corporation duly incorporated, validly
existing and in good standing under the laws of its state of
incorporation and has all governmental licenses, authorizations,
consents and approvals required to carry on its business, and is in
good standing in each jurisdiction in which its business is no
conducted, except where the absence of such licenses,
authorizations, consents, approvals or good standing would not have
a Material Adverse Effect.
(b) The execution, delivery and performance by the Servicer
of this Agreement, the other Facility Documents to which it is a
party and all other agreements, instruments and documents delivered
by the Servicer hereunder and thereunder, and the transactions
contemplated hereby and thereby, are within the Servicer's
corporate powers, have been duly authorized by all necessary
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corporate action, and do not and will not (i) result in or require
the creation of any Lien upon or with respect to any of its
properties except as created in favor of WGRC hereunder or in favor
of the Collateral Agent for the benefit of the Agents and the
Banks; (ii) violate, conflict with or result in a breach or default
under the Servicer's charter or by-laws; (iii) violate, conflict
with or result in a breach or default under any law, rule or
regulation applicable to the Servicer or its property; (iv)
violate, conflict with or result in a breach or default under any
contractual restriction contained in any indenture, loan or credit
agreement, lease, mortgage, security agreement, bond, note, or
other agreement or instrument binding on the Servicer or to which
its property is subject, which violation, breach or default would
have a Material Adverse Effect; or (v) violate, conflict with or
result in a breach of any order, writ, judgment, award, injunction
or decree binding on the Servicer or to which its property is
subject. This Agreement has been duly executed and delivered on
behalf of the Servicer.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution, delivery
and performance by the Servicer of this Agreement, any other
Facility Document executed by the Servicer or any other agreement,
document or instrument delivered by the Servicer hereunder or
thereunder except for the filing of UCC Financing Statements to
evidence WGRC's ownership interests in the Receivables purchased
from the Sellers and all proceeds thereof and to evidence the
Collateral Agent's security interest in the Purchased Assets under
the Revolving Credit Agreement.
(d) This Agreement and each of the other Facility Documents
to which the Servicer is a party constitutes the legal, valid and
binding obligation of the Servicer enforceable against the Servicer
in accordance with its terms.
ARTICLE IV
GENERAL COVENANTS OF THE SELLERS
SECTION 4.01. Affirmative Covenants of the Sellers. From the
date hereof until the Collection Date, each Seller will, unless
WGRC (or, to the extent required under the Revolving Credit
Agreement, its assigns) shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all respects with
all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards with respect to it, its business and
properties and all of the Purchased Assets, including, without
limitation, all Receivables and related Invoices included therein,
except where the failure to so comply would not have a Material
Adverse Effect.
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(b) Preservation of Corporate Existence. Preserve and
maintain its corporate existence, good standing, rights, franchises
and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified in good standing as a foreign
corporation in each jurisdiction in which its business is
conducted, except where the failure to preserve and maintain such
existence, good standing, rights, franchises, privileges and
qualification would not have a Material Adverse Effect; provided,
that nothing in this Section 4.01(b) shall be deemed to prohibit
any Seller or any Subsidiary of a Seller from merging with or
consolidating with or into, or from disposing of assets (other than
Purchased Assets) to and from, any other Seller or Subsidiary or a
Seller (other than WGRC); provided, however, that any survivor of
any such merger or consolidation (if not a Seller) must satisfy
each of the conditions precedent set forth in Section 2.06
hereunder.
(c) Performance and Compliance with Receivables. At its
expense, timely and fully perform and comply with all provisions,
covenants and other promises required to be observed by it with
respect to the Receivables included in the Purchased Assets, except
where the failure to so perform and comply would not have a
Material Adverse Effect.
(d) Location of Records. Keep its principal place of
business and chief executive office at the address of such Seller
referred to in Section 7.02 hereof, and the offices where it keeps
the Records, at the addresses referred to on Schedule 3.01(h) or,
upon 30 days' prior written notice to WGRC and the Facility Agent,
at such other locations within the United States where all action
required by Section 5.05 shall have been taken and completed;
provided, that, in the case of any change in a Seller's principal
place of business and chief executive office to a location other
than North Grafton, Massachusetts such Seller shall also provide,
prior to such change, an opinion of counsel reasonably acceptable
to the Facility Agent as to continued perfection of the ownership
interests in the Receivables hereunder following such change.
(e) Credit and Collection Policy. Comply in all material
respects with the Credit and Collection Policy attached hereto as
Exhibit C (as such Credit and Collection Policy may be amended in
accordance with Section 4.03(c)) applicable to the Receivables and
the related Invoices included in the Purchased Assets.
(f) Collections. Instruct all Obligors to cause all
Collections to be deposited directly to a Lock-Box Account. If
such Seller or any of its agents or representatives shall receive
any Collections, such recipient will comply with the terms and
provisions of Section 5.01(a) hereof.
(g) Audits; Information. Each Seller will furnish WGRC and
its permitted assigns from time to time such information with
respect to the Receivables as WGRC shall reasonably request from
such Seller. At any time and from time to time during any Seller's
normal business hours, with reasonable notice, such Seller shall
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permit WGRC, its permitted assigns or their respective agents or
representatives, (i) to examine and make copies of and abstracts
from all books, records and documents (including, without
limitation, computer tapes and discs) in the possession or under
the control of such Seller relating to the Receivables or the other
Purchased Assets, (ii) to visit the offices and properties of such
Seller for the purpose of examining such materials described in
clause (i) above, (iii) to discuss matters relating to the
Receivables or the other Purchased Assets, or such Seller's
performance hereunder with any of the officers or employees of such
Seller having knowledge of such matters and (iv) to verify the
validity, amount or any other matter relating to any Receivable.
The Sellers further agree that WGRC or its assigns shall be
entitled to have certified public accountants or other auditors
conduct a review of their books and records relating to the
Purchased Assets in connection with any outside review of such
Purchased Assets as contemplated under Section 7.02 of the
Revolving Credit Agreement. Each Seller agrees that the Facility
Agent shall be permitted to substitute for and/or accompany WGRC on
any such inspection or visit and to participate in any such
discussion. Each Seller further agrees to instruct its independent
accountants to cooperate with any reasonable request of WGRC, the
Facility Agent or their respective agents or representatives, in
connection with the performance of such accountants' routine
verification procedures with respect to the Receivables or the
Related Security. Without limiting the foregoing, each Seller
shall, in connection with any review of WGRC's books and records by
certified public accountants or other auditors pursuant to Section
7.02 of the Revolving Credit Agreement, permit such accountants or
auditors to examine its books and records relating to the Purchased
Assets and the Facility Documents.
(h) Delivery of Records. Upon the request of WGRC, its
agents, representatives or permitted assignees, deliver or cause to
be delivered, copies of all Records, including, without limitation,
computer tapes generated by or on behalf of such Seller or any of
its Consolidated Affiliates, relating to the Purchased Assets
(including all Receivables and Collections included therein).
(i) Segregation of Collections. Use all reasonable efforts,
whether in its capacity as Seller or as Servicer (if applicable),
to minimize the deposit of any funds other than Collections into
any of the Lock-Box Accounts and, to the extent that any such funds
are nevertheless deposited into any of such Lock-Box Accounts,
promptly identify any such funds to WGRC.
(j) Books and Records. Maintain at all times complete books,
records and accounts relating to the Purchased Assets sold by such
Seller hereunder (including all Receivables and Collections
included therein) in which timely entries are made in accordance
with GAAP. Such books and records shall be marked to indicate the
sales of all Receivables and Related Security by such Seller
hereunder and shall include, without limitation, (a) all payments
received and all credits and extensions granted with respect to
such Receivables; (b) the return, rejection, repossessions, or
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stoppage in transit of any merchandise the sale of which has given
rise to a Receivable included in the Purchased Assets; and (c) any
other Dilution Factors.
(k) Identification of Eligible Receivables. (i) Establish
and maintain procedures as are necessary for determining whether
each Receivable qualifies as an Eligible Receivable and for identi-
fying, on any date, the aggregate Outstanding Balances of all
Eligible Receivables; and (ii) notify WGRC in advance of Purchase
if a Receivable proposed to be sold by such Seller hereunder will,
to such Seller's knowledge, not be an Eligible Receivable as of the
date of Purchase.
(l) Notification of Noncomplying Receivables. Promptly
notify WGRC, the Servicer and the Agents of such Seller's
determination that any Receivables previously sold hereunder were,
as of the date of Purchase thereof, Noncomplying Receivables (it
being understood that monthly disclosure of such Noncomplying
Receivables in connection with delivery of the Settlement Statement
shall be sufficient).
(m) Separate Identity. Take all actions required to maintain
WGRC's status as a separate legal entity, including, without
limitation, (i) not holding WGRC out to third parties as other than
an entity with assets and liabilities distinct from each Seller and
Wyman's other Subsidiaries; (ii) not holding itself out to be
responsible for the debts of WGRC or, other than by reason of
owning capital stock of WGRC (if applicable), for any decisions or
actions relating to the business and affairs of WGRC; (iii) taking
such other actions as are necessary on its part to ensure that all
corporate procedures required by its and WGRC's respective
certificates of incorporation and by-laws are duly and validly
taken; (iv) keeping correct and complete records and books of
account and corporate minutes; (v) not acting in any other matter
that could foreseeably mislead others with respect to WGRC's
separate identity; and (vi) taking such other actions as may be
necessary on its part to ensure that WGRC is in compliance at all
times with Section 6.01(l) and Section 7.09 of the Revolving Credit
Agreement.
(n) Taxes. File or cause to be filed, and cause each of its
Subsidiaries with whom it shares consolidated tax liability to
file, all Federal, state and local tax returns which are required
to be filed by it, except where the failure to file such returns
would not have a Material Adverse Effect, and pay or cause to be
paid all taxes shown to be due and payable on such returns or on
any assessments received by it, other than any taxes or
assessments, the validity of which are being contested in good
faith by appropriate proceedings and with respect to which such
Seller or such Subsidiary shall have set aside adequate reserves on
its books in accordance with GAAP.
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(o) Ownership of Sellers. Take all actions required on its
part to ensure that, at all times through the Termination Date,
Wyman continues to own (directly or indirectly) at least 80% of the
issued and outstanding stock of each other Seller; provided, that
Wyman shall notify the Agents and the Rating Agency of any change
in ownership of the capital stock of the other Sellers.
SECTION 4.02. General Reporting Requirements of the Sellers.
From the date hereof until the Collection Date, each Seller (or,
with respect to subsections (b), (c) and (d) below, Wyman only)
shall, unless WGRC (or, to the extent required under the Revolving
Credit Agreement, its assigns) shall otherwise consent in writing,
furnish to WGRC (and, to the extent directed by WGRC below, to
WGRC's assigns or designees):
(a) As soon as practicable and in no event later than two
Business Days after a senior financial officer of the Seller has
actual knowledge of the occurrence of each Liquidation Event or
Unmatured Liquidation Event which results from or relates to an act
or omission of such Seller, a statement from such officer setting
forth such Liquidation Event or Unmatured Liquidation Event and the
action which such Seller proposes to take with respect thereto
(copies of which shall be concurrently furnished to the Facility
Agent and the Rating Agency);
(b) As soon as available and in any event within one-hundred
five (105) days after the end of each fiscal year of Wyman, a copy
of the annual audited consolidated statements of income and cash
flows for Wyman and its consolidated Subsidiaries for such fiscal
year and the related consolidated balance sheet as at the end of
such fiscal year, setting forth in each case in comparative form
the corresponding figures for the preceding fiscal year and
prepared in accordance with GAAP consistently applied (except for
such changes in application which are in accordance with GAAP and
are approved by Wyman's independent public accountants and
disclosed therein), reported on in reasonable detail and
accompanied by an unqualified opinion (except for qualifications
relating to contingencies which are otherwise adequately disclosed
but are not quantifiable for reasons outside the Sellers' control)
from Ernst & Young or other independent certified public
accountants of recognized national standing selected by Wyman and
reasonably acceptable to WGRC (copies of which shall be
concurrently furnished to the Banks, the Agents and the Rating
Agency), it being expressly understood that this clause (b) may be
satisfied by delivery to the above-named parties of Wyman's annual
report on Form 10-K to the Securities and Exchange Commission for
the appropriate fiscal year;
(c) As soon as available and in any event within sixty (60)
days after the end of each of the first three fiscal quarters of
each fiscal year of Wyman, a copy of the unaudited consolidated
statements of income and cash flows for Wyman and its consolidated
Subsidiaries for such fiscal quarter and for the period from the
beginning of the respective fiscal year to the end of such fiscal
quarter and the related unaudited consolidated balance sheet as at
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the end of such fiscal quarter; setting forth in each case in
comparative form the corresponding figures for the preceding fiscal
year and all of the foregoing to be prepared in accordance with
GAAP consistently applied (except for such changes in application
which are in accordance with GAAP and are approved by Wyman's
financial officer preparing such statements and disclosed therein)
(copies of which shall be concurrently furnished to the Banks and
the Agents), it being expressly understood that this subsection (c)
may be satisfied by delivery to the above-named parties of Wyman's
quarterly report on Form 10-Q to the Securities and Exchange
Commission for the appropriate fiscal quarter;
(d) Contemporaneously with the furnishing of a copy of the
annual and quarterly financial statements provided for in
subsections 4.02(b) and (c), respectively, a certificate dated the
date of delivery and signed by a Responsible Officer of Wyman,
which certificate shall state (i) that said financial statements
fairly present the financial position and results of operations of
Wyman and its consolidated Subsidiaries in accordance with GAAP
consistently applied (except for such changes in application which
are in accordance with GAAP and are approved by Wyman's independent
public accountants or, in the case of the quarterly reports, by
such Responsible Officer and disclosed therein and further subject
to normal year-end adjustments) and (ii) that the officer signing
such certificate has reviewed the relevant terms of this Agreement
and has made, or caused to be made under such officer's
supervision, a review of each Seller's and WGRC's activities during
the period covered by the statements then being furnished, and that
the review has not disclosed the existence of a Liquidation Event
or Unmatured Liquidation Event, or if there is such an event,
describing it and the steps, if any, taken or being taken to cure
it (with copies of each such certificate to be concurrently
furnished to the Banks, the Agents and the Rating Agency);
(e) Promptly after the filing or receipt thereof, copies of
all reports and notices with respect to any Reportable Event
defined in Article IV of ERISA (other than any such Reportable
Event for which the Pension Benefit Guaranty Corporation has waived
the 30-day notice requirement) which such Seller or any ERISA
Affiliate files under ERISA with the Internal Revenue Service or
the Pension Benefit Guaranty Corporation or the U.S. Department of
Labor or which such Seller or any ERISA Affiliate receives from the
Pension Benefit Guaranty Corporation (copies of which shall be
concurrently furnished to the Facility Agent and the Rating
Agency);
(f) Promptly, from time to time, such other information,
documents, records or reports respecting the Purchased Assets,
including, without limitation, the Receivables, or the conditions
or operations, financial or otherwise, of such Seller as WGRC, the
Facility Agent, or any of their respective agents, representatives
or permitted assignees, may from time to time reasonably request,
in order to protect the interests of WGRC and its assigns under or
as contemplated by this Agreement and the other Facility Documents
and to enable WGRC and the Agents to perform their respective
reporting requirements under the other Facility Documents.
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The Sellers will cause any financial statements consolidated
with those of WGRC to contain a footnote to the effect that WGRC's
business consists of the purchase of Receivables from the Sellers
and that WGRC is a separate corporate entity with its own separate
creditors.
SECTION 4.03. Negative Covenants of the Sellers. From the
date hereof until the Collection Date, each Seller will not,
without the written consent of WGRC (or, to the extent required
under the Revolving Credit Agreement, the written consent of its
assigns):
(a) Sales, Liens, Etc. Against Receivables. Except as
otherwise provided herein, (1) sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist
any Liens (except as created in favor of WGRC hereby or as created
by WGRC pursuant to any Facility Document and except for Permitted
Liens) upon or with respect to any of the Receivables sold or other
Purchased Assets sold or to be sold by such Seller hereunder or
with respect to any Lock-Box Account; or (2) assign any right to
receive income in respect of such Receivables, Purchased Assets or
Lock-Box Account (except that any Seller may assign its rights
under the Intercompany Notes to any other Seller). In the event
that such Seller fails to keep any Purchased Assets free and clear
of any Lien (except as created in favor of WGRC hereunder or as
created by WGRC pursuant to any other Facility Document and except
for Permitted Liens), WGRC may (without limiting its other rights
with respect to such Seller's breach of its obligations hereunder)
make reasonable expenditures necessary to release such Lien. WGRC
shall be entitled to indemnification for any such expenditures
pursuant to the indemnification provisions of Section 6.01, or WGRC
may, alternatively, deduct such expenditures as an offset to the
Purchase Price owed to such Seller hereunder or as a reduction to
the Short-Term Note or, if applicable, the Long-Term Note;
provided, however, that in the event of any dispute between such
Seller and the alleged holder of such Lien as to the amount or
validity of such Lien, such expenditure shall be made only after
consultation with such Seller as to the status of such Lien and the
action such Seller or any of its Consolidated Affiliates is taking
or plans to take with respect thereto.
(b) Extension or Amendment of Receivables. Except, as
applicable, for any adjustments made in its capacity as Servicer or
subservicer pursuant to Section 5.03(a), extend, amend or otherwise
modify the terms of any of its Receivables included in the
Purchased Assets without the prior consent of WGRC.
(c) Change in Credit and Collection Policy and Invoice Form.
(i) Make any change in the Credit and Collection Policy which could
reasonably be expected to impair the collectibility of the
Receivables or to result in a material delay in the collection
thereof or would be inconsistent with collection practices of the
industry or would otherwise adversely affect the interests of WGRC
and/or the Banks' interests under the Revolving Credit Agreement in
any material respect (it being understood by WGRC that, (without
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waiving its right to object to any such change) the Sellers intend
to consolidate their separate policies into a single policy for
reasons of organizational efficiency but without deviating from the
substantive policies reflected in Exhibit C as attached hereto),
(ii) make any material changes in the forms of Invoices or (iii)
except as otherwise permitted under Section 5.03, amend or modify
the terms of any Invoice evidencing a Receivable sold hereunder
(provided, that, with respect to any such change under any of the
foregoing clauses (i) through (iii), concurrent notice thereof
shall be given to WGRC, the Facility Agent and the Rating Agency).
(d) Change in Payment Instructions to Obligors. (i) Make any
change in its instructions to Obligors directing payments other
than to a Lock-Box Account or, via wire transfer, the Collection
Account, or (ii) voluntarily add or terminate any bank as a Lock-
Box Bank unless, with respect to the addition of a Lock-Box Bank,
WGRC and the Facility Agent shall have first received and approved
(which approval shall not be unreasonably withheld) (x) copies of
Lock-Box Agreements executed by each new Lock-Box Bank and all
applicable Sellers and (y) copies of all agreements and documents
signed by all applicable Sellers or the respective Lock-Box Bank
with respect to any new Lock-Box Account.
(e) Change in Corporate Name. Make any change to its
corporate name or conduct any business under any trade names,
fictitious names or assumed names other than those identified on
Schedule 3.01(j) unless (i) WGRC, the Facility Agent and the Rating
Agency shall have received twenty (20) Business Days prior written
notice of such name change or use and (ii) at least ten (10)
Business Days prior to the effective date of any such name change
or use, such Seller shall have executed and delivered to WGRC such
Financing Statements (Form UCC-1 and UCC-3) which WGRC may request
to reflect such name change or use, together with such other
documents and instruments (including, in the case of any change to
a Seller's corporate name, an opinion of counsel reasonably
acceptable to the Facility Agent as to continued perfection of the
ownership interests in the Receivables created hereunder following
such change) that WGRC may request in connection therewith.
(f) Accounting of Purchases. Prepare any financial
statements which shall account for the transactions contemplated
hereby in any manner other than the sale of the Purchased Assets by
the Sellers to WGRC, or in any other respect account for or treat
the transactions contemplated hereby (including but not limited to
accounting and, where taxes are not consolidated, for tax reporting
purposes) in any manner other than as a sale of the Purchased
Assets by the Sellers to WGRC.
(g) ERISA Matters. (i) Engage or permit any ERISA Affiliate
to engage in any prohibited transaction for which an exemption is
not available or has not previously been obtained from the United
States Department of Labor; (ii) permit to exist any accumulated
funding deficiency, as defined in Section 302(a) of ERISA and
Section 412(a) of the IRC, with respect to any Benefit Plan other
than a Multiemployer Plan; (iii) fail to make any payments to any
Multiemployer Plan that Wyman, any other Seller or any ERISA
Affiliate may be required to make under the agreement relating to
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such Multiemployer Plan or any law pertaining thereto; (iv) termi-
nate or permit any ERISA Affiliate to terminate any Benefit Plan
which could result in any liability of Wyman, any other Seller or
any ERISA Affiliate under Title IV of ERISA; or (v) permit to exist
any occurrence of any reportable event described in Title IV of
ERISA which represents a material risk of a liability of Wyman, any
other Seller or any ERISA Affiliate under ERISA or the IRC, if such
prohibited transactions, accumulated funding deficiencies,
payments, terminations and reportable events occurring within any
fiscal year of Wyman, in the aggregate, would be reasonably likely
to cause any Lien (other than Permitted Liens) to attach to the
Purchased Assets under Title IV of ERISA.
ARTICLE V
ADMINISTRATION AND COLLECTION
SECTION 5.01. Collection of Receivables. (a) As of its
Initial Purchase Date, each Seller shall have transferred to WGRC
the exclusive ownership and control of the Lock-Box Accounts used
by it and all related lock-boxes, and each Seller hereby agrees to
take any further action necessary or that WGRC may reasonably
request to effect or maintain the effectiveness of any such
transfer. From and after the Initial Purchase Date applicable to
any Seller, such Seller shall not have any further right, title
and/or interest in or control over any of the Lock-Box Accounts or
related lock-boxes. Unless instructed otherwise by the Facility
Agent or the Collateral Agent pursuant to their authority under the
Revolving Credit Agreement (in which case, concurrent notice
thereof shall be given to the Rating Agency), each Lock-Box Bank
shall be instructed to remit, on a daily basis, via overnight or
same day transfer, all amounts deposited in its Lock-Box Accounts
to the Collection Account in accordance with the terms of a Lock-
Box Agreement substantially in the form of Exhibit 9.03 to the
Revolving Credit Agreement, with such changes as the Facility Agent
may approve. The Servicer shall advise WGRC daily of the amount of
Collections received or to be received into the Collection Account
on such day with respect to the Receivables and WGRC shall
determine the amounts of such Collections which, pursuant to the
terms of the Revolving Credit Agreement, may be used by WGRC to
purchase new Receivables hereunder. If any Seller or its agents or
representatives shall at any time receive any cash, checks or other
instruments which constitute Collections, such recipient shall
promptly segregate such payment and hold such payment in trust for
and in a manner acceptable to WGRC and shall, promptly upon
identification of any such payment (and in any event within two
Business Days following such identification), remit all such cash,
checks and instruments, duly endorsed or with duly executed
instruments of transfer, to a Lock-Box Account or to the Collection
Account. WGRC may notify any or all of the Obligors of the
ownership of Purchased Assets by WGRC and may direct any or all of
the Obligors of Receivables included in the Purchased Assets to pay
all amounts payable under any such Receivables directly to the
Collection Account (i) at any time, with contemporaneous notice to
Wyman and the applicable Seller, after the occurrence and during
the continuance of a Liquidation Event or (ii) otherwise, at any
time following five Business Days' advance notice to Wyman and the
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applicable Seller. At WGRC's request and at each Seller's expense,
such Seller shall give notice of WGRC's ownership of Purchased
Assets purchased from such Seller to each Obligor thereunder and
direct that payments be made directly to the Collection Account and
assemble all Records of such Seller, and make the same available to
WGRC at a place selected by WGRC or its designee. Each Seller
hereby authorizes WGRC, and gives WGRC its irrevocable power of
attorney, which authorization shall be coupled with an interest, to
take any and all steps in such Seller's name and on behalf of such
Seller, which steps are necessary or desirable, in the reasonable
determination of WGRC, to collect all amounts due under the
Purchased Assets, including, without limitation, endorsing such
Seller's name on checks and other instruments representing
Collections and enforcing such Receivables and the related Invoices
(it being understood that WGRC or the Servicer on behalf of WGRC,
and not the Sellers, shall be responsible for such expenses of
enforcement except as otherwise provided in Article VI hereof).
(b) WGRC shall, following notification that collections of
any receivable or other intangible owed to any Seller or any
Affiliate thereof, which is not a Purchased Asset, have been
deposited into the Lock-Box Accounts, request that the Collateral
Agent segregate all such collections. Promptly, after such
misapplied collections have been reasonably identified to WGRC and
the Collateral Agent, WGRC shall (or shall cause the Collateral
Agent to) turn over to such Seller or such Affiliate, as
applicable, all such collections less all reasonable and
appropriate out-of-pocket costs and expenses, if any, incurred by
WGRC and the Collateral Agent in collecting such receivables.
Except as expressly stated above in this Section 5.01(b), and
notwithstanding anything to the contrary in this Agreement, WGRC
shall have no obligation to collect, enforce or take any other
action with respect to any receivable or other intangible not
included in the Purchased Assets.
SECTION 5.02. Designation of Servicer. (a) The servicing,
administering and enforcement of collection of the Receivables
shall be conducted by the Person (the "Servicer") so designated
from time to time in accordance with this Section 5.02; provided,
that the Servicer shall be entitled at any time and from time to
time to designate one or more third parties to act as subservicers
on its behalf in connection with its duties as Servicer hereunder;
provided further, however, that no such designation shall relieve
the Servicer of its obligations and liabilities as Servicer. Until
WGRC or, in the event of a Servicer Termination Event, the
Collateral Agent gives notice to Wyman of the designation of a new
Servicer, Wyman is hereby designated as, and hereby agrees to
perform the duties and obligations of, the Servicer pursuant to the
terms hereof, together with such other duties and obligations of
the Servicer set forth in the Revolving Credit Agreement. It is
expressly understood that Wyman may designate each other Seller as
the subservicer with respect to the Receivables of such Seller. It
is expressly understood that neither Wyman nor any subservicer
shall have any rights to withdraw amounts in any Lock-Box Account.
WGRC may at any time, with or without cause, designate any Person
(including itself) to replace Wyman as Servicer. Any Servicer may
at any time resign as Servicer upon written notice to WGRC.
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(b) WGRC and the Collateral Agent shall give concurrent
notice to the Rating Agency of any resignation, replacement or
removal of the Servicer. Notwithstanding anything else in this
Agreement to the contrary, but subject to Section 5.02(c), no
resignation, replacement or removal of the Servicer shall be
effective until a successor Servicer has been appointed, has
accepted such appointment and is ready to perform the duties and
obligations of the Servicer hereunder.
(c) In the event that the Servicer resigns or is removed
under the terms of this Agreement, and a successor Servicer
approved by the Facility Agent is not promptly named by WGRC
hereunder, the Sellers hereby acknowledge that WGRC has agreed with
the Banks to appoint the Collateral Agent as Servicer.
SECTION 5.03. Duties of the Servicer; Daily Reports and
Settlement Statements; Servicer Fee. (a) The Servicer shall take
or cause to be taken all such actions as may be necessary or
advisable to collect each Receivable included in the Purchased
Assets from time to time, all in accordance with the Credit and
Collection Policy; provided, however, that the Servicer shall not
extend, modify or amend any Receivable without WGRC's prior consent
(or, to the extent required under the Revolving Credit Agreement,
the prior consent of its assigns), except that the Servicer may
make adjustments to reflect Dilution, Write-Offs, and the taking of
Receivable Notes in accordance with the terms of the Credit and
Collection Policy. The Servicer shall, in its capacity as
Servicer, exercise the same care and apply the same policies with
respect to the collection of the Receivables that it would exercise
and apply if it owned such Receivables, shall act in the best
interests of WGRC and shall exercise loyalty to WGRC, all with
reasonable care and diligence and otherwise in accordance with all
applicable laws, rules and regulations and in accordance with the
Credit and Collection Policy. The Servicer shall maintain all
Records belonging to WGRC separate and apart from its other records
and the records of other Affiliates. In addition, the Servicer
shall, unless WGRC otherwise revokes such authority in writing (a
copy of which revocation shall be delivered to the Facility Agent),
enforce WGRC's rights and interests, if any, in and under the
Receivables, the Related Security and the Invoices included in the
Purchased Assets. Notwithstanding anything to the contrary
contained herein, (x) WGRC shall have the absolute and unlimited
right to direct the Servicer (whether the Servicer is Wyman or
otherwise) to (and in the absence of such direction, the Servicer
shall not) commence, prosecute or settle any legal action to
enforce collection of any Receivable owned by WGRC or to foreclose
upon or repossess any Related Security owned by WGRC; and (y) the
Servicer shall not, under any circumstances, be entitled to make
WGRC a party to any litigation without WGRC's express prior written
consent. The Servicer shall adjust the Outstanding Balance of any
Receivable to reflect Dilution and Write-Offs in accordance with
the Credit and Collection Policy. The Servicer's authorization
under this Agreement shall terminate on the Collection Date.
Notwithstanding any other provision of this Agreement, Wyman's
obligation to act as Servicer shall terminate on the Collection
Date.
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(b) In addition to its other responsibilities hereunder, the
Servicer shall prepare and deliver to WGRC and the Agents the Daily
Reports and Settlement Statements as more fully described below.
On each Business Day, the Servicer shall deliver to WGRC, by no
later than 1:00 p.m. (Boston time) a Daily Report with respect to
such date in the form of Exhibit D-1 (if such Business Day occurs
prior to the commencement of the Liquidation Period) or Exhibit D-2
(if such Business Day occurs during the Liquidation Period) hereto.
With respect to each Collection Period, the Servicer shall prepare
and deliver to WGRC (with copies to the Agents, the Banks and the
Rating Agency), by the Reporting Date of the subsequent month, a
Settlement Statement, in the form of Exhibit E-1 (if the
Liquidation Period has not yet commenced) or Exhibit E-2 hereto (if
the Liquidation Period has commenced), as applicable. Each Seller
agrees to provide to the Servicer on a timely basis all information
necessary for the preparation and delivery of the foregoing
reports.
(c) In consideration for Wyman's services as the Servicer,
WGRC shall pay to the Servicer a fee (the "Servicer Fee") as set
forth in this paragraph below. The Servicer hereby acknowledges
that, except for the Servicer Fee owed under this paragraph, the
Servicer's costs of performing its duties as Servicer hereunder
(including the accounting costs and expenses for reviews of the
Purchased Assets required under the Revolving Credit Agreement and
including the costs or expenses incurred by the other Sellers as
subservicers hereunder) shall not be chargeable against WGRC or its
assigns; the Servicer further acknowledges that the costs and
expenses of one outside audit per year as contemplated under
Section 7.02 of the Revolving Credit Agreement shall be paid out of
the Servicer Fee it otherwise receives. For so long as Wyman or
any Consolidated Affiliate of Wyman acts as Servicer hereunder, the
Servicer Fee shall be paid monthly on each Settlement Date prior to
the Termination Date for the immediately preceding Collection
Period in an amount equal to the product of (i) the average daily
Outstanding Balances of all Receivables during the prior Collection
Period times (ii) one percent (1.0%) per annum calculated on the
basis of actual days elapsed during such Collection Period and a
year of 365 or 366 days, as applicable. After the Termination
Date, the Servicer Fee will be paid as provided in Section 9.08 of
the Revolving Credit Agreement. If neither Wyman nor any
Consolidated Affiliate of Wyman acts as Servicer hereunder, then
the Servicer Fee shall equal such fee as may be agreed to by the
Facility Agent, on behalf of WGRC, and such successor Servicer;
provided that the Servicer Fee for any Collection Period may in no
event exceed the lesser of (1) 200% of the Servicer Fee which would
be applicable to Wyman or any of its Consolidated Affiliates and
(2) 110% of the sum of the aggregate reasonable costs and expenses
of such Servicer incurred in the performance of its duties
hereunder during such Collection Period. If Wyman is replaced as
the Servicer prior to the end of a Collection Period, it shall be
entitled to a pro rata portion of the Servicer Fee for such period.
(d) The Servicer shall implement and maintain administrative
and operating procedures reasonably necessary for the performance
of its obligations hereunder (including, without limitation, an
ability to recreate Records in the event of the destruction of any
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originals thereof). The Servicer shall also maintain at all times
complete books, records and accounts relating to the Receivables,
Collections and other Purchased Assets in which timely entries are
made in accordance with GAAP, as are necessary for the performance
of its obligations hereunder. Such books, records and accounts
shall, without limitation, be adequate to permit the daily
calculation of all information required to be included in the Daily
Report. Copies of such entries shall promptly be delivered to WGRC
or its agents, representatives or permitted assignees upon request.
Such books and records shall be marked (by means of a general
legend that will automatically appear at or near the beginning of
any computer generated list or print-out of the Receivables or
otherwise) to indicate the ownership by WGRC of all Receivables and
Related Security sold hereunder, and such books and records shall
reflect, without limitation, (i) all payments received and all
credits and extensions granted with respect to the Receivables;
(ii) the return, rejection, repossessions, or stoppage in transit
of any merchandise the sale of which has given rise to a
Receivable; (iii) any other Dilution Factors; (iv) the taking of
Receivable Notes; and (v) all Write-Offs. At any time and from
time to time, following one Business Day's notice from WGRC or its
agents, representatives or permitted assignees, and during regular
business hours, the Servicer will permit WGRC or such agent,
representative or permitted assignee (A) to have access to the
Servicer's offices, properties and computer software for purposes
of examining and making copies of and abstracts from all such books
and records and (B) to discuss matters relating to the Purchased
Assets with any of the officers, employees, agents or
representatives of the Servicer having knowledge of such matters.
SECTION 5.04. Responsibilities of the Sellers. Anything
herein to the contrary notwithstanding:
(a) Each Seller shall (i) perform all of its obligations
under any contracts related to the Receivables sold by it hereunder
to the same extent as if such Receivables had not been sold
hereunder and the exercise by WGRC of its rights hereunder shall
not relieve such Seller from such obligations and (ii) pay when due
any taxes relating to the origination and sale of the Receivables
and the other Purchased Assets.
(b) WGRC and its assignees shall have no obligation or
liability with respect to any Receivable or related contracts, nor
shall WGRC or any such assignee be obligated to perform any of the
obligations of any Seller thereunder and each Seller agrees to
indemnify and hold harmless WGRC and its assignees against and from
any and all liabilities arising from or related to any such
obligation or liability.
SECTION 5.05. Further Action Evidencing Purchases. (a) Each
Seller agrees that at any time and from time to time, at its
expense, it will promptly execute and deliver all further
instruments and documents, and take all further action that may be
necessary to perfect, protect or more fully evidence WGRC's
ownership of the Purchased Assets, or to enable WGRC to exercise or
enforce any of its rights hereunder. Without limiting the
generality of the foregoing, each Seller will (i) cause its
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computer files relating to the Receivables (by means of a general
legend that will automatically appear at or near the beginning of
any computer generated list or print-out of the Receivables or
otherwise) to indicate that, unless otherwise specifically
identified on such list or print-out as a Receivable not so sold,
all Receivables included in such list or print-out and Related
Security have been sold to WGRC in accordance with this Agreement
and (ii) promptly execute and file such financing or continuation
statements, or amendments thereto or assignments thereof, and such
other instruments and notices, as may be necessary or appropriate
or as WGRC or any of its agents, representatives or permitted
assignees may reasonably request.
(b) In the event that any Seller, within five (5) Business
Days after notice from WGRC, fails to deliver to WGRC one or more
financing or continuation statements, and amendments thereto and
assignments thereof, that WGRC or any of its agents,
representatives or permitted assignees may reasonably determine to
be necessary to evidence or perfect WGRC's ownership of all or any
of the Purchased Assets now existing or hereafter arising, then
such Seller hereby authorizes WGRC to file any such statements
without the signature of such Seller where permitted by law. A
carbon, photographic or other reproduction of this Agreement or any
financing statement covering the Purchased Assets or any part
thereof, shall be sufficient as a financing statement. If any
Seller fails to perform any of its agreements or obligations under
this Agreement, following expiration of any applicable cure period,
WGRC may (but shall not be required to) perform, or cause
performance of, such agreement or obligation, and the reasonable
expenses of WGRC incurred in connection therewith shall be payable
by such Seller upon WGRC's written demand therefor (which demand
shall itemize such expenses in reasonable detail).
SECTION 5.06. Application of Collections. Any payment by an
Obligor in respect of any indebtedness or other obligations owed by
such Obligor to any Seller or WGRC shall, except as otherwise
specified by such Obligor or otherwise required by law, be applied
as a Collection of any Receivable of such Obligor purchased
hereunder (in the order of the age by invoice date of such
Receivables, starting with the oldest such Receivable) to the
extent of any amounts then due and payable thereunder before being
applied to (i) any Receivable arising subsequent to the Termination
Date which is not purchased hereunder or (ii) any other
indebtedness of such Obligor to any Seller.
ARTICLE VI
INDEMNIFICATION
SECTION 6.01. Indemnities by the Sellers. Without limiting
any other rights which WGRC may have hereunder or under applicable
law, but without duplication, each Seller hereby agrees to
indemnify WGRC and its permitted assignees and its and their
respective officers, directors, agents and employees (all of the
foregoing collectively referred to herein as "Indemnitees") from
and against any and all damages, losses, claims, liabilities, costs
and expenses, including reasonable attorneys' fees, and dis-
bursements (all of the foregoing collectively referred to herein as
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the "Indemnified Amounts") awarded against or incurred by any
Indemnitee relating to or resulting from this Agreement or the
acquisitions or ownership by WGRC of any Purchased Assets
(excluding, however, any such amounts to the extent the same
comprise recourse for Receivables which are not collected, not paid
or uncollectible on account of the insolvency, bankruptcy,
inability or failure to pay or lack of creditworthiness of the
applicable Obligor). Without limiting the foregoing (but subject
to the exclusion in the immediately preceding sentence), each
Seller shall indemnify the Indemnitees for Indemnified Amounts
relating to or resulting from:
(i) any representation or warranty made by such
Seller (or any of its officers) (individually or as
Servicer) under or in connection with this Agreement or
in connection with the preparation or delivery of any
Daily Report, any Settlement Statement, or any other
information or report delivered pursuant hereto, which
shall have been false, incomplete or incorrect in any
respect when made;
(ii) the failure by such Seller (individually or as
Servicer) to comply with any term, provision or covenant
contained in this Agreement, any other Facility Document
or any agreement executed in connection with this
Agreement or any other Facility Document (in each case,
where such Seller is a party thereto), or with any
applicable law, rule or regulation with respect to any
Receivable, the related Invoice or the Related Security,
or the nonconformity of any Receivable, the related
Invoice or the Related Security with any such applicable
law, rule or regulation;
(iii) the failure of such Seller to vest and
maintain vested in WGRC or to transfer to WGRC, legal and
equitable title to and ownership of the Receivables and
other Purchased Assets which are, or are purported to be,
sold by such Seller hereunder, free and clear of any Lien
(other than Liens created in favor of WGRC hereunder and
Liens created under the other Facility Documents),
including all amounts expended by WGRC pursuant to
Section 4.03(a);
(iv) the failure by such Seller to file, or any
delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to any
Receivables and other Purchased Assets which are, or are
purported to be, sold by such Seller hereunder, whether
at the time of any Purchase or at any subsequent time;
(v) the failure by such Seller to be duly qualified
to do business, to be in good standing or to have filed
appropriate fictitious or assumed name registration
documents in any jurisdiction;
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(vi) any dispute, claim, offset or defense to the
payment of any Receivable (other than discharge in
bankruptcy or under similar insolvency law) which is, or
is purported to be, sold by such Seller hereunder which
dispute, claim, offset or defense is based on the
Receivable or related Invoice not being a legal, valid
and binding obligation of the related Obligor,
enforceable in accordance with its terms, or which
relates to Dilution Factors or to such Receivables being
Noncomplying Receivables on the date of Purchase or on
any similar ground not related to the creditworthiness of
the applicable Obligor or any other claim asserted
against any Indemnitee resulting from the sale of the
merchandise or services related to such Receivable or the
furnishing or failure to furnish such merchandise or
services;
(vii) any products liability claim or personal
injury or property damage suit or other similar or
related claim or action of whatever sort arising out of
or in connection with the goods and/or merchandise or
services that are the subject of any Receivable generated
by such Seller or related Invoice or contract;
(viii) the failure of such Seller to pay when due
(A) any taxes or charges imposed on such Seller or (B)
any sales taxes or other charges imposed in connection
with such Seller's transfer of Purchased Assets hereunder
(other than taxes on or measured by the net income of
WGRC or any of its permitted assignees);
(ix) the failure of such Seller (individually or as
Servicer or subservicer) or any of its agents or
representatives (including, without limitation, agents,
representatives and employees of such Seller acting
pursuant to authority granted under Section 5.02) to
perform its duties and obligations in accordance with the
provisions of this Agreement, or to remit to WGRC,
Collections of Purchased Assets received by such Seller
or any such agent or representative;
(x) the commingling of Collections of Purchased Assets
with any other funds of such Seller; and
(xi) claims, demands, liabilities, damages, losses,
costs, changes and expenses (including reasonable attorneys'
fees) which WGRC or any other Indemnitee may incur or be
subject to as a consequence, direct or indirect, of the
issuance of any Letter of Credit; provided, that nothing in
this Section 6.01(xi) shall impose on any Seller the
obligation to reimburse any Indemnitee for draws under any
Letters of Credit or routine costs and expenses incidental to
the issuance, administration, or funding of any draws under,
any Letters of Credit.
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It is expressly agreed and understood by the parties (i) that such
indemnification is not intended to constitute a guarantee of the
collectibility or payment of the Receivables sold hereunder and the
other Purchased Assets and (ii) that nothing in this Section 6.01
shall require any Seller to indemnify any Indemnitee (A) for
damages, losses, claims or liabilities or related costs or expenses
resulting from such Indemnitee's gross negligence or willful
misconduct or (B) for lost profits, consequential, special or
punitive damages. In addition to the foregoing, Wyman, as
Servicer, agrees to indemnify the Indemnitees from and against all
Indemnified Amounts relating to or resulting from any of the
foregoing to the extent that such Indemnified Amounts also relate
to or result from any breach of its duties to be performed
hereunder and under the other Facility Documents as Servicer. From
and after the notice to the Sellers of any assignment by any
Indemnitee to another Indemnitee (including, without limitation,
the assignments by WGRC to the Agents and the Banks), the gross
negligence or willful misconduct of such assignor (including,
without limitation, WGRC or its officers, directors, agents or
employees) shall not be a defense to, or in any other way adversely
affect, mitigate or diminish such assignee Indemnitee's right or
claim to indemnification under this Section 6.01; in addition, the
gross negligence or willful misconduct of any Bank entitled to
indemnification hereunder shall not be a defense to, or in any
other way adversely affect, mitigate or diminish any other Bank's
right to indemnification under this Section 6.01. Any amounts
subject to the indemnification provisions of this Section 6.01
shall be paid by the applicable Seller to the Collection Account
for distribution to the applicable Indemnitees within five (5)
Business Days following such Indemnitees' written demand therefor,
setting forth in reasonable detail the basis for such demand.
Notwithstanding anything to the contrary in this Agreement, for
purposes of this Section 6.01, the representations, warranties and
covenants contained in Sections 3.01(a), 3.01(b), 3.01(k), 3.01(w),
4.01(a), 4.01(b), 4.01(c), and 4.01(n) shall not be deemed to be
limited to failures to perform or comply or to events,
circumstances, conditions or changes that did give rise to a
Material Adverse Effect.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc. No amendment to or waiver of
any provision of this Agreement nor consent to any departure by any
Seller or WGRC therefrom, shall in any event be effective unless
the same shall be in writing and signed by each Seller and WGRC and
such other parties (including the Rating Agency) whose consent may
be required under the Revolving Credit Agreement. WGRC shall give
concurrent notice of any such amendment, waiver or consent to the
Rating Agency whether or not such confirmation from the Rating
Agency is required. Any such waiver, consent or approval shall be
effective only in the specific instance and for the specific
purpose for which given.
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SECTION 7.02. Notices, Etc. Any notice shall be conclusively
deemed to have been received by a party hereto and, subject to
Section 7.04, to be effective (i) if sent by regular mail,
commercial delivery service or by personal delivery, on the day on
which delivered to such party at its address set forth under its
name on the signature pages hereof (or at such other address as
such party shall specify to the other parties hereto in writing);
(ii) if sent by telex, graphic scanning or other telecopy
communications of the sending party, when delivered by such
equipment to the number set forth under its name on the signature
pages hereof with receipt confirmed in full by telephone or
(iii) if sent by registered or certified mail, on the day on which
delivered to such party (or delivery is refused), addressed to such
party at its address set forth under its name on the signature
pages hereof or at such other address as shall be designated by
such party in a written notice to the other parties hereto.
Notices required to be delivered to the Facility Agent, the
Collateral Agent or the Rating Agency shall be given in the manner
described in, and shall be effective in accordance with the terms
of, Section 12.05 of the Revolving Credit Agreement.
Notwithstanding the foregoing, notices and communications pursuant
to Article II will not be effective until received by the
addressee.
SECTION 7.03. No Waiver; Remedies. No waiver of any breach
or default of or by any Seller or of or by WGRC under this
Agreement shall be deemed a waiver of any other previous breach or
default or any thereafter occurring. No failure on the part of
WGRC on the one hand, or a Seller on the other hand, to exercise,
and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right hereunder, or any abandonment or discontinuation of steps to
enforce such right, preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 7.04. Binding Effect; Assignability. This Agreement
shall be binding upon and inure to the benefit of each Seller and
WGRC and their respective successors and permitted assigns. No
Seller may assign any of its rights and obligations hereunder or
any interest herein or any other Facility Documents (except for
assignments of rights hereunder or under the Intercompany Notes
from one Seller to another) without the prior written consent of
WGRC, the Facility Agent and all of the Banks and reconfirmation by
the Rating Agency of its rating with respect to the Facility;
provided, that nothing herein shall be deemed to prohibit or
require any consent with respect to the transfer of the capital
stock of WGRC by any Seller to another Seller or any other Person.
WGRC may (with concurrent notice to the Rating Agency) assign any
of its rights hereunder to any Person who (a) is not (and none of
whose Affiliates or Persons related thereto are) a competitor of or
engages in a business similar to that of any Seller, (b) agrees in
writing to observe the confidentiality provisions of Section 7.07
hereof, and (c) to the extent applicable, has the financial ability
to perform WGRC's obligations hereunder. Each Seller acknowledges
that WGRC intends, pursuant to the Revolving Credit Agreement, to
grant to the Collateral Agent for the benefit of the Banks a
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security interest in the Purchased Assets and to assign to the
Collateral Agent, as further security, all of WGRC's rights under
this Agreement. Each Seller consents to such grant and such
assignment, subject to the limitations on enforcement set forth in
the Revolving Credit Agreement and provided, further, that each of
the Agents, the Issuing Bank and the Banks acknowledge and agree in
writing to observe the confidentiality provisions thereof for the
benefit of the Sellers. Each Seller acknowledges and agrees that
the indemnification provisions of Article VI hereof run to the
benefit of each of the Facility Agent, the Collateral Agent, the
Banks and their respective officer,s directors, agents and
employees, as permitted assigns of WGRC, all of which parties are
entitled to the benefits of such Article. Each Seller agrees that
the Collateral Agent (and any other permitted assignee of WGRC or
of the Collateral Agent) shall have the right, as the assignee of
WGRC (or the assignee of such assignee) and subject to the terms of
the Facility Documents, to enforce this Agreement and to exercise
directly all of WGRC's rights and remedies under this Agreement.
Each Seller also agrees that (i) such Seller shall simultaneously
send to the Facility Agent a copy of all notices, financial
statements and certificates and supporting material, required to be
given by such Seller to WGRC hereunder; (ii) upon its receipt of a
notice of further assignment by WGRC or an assignee of WGRC, such
Seller shall send the assignee identified in such notice a copy of
all notices required to be given by such Seller to WGRC hereunder;
and (iii) so long as the Revolving Credit Agreement remains in
effect, such Seller shall make any payments required to be made to
WGRC under this Agreement directly to the Collection Account or to
such other account as the Collateral Agent may direct. WGRC and
each Seller hereby acknowledge and agree that the Agents, the
Issuing Bank and the Banks have each relied upon the terms and
provisions set forth in this Agreement in entering into the
Revolving Credit Agreement. This Agreement shall create and
constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and
effect until the Collection Date; provided, however, that the
provisions of Article VI, Section 7.06 and Section 7.07 shall be
continuing and shall survive any termination of this Agreement.
SECTION 7.05. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER
OF PERSONAL SERVICE AND VENUE; WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES) EXCEPT TO THE EXTENT THAT THE VALIDITY
OR PERFECTION OF THE INTERESTS OF WGRC IN THE PURCHASED ASSETS OR
REMEDIES HEREUNDER OR THEREUNDER, IN RESPECT THEREOF, ARE GOVERNED
BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
EACH OF THE SELLERS AND WGRC HEREBY AGREES TO THE NON-EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE CITY
OF NEW YORK, NEW YORK (AND ANY COURTS HEARING APPEALS FROM SUCH
STATE OR FEDERAL COURT), OVER ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT, AND WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO SUCH PARTY AT THE
ADDRESS SET FORTH ON THE SIGNATURE PAGE HEREOF. EACH OF THE
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SELLERS AND WGRC HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION
TO VENUE OF ANY ACTION INSTITUTED HEREUNDER WITHIN THE STATE OF NEW
YORK AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF
AS IS DEEMED APPROPRIATE BY ANY COURT IN SUCH STATE. NOTHING IN
THIS SECTION 7.05 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHT OF WGRC TO BRING ANY ACTION OR PROCEEDING AGAINST ANY SELLER
OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION TO THE
EXTENT NECESSARY FOR REALIZING ON ITS INTEREST IN ANY PURCHASED
ASSETS. EACH OF THE SELLERS AND WGRC HEREBY EXPRESSLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER
OR REMEDY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR UNDER OR IN
CONNECTION HEREWITH, AND AGREES THAT ANY SUCH ACTION SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY. THE TERMS AND PROVISIONS OF
THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT FOR THE PARTIES
ENTERING INTO THIS AGREEMENT.
SECTION 7.06. Costs, Expenses and Taxes. In addition to the
rights of indemnification under Article VI hereof, each Seller
agrees to pay on demand all reasonable costs and expenses of WGRC
in connection with the sales of Receivables hereunder, the
negotiation, preparation, execution and delivery of this Agreement
and all amendments with respect to this Agreement, including the
reasonable fees and out-of-pocket expenses of counsel for WGRC with
respect thereto and with respect to advising WGRC as to its rights
and remedies under this Agreement, and all costs and expenses
(including reasonable counsel fees and expenses) of WGRC and its
permitted assigns (including the Agents, the Banks and/or the
Issuing Bank) in connection with the enforcement as against the
Sellers of this Agreement and the other Facility Documents executed
by them. In addition, each Seller will pay any and all stamp and
similar taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing, recording or
enforcement of this Agreement or the other Facility Documents, and
hereby indemnifies and saves WGRC harmless from and against any and
all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.
SECTION 7.07. Confidentiality. WGRC hereby acknowledges that
the Records and other information which the Sellers must assign
and/or deliver to WGRC hereunder may contain information in which
the Sellers have a proprietary interest and which may not, at the
time of assignment and/or delivery, be generally available to and
known by the public (including, without limitation, information
contained in the Information Memorandum). WGRC hereby agrees to
maintain as confidential all such information obtained from the
Sellers and not to disclose such information to any other Person,
provided, however, that nothing in this Section 7.07 shall (a)
restrict any Seller from disclosing such confidential information
to any Person nor (b) prevent WGRC from disclosing such information
(i) to any permitted assignee of WGRC, the Agents, the Issuing Bank
or any Bank (or their permitted prospective participants and
assignees), provided that each such party agrees in writing, for
the benefit of the Sellers, (x) to use such information and keep
such information confidential in accordance with the same terms set
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forth herein or, in the case of the Agents, the Issuing Bank, any
Bank or any of their participants or assigns, as set forth in
Section 12.08 of the Revolving Credit Agreement as in effect on the
date hereof and (y) that it will not disclose such information to
any of its Affiliates which is not a financial institution or a
parent company of a financial institution, (ii) to its employees,
agents, attorneys, auditors and accountants, (iii) subject to the
further requirements set forth in this Section 7.07, upon the order
of any court or administrative agency or upon the request or demand
of any regulatory agency, authority or official having jurisdiction
over WGRC, (iv) which has (other than through a breach of this
Section 7.07) been obtained from any Person other than WGRC, any
Seller or any other party hereto, or (v) as otherwise expressly
contemplated by this Agreement or Section 12.08 of the Revolving
Credit Agreement as in effect on the date hereof. WGRC (a) will
provide the Sellers with prompt written notice of any subpoena or
any request or requirement by any governmental authority (other
than any such request or requirement in connection with an audit or
other regulatory review of a financial institution) for disclosure
of any confidential information so that the Sellers may seek a
protective order or other appropriate remedy prior to such
disclosure and (b) shall consult with the Sellers to a reasonable
extent on the advisability of taking legally available steps to
resist or narrow such request or requirement. In the event that
such protective order or other remedy is not obtained, WGRC will
exercise all reasonable efforts (x) to limit the information
disclosed to such information which it is legally required to
disclose and (y) to obtain reliable assurance that confidential
treatment will be accorded any such information so disclosed.
SECTION 7.08. Execution in 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.
In case any provision in or obligation under this Agreement shall
be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions
or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 7.09. Termination Date. The agreement of the Sellers
to sell Receivables hereunder and the agreement of WGRC to purchase
Receivables shall in any event automatically terminate on the
Termination Date. Wyman shall have the right, by giving notice to
WGRC and to the Facility Agent as described in clause (vi) of the
definition of Liquidation Period in Annex I hereto, to cause the
Termination Date to occur on the date so designated in such notice.
Upon the occurrence and during the continuance of any Liquidation
Event, WGRC shall have the right, by giving notice to Wyman and to
the Facility Agent as described in clause (vii) of the definition
of Liquidation Period in Annex I hereto, to cause the Termination
Date to occur on the date so designated in such notice.
Notwithstanding any such termination described above, all other
provisions of this Agreement shall remain in full force and effect
as provided in Section 7.04. WGRC shall give the Rating Agency
prompt notice of the occurrence of the Termination Date. On or
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after the Collection Date, WGRC will, at the request and expense of
Wyman, execute and deliver to Wyman such UCC termination statements
and other documents and take such other action as Wyman may
reasonably request to evidence such termination.
SECTION 7.10. No Recourse. The obligations of each Seller
and WGRC hereunder shall be solely the obligations of such Seller
and/or WGRC, as applicable, and shall in all respects be non-
recourse to all of its respective officers, directors, controlling
persons or stockholders, and each of the Sellers and WGRC
acknowledges the same with respect to the other and, to the fullest
extent permitted by law, waives any such recourse and any claim
against any of such parties of the other arising hereunder,
provided that nothing herein shall constitute a waiver of any
rights that one Person may have against any other Person on account
of any claim for intentional fraud, including any such claims for
deceit or intentional misrepresentation or omission.
SECTION 7.11. No Proceedings. Each Seller and the Servicer
hereby agrees, on behalf of itself and of all holders of the
Intercompany Notes, that it will neither (i) institute against WGRC
any involuntary proceeding of the type referred to in the
definition of "Insolvency Event" so long as this Agreement remains
in full force and effect and for at least one year and one day
following termination of this Agreement nor (ii) in its capacity
(if any) as a shareholder of WGRC, cause WGRC to file any voluntary
proceeding of the type referred to in the definition of "Insolvency
Event" except as otherwise permitted under WGRC's certificate of
incorporation.
SECTION 7.12. Entire Agreement. This Agreement, together
with the other Facility Documents, including the annexes, exhibits
and schedules hereto and thereto, contains a 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 previous oral statements and
other writings with respect thereto.
SECTION 7.13. Survival of Agreement. All covenants,
agreements, representations and warranties made herein and in the
certificates delivered pursuant hereto shall survive the Effective
Date and/or the Initial Purchase Date, as applicable, and each
Purchase thereafter and shall continue in full force and effect
until the later of (i) the Collection Date and (ii) the expiration
of all Letters of Credit.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective officers thereunto duly authorized,
as of the date first above written.
WYMAN-GORDON COMPANY,
in its individual capacity
and as Seller and Servicer
By: /s/ Wallace F. Whitney
Title : Vice President
Address: 244 Worcester Street
No. Grafton, MA 01536
Telephone: (508) 839-4441
Telecopy: (508) 839-7529
WYMAN-GORDON INVESTMENT CASTINGS, INC.,
in its individual capacity
and as Seller
By: /s/ Wallace F. Whitney
Title: Vice President
Address: 244 Worcester Street
No. Grafton, MA 01536
Telephone: (508) 839-4441
Telecopy: (508) 839-7529
PRECISION FOUNDERS, INC.,
in its individual capacity
and as Seller
BY: /s/ Wallace F. Whitney
Title: Vice President
Address: 244 Worcester Street
No. Grafton, MA 01536
WYMAN-GORDON RECEIVABLES CORPORATION,
in its individual capacity
and as Purchaser
By: /s/ Luis E. Leon
Title: President
Address: 244 Worcester Street
No. Grafton, MA 01536
Telephone: (508) 839-8350
Telecopy: (508) 839-7529
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