Exhibit 10(a)
[EXECUTION COPY]
U.S. $65,000,000
RECEIVABLES
PURCHASE AND SALE AGREEMENT
Dated as of June 30, 1989
As AMENDED and RESTATED as of FEBRUARY 28, 1997
Among
IES UTILITIES INC.
as Seller
and
CITIBANK, N.A.
and
CITICORP NORTH AMERICA, INC.
Individually and as Agent
TABLE OF CONTENTS
Section Page
PRELIMINARY STATEMENTS 1
ARTICLE I DEFINITIONS
SECTION 1.01. Certain Defined Terms 2
SECTION 1.02. Incorporation by Reference 4
SECTION 1.03. Other Terms 5
SECTION 1.04. Computation of Time Periods 5
ARTICLE II AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01. Commitment 5
SECTION 2.02. Making Purchases 5
SECTION 2.03. Termination or Reduction of the Commitment 6
SECTIONS 2.04 through 2.09. Incorporation by Reference 6
SECTION 2.10. Fees 7
SECTION 2.11. Intentionally Left Blank 7
SECTION 2.12. Recourse for Defaulted Receivables 7
SECTION 2.13. Eurodollar Increased Costs 8
SECTION 2.14. Additional Yield on Shares Bearing a Eurodollar
Rate 8
ARTICLE III CONDITIONS OF PURCHASES
SECTION 3.01. Conditions Precedent to Initial Purchase 8
SECTION 3.02. Conditions Precedent to the Effectiveness of
the Amendment and Restatement of the
Original Agreement 9
SECTION 3.03. Conditions Precedent to All Purchases and
Reinvestments 10
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller 10
ARTICLE V GENERAL COVENANTS OF THE SELLER
SECTION 5.01. Affirmative Covenants of the Seller 11
SECTION 5.02. Reporting Requirements of the Seller 11
SECTION 5.03. Negative Covenants of the Seller 11
ARTICLE VI ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Collection Agent 11
SECTIONS 6.02 through 6.05. Incorporation by Reference 11
ARTICLE VII EVENTS OF TERMINATION
SECTION 7.01. Events of Termination 12
ARTICLE VIII THE AGENT
SECTION 8.01. Authorization and Action 13
SECTION 8.02. Agent's Reliance, Etc 13
SECTION 8.03. CNAI and Affiliates 14
SECTION 8.04. Indemnification of Agent 14
ARTICLE IX ASSIGNMENT OF SHARES
SECTION 9.01. Assignability 14
SECTION 9.02. Annotation of Certificate 17
ARTICLE X INDEMNIFICATION
SECTION 10.01. Indemnities by the Seller 17
ARTICLE XI MISCELLANEOUS
SECTION 11.01. Amendments, Etc. 18
SECTION 11.02. Notices, Etc. 19
SECTION 11.03. No Waiver: Remedies 19
SECTION 11.04. Binding Effect: Assignability 20
SECTION 11.05. Governing Law 20
SECTION 11.06. Costs, Expenses and Taxes 20
SECTION 11.07. Confidentiality 20
SECTION 11.08. Execution in Counterparts 21
SECTION 11.09. Amendment of the Original Certificate 21
EXHIBITS
EXHIBIT A Form of Certificate
EXHIBIT B CIESCO Agreement
EXHIBIT C Form of Opinion of Counsel for the Seller
EXHIBIT D Form of Assignment and Acceptance
RECEIVABLES PURCHASE AND SALE AGREEMENT
Dated as of June 30, 1989
as Amended and Restated as of February 28, 1997
IES UTILITIES INC. (formerly known as Iowa Electric Light and
Power Company), an Iowa corporation (the "Seller"), CITIBANK, N.A.
("Citibank") and CITICORP NORTH AMERICA, INC., a Delaware corporation,
individually ("CNAI") and as agent (the "Agent") for itself and the
Banks (as defined below), agree as follows:
PRELIMINARY STATEMENTS. (1) Certain terms which are
capitalized and used throughout this Agreement (in addition to those
defined above) are defined in Article I of this Agreement.
(2) The Seller has, and expects to have, Pool Receivables in
which the Seller intends to sell interests referred to herein as Shares.
(3) Citibank desires to purchase Shares from the Seller, and
CNAI may elect to purchase Shares from the Seller.
(4) In consideration of the reinvestment in Pool Receivables
of daily Collections (other than with regard to accrued Yield,
Miscellaneous Fees, and Collection Agent Fee) attributable to an Share,
the Seller will sell to the Owner of such Share, respectively,
additional interests in the Pool Receivables as part of such Share until
such reinvestment is terminated. It is intended that such daily
reinvestment of Collections be effected by an automatic daily adjustment
to each Owner's Shares.
(5) CNAI has been requested and is willing to act as Agent.
(6) The Seller, Citibank and CNAI, as Agent, entered into a
Receivables Purchase and Sale Agreement, dated as of June 30, 1989, and
amended and restated as of April 15, 1994 (collectively, the "Original
Agreement").
(7) The Seller, Citibank and CNAI, individually and as Agent,
desire to again amend and restate the Original Agreement.
NOW THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. (a) Unless otherwise
defined herein, and subject to the modifications herein set forth,
capitalized terms used in this Agreement or in any provisions of the
Ciesco Agreement incorporated herein by reference shall have the
meanings given to them in the Ciesco Agreement. Without limiting the
foregoing, the defined terms "Contracts", "Credit and Collection Policy"
(together with the related Schedule to the Original Ciesco Agreement)
and "Seller Report" (together with the related Exhibit B of the Ciesco
Agreement), are hereby incorporated by reference.
(b) As used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to both
the singular and plural forms of the terms defined):
"Agent's Account" means the special account (account number
4051-9819) of the Agent maintained at the office of Citibank at 399 Park
Avenue, New York, New York.
"APA" means the Asset Purchase Agreement entered into by a
Bank concurrently with the Assignment and Acceptance pursuant to which
it became a party to this Agreement.
"Assignment and Acceptance" means an assignment and acceptance
agreement entered into by a Bank and an Eligible Assignee, and accepted
by the Agent, in substantially the form of Exhibit D hereto.
"Bank Commitment" of any Bank means, (a) with respect to
Citibank, $65,000,000, or such amount as reduced by any Assignment and
Acceptance entered into between Citibank and other Banks (but not
reduced below (i) 10% of the Commitment minus (ii) the Capital of Shares
purchased by CNAI), or (b) with respect to a Bank that has entered into
an Assignment and Acceptance, the amount set forth therein as such
Bank's Bank Commitment, or such amount as reduced by any Assignment and
Acceptance entered into between such Bank and an Eligible Assignee, in
each case as reduced (or terminated) pursuant to the next sentence. Any
reduction (or termination) of the Commitment pursuant to the terms of
this Agreement shall reduce ratably (or terminate) each Bank's Bank
Commitment.
"Banks" means Citibank and each Eligible Assignee that shall
become a party to this Agreement pursuant to Section 9.01.
"Ciesco Agreement" means the Receivables Purchase and Sale
Agreement, dated as of June 30, 1989, as amended and restated as of
February 28, 1997, among the Seller and Ciesco L.P. and CNAI, as Agent,
in substantially the form attached hereto as Exhibit B, as the same may,
from time to time, be amended, modified or supplemented.
"Capital" of any Share means the original amount paid to the
Seller for such Share at the time of its acquisition by the Banks or
CNAI, as the case may be, pursuant to Sections 2.01 and 2.02, or such
amount divided or combined by any dividing or combining of such Share
pursuant to Section 2.09, reduced from time to time by Collections
received and distributed on account of such Capital pursuant to Section
2.06; provided that, if such Capital of such Share shall have been
reduced by any distribution of any portion of Collections and thereafter
such distribution is rescinded or must otherwise be returned for any
reason, such Capital of such Share shall be increased by the amount of
such distribution, all as though such distribution had not been made.
"Certificate" means the Original Certificate, as amended by
the amendment and restatement of the Original Agreement.
"Citibank Rate" for any Fixed Period for any Share means the
interest rate defined as the "Assignee Rate" in the Ciesco Agreement
minus the "Fee Letter Fees Rate" (as defined in the Ciesco Agreement).
"Collection Agent" means at any time the Person (including the
Agent) then authorized pursuant to Article VI to service, administer and
collect Pool Receivables.
"Collection Agent Fee" has the meaning specified in
Section 2.10.
"Commitment" means $65,000,000 as such amount may be reduced
pursuant to Section 2.03.
"Commitment Termination Date" means the earliest of
(a) April 14, 1999, unless, prior to such date (or the date of any
extension referred to below), Citibank, in its sole discretion, shall
consent that the Commitment Termination Date be extended for an
additional year, (b) the Facility Termination Date under the Ciesco
Agreement, (c) the date determined pursuant to Section 2.03 or
Section 7.01, or (d) the date the Commitment reduces to zero.
"Eligible Assignee" means (i) CNAI or any of its Affiliates,
(ii) any Bank already a party to this Agreement, (iii) Persons managed
by CNAI or any of its Affiliates, or (iv) any other financial
institution or other entity which is acceptable to the Agent and
approved by the Seller, which approval shall not be unreasonably
withheld.
"Event of Termination" has the meaning specified in
Section 7.01.
"Investor" means Ciesco L.P., as the "Investor" pursuant to
the Ciesco Agreement.
"Majority Banks" means at any time Banks holding more than 50%
of the aggregate outstanding Capital of all Shares or, if no Capital is
then outstanding, Banks having more than 50% of the Commitment.
"Original Agreement" means the Receivables Purchase and Sale
Agreement, dated as of June 30, 1989, among the Seller, Citibank, and
CNAI, individually and as Agent and amended and restated as of April 15,
1994.
"Original Certificate" means the certificate of assignment,
dated as of June 30, 1989, by the Seller to the Agent.
"Original Ciesco Agreement" means the Receivables Purchase and
Sale Agreement, dated as of June 30, 1989, among the Seller, Ciesco L.P.
and CNAI, as Agent and amended and restated as of April 15, 1994.
"Owner" means each Bank which purchases an Share hereunder and
all other owners by assignment or otherwise of an Share.
"Termination Date" for any Share means the earlier of (i) the
Reinvestment Termination Date for such Share and (ii) the Commitment
Termination Date.
"Yield" means for each Share for any Fixed Period the product
of
CR x C x ED + LF
--
360
where:
CR = the Citibank Rate for such Share for
such Fixed Period;
C = the Capital of such Share during such
Fixed Period;
ED = the actual number of days elapsed
during such Fixed Period; and
LF = the Liquidation Fee, if any, for such
Share for such Fixed Period;
provided that no provision of this Agreement or the Certificate shall
require the payment or permit the collection of Yield in excess of the
maximum permitted by applicable law; and provided further that Yield for
any Share shall not be considered paid by any distribution if at any
time such distribution is rescinded or must otherwise be returned for
any reason.
SECTION 1.02. Incorporation by Reference. Various provisions
of (including defined terms) and Exhibits and Schedules to the Ciesco
Agreement are specifically incorporated in this Agreement by reference,
with the same force and effect as if the same were set out in this
Agreement in full. All references in such incorporated provisions to
the "Agent" and "Agreement" shall, without further reference, mean and
refer to CNAI as Agent under this Agreement and this Agreement,
respectively, and, without limitation, all references in such
incorporated provisions to "Certificate", "Collections", "Contract",
"Credit and Collection Policy", "Share", "Net Receivables Pool Balance",
"Owner", "Pool Receivable", "Purchase", "Receivable", "Receivables Pool"
and "Related Security" shall mean and refer to the Certificate,
Collections, a Contract, the Credit and Collection Policy, an Share, the
Net Receivables Pool Balance, an Owner, a Pool Receivable, a Purchase, a
Receivable, the Receivables Pool and the Related Security under this
Agreement, respectively; likewise, to the extent any word or phrase is
defined in this Agreement, any such word or phrase appearing in
provisions so incorporated by reference from the Ciesco Agreement shall
have the meaning given to it in this Agreement. The incorporation by
reference into this Agreement from the Ciesco Agreement is for
convenience only, and this Agreement and the Ciesco Agreement shall at
all times be, and be deemed to be and treated as, separate and distinct
facilities. Incorporation by reference in this Agreement from the
Ciesco Agreement shall not be affected or impaired by any subsequent
expiration or termination of the Ciesco Agreement, nor by any amendment
thereof or waiver thereunder unless the Agent, as agent for the Banks
shall have consented to such amendment or waiver in writing.
SECTION 1.03. Other Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles. All terms used in Article 9
of the UCC in the State of New York, and not specifically defined
herein, are used herein as defined in such Article 9.
SECTION 1.04. Computation of Time Periods. Unless otherwise
stated 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. Commitment. On the terms and conditions
hereinafter set forth, CNAI may in its sole discretion, and if CNAI does
not elect to do so the Banks shall, make Purchases from time to time
during the period from the date hereof to the Commitment Termination
Date. Under no circumstances shall the Banks be obligated to make, or
CNAI make, any Purchase if, after giving effect to such Purchase, the
aggregate outstanding Capital of Shares, together with the aggregate
outstanding "Capital" of all "Shares" under the Ciesco Agreement, would
exceed the Commitment. The Owner of each Share shall, with the proceeds
of Collections attributable to such Share, reinvest pursuant to
Section 2.05 in additional undivided percentage interests in the Pool
Receivables by making an appropriate readjustment of such Share.
Nothing in this Agreement shall be deemed to be or construed as a
commitment by CNAI to purchase any Share at any time.
SECTION 2.02. Making Purchases. (a) Each Purchase shall be
made on at least three Business Days' notice from the Seller to the
Agent. Each such notice of a Purchase shall specify the initial
purchase price for the Share to be purchased and date of such Purchase
and the desired duration of the initial Fixed Period for the Share to be
purchased. The Agent shall notify the Seller whether the desired
duration of the initial Fixed Period for the Share to be purchased is
acceptable and the Agent shall promptly notify the Banks of the proposed
Purchase. Such notice of Purchase shall be sent by telecopier, telex or
cable to all Banks concurrently and shall specify the date of such
Purchase, each Bank's Percentage Interest (as set forth in the
Assignment and Acceptance) multiplied by the aggregate amount of Capital
of the Share being purchased, the Fixed Period for such Share and
whether Yield for the Fixed Period for such Share is calculated based on
the Eurodollar Rate (which may be selected only if such notice is given
at least two Business Days prior to the purchase date) or the Alternate
Base Rate.
(b) Prior to 2:00 P.M. (New York City time) on the date of
each such Purchase, the Banks ratably in accordance with their
respective Bank Commitments shall, upon satisfaction of the applicable
conditions set forth in Article III, make available to the Agent the
amount of their respective Purchases by deposit of the applicable amount
in immediately available funds to the Agent's Account, and, after
receipt by the Agent of such funds, the Agent will cause such funds to
be made immediately available to the Seller at Citibank's office at 399
Park Avenue, New York, New York.
(c) Notwithstanding the foregoing, the total outstanding
Capital of Shares that any Bank shall be obligated to purchase under
this Section 2.02 shall not at any time exceed such Bank's Bank
Commitment less (in the case of any Bank other than Citibank) the
aggregate "Capital" of "Percentage Interests" purchased under the APA.
Each Bank's obligation shall be several, such that the failure of any
Bank to make available to the Seller any funds in connection with any
Purchase shall not relieve any other Bank of its obligation, if any,
hereunder to make funds available on the date of such Purchase, but no
Bank shall be responsible for the failure of any other Bank to make
funds available in connection with any Purchase.
(d) If CNAI chooses to purchase Shares, it shall do so by
entering into an Assignment and Acceptance.
SECTION 2.03. Termination or Reduction of the Commitment.
(a) Optional. The Seller may, upon at least two Business Days' notice
to the Agent, terminate in whole or reduce in part the unused portion of
the Commitment; provided that, for purposes of this Section 2.03(a), the
unused portion of the Commitment shall be computed as the excess of
(A) the Commitment immediately prior to giving effect to such
termination or reduction over (B) the sum of (i) the aggregate Capital
of Shares outstanding at the time of such computation and (ii) the
aggregate"Capital" of "Shares" outstanding under the Ciesco Agreement at
such time; provided further that each partial reduction shall be in an
amount equal to $1,000,000 or an integral multiple thereof.
(b) Mandatory. On each day on which the Seller shall,
pursuant to Section 2.03(a) of the Ciesco Agreement, reduce in part the
unused portion of the Purchase Limit (as defined in the Ciesco
Agreement), the Commitment shall automatically reduce by an equal
amount. The Commitment shall automatically terminate in whole on any
day on which the Seller shall terminate in whole the Purchase Limit
pursuant to Section 2.03(a) of the Ciesco Agreement.
SECTIONS 2.04 through 2.09. Incorporation by Reference. Each
of Sections 2.04 through 2.09 of the Ciesco Agreement is hereby
incorporated herein by this reference.
SECTION 2.10. Fees. (a) The Seller shall pay certain fees
to the Agent as more fully set forth in a letter agreement.
(b) Each Owner shall pay to the Collection Agent a collection
fee (the "Collection Agent Fee") of 1/4 of 1% per annum on the average
daily amount of Capital of each Share owned by such Owner, from the date
of the initial Purchase hereunder until the later of the Commitment
Termination Date or the date on which such Capital is reduced to zero,
payable on the last day of each Settlement Period for such Share;
provided that upon three Business Days' notice to the Agent, the
Collection Agent may (if not the Seller) elect to be paid, as such fee,
another percentage per annum on the average daily amount of Capital of
each such Share, but in no event in excess of 110% of the costs and
expenses referred to in Section 6.02(b); and provided further that such
fee shall be payable only from Collections pursuant to, the subject to
the priority of payment set forth in, Sections 2.05 and 2.06.
SECTION 2.11. Intentionally Left Blank.
SECTION 2.12. Recourse for Defaulted Receivables. (a) To the
extent of the Default Recourse Limit (as defined below) then available,
on the last day of each Settlement Period for each Share in which a
Liquidation Day has occurred for such Share, the Seller shall be
obligated to pay to the Agent for the account of the Owner of such
Share, without prejudice to any other rights that the Investor or any
other Owner may have hereunder or under applicable law, an amount equal
to the interest of such Share in the Outstanding Balance of any Pool
Receivable that at such time is a Defaulted Receivable (but without
duplication of amounts previously paid under this subsection (a) with
respect to such interest in such Defaulted Receivable).
(b) "Default Recourse Limit" means at any time an amount
equal to:
(i) the applicable Loss Percentage multiplied by the
Capital of such Share at such time, provided that the
foregoing amount shall not be recomputed (and shall remain
fixed) on any day that is a Liquidation Day for such Share,
provided further that such amount shall again be recomputed
(and no longer shall remain fixed) on any day that is no
longer a Liquidation Day for such Share;
(ii) plus an amount equal to the interest of such Share
in any Collections with respect to each Defaulted Receivable
in respect of which payments shall have been made prior to
such time by the Seller under Section 2.12(a) above, provided
that the Default Recourse Limit for any Share shall not at any
time by reason of this clause (ii) exceed the Default Recourse
Limit that was in effect as of the then most recent date of
recomputation in accordance with clause (i) above.
(c) The proceeds of any payment made pursuant to Section
2.12(a) above shall be deemed to be a Collection in respect of each
Receivable in respect of which such payments are made by the Seller, and
the amount of each such Collection shall be applied as provided in
Section 2.05 or 2.06, as applicable at the time of payment.
SECTION 2.13. Eurodollar Increased Costs. If due to either
(i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements referred to in Section
2.14) in or in the interpretation of any law or regulation or (ii)
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there
shall be any increase in the cost to any Bank of agreeing to purchase or
purchasing, or maintaining the ownership of Shares in respect of which
Yield is computed by reference to the Eurodollar Rate, then, upon demand
by such Bank (with a copy to the Agent), the Seller shall immediately
pay to the Agent, for the account of such Bank (as a third-party
beneficiary), from time to time as specified by such Bank, additional
amounts sufficient to compensate such Bank for such increased costs;
provided that (a) such costs of a Bank shall not be reimbursed to the
extent that they relate to the amount of capital required or expected to
be maintained by such Bank based upon the existence of any such
commitment or any such purchases, and (b) the Seller shall have no
obligation to comply with any demand for reimbursement to the extent
that any such demand relates to any period more than 90 days prior to
the date on which a Bank initially made demand for reimbursement. A
certificate as to such amounts submitted to the Seller and the Agent by
such Bank shall be conclusive and binding for all purposes, absent
manifest error.
SECTION 2.14. Additional Yield on Shares Bearing a Eurodollar
Rate. The Seller shall pay to any Bank, so long as such Bank shall be
required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities, additional
Yield on the unpaid Capital of each Share of such Bank during each Fixed
Period in respect of which Yield is computed by reference to the
Eurodollar Rate, for such Fixed Period, at a rate per annum equal at all
times during such Fixed Period to the remainder obtained by subtracting
(i) the Eurodollar Rate for such Fixed Period from (ii) the rate
obtained by dividing such Eurodollar Rate referred to in clause
(i) above by that percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage of such Bank for such Fixed Period, payable on each
date on which Yield is payable on such Share. Such additional Yield
shall be determined by such Bank and notified to the Seller through the
Agent within 30 days after any Yield payment is made with respect to
which such additional Yield is requested. A certificate as to such
additional Yield submitted to the Seller and the Agent by such Bank
shall be conclusive and binding for all purposes, absent manifest error.
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01. Conditions Precedent to Initial Purchase. The
initial Purchase hereunder was subject to the conditions precedent that
the conditions precedent to the initial "Purchase" under the Ciesco
Agreement were satisfied on or prior to the date of such Purchase and
that the Agent received on or before the date of such Purchase the
following, each (unless otherwise indicated) dated such date, in form
and substance satisfactory to the Agent:
(a) The Original Certificate.
(b) Certified copies of the resolutions of the Board of
Directors of the Seller approving the Original Agreement and
the Original Certificate, and of all documents evidencing
other necessary corporate action and governmental approvals,
if any, with respect to the Original Agreement and the
Original Certificate.
(c) A certificate of the Secretary or Assistant
Secretary or General Counsel of the Seller certifying the
names and true signatures of the officers of the Seller
authorized to sign the Original Agreement and the Original
Certificate and the other documents to be delivered by it
thereunder.
(d) Acknowledgment copies or stamped receipt copies of
proper financing statements, duly filed on or before the date
of the initial Purchase, under the UCC of all jurisdictions
that the Agent deemed necessary or desirable in order to
perfect the ownership interests created by the Original
Agreement.
(e) Acknowledgment copies or stamped receipt copies of
proper financing statements, if any, necessary to release all
security interests and other rights of any Person in the
Receivables, Contracts or Related Security previously granted
by the Seller.
(f) Completed requests for information, dated on or
before the date of the initial Purchase, listing the financing
statements referred to in subsection (d) above and all other
effective financing statements filed in the jurisdictions
referred to in subsection (d) above that named the Seller as
debtor, together with copies of such other financing
statements (none of which were to cover any Receivables,
Contracts or Related Security).
(g) A favorable opinion of Thomas J. Pitner, Esq., Vice
President and General Counsel for the Seller.
(h) A favorable opinion of Kaye, Scholer, Fierman, Hays
& Handler, counsel for the Agent.
SECTION 3.02. Conditions Precedent to the Effectiveness of
the Amendment and Restatement of the Original Agreement. The
effectiveness of the amendment and restatement of the Original Agreement
is subject to the conditions precedent that the Agent shall have
received on or before the date thereof the following, each (unless
otherwise indicated) dated the date hereof, in form and substance
satisfactory to the Agent:
(a) The Certificate.
(b) A certificate of the Secretary or Assistant
Secretary or General Counsel of the Seller certifying the
names and true signatures of the officers authorized to sign
this Agreement and the other documents to be delivered by it
hereunder.
(c) A favorable opinion of Stephen W. Southwick, Esq.,
Vice President, General Counsel and Secretary of the Seller,
substantially in the form of Exhibit C hereto and as to such
other matters as the Agent may reasonably request.
SECTION 3.03. Conditions Precedent to All Purchases and
Reinvestments. Each Purchase (including the initial Purchase) hereunder
and the right of the Collection Agent to reinvest in Pool Receivables
those Collections attributable to an Share pursuant to Sections 2.05 or
2.06 shall be subject to the further conditions precedent that (a) with
respect to any such Purchase, on or prior to the date of such Purchase,
the Collection Agent shall have delivered to the Agent, in form and
substance satisfactory to the Agent, a completed Seller Report, dated
within five days prior to the date of such Purchase, together with a
listing by Obligor of all Pool Receivables and such additional
information as may be reasonably requested by the Agent, and (b) on the
date of such Purchase or reinvestment the Ciesco Agreement shall be in
full force and effect and the following statements shall be true (and
the acceptance by the Seller of the proceeds of such Purchase or
reinvestment shall constitute a representation and warranty by the
Seller that on the date of such Purchase or reinvestment such statements
are true):
(i) The representations and warranties contained in
Section 4.01 of this Agreement are correct on and as of the
date of such Purchase or reinvestment, before and after giving
effect to such Purchase or reinvestment and to the application
of the proceeds therefrom, as though made on and as of such
date, and
(ii) No event has occurred and is continuing, or would
result from such Purchase or reinvestment or from the
application of the proceeds therefrom, which constitutes an
Event of Termination or would constitute an Event of
Termination but for the requirement that notice be given or
time elapse or both,
and (c) the Agent shall have received such other approvals, opinions or
documents as the Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller.
Each of the representations and warranties of the Seller as set forth in
Section 4.01 of the Ciesco Agreement (including Schedule I) is hereby
incorporated herein by this reference and is deemed to be herein
restated and hereby reconfirmed in favor of the Banks, CNAI and the
Agent.
ARTICLE V
GENERAL COVENANTS OF THE SELLER
SECTION 5.01. Affirmative Covenants of the Seller. Until the
later of the Commitment Termination Date and the date upon which no
Capital for any Share shall be existing, the Seller will, unless the
Agent shall otherwise consent in writing, comply with each and every
affirmative covenant of the Seller as set forth in Section 5.01 of the
Ciesco Agreement, each of which is hereby incorporated herein by this
reference.
SECTION 5.02. Reporting Requirements of the Seller. Until
the later of the Commitment Termination Date and the date upon which no
Capital for any Share shall be existing, the Seller will, unless the
Agent shall otherwise consent in writing, furnish to the Agent each and
every report, document, certificate or other item referred to in
Section 5.02 of the Ciesco Agreement, which is incorporated herein by
this reference, except that each reference in said Section 5.02(c) to an
"Event of Investment Ineligibility" shall be and be deemed to be a
reference to an Event of Termination.
SECTION 5.03. Negative Covenants of the Seller. Until the
later of the Commitment Termination Date and the date upon which no
Capital for any Share shall be existing, the Seller will not, without
the written consent of the Agent, violate any negative covenant set
forth in Section 5.03 of the Ciesco Agreement, each of which is
incorporated herein by this reference.
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Collection Agent. The Pool
Receivables shall be serviced, administered and collected by the Person
(the "Collection Agent") designated to do so from time to time in
accordance with this Section 6.01. Until the Agent designates a new
Collection Agent, the Seller is hereby designated as, and hereby agrees
to perform the duties and obligations of, the Collection Agent pursuant
to the terms hereof. The Agent may at any time designate as Collection
Agent any Person (including itself) to succeed the Seller or any
successor Collection Agent, if such Person (other than itself) shall
agree in writing to perform the duties and obligations of the Collection
Agent pursuant to the terms hereof. The Collection Agent may, with the
prior consent of the Agent, subcontract with any other Person to
service, administer or collect the Pool Receivables, provided that the
Collection Agent shall remain liable for the performance of the duties
and obligations of the Collection Agent pursuant to the terms hereof.
SECTIONS 6.02 through 6.05. Incorporation by Reference. Each
of Sections 6.02 through 6.05 of the Ciesco Agreement is hereby
incorporated herein by this reference, except that the reference in said
Section 6.02(b) to "Facility Termination Date" shall be and be deemed to
be a reference to the Commitment Termination Date.
ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01. Events of Termination. If any of the following
events ("Events of Termination") shall occur and be continuing:
(a) The Collection Agent (if the Seller or any of its
Affiliates) (i) shall fail to perform or observe any term,
covenant or agreement hereunder (other than as referred to in
clause (ii) of this Section 7.01(a)) and such failure shall
remain unremedied for three Business Days or (ii) shall fail
to make any payment or deposit to be made by it hereunder when
due; or
(b) The Seller shall fail to perform or observe any
term, covenant or agreement contained in Section 5.02(c),
5.03(e) or 6.03(a) of the Ciesco Agreement (in each case as
incorporated herein by reference); or
(c) Any representation or warranty or statement made by
the Seller (or any of its officers) under or in connection
with this Agreement shall prove to have been incorrect in any
material respect when made; or
(d) The Seller shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement
on its part to be performed or observed and any such failure
shall remain unremedied for 10 days after written notice
thereof shall have been given to the Seller by the Agent; or
(e) Any Purchase or any reinvestment pursuant to
Section 2.05 shall for any reason (other than pursuant to the
terms hereof) cease to create, or any Share shall for any
reason cease to be, a valid and perfected first priority
undivided percentage ownership interest to the extent of the
pertinent Share in each applicable Pool Receivable and the
Related Security and Collections with respect thereto or the
Certificate shall for any reason cease to evidence in the
Owner of such Share legal and equitable title to, and
ownership of, an undivided percentage ownership interest in
Pool Receivables and Related Security to the extent of such
Share; or
(f) The Default Ratio as at the last day of any calendar
month shall exceed 6% or the Delinquency Ratio as at the last
day of any calendar month shall exceed 20%; or
(g) The sum of the Shares percentage hereunder plus the
"Shares" percentage under the Ciesco Agreement shall for a
period of five consecutive Business Days be equal to or exceed
100%; or
(h) There shall have been any material adverse change in
the financial condition or operations of the Seller since
December 31, 1993, or there shall have occurred any event
which materially adversely affects the collectibility of the
Pool Receivables, or there shall have occurred any other event
which materially adversely affects the ability of the Seller
to collect Pool Receivables or the ability of the Seller to
perform hereunder;
(i) There shall have occurred any event which
constitutes or would, with the giving of notice or the lapse
of time or both, constitute an "Event of Investment
Ineligibility" under the Ciesco Agreement or the Ciesco
Agreement shall cease for any reason to be in full force and
effect;
then, and in any such event, the Agent may, by notice to the Seller
declare the Commitment to be terminated, whereupon the Commitment shall
forthwith terminate, without demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Seller; provided
that, upon the occurrence of any event described above in subsection
(e), or in the event of an actual or deemed entry of an order of relief
with respect to the Seller referred to in Section 7.01(g) of the Ciesco
Agreement, the Commitment shall automatically be terminated without
demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Seller. Upon any such termination of the
Commitment, the Agent and the Owners shall have, in addition to all
other rights and remedies under this Agreement or otherwise, all other
rights and remedies provided under the UCC of the applicable
jurisdiction and other applicable laws, which rights shall be
cumulative. Without limiting the foregoing or the general applicability
of Article IX hereof, any Owner may elect to assign any Share owned by
such Owner to an Assignee following the occurrence of any Event of
Termination.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each of the Banks
and CNAI hereby appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as
are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement of this Agreement), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act
or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Banks, and
such instructions shall be binding upon all Banks; provided that the
Agent shall not be required to take any action which exposes the Agent
to personal liability or which is contrary to this Agreement or
applicable law.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them as Agent under or
in connection with this Agreement (including, without limitation, the
Agent's servicing, administering or collecting Pool Receivables as
Collection Agent pursuant to Section 6.01), except for its or their own
gross negligence or willful misconduct. Without limiting the generality
of the foregoing, the Agent: (i) may consult with legal counsel
(including counsel for the Seller), independent public accountants and
other experts selected by it and shall not be liable for any action
taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (ii) makes no warranty
or representation to the Banks or CNAI and shall not be responsible to
any of them for any statements, warranties or representations (whether
written or oral) made in or in connection with this Agreement;
(iii) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions
of this Agreement on the part of the Seller or to inspect the property
(including the books and records) of the Seller; (iv) shall not be
responsible to the Banks or CNAI for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Agreement, the Certificate or any other instrument or document furnished
pursuant hereto; (v) shall incur no liability under or in respect of
this Agreement by acting upon any notice (including notice by
telephone), consent, certificate or other instrument or writing (which
may be by telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties; and (vi) may
treat the Bank which funded any purchase of an Share as the Owner of
such Share until the Agent receives and accepts an Assignment and
Acceptance entered into by such Bank, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 9.01.
SECTION 8.03. CNAI and Affiliates. With respect to any Share
owned by it, CNAI shall have the same rights and powers under this
Agreement as any other Owner and may exercise the same as though it were
not the Agent. CNAI and its Affiliates may generally engage in any kind
of business with the Seller or any Obligor, any of their respective
Affiliates and any Person who may do business with or own securities of
the Seller or any Obligor or any of their respective Affiliates, all as
if CNAI were not the Agent and without any duty to account therefor to
the Banks.
SECTION 8.04. Indemnification of Agent. The Banks agree to
indemnify the Agent (to the extent not reimbursed by the Seller),
ratably according to the respective amounts of Capital of the Shares (or
interests therein) owned by each of them (or if no Capital is then
outstanding, the Banks shall indemnify the Agent ratably according to
the respective amounts of their Bank Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any
action taken or omitted by the Agent under this Agreement, provided that
no Bank shall be liable for a portion of such liabilities, losses any
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or willful
misconduct.
ARTICLE IX
ASSIGNMENT OF SHARES
SECTION 9.01. Assignability. (a) Each Bank may assign to
any Eligible Assignee or to any other Bank all or a portion of its
rights and obligations under this Agreement (including, without
limitation, all or a portion of its Bank Commitment and any Shares or
interests therein owned by it); provided that
(i) Citibank may not assign any portion of its Bank
Commitment to the extent that it reduces such commitment below (A)
10% of the Commitment minus (B) the Capital of Shares purchased by
CNAI,
(ii) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this
Agreement.
(iii) the amount being assigned pursuant to each such
assignment shall in no event be less than the lesser of $10,000,000
and all of the assigning Bank's Bank Commitment,
(iv) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing
and recordation fee of $2,500, and
(v) concurrently with such assignment, a Bank shall, if such
Bank is a Bank other than Citibank, assign to such Eligible
Assignee an equal percentage of its rights and obligations under
the APA.
Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder and (y) the Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish
such rights and be released from such obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bank's rights and obligations under
this Agreement, such Bank shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance,
such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto;
(ii) such assigning Bank makes no representations or warranty
and assumes no responsibility with respect to the financial
condition of the Seller or the performance or observance by the
Seller of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial statements
referred to in Article V and such other documents and information
as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance
upon the Agent, such assigning Bank or any other Bank and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement;
(v) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental
thereto; and
(vi) such assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in
Section 11.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Banks and the Bank Commitment of, and aggregate
outstanding Capital of Shares or interests therein owned by, each Bank
from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and
the Seller, the Agent and the Banks may treat each person whose name is
recorded in the Register as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Seller
or any Bank at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an Eligible Assignee, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the
form of Exhibit D hereto, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and (iii)
give prompt notice thereof to the Seller.
(e) Each Bank may sell participations to one or more banks or
other entities, in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of
its Bank commitment and the Shares or interests therein owned by it);
provided that (i) such Bank's obligations under this Agreement
(including, without limitation, its Bank Commitment to the Seller
hereunder), shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the Seller, the Agent and the other Banks shall
continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement, and (iv)
concurrently with such participation, the Selling Bank shall, if such
Bank is any Bank other than Citibank, sell to such bank or other entity
a participation in an equal percentage of its rights and obligations
under the APA.
SECTION 9.02. Annotation of Certificate. The Agent shall
annotate the Certificate to reflect any assignment of an Share made
pursuant to Section 9.01 or otherwise.
ARTICLE X
INDEMNIFICATION
SECTION 10.01. Indemnities by the Seller. Without limiting
any other rights which the Agent, the Banks or CNAI or any Affiliate of
any thereof (each, an "Indemnified Party") may have hereunder or under
applicable law, the Seller hereby agrees to indemnify each Indemnified
Party from and against any and all claims, losses and liabilities
(including reasonable attorneys' fees) (all of the foregoing being
collectively referred to as "Indemnified Amounts") growing out of or
resulting from this Agreement or the use of proceeds of Purchases or
reinvestments or the ownership of Shares or in respect of any Receivable
or any Contract, excluding, however, (a) Indemnified Amounts to the
extent resulting from gross negligence or willful misconduct on the part
of such Indemnified Party, (b) recourse (except as otherwise
specifically provided in this Agreement) for uncollectible Receivables
(or delayed payment thereon) due to creditworthiness of Obligors or (c)
any income taxes incurred by such Indemnified Party arising out of or as
a result of this Agreement or the ownership of Shares or in respect of
any Receivable or any Contract. Without limiting or being limited by
the foregoing (but subject to the restrictions described in the
foregoing clauses (a) and (b)), the Seller shall pay on demand to each
Indemnified Party any and all amounts necessary to indemnify such
Indemnified Party from and against any and all Indemnified Amounts
relating to or resulting from:
(i) the purported sale by the Seller (and acceptance of any
initial purchase price payment or reinvestment payment thereof) of
an undivided percentage ownership interest in any Pool Receivable
at the date of such payment or reinvestment of the aggregate
percentage interest in the Pool Receivables with respect to all
then outstanding Shares plus all then outstanding "Shares" under
the Ciesco Agreement equals or exceeds 100%;
(ii) reliance on any representation or warranty or statement
made or deemed made by the Seller (or any of its officers) under or
in connection with this Agreement which shall have been incorrect
in any material respect when made;
(iii) the failure by the Seller to comply with any
applicable law, rule or regulation with respect to any Pool
Receivable or the related Contract, or the nonconformity of any
Pool Receivable or the related Contract with any such applicable
law, rule or regulation;
(iv) the failure to vest in the Owner of an Share an undivided
percentage ownership interest, to the extent of such Share, in the
Receivables in, or purporting to be in, the Receivables Pool and
the Related Security and Collections in respect thereof, free and
clear of any Adverse Claim;
(v) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable
laws with respect to any Receivables in, or purporting to be in,
the Receivables Pool and the Related Security and Collections in
respect thereof, whether at the time of any Purchase or
reinvestment or at any subsequent time;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the
payment of any Receivable in, or purporting to be in, the
Receivables Pool (including, without limitation, a defense based on
such Receivable or the related Contract not being a legal, valid
and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the
sale of the merchandise or services related to such Receivable or
the furnishing or failure to furnish such merchandise or services;
(vii) any failure of the Seller, as Collection Agent or
otherwise, to perform its duties or obligations in accordance with
the provisions of Article VI or to perform its duties or obligation
under the Contracts;
(viii) any products liability claim arising out of or in
connection with merchandise, insurance or services which are the
subject of any Contract;
(ix) any investigation, litigation or proceeding related to
this Agreement or the use of proceeds of Purchases or reinvestments
or the ownership of Shares or in respect of any Receivable, Related
Security or Contract; or
(x) the commingling of Collections of Pool Receivables at any
time with other funds.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement (including, without limitation, any
provision of the Ciesco Agreement which is incorporated herein by
reference), and no consent to any departure by the Seller herefrom,
shall in any event be effective unless the same shall be in writing and
signed by the Agent, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given. Notwithstanding the foregoing, the Agent agrees that it
shall not
(a) without the prior written consent of each Bank, (i) amend
the definitions of Eligible Receivable, Defaulted Receivable or
Delinquent Receivable contained in this Agreement, or modify the
then existing concentration Limit or any Special Concentration
Limit or (ii) amend, modify or waive any provision of this
Agreement in any way which would (A) reduce the amount of Capital
or Yield that is payable on account of any Share or delay any
scheduled date for payment thereof, or (B) impair any rights
expressly granted to an assignee or participant under this
Agreement, or (C) reduce fees payable by the Seller to the Agent or
to Citibank which relate to payments to the Banks or delay the
dates on which such fees are payable, or (D) modify any provisions
relating to recourse for uncollectible Receivables or to reserves
for Yield or for the Collection Agent Fee, or (iii) agree to a
different Assignee Rate pursuant to the final proviso in the
definition of Assignee Rate; or
(b) without the prior written consent of the Majority Banks,
(i) amend the definitions of Default Ratio, Delinquency Ratio or
Net Receivables Pool Balance, (ii) amend the Events of Termination
to increase the maximum permitted Default Ratio or Delinquency
Ratio or reduce the minimum required Net Receivables Pool Balance
to Capital ratio or (iii) (A) waive violations of the Default Ratio
or the Delinquency Ratio for more than two consecutive months, or
(B) waive a violation of the Net Receivables Pool Balance to
Capital ratio for more than one month beyond any applicable grace
period unless the Seller has cured or has agreed to cure such
violation within 30 days after notice from the Agent or (iv) amend
this Agreement to increase the Commitment.
SECTION 11.02. Notices, Etc. All notices and other
communications provided for hereunder shall, unless otherwise stated
herein, be in writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered, as to each party hereto, at its address set forth under its
name on the signature pages hereof or at such other address as shall be
designated by such party in a written notice to the other parties
hereto, or, with respect to any other Bank, at its address specified in
the Assignment and Acceptance pursuant to which it became a Bank or at
such other address as shall be designated by such Bank in a written
notice to the other parties hereto. All such notices and communications
shall, when mailed, telecopied, telegraphed, telexed or cabled, be
effective when deposited in the mails, telecopied, delivered to the
telegraph company, confirmed by telex answerback or delivered to the
cable company, respectively, except that notices and communications to
the Agent pursuant to Article II shall not be effective until received
by the Agent.
SECTION 11.03. No Waiver: Remedies. No failure on the part
of the Agent, the Banks or CNAI to exercise, and no delay in exercising,
any of their respective rights hereunder or under the Certificate shall
operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. Without
limiting the foregoing, Citibank is hereby authorized by the Seller at
any time and from time to time, to the fullest extent permitted by law,
to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at
any time owing by Citibank to or for the credit or the account of the
Seller against any and all of the obligations of the Seller, now or
hereafter existing under this Agreement to Citibank, CNAI or the Agent
or their respective successors and assigns, whether or not any demand
shall have been made under this Agreement and although such obligations
may be unmatured. Citibank agrees promptly to notify the Seller after
any such set-off and application; provided that the failure to give such
notice shall not affect the validity of such set-off and application.
SECTION 11.04. Binding Effect: Assignability. This Agreement
shall be binding upon and inure to the benefit of the Seller, the Agent,
the Banks and CNAI, and their respective successors and assigns, except
that the Seller shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Agent.
This Agreement shall create and constitute the continuing obligation of
the parties hereto in accordance with its terms, and shall remain in
full force and effect until such time, after the Commitment Termination
Date, as no Capital of any Share shall be outstanding; provided that
rights and remedies with respect to the provisions of Article X and
Section 11.06 and 11.07 shall be continuing and shall survive any
termination of this Agreement.
SECTION 11.05. Governing Law. This Agreement and the
Certificate shall be governed by, and construed in accordance with, the
laws of the State of New York, except to the extent that the validity or
perfection of the interests of the Owners, or remedies hereunder, in
respect of the Receivables, any Related Security or any Collections in
respect thereof are governed by the laws of a jurisdiction other than
the State of New York.
SECTION 11.06. Costs, Expenses and Taxes. (a) In addition to
the rights of indemnification granted to the Indemnified Parties under
Article X hereof, the Seller agrees to pay on demand all costs and
expenses in connection with the preparation, execution, delivery,
administration (including periodic auditing), modification and amendment
of this Agreement, the Certificate and the other documents to be
delivered hereunder, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for the Agent and Citibank, with
respect thereto and with respect to advising the Agent and Citibank as
to their rights and remedies under this Agreement. The Seller further
agrees to pay on demand all costs and expenses, if any (including,
without limitation, reasonable counsel fees and expenses), of the Agent,
the Banks, CNAI and their respective Affiliates in connection with the
enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the Certificate and the other documents to
be delivered hereunder, including, without limitation, reasonable
counsel fees and expenses in connection with the enforcement of rights
under this Section 11.06(a).
(b) In addition, the Seller shall pay any and all stamp and
other taxes (excluding income taxes) and fees payable or determined to
be payable in connection with the execution, delivery, filing and
recording of this Agreement, the Certificate or the other documents to
be delivered hereunder, and agrees to save each Indemnified Party
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 11.07. Confidentiality. Except to the extent
otherwise required by applicable law, the Seller agrees to maintain the
confidentiality of this Agreement (and all drafts thereof), including
the terms and provisions of the Ciesco Agreement (and all drafts
thereof) incorporated herein by reference, and not to disclose this
Agreement or such drafts to third parties (other than to its directors,
officers, employees, accountants or counsel); provided that the
Agreement may be disclosed to third parties to the extent such
disclosure is (i) required in connection with a sale of securities of
the Seller, (ii) made solely to persons who are legal counsel for the
purchaser or underwriter of such securities, (iii) limited in scope to
the provisions of Articles V, VII, X and, to the extent defined terms
are used in Articles V, VII and X, such terms defined in Article I of
this Agreement and (iv) made pursuant to a written agreement of
confidentiality in form and substance reasonably satisfactory to the
Agent.
SECTION 11.08. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall
constitute one and the same agreement.
SECTION 11.09. Amendment of the Original Certificate. The
Original Certificate is hereby amended in its entirety to read as set
forth in Exhibit A and the Agent is hereby authorized to endorse on the
Original Certificate the changes made pursuant to the amendment and
restatement of this Agreement. Each reference in this Agreement to "the
Certificate" shall mean the Original Certificate as amended by the
amendment and restatement of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective officers (or agents) thereunto duly
authorized, as of the date first above written.
IES UTILITIES INC.
By:___________________________
Title:
By:___________________________
Title:
200 First Street, S.E.
Cedar Rapids, IA 52401
CITICORP NORTH AMERICA, INC.,
individually and as Agent
By:___________________________
Vice President
450 Mamaroneck Avenue
Harrison, NY 10528
Attention: Corporate Asset
Funding Department
(TWX 510 600 5528
Answerback CIC CAT UD)
CITIBANK, N.A.
By:___________________________
Attorney-in-Fact
450 Mamaroneck Avenue
Harrison, NY 10528
Attention: Vice President
Facsimile No. 914-899-7015
EXHIBIT A
FORM OF CERTIFICATE
Dated as of June 30, 1989
As amended and restated as of February 28, 1997
Reference is made to the Receivables Purchase and Sale
Agreement dated as of June 30, 1989, as amended and restated as of
February 28, 1997 (the "Agreement") among IES Utilities Inc. (formerly
known as Iowa Electric Light and Power Company, the "Seller"), Citibank,
N.A. ("Citibank") and Citicorp North America, Inc., individually and as
Agent. Terms defined in the Agreement are used herein as therein
defined.
The Seller hereby sells and assigns to the Agent for the
account of the Owner each Share as determined from time to time under
the Agreement.
Each Purchase of an Share made from the Seller, each
assignment of such Share by its Owner to an Assignee and each reduction
in Capital in respect of each Share evidenced hereby shall be endorsed
by the Agent on the grid attached hereto which is part of this
Certificate of Assignment. Such endorsement shall evidence the
ownership of such Share initially by the purchaser thereof and upon any
assignment, if any, thereof by the Assignee thereof and the amount of
Capital from time to time.
This Certificate of Assignment is made without recourse except
as otherwise provided in the Agreement.
This Certificate of Assignment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this
Certificate of Assignment to be duly executed and delivered by its duly
authorized officer as of the date first above written.
IES UTILITIES INC.
By:______________________________
Title:________________________
By:______________________________
Title:________________________
GRID
Number Capital Owner
of (Giving Effect (Giving Effect
Shares* Transaction** to Transaction) to Transaction)
* Shares will be numbered sequentially based upon date of Purchase.
** Transactions are Purchases, Reductions in Capital, Assignments,
Divisions of Shares and Combinations of Shares.
EXHIBIT B IS FILED AFTER EXHIBIT D AND SCHEDULE 1.
EXHIBIT C
FORM OF OPINION OF COUNSEL FOR THE SELLER
[Date]
Citibank, N.A.
450 Mamaroneck Avenue
Harrison, NY 10528
Citicorp North America, Inc.
as Agent
450 Mamaroneck Avenue
Harrison, NY 10528
Katten Muchin & Zavis
525 West Monroe Street
Chicago, Illinois 60661-3693
IES Utilities Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.02(e)
of the amendment and restatement, dated as of February 28, 1997 (the
"Agreement"), of the Receivables Purchase and Sale Agreement, dated as
of June 30, 1989, among IES Utilities Inc. (the "Seller"), Citibank,
N.A., and Citibank North America, Inc., individually and as Agent. The
terms defined in the Agreement are used as defined in the Agreement.
As Attorney for the Seller, I have acted as counsel in
connection with the preparation, execution and delivery of the
Agreement.
In that connection, I have examined:
(1) The Agreement and the Certificate.
(2) The documents of the Seller pursuant to Article III
of the Agreement.
(3) The Articles of Incorporation of the Seller and all
amendments thereto (the "Articles").
(4) The By-laws of the Seller and all amendments thereto
(the "By-Laws").
(5) Oral verification with the Secretary of State of
Iowa, dated ____________, 1997, as to the continued
existence and good standing of the Seller in such State.
I have also examined all of the indentures, loan or credit
agreements, leases, guarantees, mortgages, security agreements, bonds,
notes and other agreements or instruments and all of the orders, writs,
judgments, awards, injunctions and decrees (collectively, the
"Documents"), which affect or purport to affect the Seller's ability to
sell or otherwise dispose of Receivables or the Seller's obligations
under the Agreement. In addition, I have examined such other corporate
records of the Seller, certificates of public officials and of officers
of the Seller, and agreements, instruments and other documents, as I
have deemed necessary as a basis for the opinions expressed below. I
have assumed the due execution and delivery, pursuant to due
authorization, of the Agreement by the Investor and the Agent.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Iowa.
2. The execution, delivery and performance by the Seller of
the Agreement and the Certificate, and the Seller's use of the
proceeds of Purchases and reinvestments, are within the Seller's
corporate powers, have been duly authorized by all necessary
corporate action, and (A) do not contravene (i) the Articles or the
By-Laws or (ii) any law, rule or regulation applicable to the
Seller or, to the best of my knowledge, (iii) any contractual or
legal restriction contained in any Document listed above; (B) do
not result in or require the creation of any Adverse Claim (other
than pursuant to the Agreement) upon or with respect to any of the
Seller's properties; and (C) do not require compliance with any
bulk sales act or similar law. The Agreement and the Certificate
have been duly executed and delivered on behalf of the Seller.
3. No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by
the Seller of the Agreement or the Certificate or for the
perfection of or the exercise by the Agent or any Owner of their
respective rights and remedies under the Agreement and the
Certificate.
4. The Agreement and the Certificate are legal, valid and
binding obligations of the Seller enforceable against the Seller in
accordance with their respective terms.
5. To the best of my knowledge, there are no pending or
overtly threatened actions or proceedings against the Seller or any
of its subsidiaries before any court, governmental agency or
arbitrator which are likely to materially adversely affect (i) the
financial condition or operations of the Seller or any of its
subsidiaries or (ii) the ability of the Seller to perform its
obligations under the Agreement or the Certificate, or which
purport to affect the legality, validity, binding effect or
enforceability of the Agreement or the Certificate.
6. Each Share purchased prior to the date of this opinion
constituted, and each Share purchased pursuant to a subsequent
Purchase will constitute, a valid undivided ownership interest (an
"Undivided Interest"), to the extent of the Share purchased
pursuant to such Purchase, in each Pool Receivable then exiting or
thereafter arising and in the Related Security and Collections.
7. The nature of the Share is such that its purchase with
the proceeds of notes would constitute a "current transaction"
within the meaning of Section 3(a)(3) of the Securities Act of
1933, as amended (the "Securities Act"); since the date of initial
Purchase, the Pool Receivables have not been and will not be
applied by the Seller or any of its consolidated subsidiaries in
determining the total "current transactions" of the Seller and its
consolidated subsidiaries in claiming an exemption from
registration under the Securities Act. Each Purchase and each
reinvestment of Collections pursuant to the Agreement will
constitute a purchase or other acquisition of notes, drafts,
acceptances, open accounts receivable or other obligations
representing part or all of the sales price of merchandise,
insurance or services within the meaning of Section 3(c)(5) of the
Investment Company Act of 1940, as amended.
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in paragraph 4 above is subject to the effect
of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally.
(b) My opinion in paragraph 4 above is subject to the effect
of general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity
or at law).
(c) I express no opinion as to the priority of the Undivided
Interest as against any claim or lien in favor of the United States
or any agency or instrumentality thereof (including, without
limitation, federal tax liens and liens under Title IV of ERISA).
Very truly yours,
Stephen W. Southwick
Attorney
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated _____________, 19__
Reference is made to the Receivables Purchase and Sale
Agreement dated as of June 30, 1989, as amended to date (the
"Agreement") among IES UTILITIES INC. (formerly known as Iowa Electric
Light and Power Company), an Iowa corporation (the "Seller"), the Banks
(as defined in the Agreement) and Citicorp North America, Inc., a
Delaware corporation, individually and as Agent ("Agent") for the Banks.
Terms defined in the Agreement are used herein with the same meaning.
____________________ (the "Assignor") and ___________________
(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, that
interest in and to all of the Assignor's rights and obligations under
the Agreement as of the date hereof which represents the percentage
interest specified on Schedule 1 of all outstanding rights and
obligations under the Agreement, including, without limitation, such
interest in the Assignor's Bank Commitment and the Shares or interests
therein owned by the Assignor. After giving effect to such sale and
assignment, the Assignee's Bank Commitment and the amount of the Capital
held by the Assignee will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with the Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Seller, or the performance or observance
by the Seller of any of its obligations under the Agreement or any other
instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of
the Agreement, together with copies of the financial statements referred
to in Section 5.02 thereto and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Agreement; (iii) confirms that it
is an Eligible Assignee; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the
Agreement as are delegated to the Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations
which by the terms of the Agreement are required to be performed by it
as a Bank; (vi) specifies as its address for notices the office set
forth beneath its name on the signature pages hereof; (vii) represents
that this Assignment and Acceptance has been duly authorized, executed
and delivered by such Assignee pursuant to its corporate powers and
constitutes the legal, valid and binding obligation of such Assignee and
(viii) if the Assignee is organized under the laws of a jurisdiction
outside the United States, attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's
status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the
Assignee under the Agreement or such other documents as are necessary to
indicate that all such payments are subject to such rates at a rate
reduced by an applicable tax treaty.
4. Following the execution of this Assignment and Acceptance
by the Assignor and the Assignee, it will be delivered to the Agent for
acceptance and recording by the Agent. The effective date of this
Assignment and Acceptance shall be the date of acceptance thereof by the
Agent, unless otherwise specified on Schedule 1 hereto (the "Effective
Date").
5. Upon such acceptance and recording by the Agent, as of
the Effective Date, (i) the Assignee shall be a party to the Agreement
and, to the extent provided in this Assignment and Acceptance, have the
rights and obligations of a Bank thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of Capital, Yield and fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Agreement for periods
prior to the Effective Date directly between themselves.
7. The Assignee agrees to abide by any obligations set forth
in the Agreement on the part of a Bank. Furthermore, the Assignee
understands that the Agreement itself is a confidential document and
will not disclose it to any other Person except with the Agent's prior
written consent, or to the Assignee's legal counsel if such counsel
agrees to hold it confidential, or as required by law. Notwithstanding
the foregoing, the Assignee may, in connection with any assignment or
participation or proposed assignment or participation, disclose to the
assignee or participant or proposed assignee or participant any
information relating to the Seller, including the Receivables, furnished
to the Assignee by or on behalf of the Seller or by the Agent; provided
that, prior to any such disclosure, the assignee or participant or
proposed assignee or participant agrees to preserve the confidentiality
of any confidential information relating to the Seller received by it
any of the foregoing entities.
8. If, pursuant to Section 11.01(b)(iv) of the Agreement,
the Agreement shall be amended to increase the Commitment, then (i) the
Agent shall promptly notify each Bank of such amendment, and (ii) on the
effective date of such amendment, each Bank's Percentage Interest under
its Assignment and Acceptance Agreement shall be proportionately reduced
and each Bank's Bank Commitment shall remain the same; provided that
each Bank may elect to maintain its Percentage Interest by executing and
delivering, within ten days after receipt of notice of such amendment, a
new Schedule 1 to this Assignment and Acceptance Agreement reaffirming
its Percentage Interest and indicating its new Bank Commitment.
9. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers
thereunto duly authorized, as of the date first above written, such
execution being made on Schedule 1 hereto.
Schedule 1
to
IES Utilities Inc.
Assignment and Acceptance
Dated , 19__
Section 1.
Percentage Interest: 1 __________%
Section 2.
Assignee's Bank Commitment: $__________
Aggregate Outstanding Capital of
Shares held by
the Assignee: $__________
Section 3.
Effective Date: 2 _______________, 19__
[NAME OF ASSIGNOR]
By:_______________________
Title:
[NAME OF ASSIGNEE]
By:_______________________
Title:
Address for Notices:
Accepted this _____ day
of ______________, 19__
CITICORP NORTH AMERICA, INC., as Agent
By:____________________
Vice President
_______________________________
1 This percentage must be the same as the Assignee's percentage
interest under the APA.
2 This date should be no earlier than the date of acceptance by the
Agent.
EXHIBIT B
U.S. $65,000,000
RECEIVABLES PURCHASE AND SALE AGREEMENT
Dated as of June 30, 1989
As AMENDED and RESTATED as of FEBRUARY 28, 1997
Among
IES UTILITIES INC.
as Seller
and
CIESCO L.P.
as the Investor
and
CITICORP NORTH AMERICA, INC.
as Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
SECTION 1.01. Certain Defined Terms 2
SECTION 1.02. Other Terms 17
SECTION 1.03. Computation of Time Periods 17
ARTICLE II AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01. Facility 17
SECTION 2.02. Making Purchases 18
SECTION 2.03. Termination or Reduction of the Purchase Limit 18
SECTION 2.04. Share 18
SECTION 2.05. Non-Liquidation Settlement Procedures 19
SECTION 2.06. Liquidation Settlement Procedures 19
SECTION 2.07. General Settlement Procedures 20
SECTION 2.08. Payments and Computations, Etc. 21
SECTION 2.09. Dividing or Combining of Shares 21
SECTION 2.10. Fees 21
SECTION 2.11. Recourse for Defaulted Receivables 22
SECTION 2.12. Eurodollar Increased Costs 22
ARTICLE III CONDITIONS OF PURCHASES
SECTION 3.01. Condition Precedent to Initial Purchase 23
SECTION 3.02. Conditions Precedent to the Effectiveness
of the Amendment and Restatement of the Original
Agreement 24
SECTION 3.03. Conditions Precedent to All Purchases and
Reinvestments 24
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Seller 25
ARTICLE V GENERAL COVENANTS OF THE SELLER
SECTION 5.01. Affirmative Covenants of the Seller 27
SECTION 5.02. Reporting Requirements of the Seller 28
SECTION 5.03. Negative Covenants of the Seller 29
ARTICLE VI ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Collection Agent 30
SECTION 6.02. Duties of Collection Agent 30
SECTION 6.03. Rights of the Agent 31
SECTION 6.04. Responsibilities of the Seller 32
SECTION 6.05. Further Action Evidencing Purchases 32
ARTICLE VII EVENTS OF INVESTMENT INELIGIBILITY
SECTION 7.01. Events of Investment Ineligibility 33
ARTICLE VIII THE AGENT
SECTION 8.01. Authorization and Action 35
SECTION 8.02. Agent's Reliance, Etc 35
SECTION 8.03. CNAI and Affiliates 35
SECTION 8.04. Investor's Purchase Decision 35
ARTICLE IX ASSIGNMENT OF SHARES
SECTION 9.01. Assignability 36
SECTION 9.02. Annotation of Certificate 36
ARTICLE X INDEMNIFICATION
SECTION 10.01. Indemnities by the Seller 36
ARTICLE XI MISCELLANEOUS
SECTION 11.01. Amendments, Etc. 38
SECTION 11.02. Notices, Etc. 38
SECTION 11.03. No Waiver; Remedies 38
SECTION 11.04. Binding Effect; Assignability 38
SECTION 11.05. Governing Law 38
SECTION 11.06. Costs and Expenses 39
SECTION 11.07. No Proceedings 39
SECTION 11.08. Confidentiality 39
SECTION 11.09. Execution in Counterparts 39
SECTION 11.10. Amendment of the Original Certificate 39
RECEIVABLES PURCHASE AND SALE AGREEMENT
Dated as of June 30, 1989
as Amended and Restated as of February 28, 1997
IES UTILITIES INC. (formerly known as Iowa Electric Light and
Power Company), an Iowa corporation (the "Seller"), CIESCO L.P., a New
York limited partnership (the "Investor"), and CITICORP NORTH AMERICA,
INC., a Delaware corporation ("CNAI"), as agent (the "Agent") for the
Owner (as defined below), agree as follows:
PRELIMINARY STATEMENTS. (1) Certain terms which are
capitalized and used throughout this Agreement (in addition to those
defined above) are defined in Article I of this Agreement.
(2) The Seller has, and expects to have, Pool Receivables in
which the Seller intends to sell interests referred to herein as Shares.
(3) The Investor desires to purchase Shares from the Seller.
(4) In consideration of the reinvestment in Pool Receivables
of daily Collections (other than with regard to accrued Yield,
Miscellaneous Fees and Collection Agent Fee) attributable to a Share,
the Seller will sell to the Owner of such Share additional interests in
the Pool Receivables as part of such Share until such reinvestment is
terminated. It is intended that such daily reinvestment of Collections
be effected by an automatic daily adjustment to each Owner's Shares.
(5) CNAI has been requested and is willing to act as Agent.
(6) The Seller, the Investor and CNAI, as Agent, entered into
a Receivables Purchase and Sale Agreement, dated as of June 30, 1989,
and an Amendment No. 1 thereto, dated as of September 27, 1991 and
amended and restated the same as of April 15, 1994 (collectively, the
"Original Agreement").
(7) The Seller, the Investor and CNAI, as Agent, desire to
again amend and restate the Original Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms
of the terms defined):
"Adverse Claim" means a lien, security interest or other
charge or encumbrance, or other type of preferential arrangement.
"Affiliate" means, as to any Person, any other Person, that,
directly or indirectly, is in control of, is controlled by or is under
common control with such Person or is a director or officer of such
Person.
"Affiliated Obligor" means any Obligor which is an Affiliate
of another Obligor.
"Agent's Account" means the special account (account number
40519819) of the Agent maintained at the office of Citibank at 399 Park
Avenue, New York, New York.
"Alternate Base Rate" means, for any period, a fluctuating
interest rate per annum as shall be in effect from time to time, which
rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time as Citibank's base rate; or
(b) 1/2 of one percent above the latest three-week moving
average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United
States money market banks, such three-week moving average being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published
by the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations for
such rates received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by Citibank, in
either case adjusted to the nearest 1/4 of one percent or, if there
is no nearest 1/4 of one percent, to the next higher 1/4 of one
percent.
"Assessment Rate" for any Fixed Period means the annual
assessment rate per annum estimated by Citibank on the first day of such
Fixed Period for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in the United
States.
"Assignee Rate" for any Fixed Period for any Share means (i)
the applicable Fees Letter Fees Rate plus (ii) an interest rate per
annum equal to
(x) the sum of:
(a) the rate per annum obtained by dividing (i) the consensus
bid rate determined by Citibank (rounded upward to the nearest
whole multiple of 1/100 of 1% per annum, if such consensus bid rate
is not such a multiple) for the bid rates per annum, at 9:00 A.M.
(New York City time) (or as soon thereafter as practicable) on the
Business Day immediately preceding the first day of such Fixed
Period of New York certificate of deposit dealers of recognized
standing selected by Citibank for the purchase at face value of
certificates of deposit of Citibank in New York City in an amount
approximately equal or comparable to the Capital of such Share on
such first day and with a maturity equal to such Fixed Period, by
(ii) a percentage equal to 100% minus the CD Reserve Percentage for
such Fixed Period, plus
(b) in the event that the Seller's long term public senior
debt securities are not rated at least BBB- by Standard & Poor's
Corporation and Baa3 by Moody's Investors Services, Inc. (or, if
none of the Seller's long-term public senior debt securities are
publicly rated at such time, the Agent shall have determined, in
its sole discretion, that any of such securities would not receive
at least the specified ratings if they were publicly rated), 1%,
plus
(c) the Assessment Rate for such Fixed Period
or, at the option of the Agent, upon notice to the Seller,
(y) the sum of:
(a) 0.175% per annum above the Eurodollar Rate for such Fixed
Period, plus
(b) in the event that the Seller's long-term public senior
debt securities are not rated at least BBB-by Standard & Poor's
Corporation and Baa3 by Moody's Investors Services, Inc. (or, if
none of the Seller's long-term public senior debt securities are
publicly rated at such time, the Agent shall have determined, in
its sole discretion, that any of such securities would not receive
at least the specified ratings if they were publicly rated), 1%;
provided that
(i) for any Fixed Period on or prior to the first day on
which the Owner shall have notified the Agent that the introduction
of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for the Owner
to fund such Share at the Assignee Rate set forth above (and the
Owner shall not have subsequently notified the Agent that such
circumstances no longer exist),
(ii) in the case of any Fixed Period of one to (and including)
29 days,
(iii) in the case of any Fixed Period as to which the
Agent does not receive notice by 12:00 noon (New York City time) on
the third Business Day preceding the first day of such Fixed
Period, that the related Share will not be funded by issuance of
commercial paper, and
(iv) in the case of any Fixed Period for a Share the Capital
of which allocated to the Owner is less than $500,000,
the "Assignee Rate" for such Fixed Period shall be an interest rate per
annum equal to the Alternate Base Rate in effect on the first day of
such Fixed Period plus the applicable Fees Letter Fees Rate; provided
further that the Agent and the Seller may agree in writing from time to
time upon a different "Assignee Rate".
"Average Maturity" means, on any day, that period (expressed
in days) equal to the average maturity of the Pool Receivables as shall
be calculated by the Collection Agent as set forth in the most recent
Seller Report in accordance with the provisions thereof; provided that,
if the Agent shall disagree with any such calculation, the Agent may
recalculate the Average Maturity for such day.
"Business Day" means any day on which (i) banks are not
authorized or required to close in New York City and (ii) if this
definition of "Business Day" is utilized in connection with the
Eurodollar Rate, dealings are carried out in the London interbank
market.
"Capital" of any Share means the original amount paid to the
Seller for such Share at the time of its acquisition by the Investor
pursuant to Sections 2.01 and 2.02, or such amount divided or combined
by any dividing or combining of such Share pursuant to Section 2.09, in
each case reduced from time to time by Collections received and
distributed on account of such Capital pursuant to Section 2.06;
provided that, if such Capital of such Share shall have been reduced by
any distribution of any portion of Collections and thereafter such
distribution is rescinded or must otherwise be returned for any reason,
such Capital of such Share shall be increased by the amount of such
distribution, all as though such distribution had not been made.
"CD Reserve Percentage" for any Fixed Period means the reserve
percentage applicable on the first day of such Fixed Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) U.S. dollar nonpersonal time deposits in the United States
with a maturity equal to such Fixed Period.
"Certificate" means the Original Certificate, as amended by
the amendment and restatement of the Original Agreement.
"Citibank" means Citibank, N.A., a national banking
association.
"Citibank Agreement" means the Receivables Purchase and Sale
Agreement, dated as of June 30, 1989, as amended and restated as of
February 28, 1997, among the Seller, Citibank and CNAI, individually and
as Agent, as the same may, from time to time, be amended, modified or
supplemented.
"Collection Agent" means at any time the Person (including the
Agent) then authorized pursuant to Article VI to service, administer and
collect Pool Receivables.
"Collection Agent Fee" has the meaning specified in Section
2.10.
"Collection Agent Fee Reserve" for any Share at any time means
the sum of (i) the Liquidation Collection Agent Fee for such Share at
such time plus (ii) the unpaid Collection Agent Fee relating to such
Share accrued to such time.
"Collections" means, with respect to any Pool Receivable, all
cash collections and other cash proceeds of such Pool Receivable,
including, without limitation, all cash proceeds of Related Security
with respect to such Pool Receivable, and any Collection of such Pool
Receivable deemed to have been received pursuant to Section 2.07.
"Concentration Account" means the special account (account
number 110-00010-6) of the Seller maintained at the office of Firstar
Bank of Cedar Rapids, N.A., at Second Avenue and Third Street, Cedar
Rapids, Iowa.
"Concentration Limit" for any Obligor means at any time 3%, or
such other percentage ("Special Concentration Limit") for such Obligor
designated by the Agent in a writing delivered to the Seller; provided
that, in the case of an Obligor with any Affiliated Obligor, the
Concentration Limit shall be calculated as if such Obligor and such
Affiliated Obligor are one Obligor; provided further that the Agent may
cancel any Special Concentration Limit upon three Business Days' notice
to the Seller.
"Contract" means any of the Tariffs.
"CP Fixed Period Date" means, for any Share, the date of
Purchase of such Share and thereafter the last day of each calendar
month (or, if such day is not a Business Day, the immediately succeeding
Business Day) or any other day as shall have been agreed to in writing
by the Agent and the Seller prior to the first day of the preceding
Fixed Period for such Share or, if there is no preceding Fixed Period,
prior to the first day of such Fixed Period.
"Credit and Collection Policy" means those credit and
collection policies and practices in effect on the date hereof relating
to Contracts and Receivables described in Schedule II to the Original
Agreement, as modified in compliance with Section 5.03(c).
"Debt" means (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other similar
instruments, (iii) obligations to pay the deferred purchase price of
property or services, (iv) obligations as lessee under leases which
shall have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, (v) obligations under
direct or indirect guaranties in respect of, and obligations (contingent
or otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i) through (iv) above, and
(vi) liabilities in respect of unfunded vested benefits under plans
covered by Title IV of ERISA.
"Default Ratio" means the ratio (expressed as a percentage)
computed as of the last day of each calendar month by dividing (i) the
aggregate Outstanding Balance of all Pool Receivables that were
Defaulted Receivables on such date or would have been Defaulted
Receivables on such date had they not been written off the books of the
Seller during such month by (ii) the aggregate Outstanding Balance of
all Pool Receivables on such date.
"Defaulted Receivable" means a Receivable:
(i) as to which any payment, or part thereof, remains unpaid
for 90 days or more from the original due date for such payment;
(ii) as to which the Obligor thereof has taken any action, or
suffered any event to occur, of the type described in Section
7.01(g); or
(iii) which, consistent with the Credit and Collection
Policy, would be written off the Seller's books as uncollectible.
"Delinquency Ratio" means the ratio (expressed as a
percentage) computed as of the last day of each calendar month by
dividing (i) the aggregate Outstanding Balance of all Pool Receivables
that were Delinquent Receivables at the end of such month by (ii) the
aggregate Outstanding Balance of all Pool Receivables on such date.
"Delinquent Receivable" means a Receivable that is not a
Defaulted Receivable and:
(i) as to which any payment, or part thereof, remains unpaid
for thirty days or more from the original due date of such payment;
or
(ii) which, consistent with the Credit and Collection Policy,
would be classified as delinquent by the Seller.
"Designated Account" means an account in the name of, and
owned by, CNAI, as Agent, designated by the Agent for the purpose of
receiving Collections of Pool Receivables.
"Designated Obligor" means, at any time, each Obligor;
provided that any Obligor shall cease to be a Designated Obligor upon
three Business Days' notice by the Agent to the Seller.
"Eligible Receivable" means, at any time and with respect to
any Share, a Receivable:
(i) the Obligor of which (A) is a United States resident, (B)
is not an Affiliate of any of the parties hereto (except in the
case of this clause (B) for such Receivables as shall not, in the
aggregate for all Obligors that are Affiliates of parties hereto,
have an Outstanding Balance exceeding 5% of the Capital of such
Share at such time), and (C) is not a government or a governmental
subdivision or agency (except in the case of this clause (C) for
such Receivables as shall not, in the aggregate for all Obligors
that are governments or governmental subdivisions or agencies, have
an Outstanding Balance exceeding 10% of the Capital of such Share
at such time);
(ii) the Obligor of which at the time of the initial creation
of an interest therein hereunder is a Designated Obligor;
(iii) the Obligor of which at the time of the initial
creation of an interest therein hereunder is not the Obligor of any
Defaulted Receivables in the aggregate amount of 5% or more of the
aggregate Outstanding Balance of all Pool Receivables of such
Obligor;
(iv) which at the time of the initial creation of an interest
therein hereunder is not a Defaulted or Delinquent Receivable;
(v) which, according to the Contract related thereto, is
required to be paid in full within 30 days of the original billing
date therefor;
(vi) which is an account receivable representing all or part
of the sales price of merchandise, insurance and services within
the meaning of Section 3(c)(5) of the Investment Company Act of
1940, as amended;
(vii) a purchase of which with the proceeds of notes would
constitute a "current transaction" within the meaning of Section
3(a)(3) of the Securities Act of 1933, as amended;
(viii) which is an "account" within the meaning of Section
9-106 of the UCC of the jurisdiction the law of which governs the
perfection of the interest created by a Share;
(ix) which is denominated and payable only in United States
dollars in the United States;
(x) which arises under a Contract which, together with such
Receivable, is in full force and effect and constitutes the legal,
valid and binding obligation of the Obligor of such Receivable
enforceable against such Obligor in accordance with its terms and
is not subject to any dispute, offset, counter-claim or defense
whatsoever (except the discharge in bankruptcy of such Obligor);
(xi) which, together with the Contract related thereto, does
not contravene in any material respect any laws, rules or
regulations applicable thereto (including, without limitation,
laws, rules and regulations relating to usury, consumer protection,
truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy) and
with respect to which no party to the Contract related thereto is
in violation of any such law, rule or regulation in any material
respect;
(xii) which (A) satisfies all applicable requirements of
the Credit and Collection Policy and (B) complies with such other
criteria and requirements (other than those relating to the
collectibility of such Receivable) as the Agent may from time to
time specify to the Seller upon 30 days' notice; and
(xiii) as to which, at or prior to the time of the initial
creation of an interest therein through a Purchase, the Agent has
not notified the Seller that the Agent has determined, in its sole
discretion, that such Receivable (or class of Receivables) is not
acceptable for purchase by the Investor hereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Liability Yield" means so long as any Owner
shall be required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities,
additional Yield on the unpaid Capital of each Share of the Owner during
each Fixed Period in respect of which Yield is computed by reference to
the Eurodollar Rate, for such Fixed Period, at a rate per annum equal at
all times during such Fixed Period to the remainder obtained by
subtracting (i) the Eurodollar Rate for such Fixed Period from (ii) the
rate obtained by dividing such Eurodollar Rate referred to in clause (i)
above by that percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage of the Owner for such Fixed Period, payable on each date on
which Yield is payable on such Share. Such additional Yield shall be
determined by the Owner and notified to the Seller through the Agent
within 30 days after any Yield payment is made with respect to which
such additional Yield is requested. A certificate as to such additional
Yield submitted to the Seller and the Agent by the Owner shall be
conclusive and binding for all purposes, absent manifest error.
"Eurodollar Rate" means, for any Fixed Period, an interest
rate per annum equal to the rate per annum at which deposits in U. S.
dollars are offered by the principal office of Citibank, N.A., in
London, England, to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such Fixed
Period in an amount substantially equal to the Capital associated with
such Fixed Period on such first day and for a period equal to such Fixed
Period.
"Eurodollar Rate Reserve Percentage" of any Owner for any
Fixed Period in respect of which Yield is computed by reference to the
Eurodollar Rate means the reserve percentage applicable two Business
Days before the first day of such Fixed Period under regulations issued
from time to time by the Board of Governors of the Federal Reserve
System (or any successor) (or if more than one such percentage shall be
applicable, the daily average of such percentages for those days in such
Fixed Period during which any such percentage shall be so applicable)
for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Owner with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or any other
category of liabilities that includes deposits by reference to which the
interest rate on Eurocurrency Liabilities is determined) having a term
equal to such Fixed Period.
"Event of Investment Ineligibility" has the meaning specified
in Section 7.01.
"Event of Purchase Ineligibility" means any failure to satisfy
the condition set forth in Section 3.03(b)(iii) or (iv).
"Facility" means the willingness of the Investor to consider,
in its sole discretion pursuant to Article II, the purchase from the
Seller of Shares from time to time.
"Facility Termination Date" means the earlier of April 14,
1999, or the date of termination of the Facility pursuant to Section
2.03 or Section 7.01.
"Fee Letter Fees" means the fees as agreed to with the
Investor pursuant to a separate letter agreement from time to time.
"Fee Letter Fees Rate" means the Fee Letter Fees expressed as
a per annum rate.
"Fixed Period" means with respect to any Share:
(a) in the case of any Fixed Period in respect of which Yield
is computed by reference to the "Investor Rate" referred to in
paragraph (a) of the definition of "Investor Rate", each successive
period commencing on each CP Fixed Period Date for such Share and
ending on the next succeeding CP Fixed Period Date for such Share;
and
(b) in the case of any Fixed Period in respect of which Yield
is computed by reference to the Investor Rate referred to in
paragraph (b) of the definition of "Investor Rate", each successive
period of from one to and including 14 days, or a period of 21, 30,
60, 90 or 180 days, as the Seller shall select and the Agent may
approve on notice by the Seller received by the Agent (including
notice by telephone, confirmed in writing) not later than 11:00
A.M. (New York City time) on the day which occurs three Business
Days before the first day of such Fixed Period, each such Fixed
Period for such Share to commence on the last day of the
immediately preceding Fixed Period for such Share (or, if there is
no such Fixed Period, on the date of Purchase of such Share),
except that if the Agent shall not have received such notice, or
the Agent and the Seller shall not have so mutually agreed, before
11:00 A.M. (New York City time) on such day, such Fixed Period
shall be one day;
provided that:
(i) Yield with respect to any Fixed Period at a Fixed Rate
shall be computed by reference to a monthly, quarterly, or
semi-annual interest period as the Seller may select and the Agent
shall approve;
(ii) any Fixed Period (other than of one day) which would
otherwise end on a day which is not a Business Day shall be
extended to the next succeeding Business Day, except that, if Yield
in respect of such Fixed Period is computed by reference to the
Eurodollar Rate and such extension would cause the last day of such
Fixed Period to occur in the next succeeding month, the last day of
such Fixed Period shall occur on the immediately preceding Business
Day;
(iii) in the case of any Fixed Period of one day for such
Share, (a) if such Fixed Period is such Share's initial Fixed
Period, such Fixed Period shall be the day of the related Purchase;
(b) any subsequently occurring Fixed Period which is one day shall,
if the immediately preceding Fixed Period is more than one day, be
the last day of such immediately preceding Fixed Period, and, if
the immediately preceding Fixed Period is one day, be the day next
following such immediately preceding Fixed Period; and (c) if such
Fixed Period occurs on a day immediately preceding a day which is
not a Business Day, such Fixed Period shall be extended to the next
succeeding Business Day; and
(iv) in the case of any Fixed Period for such Share which
commences before the Termination Date for such Share and would
otherwise end on a date occurring after such Termination Date, such
Fixed Period shall end on such Termination Date, and the duration
of each Fixed Period which commences on or after the Termination
Date for such Share shall be of such duration as shall be selected
by the Agent.
"Fixed Rate" means for any Fixed Period (i) the Fee Letter
Fees Rate plus (ii) the rate per annum determined by the Agent for
funding by the Investor of the Purchase or maintenance of a Share for
such Fixed Period as agreed between the Agent and the Seller; provided
that, if the rate under (ii) above of this definition of "Fixed Rate" as
agreed between the Agent and the Seller and the Investor with regard to
any Fixed Period for any Share is a discount rate, the "Fixed Rate" for
such Fixed Period shall be (x) the Fees Letter Fees Rate plus (y) the
rate resulting from converting such discount rate to an interest-bearing
equivalent rate per annum. The Seller understands that upon the
agreement between the Seller and Agent of a Fixed Rate for a Fixed
Period, the Agent on behalf of the Investor intends to enter into
funding arrangements with third parties on terms and conditions which
could result in loss to the Investor if the Capital with respect to such
Fixed Period does not remain outstanding at the Fixed Rate for the
entire Fixed Period at the amount of Capital paid to the Seller for such
Share at the time of its purchase. Therefore, if (i) the Capital of
such Share paid to the Seller with respect to such Share at the time of
its purchase shall be reduced prior to the end of such Fixed Period or
(ii) the Termination Date for such Share shall occur before the end of
such Fixed Period, the Fixed Rate shall be recomputed so as to indemnify
and hold harmless the Investor or the Agent for all losses, liabilities,
costs and expenses related thereto (including, but not limited to,
attorneys' fees and expenses and the cost of interest rate swaps,
dollars, forward agreements and futures contracts in connection with the
Investor's funding or maintenance of any Share at a Fixed Rate) and
shall include as liquidated damages a fee equal to the sum of (x) the
accrued and unpaid applicable Fee Letter Fees plus (ii) the product of
[CLA x (F-R) x [1-(1+R/f)-n]
----- -------------
f R/f
where:
CLA = Capital Liquidation Amount, as hereinafter
defined;
F = Fixed Rate (computed without regard to the Fees
Letter Fees Rate) for such Share for such Fixed Period;
R = Redeployment Rate, as hereinafter defined;
f = Fixed Rate (determined without regard to the
Fee Letter Fees) payment frequency per annum; and
n = Number of interest payment periods remaining
from Fee Determination Date to end of Fixed Period.
The parties hereto acknowledge that the cost of any early
termination of any funding arrangement with third parties prior to the
originally scheduled termination date thereof, including, without
limitation, interest rate swaps, collars, forward agreement and futures
contracts could result in a payment by the Agent on behalf of the
Investor to the third party providing such funding arrangement. Any
such breakage cost will be determined by such third party providing such
funding arrangement in its sole discretion, and such amount will be
included in the losses, liabilities, costs and expenses included as a
consequence in such recomputed Fixed Rate. "Redeployment Rate" shall
mean the rate of interest at which the Agent is able to reinvest the
Capital Liquidation Amount for a period comparable to the period from
the Fee Determination Date to the last day of such Fixed Period in
compliance with the Investor's investment policy. "Fee Determination
Date" means the date on which the Capital is not so maintained or the
date on which an amount of Capital of such Share was paid. "Capital
Liquidation Amount" means, the total amount of Capital of such Share not
so maintained or the total amount of Capital of such Share paid. For
purposes of this definition of "Fixed Rate", the Fixed Period shall be
computed without regard to clause (iv) of the definition of "Fixed
Period". The Agent's determination of the Redeployment Rate shall be
conclusive, absent manifest error. The indemnification provided for
herein shall be continuing and shall survive any termination of the
Agreement.
"Indemnified Party" has the meaning specified in Section
10.01.
"Investor" shall include Ciesco L.P. and any successor or
assign of the Investor that is a receivables investment company which in
the ordinary course of its business issues commercial paper or other
securities to fund its acquisition and maintenance of receivables.
"Investor Rate" for any Fixed Period for any Share means (i)
the Fee Letter Fees Rate plus (ii):
(a) the per annum equivalent to the weighted average
of the per annum rates paid or payable by the Owner from time
to time as interest on or otherwise (by means of interest rate
hedges or otherwise) in respect of those promissory notes
issued by the Owner that are allocated, in whole or in part,
by CNAI (on behalf of the Owner) to fund the Purchase or
maintenance of such Share during such Fixed Period, as
determined by CNAI (on behalf of the Owner) and reported to
the Seller and, if the Collection Agent is not the Seller, the
Collection Agent, which rates shall reflect and give effect to
the commissions of placement agents and dealers in respect of
such promissory notes, to the extent such commissions are
allocated, in whole or in part, to such promissory notes by
CNAI (on behalf of the Owner); provided that, if any component
of such rate is a discount rate, in calculating the "Investor
Rate" for such Fixed Period CNAI shall for such component use
the rate resulting from converting such discount rate to an
interest bearing equivalent rate per annum; or
(b) the rate equivalent to the Fixed Rate as agreed
between the Agent and the Seller; or
(c) if no Fixed Rate is agreed between the Agent and
the Seller and if such Owner is not able to fund its Purchase
or maintenance of such Share for such Fixed Period by its
issuing promissory notes referred to in paragraph (a) above, a
rate equal to the Assignee Rate for such Fixed Period or such
other rate as the Agent and the Seller shall agree to in
writing;
provided that, if such Owner so requests and the Seller consents
thereto, the "Investor Rate" for any Fixed Period of one day shall be
the Assignee Rate for such Fixed Period.
"Seller Report" means a report, in substantially the form of
Exhibit B hereto, furnished by the Collection Agent to the Agent for
each Owner pursuant to Section 2.07.
"Liquidation Collection Agent Fee" means for any Share at any
date an amount equal to (i) the Capital of such Share as at such date
multiplied by (ii) the product of (a) the percentage per annum as at
such date of the Collection Agent Fee and (b) a fraction having as its
numerator the Average Maturity and 360 as its denominator.
"Liquidation Day" for any Share means either (i) each day
during any Settlement Period for such Share on which the conditions set
forth in Section 3.03 are not satisfied (and such failure of conditions
is not waived by the Agent), provided that such conditions are also not
satisfied (and such failure of conditions is not waived by the Agent) on
any succeeding day during such Settlement Period, or (ii) each day which
occurs on or after the Termination Date for such Share.
"Liquidation Fee" means, for each Share for any Fixed Period
(computed without regard to clause (iv) of the definition of "Fixed
Period") during which any Liquidation Day or Termination Date for such
Share occurs, the amount, if any, by which (i) the additional Yield
(calculated without taking into account any Liquidation Fee) which would
have accrued on the reductions of Capital of such Share during such
Fixed Period (as so computed) if such reductions had remained as
Capital, exceeds (ii) the income, if any, received by the Owner of such
Share from such Owner's investing the proceeds of such reductions of
Capital.
"Liquidation Yield" means, for any Share at any date, an
amount equal to the product of (i) the Capital of such Share as at such
date and (ii) the product of (a) the Assignee Rate for such Share for a
Fixed Period deemed to commence at such time for a period of 30 days and
(b) a fraction having as its numerator the Average Maturity and 360 as
its denominator.
"Loss Percentage" means, for any Share at any date, the
greater of (i) three times the highest Default Ratio as of the last day
of the three months ended immediately preceding such date, and (ii) 9%.
"Miscellaneous Fees" for any Share at any time means, the sum
of the following:
(a) any unpaid reasonable fees and out of pocket expenses of
counsel for the Agent, the Investor, CNA and their respective Affiliates
with respect to advising the Agent, the Investor, Citibank, CNAI and
their respective Affiliates as to their rights and remedies under this
Agreement, and all costs and expenses, if any (including, without
limitation, reasonable counsel fees and expenses) of the Agent, the
Owner, CNAI and their respective Affiliates, in connection with the
enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement, the Certificate and the other documents to
be delivered hereunder;
(b) any and all commissions of placement agents and
commercial paper dealers in respect of commercial paper notes of the
Investor issued to fund the Purchase or maintenance of any Share and any
and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording
of this Agreement, the Certificate or the other documents to be
delivered hereunder, and any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and
fees.
(c) all other costs, expenses and taxes (excluding income
taxes) incurred by the Owner or any shareholder of the Investor ("Other
Costs"), including, without limitation, the cost of auditing the
Investor's books by certified public accountants, the cost of rating the
Investor's commercial paper by independent financial rating agencies,
the taxes (excluding income taxes) resulting from the Investor's
operations, and the reasonable fees and out-of-pocket expenses of
counsel for the Investor or any counsel for any shareholder of the
Investor with respect to (i) advising the Investor or shareholder as to
its rights and remedies under this Agreement, (ii) the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Certificate and the other documents to be delivered
hereunder, or (iii) advising the Investor or such shareholder as to
matters relating to the Investor's operations; provided that, if the
Investor enters into agreements for the purchase of interests in
receivables from one or more other Persons ("Other Sellers"), the
liability for the Other Costs shall be attributed ratably in accordance
with the usage under the respective facilities of the Investor to
purchase receivables or interests therein from the Seller and each Other
Seller; and provided further that, if such Other Costs are attributable
to the Seller and not attributable to any Other Seller, the computation
of the Miscellaneous Fees shall provide for full payment of such Other
Costs; however, if such Other Costs are attributable to any Other Seller
and not to the Seller, the Other Seller shall be solely liable for such
Other Costs.
"Net Receivables Pool Balance" means at any time the
Outstanding Balance of the Eligible Receivables in the Receivables Pool
at such time reduced by the sum of (i) the aggregate Outstanding Balance
of the Defaulted Receivables in the Receivables Pool at such time and
(ii) the aggregate amount by which the then Outstanding Balance of all
Pool Receivables (other than Defaulted Receivables) of each Obligor
exceeds the product of (A) the Concentration Limit for such Obligor at
such time multiplied by (B) the Outstanding Balance of the Eligible
Receivables in the Receivables Pool at such time.
"Obligor" means a Person obligated to make payments pursuant
to a Contract.
"Original Certificate" means the certificate of assignment by
the Seller to the Agent, dated as of June 30, 1989, pursuant to the
Original Agreement.
"Outstanding Balance" of any Receivable at any time means the
then outstanding principal balance thereof.
"Owner" shall include the Investor and all other owners by
assignment or otherwise of a Share and, to the extent of the undivided
interests so purchased, shall include any participants.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Pool Receivable" means a Receivable in the Receivables Pool.
"Provisional Liquidation Day" means any day which could be a
Liquidation Day but for the proviso in clause (i) of the definition of
"Liquidation Day".
"Purchase" means a purchase by the Investor of a Share from
the Seller pursuant to Article II.
"Purchase Limit" means $65,000,000, as such amount may be
reduced pursuant to Section 2.03.
"Receivable" means the indebtedness of any Obligor under a
Contract arising from a sale of gas or electricity or steam by the
Seller, and includes the right to payment of any interest or finance
charges and other obligations of such Obligor with respect thereto.
"Receivables Pool" means at any time the aggregation of each
then outstanding Receivable in respect of which the Obligor is a
Designated Obligor or, as to any Receivable in existence on such date,
was a Designated Obligor on the date of any Purchase or reinvestment
pursuant to Section 2.05.
"Reinvestment Termination Date" for any Share means that
Business Day which the Seller designates or, if the conditions precedent
in Section 3.03 are not satisfied, such Business Day which the Agent
designates, as the Reinvestment Termination Date for such Share by
notice to the Agent (if the Seller so designates) or to the Seller (if
the Agent so designates) at least one Business Day prior to such
Business Day.
"Related Security" means with respect to any Receivable:
(i) all security interests or liens and property subject
thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all financing statements
signed by an Obligor describing any collateral securing such
Receivable; and
(ii) all guarantees, insurance and other agreements or
arrangements of whatever character from time to time supporting or
securing payment of such Receivable whether pursuant to the
Contract related to such Receivable or otherwise.
"Settlement Period" for any Share means each period commencing
on the first day of each Fixed Period for such Share and ending on the
last day of such Fixed Period or in the case of a Fixed Period for a
Fixed Rate on such other day as the Investor and the Agent may mutually
agree, and, on and after the Termination Date for such Share, such
period (including, without limitation, a period of one day) as shall be
selected from time to time by the Agent or, in the absence of any such
selection, each period of thirty days from the last day of the
immediately preceding Settlement Period.
"Share" means, at any time, an undivided percentage ownership
interest at such time in (i) all then outstanding Pool Receivables
arising prior to the time of the most recent computation or
recomputation of such undivided percentage interest pursuant to Section
2.04, (ii) all Related Security with respect to such Pool Receivables
and (iii) all Collections with respect to, and other proceeds of, such
Pool Receivables. Such undivided percentage interest for such Share
shall be computed as
C + YR + CAFR + MF
------------------
NRPB
where:
C = the Capital of such Share at the time
of such computation;
YR = the Yield Reserve of such Share at
the time of such computation;
CAFR = the Collection Agent Fee Reserve of
such Share at the time of such computation;
MF = the accrued Miscellaneous Fees at the time
of such computation; and
NRPB = the Net Receivables Pool Balance at
the time of such computation.
Each Share shall be determined from time to time pursuant to the
provisions of Section 2.04.
"Special Account" means an account maintained at a Special
Account Bank for the purpose of receiving Collections.
"Special Account Bank" means any of the banks holding one or
more Special Accounts.
"Tariff" means each of the Seller's tariffs pursuant to which
the Seller shall provide electricity or gas or steam to certain Obligors
from time to time and pursuant to which such Obligors shall be obligated
to pay for such electricity or gas or steam from time to time, each in
the form delivered to the Agent.
"Termination Date" for any Share means the earlier of (i) the
Reinvestment Termination Date for such Share and (ii) the Facility
Termination Date.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the specified jurisdiction.
"Yield" means:
(i) for each Share for any Fixed Period to the extent the
Investor will be funding such Share on the first day of such Fixed
Period through the issuance of commercial paper or through the
issuance of notes at a Fixed Rate,
IR x C x ED + LF + ELY
--
360
(ii) for each Share for any Fixed Period to the extent the
Owner will not be funding such Share on the first day of such Fixed
Period through the issuance of commercial paper or notes,
AR x C x ED + LF + ELY
--
360
where:
AR = the Assignee Rate for such Share for such Fixed
Period;
C = the Capital of such Share during such Fixed
Period;
IR = the Investor Rate for such Share for such Fixed
Period;
ED = the actual number of days elapsed during such
Fixed Period, provided that, in the case of Fixed Period
at a Fixed Rate, the fraction shall be adjusted to
correspond to the calculation of interest on any note the
proceeds of which fund or maintain the Capital of such
Share;
LF = the Liquidation Fee, if any, for such Share for
such Fixed Period; and
ELY = the Eurocurrency Liability Yield, if any, for
such Share for such Fixed Period.
provided that, with respect to any Fixed Period in respect of which
Yield is computed by reference to a Fixed Rate, Yield shall be the
aggregate of all such computations for such Fixed Period for the
applicable monthly, quarterly, or semiannual interest period as the
Seller may have selected and the Agent shall have approved; and provided
further that no provision of this Agreement or the Certificate shall
require the payment or permit the collection of Yield in excess of the
maximum permitted by applicable law; and provided further that Yield for
any Share shall not be considered paid by any distribution if at any
time such distribution is rescinded or must otherwise be returned for
any reason.
"Yield Reserve" for any Share at any time means the sum of (i)
the Liquidation Yield at such time for such Share, and (ii) the accrued
and unpaid Yield for such Share.
SECTION 1.02. Other Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles. All terms used in Article 9
of the UCC in the State of New York, and not specifically defined
herein, are used herein as defined in such Article 9.
SECTION 1.03. Computation of Time Periods. Unless otherwise
stated 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 means "to but
excluding".
marked for toc1
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01. Facility. On the terms and conditions
hereinafter set forth, the Investor may, in its sole discretion, make
Purchases from time to time during the period from the date hereof to
the Facility Termination Date. Under no circumstances shall the
Investor make any Purchase if, after giving effect to such Purchase, the
aggregate outstanding Capital of Shares, together with the aggregate
outstanding "Capital" of "Shares" under the Citibank Agreement, would
exceed the Purchase Limit. The Owner of each Share shall, with the
proceeds of Collections attributable to such Share, reinvest pursuant to
Section 2.05(ii) in additional undivided percentage interests in the
Pool Receivables by making an appropriate readjustment of such Share.
Nothing in this Agreement shall be deemed to be or construed as a
commitment by the Investor to purchase any Share at any time. The
purchase price for each Share shall be equal to the initial purchase
price payable pursuant to Section 2.02, the reinvestment payments
pursuant to Section 2.05 and the deferred purchase price payment, if
any, pursuant to Sections 2.04(a) and 2.06.
SECTION 2.02. Making Purchases. Each Purchase shall be made
on at least three Business Days' notice (and, in the case of a Fixed
Period at a Fixed Rate, seven Business Days' written notice) from the
Seller to the Agent. Each such notice of a Purchase for a Fixed Period
at a Fixed Rate shall be by telecopier, telex or cable and confirmed in
writing and each such notice shall be substantially in the form of
Exhibit D hereto. Each such notice of a proposed Purchase shall specify
the desired initial purchase price for such Share to be paid to the
Seller, and the date of purchase and duration of the initial Fixed
Period for the Share to be purchased. The Investor shall promptly
notify the Agent whether it has determined to make such Purchase. The
Agent shall promptly thereafter notify the Seller whether the Investor
has determined to make such Purchase and whether the desired duration of
the initial Fixed Period for the Share to be purchased is acceptable.
On the date of each Purchase, the Investor shall, upon satisfaction of
the applicable conditions set forth in Article III, make available to
the Agent the initial purchase price by deposit of such amount in same
day funds to the Agent's Account, and, after receipt by the Agent of
such funds, the Agent will cause such funds to be made immediately
available to the Seller at Citibank's office at 399 Park Avenue, New
York, New York. The Investor shall on the date of each Purchase, and
the Owner of each Share shall on the first day of each Fixed Period
(other than the initial Fixed Period) for such Share, notify the Agent
of the Investor Rate for such Fixed Period. The parties hereto intend
the sale of each Share to be a true sale thereof (and not the transfer
of a lien therein) and, accordingly, will treat the sale of each Share
as a sale for accounting purposes.
SECTION 2.03. Termination or Reduction of the Purchase Limit.
(a) Optional. The Seller may, upon at least two Business Days' notice
to the Agent, terminate in whole or reduce in part the unused portion of
the Purchase Limit; provided that, for purposes of this Section 2.03(a),
the unused portion of the Purchase Limit shall be computed as the excess
of (A) the Purchase Limit immediately prior to giving effect to such
termination or reduction over (B) the sum of (i) the aggregate Capital
of Shares outstanding at the time of such computation and (ii) the
aggregate "Capital" of "Shares" outstanding under the Citibank Agreement
at such time; provided further that each partial reduction shall be in
an amount equal to $1,000,000 or an integral multiple thereof. Any date
on which the Purchase Limit shall be reduced to zero shall be a
"Facility Termination Date", and this Agreement shall terminate on the
first day thereafter when no Capital of any Share shall be outstanding
and all other amounts then due and payable under this Agreement shall
have been paid in full.
(b) Mandatory. On each day on which the Seller shall,
pursuant to Section 2.03(a) of the Citibank Agreement, reduce in part
the unused portion of the Commitment (as defined in the Citibank
Agreement), the Purchase Limit shall automatically reduce by an equal
amount. The Purchase Limit shall automatically terminate in whole on
any day on which the Seller shall terminate in whole the Commitment
pursuant to Section 2.03(a) of the Citibank Agreement.
SECTION 2.04. Share. (a) Each Share shall be initially
computed as of the opening of business of the Collection Agent on the
date of Purchase of such Share. Thereafter until the Termination Date
for such Share, such Share shall be automatically recomputed as of the
close of business of the Collection Agent on each day (other than a
Liquidation Day and Provisional Liquidation Day). Such Share shall
remain constant from the time as of which any such computation or
recomputation is made until the time as of which the next such
recomputation, if any, shall be made. Any Share, as computed as of the
day immediately preceding the Termination Date for such Share, shall
remain constant at all times on and after such Termination Date. Such
Share shall become zero at such time as the Owner of such Share shall
have received the accrued Yield and Miscellaneous Fees for such Share
and shall have recovered the Capital of such Share, and the Collection
Agent shall have received the accrued Collection Agent Fee for such
Share and all subsequent Collections received by the Collection Agent,
if any, with respect to such Share as calculated immediately prior
thereto shall be distributed by the Collection Agent (on behalf of the
Owner) to the Seller as a deferred purchase price payment for such
Share.
(b) If any Share would otherwise be reduced on any day on
account of Receivables arising as or becoming Pool Receivables, the
Owner of such Share may prevent such reduction by giving notice to the
Collection Agent, before the close of business of the Collection Agent
on such day, that such Share's interest in such Receivables is to be
limited so as to prevent such reduction. If such notice is given for
any day for any Share, the Receivables Pool for such Share and the Net
Receivables Pool Balance for such Share, will include, with respect to
Receivables arising as or becoming Pool Receivables on such day, only
such number of such Receivables or such portion of such Receivables as
shall cause such Share to remain constant, such Receivables or portion
thereof being included in the Receivables Pool for such Share in the
order of the Seller's account numbers for such Receivables up to an
aggregate amount so as to cause such Share to remain constant, and the
remainder of such Receivables or portion thereof shall be treated as
Receivables arising on the next succeeding Business Day.
SECTION 2.05. Non-Liquidation Settlement Procedures. On each
day (other than a Liquidation Day or a Provisional Liquidation Day)
during each Settlement Period for each Share, the Collection Agent
shall: (i) out of Collections of Pool Receivables attributable to such
Share received on such day, set aside and hold in trust for the Owner of
such Share an amount equal to the Yield, Miscellaneous Fees and
Collection Agent Fee accrued through such day for such Share and not so
previously set aside and (ii) reinvest the remainder of such
Collections, for the benefit of such Owner, by recomputation of such
Share pursuant to Section 2.04 as of the end of such day and the payment
of such remainder to the Seller. On the last day of each Settlement
Period for each Share, the Collection Agent shall deposit to the Agent's
Account for the account of the Owner of such Share the amounts set aside
as described in clause (i) of the first sentence of this Section 2.05.
Upon receipt of such funds by the Agent, the Agent shall distribute them
to the Owner of such Share in payment of the accrued Yield and
Miscellaneous Fees for such Share and to the Collection Agent in payment
of the accrued Collection Agent Fee payable with respect to such Share.
If there shall be insufficient funds on deposit for the Agent to
distribute funds in payment in full of the aforementioned amounts, the
Agent shall distribute funds, first, in payment of the accrued
Collection Agent Fee payable with respect to such Share, and second, in
payment of the accrued Yield for such Share and third, in payment of the
accrued Miscellaneous Fees payable with respect to such Share.
SECTION 2.06. Liquidation Settlement Procedures. On each
Liquidation Day and on each Provisional Liquidation Day during each
Settlement Period for each Share, the Collection Agent shall set aside
and hold in escrow for the Owner of such Share the Collections of Pool
Receivables attributable to such Share received on such day. On the
last day of each Settlement Period for each Share, the Collection Agent
shall deposit to the Agent's Account for the account of the Owner of
such Share the amounts set aside pursuant to the preceding sentence but
not to exceed the sum of (i) the accrued Yield for such Share, (ii) the
Capital of such Share, (iii) the accrued Collection Agent Fee payable
with respect to such Share (iv) the accrued Miscellaneous Fees payable
with respect to such Share and (v) the aggregate amount of other amounts
owed hereunder by the Seller to the Owner of such Share. Any amounts
set aside pursuant to the first sentence of this Section 2.06 and not
required to be deposited to the Agent's Account pursuant to the
preceding sentence shall be paid to the Seller by the Collection Agent
on behalf of the Owner as a deferred purchase price payment for such
Share; provided, however, that if amounts are set aside pursuant to the
first sentence of this Section 2.06 on any Provisional Liquidation Day
which is subsequently determined not to be a Liquidation Day, such
amounts shall be applied pursuant to the first sentence of Section 2.05
on the day of such subsequent determination. Upon receipt of funds
deposited to the Agent's Account pursuant to the second sentence of this
Section 2.06, the Agent shall distribute them (A) to the Owner of such
Share (w) in payment of the accrued Yield for such Share, (x) in
reduction (to zero) of the Capital of such Share, (y) in payment of the
accrued Miscellaneous Fees with respect to such Share and (z) in payment
of any other amounts owed by the Seller hereunder to such Owner and (B)
to the Collection Agent in payment of the accrued Collection Agent Fee
payable with respect to such Share. If there shall be insufficient
funds on deposit for the Agent to distribute funds in payment in full of
the aforementioned amounts, the Agent shall distribute funds, first, in
payment of the accrued Collection Agent Fee payable with respect to such
Share, second, in payment of the Accrued Yield for such Share, third, in
reduction of Capital of such Share, fourth, in payment of the accrued
Miscellaneous Fees with respect to such Share, and Fifth, in payment of
other amounts payable to such Owner.
SECTION 2.07. General Settlement Procedures. If on any day
the Outstanding Balance of a Pool Receivable is either (i) reduced as a
result of any defective, rejected or returned merchandise, insurance or
services, any cash discount, or any adjustment by the Seller, or (ii)
reduced or canceled as a result of a setoff in respect of any claim by
the Obligor thereof against the Seller (whether such claim arises out of
the same or a related transaction or an unrelated transaction), the
Seller shall be deemed to have received on such day a Collection of such
Receivable in the amount of such reduction or cancellation (which shall
be remitted to the Collection Agent and distributed pursuant to Section
2.05 or 2.06 hereof, as applicable). If on any day any of the
representations or warranties in Section 4.01(h) is no longer true with
respect to a Pool Receivable, the Seller shall be deemed to have
received on such day a Collection in full of such Pool Receivable.
Except as stated in the preceding sentences of this Section 2.07 or as
otherwise required by law or the underlying Contract, all Collections
received from an Obligor of any Receivable shall be applied to
Receivables then outstanding of such Obligor in the order of the age of
such Receivables, starting with the oldest such Receivable, except if
payment is designated by such Obligor for application to specific
Receivables. Prior to the 15th Business Day of each month, the
Collection Agent shall prepare and forward to the Agent for each Owner
of a Share (A) an Seller Report, relating to each Share, as of the close
of business of the Collection Agent on the last day of the immediately
preceding month, and (B) a listing by Obligor of all Pool Receivables,
together with an analysis as to the aging of such Receivables, as of
such last day. On or prior to the day the Collection Agent is required
to make a deposit with respect to a Settlement Period pursuant to
Section 2.05 or 2.06, the Seller will advise the Agent of each
Liquidation Day and each Provisional Liquidation Day occurring during
such Settlement Period and of the allocation of the amount of such
deposit to each outstanding Share; provided that, if the Seller is not
the Collection Agent, the Seller shall advise the Collection Agent of
the occurrence of each such Liquidation Day and each Provisional
Liquidation Day occurring during such Settlement Period on or prior to
such day.
SECTION 2.08. Payments and Computations, Etc. All amounts to
be paid or deposited by the Seller hereunder shall be paid or deposited
in accordance with the terms hereof no later than 11:00 A.M. (New York
City time) on the day when due in lawful money of the United States of
America in same day funds to the Agent's Account. The Seller shall, to
the extent permitted by law, pay to the Agent interest on all amounts
not paid or deposited when due hereunder at the Alternate Base Rate,
payable on demand, provided that such interest rate shall not at any
time exceed the maximum rate permitted by applicable law. Such interest
shall be retained by the Agent except to the extent that such failure to
make a timely payment or deposit has continued beyond the date for
distribution by the Agent of such overdue amount to an Owner of a Share,
in which case such interest accruing after such date shall be for the
account of, and distributed by the Agent to, the Owners ratably in
accordance with their respective interests in such overdue amount. All
computations of interest and all computations of Yield, Liquidation
Yield and fees hereunder shall be made on the basis of a year of 360
days for the actual number of days (including the first but excluding
the last day) elapsed.
SECTION 2.09. Dividing or Combining of Shares. The Seller
may, on notice received by the Agent not later than 11:00 A.M. (New York
City time) three Business Days before the last day of any Fixed Period
for any then existing Share (an "Existing Share"), divide such Existing
Share on such last day into two or more new Shares, each such new Share
having Capital as designated in such notice and all such new Shares
collectively having aggregate Capital equal to the Capital of such
Existing Share. The Seller may, on notice received by the Agent not
later than 11:00 A.M. (New York City time) three Business Days before
the last day of any Fixed Periods ending on the same day for two or more
Existing Shares owned by the same Owner or the date of any proposed
Purchase (if the last day of such Fixed Period is the date of such
proposed Purchase), either (i) combine such Existing Shares or (ii)
combine such Existing Share or Shares, if owned by the Investor, and
such proposed Share to be purchased, on such last day into one new
Share, such new Share having Capital equal to the aggregate Capital of
such Existing Shares, or such Existing Share or Shares and such proposed
Share, as the case may be. On and after any division or combination of
Shares as described above, each of the new Shares resulting from such
division, or the new Share resulting from such combination, as the case
may be, shall be a separate Share having Capital as set forth above, and
shall take the place of such Existing Share or Shares or proposed Share,
as the case may be, in each case under and for all purposes of this
Agreement, and the Agent shall annotate the Certificate accordingly.
SECTION 2.10. Fees. Each Owner shall pay to the Collection
Agent a collection fee (the "Collection Agent Fee") of 1/4 of 1% per
annum on the average daily amount of Capital of each Share owned by such
Owner, from the date of the initial Purchase hereunder until the later
of the Facility Termination Date or the date on which such Capital is
reduced to zero, payable on the last day of each Settlement Period for
such Share; provided that, upon three Business Days' notice to the
Agent, the Collection Agent may (if not the Seller) elect to be paid, as
such fee, another percentage per annum on the average daily amount of
Capital of each such Share, but in no event in excess of 110% of the
costs and expenses referred to in Section 6.02(b); and provided further
that such fee shall be payable only from Collections pursuant to, and
subject to the priority of payment set forth in, Sections 2.05 and 2.06.
SECTION 2.11. Recourse for Defaulted Receivables.
(a) To the extent of the Default Recourse Limit (as defined
below) then available, on the last day of each Settlement Period for
each Share in which a Liquidation Day has occurred for such Share, the
Seller shall be obligated to pay to the Agent for the account of the
Owner of such Share, without prejudice to any other rights that any
Owner may have hereunder or under applicable law, an amount equal to the
interest of such Share in the Outstanding Balance of any Pool Receivable
that at such time is a Defaulted Receivable (but without duplication of
amounts previously paid under this subsection (a) with respect to such
interest in such Defaulted Receivable).
(b) "Default Recourse Limit" means at any time an amount equal
to.
(i) the applicable Loss Percentage multiplied by the Capital
of such Share at such time, provided that the foregoing amount shall not
be recomputed (and shall remain fixed) on any day that is a Liquidation
Day for such Share, provided further that such amount shall again be
recomputed (and no longer shall remain fixed) on any day that is no
longer a Liquidation Day for such Share;
(ii) plus an amount equal to the interest of such Share in any
Collections with respect to each Defaulted Receivable in respect of
which payments shall have been made prior to such time by the Seller
under Section 2.11(a) above, provided that the Default Recourse Limit
for any Share shall not at any time by reason of this clause (ii) exceed
the Default Recourse Limit that was in effect as of the then most recent
date of recomputation in accordance with clause (i) above.
(c) The proceeds of any payment made pursuant to Section
2.11(a) above shall be deemed to be a Collection in respect of each
Receivable in respect of which such payments are made by the Seller, and
the amount of each such Collection shall be applied as provided in
Section 2.05 or 2.06, as applicable at the time of payment.
SECTION 2.12. Eurodollar Increased Costs. If, due to either
(i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements referred to in Section
2.13) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there
shall be any increase in the cost to the Owner of agreeing to purchase
or purchasing, or maintaining the ownership of, Shares in respect of
which Yield is computed by reference to the Eurodollar Rate, then, upon
demand by the Owner (with a copy to the Agent), the Seller shall
immediately pay to the Agent, for the account of the Owner (as a
third-party beneficiary), from time to time as specified, additional
amounts sufficient to compensate the Owner for such increased costs;
provided that (a) such costs of the Owner shall not be reimbursed to the
extent that they relate to the amount of capital required or expected to
be maintained by the Owner based upon the existence of any such
commitment or any such purchases, and (b) the Seller shall have no
obligation to comply with any demand for reimbursement to the extent
that any such demand relates to any period more than ninety days prior
to the date on which the Owner initially made demand for reimbursement.
A certificate as to such amounts submitted to the Seller and the Agent
by the Owner shall be conclusive and binding for all purposes, absent
manifest error.
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01. Condition Precedent to Initial Purchase. The
initial Purchase hereunder was subject to the condition precedent that
the Agent received on or before the date of such Purchase the following,
each (unless otherwise indicated) to be dated such date, in form and
substance satisfactory to the Agent:
(a) The Original Certificate.
(b) Certified copies of the resolutions of the Board of
Directors of the Seller approving the Original Agreement and the
Original Certificate, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to the
Original Agreement and the Original Certificate.
(c) A certificate of the Secretary or Assistant Secretary or
General Counsel of the Seller certifying the names and true signatures
of the officers of the Seller authorized to sign the Original Agreement
and the Original Certificate and the other documents to be delivered by
it thereunder.
(d) Acknowledgment copies or stamped receipt copies of proper
financing statements, duly filed on or before the date of the initial
Purchase, under the UCC of all jurisdictions that the Agent deemed
necessary or desirable in order to perfect the ownership interests
created by the Original Agreement.
(e) Acknowledgment copies or stamped receipt copies of proper
financing statements, if any, necessary to release all security
interests and other rights of any Person in the Receivables, Contracts
or Related Security previously granted by the Seller.
(f) Completed requests for information, dated on or before
the date of the initial Purchase, listing the financing statements
referred to in subsection (d) above and all other effective financing
statements filed in the jurisdictions referred to in subsection (d)
above that named the Seller as debtor, together with copies of such
other financing statements (none of which were to cover any Receivables,
Contracts or Related Security).
(g) A favorable opinion of Thomas J. Pitner, Esq., Vice
President and General Counsel for the Seller.
(h) A favorable opinion of Kaye, Scholer, Fierman, Hays &
Handler, counsel for the Agent.
(i) A favorable opinion of Kaye, Scholer, Fierman, Hays &
Handler, counsel for the Agent, addressed to the Investor and the dealer
for the commercial paper of the Investor, as to the correctness of the
representation and warranty of the Seller set forth in Section 4.01(m).
(j) Certified copies of the Tariffs.
SECTION 3.02. Conditions Precedent to the Effectiveness of
the Amendment and Restatement of the Original Agreement. The
effectiveness of the amendment and restatement of the Original Agreement
is subject to the conditions precedent that the Agent shall have
received on or before the date hereof the following, each (unless
otherwise indicated) dated the date hereof, in form and substance
satisfactory to the Agent:
(a) The Certificate;
(b) A certificate of the Secretary or Assistant Secretary or
General Counsel of the Seller certifying the names and true
signatures of the officers authorized to sign this Agreement and
the other documents to be delivered by it hereunder;
(c) A favorable opinion of Stephen W. Southwick, Vice
President, General Counsel and Secretary of the Seller, Attorney
for the Seller, substantially in the form of Exhibit C hereto and
as to such other matters as the Agent may reasonably request.
(d) A favorable opinion of Katten Muchin & Zavis, counsel for
the Agent, as to such matters as the Agent may reasonably request.
(e) An executed copy of the Citibank Agreement.
(f) Certified copies of the Tariffs (to the extent not
previously delivered).
SECTION 3.03. Conditions Precedent to All Purchases and
Reinvestments. Each Purchase (including the initial Purchase) hereunder
and the reinvestment in Pool Receivables of those Collections
attributable to a Share pursuant to Sections 2.05 or 2.06 shall be
subject to the further conditions precedent that (a) with respect to any
such Purchase, on or prior to the date of such Purchase, the Collection
Agent shall have delivered to the Agent, in form and substance
satisfactory to the Agent, a completed Seller Report, dated within 5
days prior to the date of such Purchase, together with a listing by
Obligor of all Pool Receivables and such additional information as may
be reasonably requested by the Agent, and (b) on the date of such
Purchase or reinvestment the following statements shall be true (and the
acceptance by the Seller of the proceeds of such Purchase or
reinvestment shall constitute a representation and warranty by the
Seller that on the date of such Purchase or reinvestment such statements
are true):
(i) The representations and warranties contained in Section
4.01 of this Agreement are correct on and as of the date of such
Purchase or reinvestment, before and after giving effect to such
Purchase or reinvestment and to the application of the proceeds
therefrom, as though made on and as of such date,
(ii) No event has occurred and is continuing, or would result
from such Purchase or reinvestment or from the application of the
proceeds therefrom, which constitutes an Event of Investment
Ineligibility or would constitute an Event of Investment
Ineligibility but for the requirement that notice be given or time
elapse or both,
(iii) The Agent shall not have delivered to the Seller a
notice that the Investor shall not make any further Purchases
hereunder and/or that the Collection Agent shall not reinvest in
any Pool Receivables on behalf of the Owner, and
(iv) On such date, all of the Seller's long-term public senior
debt securities are rated at least BBB- by Standard & Poor's
Corporation and Baa3 by Moody's Investors Service, Inc.,
and (c) the Agent shall have received such other approvals, opinions or
documents as the Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller.
The Seller represents and warrants as follows:
(a) The Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction
indicated at the beginning of this Agreement.
(b) The execution, delivery and performance by the Seller of
this Agreement and the Certificate, and the Seller's use of the
proceeds of Purchases and reinvestments, are within the Seller's
corporate powers, have been duly authorized by all necessary
corporate action, do not contravene (i) the Seller's charter or
by-laws or (ii) law or any contractual restriction binding on or
affecting the Seller, and do not result in or require the creation
of any Adverse Claim (other than pursuant hereto) upon or with
respect to any of its properties; and no transaction contemplated
hereby requires compliance with any bulk sales act or similar law.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by
the Seller of this Agreement or the Certificate, or for the
perfection of or the exercise by the Agent or any Owner of their
respective rights and remedies under this Agreement and the
Certificate, except for the filings of the financing statements
referred to in Article III, all of which, on or prior to the date
of the effectiveness of the amendment and restatement of the
Original Agreement, will have been duly made and be in full force
and effect.
(d) This Agreement and the Certificate are the legal, valid
and binding obligations of the Seller enforceable against the Seller in
accordance with their respective terms.
(e) The balance sheets of the Seller and its subsidiaries as
at September 30, 1996, and the related statements of income and retained
earnings of the Seller and its subsidiaries for the fiscal year then
ended, copies of which have been furnished to the Agent, fairly present
the financial condition of the Seller and its subsidiaries as at such
date and the results of the operations of the Seller and its
subsidiaries for the period ended on such date, all in accordance with
generally accepted accounting principles consistently applied, and since
September 30, 1996, there has been no material adverse change in such
condition or operations.
(f) There is no pending or threatened action or proceeding
affecting the Seller or any of its subsidiaries before any court,
governmental agency or arbitrator which may materially adversely affect
(i) the financial condition or operations of the Seller or any of its
subsidiaries or (ii) the ability of the Seller to perform its
obligations under this Agreement or the Certificate, or which purports
to affect the legality, validity or enforceability of this Agreement or
the Certificate.
(g) No proceeds of any Purchase or reinvestment will be used
to acquire any equity security of a class which is registered pursuant
to Section 12 of the Securities Exchange Act of 1934.
(h) The Seller is the legal and beneficial owner of the Pool
Receivables and Related Security free and clear of any Adverse Claim
except as created by this Agreement; upon each Purchase or reinvestment,
the Owner making such Purchase or reinvestment will acquire a valid and
perfected first priority undivided percentage ownership interest to the
extent of the pertinent Share in each Pool Receivable then existing or
thereafter arising and in the Related Security and Collections with
respect thereto free and clear of any Adverse Claim except as created by
this Agreement. No effective financing statement or other instrument
similar in effect covering any Contract or any Pool Receivable or the
Related Security or Collections with respect thereto is on file in any
recording office, except documents, books, records and other information
reasonably necessary or advisable for the collection of all Pool
Receivables (including, without limitation, records adequate to permit
the daily identification of each new Pool Receivable and all Collections
of and adjustments to each existing Pool Receivable).
(i) Each Seller Report (if prepared by the Seller, or to the
extent that information contained therein is supplied by the Seller),
information, exhibit, financial statement, document, book, record or
report furnished or to be furnished at any time by the Seller to the
Agent or any Owner in connection with this Agreement is or will be
accurate in all material respects as of its date or (except as otherwise
disclosed to the Agent or such Owner, as the case may be, at such time)
as of the date so furnished, and no such document contains or will
contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were
made, not misleading.
(j) The chief place of business executive office of the
Seller and the office where the Seller keeps its records concerning the
Pool Receivables are located at the address specified on the signature
page hereof (or at such other locations, notified to the Agent in
accordance with Section 5.01(f), in jurisdictions where all action
required by Section 6.05 has been taken and completed).
(k) The names and addresses of all the Special Account Banks,
together with the account numbers of the Special Accounts of the Seller
at such Special Account Banks, specified in Schedule I hereto (or at
such other Special Account Banks and/or with such other Special Accounts
as have been notified to the Agent in accordance with Section 5.03(e)).
(l) Neither the Seller nor any Affiliate of the Seller has
any direct or indirect ownership or other financial interest in any
Owner.
(m) Each Purchase and each reinvestment of Collections in
Pool Receivables will constitute (i) a "current transaction" within the
meaning of Section 3(a)(3) of the Securities Act of 1933, as amended,
and (ii) a purchase or other acquisition of notes, drafts, acceptances,
open accounts receivable or other obligations representing part or all
of the sales price of merchandise, insurance or services within the
meaning of Section 3(c)(5) of the Investment Company Act of 1940, as
amended.
ARTICLE V
GENERAL COVENANTS OF THE SELLER
SECTION 5.01. Affirmative Covenants of the Seller. Until the
later of the Facility Termination Date and the date upon which no
Capital for any Share shall be existing, the Seller will, unless the
Agent shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material
respects with all applicable laws, rules, regulations and orders
with respect to it, its business and properties and all Pool
Receivables and related Contracts, Related Security and Collections
with respect thereto.
(b) Preservation of Corporate Existence. Preserve and
maintain its corporate existence, rights, franchises and privileges
in the jurisdiction of its incorporation, and qualify and remain
qualified in good standing as a foreign corporation in each
jurisdiction where the failure to preserve and maintain such
existence, rights, franchises, privileges and qualification would
materially adversely affect the interests of the Owners or the
Agent hereunder or in the Pool Receivables and Related Security, or
the ability of the Seller or the Collection Agent to perform their
respective obligations hereunder or the ability of the Seller to
perform its obligations under the Contracts.
(c) Audits. At any time and from time to time during regular
business hours, permit the Agent, or its agents or representatives,
(i) to examine and make copies of and abstracts from all books,
records and documents (including, without limitation, computer
tapes and disks) in the possession or under the control of the
Seller relating to Pool Receivables and the Related Security,
including, without limitation, the related Contracts, and (ii) to
visit the offices and properties of the Seller for the purpose of
examining such materials described in clause (i) above, and to
discuss matters relating to Pool Receivables and the Related
Security or the Seller's performance hereunder or under the
Contracts with any of the officers or employees of the Seller
having knowledge of such matters.
(d) Keeping of Records and Books of Account. Maintain and
implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Pool
Receivables in the event of the destruction of the originals
thereof), and keep and maintain, all documents, books, records and
other information reasonably necessary or advisable for the
collection of all Pool Receivables (including, without limitation,
records adequate to permit the daily identification of each new
Pool Receivable and all Collections of and adjustments to each
existing Pool Receivable). The sale of each Share shall be treated
as a sale for all record keeping purposes.
(e) Performance and Compliance with Receivables and
Contracts. At its expense timely and fully perform and comply with all
material provisions, covenants and other promises required to be
observed by it under the Contracts related to the Pool Receivables.
(f) Location of Records. Keep its chief place of business
and chief executive office and the office where it keeps its records
concerning the Pool Receivables at the address of the Seller referred to
in Section 4.01(j) or, upon 30 days' prior written notice to the Agent,
at any other locations in a jurisdiction where all action required by
Section 6.05 shall have been taken.
(g) Credit and Collection Policies. Comply in all material
respects with its Credit and Collection Policy in regard to each Pool
Receivable and the related Contract.
(h) Collections. Upon the request of the Agent, (i) instruct
all Obligors to cause all Collections to be deposited directly either to
a Special Account or to the Concentration Account, (ii) deposit, or
cause to be deposited, all Collections in the Special Accounts to the
Concentration Account, and (iii) deposit, or cause to be deposited, all
Collections in the Concentration Account to the Designated Account.
SECTION 5.02. Reporting Requirements of the Seller. Until
the later of the Facility Termination Date and the date upon which no
Capital for any Share shall be existing, the Seller will, unless the
Agent shall otherwise consent in writing, furnish to the Agent:
(a) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal year of
the Seller, balance sheets of the Seller and its subsidiaries as of the
end of such quarter and statements of income and retained earnings of
the Seller and its subsidiaries for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter,
certified by the chief financial officer of the Seller;
(b) as soon as available and in any event within 120 days
after the end of each fiscal year of the Seller, a copy of the annual
report for such year for the Seller and its subsidiaries, containing
financial statements for such year certified in a manner acceptable to
the Agent by Arthur Andersen & Co. or other independent public
accountants acceptable to the Agent;
(c) as soon as possible and in any event within five days
after the occurrence of each Event of Investment Ineligibility and each
event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Ineligibility, continuing on the date of such
statement, a statement of the chief financial officer of the Seller
setting forth details of such Event of Investment Ineligibility or event
and the action which the Seller has taken and proposes to take with
respect thereto;
(d) promptly after the sending or filing thereof, copies of
all reports which the Seller sends to any of its security holders, and
copies of all reports and registration statements which the Seller or
any subsidiary files with the Securities and Exchange Commission or any
national securities exchange;
(e) promptly after the filing or receiving thereof, copies of
all reports and notices which the Seller or any subsidiary files under
ERISA with the Internal Revenue Service or the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or which the Seller or any
subsidiary receives from such Corporation; and
(f) such other information, documents, records or reports
respecting the Receivables, the Related Security or the Contracts or the
condition or operations, financial or otherwise, of the Seller or any of
its subsidiaries as the Agent may from time to time reasonably request.
SECTION 5.03. Negative Covenants of the Seller. Until the
later of the Facility Termination Date and the date upon which no
Capital for any Share shall be existing, the Seller will not, without
the written consent of the Agent:
(a) Sales, Liens, Etc. Except as otherwise provided herein,
or pursuant to the Citibank Agreement, sell, assign (by operation
of law or otherwise) or otherwise dispose of, or grant any option
with respect to, or create or suffer to exist any Adverse Claim
upon or with respect to, the Seller's undivided interest in any
Pool Receivable or Related Security or Collections in respect
thereof, or upon or with respect to any related Contract or any
Lock-Box Account to which any Collections of any Pool Receivable
are sent, or assign any right to receive income in respect thereof.
(b) Extension or Amendment of Receivables. Except as
otherwise permitted in Section 6.02, extend, amend or otherwise
modify the terms of any Pool Receivable, or amend, modify or waive
any term or condition of any Contract related thereto.
(c) Change in Business or Credit and Collection Policy. Make
any change in the character of its business or in the Credit and
Collection Policy, which change would, in either case, be
reasonably likely to impair the collectibility of any Pool
Receivable.
(d) Change in Payment Instruction to Obligors. Add or
terminate any bank as a Special Account Bank from those listed in
Schedule I hereto, or make any change in its instructions to
Obligors regarding payments to be made to the Seller or payments to
be made to any Special Account Bank or to the Concentration
Account, unless the Agent shall have received notice of such
addition, termination or change.
(e) Deposits to Special Accounts, Concentration Account and
Designated Accounts. Deposit or otherwise credit, or cause or
permit to be so deposited or credited, to the Designated Account
(or, if instructed by the Agent, to the Special Accounts or the
Concentration Accounts) cash or cash proceeds other than
Collections of Pool Receivables.
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Collection Agent. The Pool
Receivables shall be serviced, administered and collected by the Person
(the "Collection Agent") designated to do so from time to time in
accordance with this Section 6.01. Until the Agent designates a new
Collection Agent, the Seller is hereby designated as, and hereby agrees
to perform the duties and obligations of, the Collection Agent pursuant
to the terms hereof. The Agent may (on behalf of the Owner) at any time
designate as Collection Agent any Person (including itself) to succeed
the Seller or any successor Collection Agent, if such Person (other than
itself) shall agree in writing to perform the duties and obligations of
the Collection Agent pursuant to the terms hereof. The Collection Agent
may, with the prior consent of the Agent, subcontract with any other
Person to service, administer or collect the Pool Receivables, provided
that the Collection Agent shall remain liable for the performance of the
duties and obligations of the Collection Agent pursuant to the terms
hereof.
SECTION 6.02. Duties of Collection Agent. (a) The Collection
Agent shall take or cause to be taken all such actions as may be
necessary or advisable to collect each Pool Receivable from time to
time, all in accordance with applicable laws, rules and regulations,
with reasonable care and diligence, and in accordance with the Credit
and Collection Policy. Each of the Seller, the Owner and the Agent
hereby appoints as its agent the Collection Agent, from time to time
designated pursuant to Section 6.01, to enforce its respective rights
and interests in and under the Pool Receivables, the Related Security
and the related Contracts. The Collection Agent shall set aside and
hold in trust for the account of the Seller and each Owner their
respective allocable shares of the Collections of Pool Receivables in
accordance with Sections 2.05 and 2.06 but shall not be required (unless
otherwise requested by the Agent) to segregate the funds constituting
such portion of such Collections prior to the remittance thereof in
accordance with said Sections. If instructed by the Agent, the
Collection Agent shall segregate and deposit with a bank (which may be
Citibank) designated by the Agent such allocable share of Collections of
Pool Receivables set aside for each Owner on the first Business Day
following receipt by the Collection Agent of such Collections. If no
Event of Investment Ineligibility or Event of Purchase Ineligibility
shall have occurred and be continuing, the Collection Agent, while it is
the Seller, may, in accordance with the Credit and Collection Policy,
extend the maturity or adjust the Outstanding Balance of any Defaulted
Receivable as the Collection Agent may determine to be appropriate to
maximize Collections thereof. The Seller shall deliver to the
Collection Agent, and the Collection Agent shall hold in trust for the
Seller and each Owner in accordance with their respective interests, all
documents, instruments and records (including, without limitation,
computer tapes or disks) which evidence or relate to Pool Receivables.
(b) The Collection Agent shall as soon as practicable
following receipt turn over to the Seller (i) that portion of
Collections of Pool Receivables representing its undivided interest
therein, less, in the event the Seller is not the Collection Agent, all
reasonable out-of-pocket costs and expenses of such Collection Agent of
servicing, administering and collecting the Pool Receivables to the
extent not covered by the Collection Agent Fee received by it and (ii)
the Collections of any Receivable which is not a Pool Receivable. The
Collection Agent, if other than the Seller, shall as soon as practicable
upon demand deliver to the Seller all documents, instruments and records
in its possession which evidence or relate to Pool Receivables. The
Collection Agent's authorization under this Agreement shall terminate,
after the Facility Termination Date, upon receipt by each Owner of a
Share of an amount equal to the Capital plus accrued Yield for such
Share plus all other amounts owed to the Agent, each Owner and the
Seller and (unless otherwise agreed by the Agent and the Collection
Agent) the Collection Agent under this Agreement.
SECTION 6.03. Rights of the Agent. (a) The Agent is hereby
authorized at any time to instruct the Obligors of Pool Receivables, or
any of them, to make payment of all amounts payable under any Pool
Receivable to a Designated Account. The Seller shall, promptly at the
Agent's request, send notices to the Obligors of Pool Receivables, or
any of them, instructing them to make payment in the manner requested by
the Agent. Further, the Agent may notify at any time and at the
Seller's expense the Obligors of Pool Receivables, or any of them, of
the ownership of Shares by the Owners.
(b) At any time following the designation of a Collection
Agent other than the Seller pursuant to Section 6.01:
(i) The Agent may direct the Obligors of Pool
Receivables, or any of them, to make payment of all amounts
due or to become due to the Seller under any Pool Receivable
directly to the Agent or its designee.
(ii) The Seller shall, at the Agent's request and at
the Seller's expense, give notice of such ownership to such
Obligors and direct them to make such payments directly to the
Agent or its designee.
(iii) The Seller shall, at the Agent's request,
(A) assemble all of the documents, instruments and other
records (including, without limitation, computer tapes and
disks) which evidence the Pool Receivables, and the related
Contracts and Related Security, or which are otherwise
necessary or desirable to collect such Pool Receivables, and
shall make the same available to the Agent at a place selected
by the Agent or its designee, and (B) segregate all cash,
checks and other instruments received by it from time to time
constituting Collections of Pool Receivables in a manner
acceptable to the Agent and shall, promptly upon receipt,
remit all such cash, checks and instruments, duly endorsed or
with duly executed instruments of transfer, to the Agent or
its designee.
(iv) The Agent may take any and all steps in the
Seller's name and on behalf of the Seller and the Owners
necessary or desirable, in the determination of the Agent, to
collect all amounts due under any and all Pool Receivables,
including, without limitation, endorsing the Seller's name on
checks and other instruments representing Collections,
enforcing such Pool Receivables and the related Contracts, and
adjusting, settling or compromising the amount or payment
thereof, in the same manner and to the same extent as the
Seller might have done.
SECTION 6.04. Responsibilities of the Seller. Anything
herein to the contrary notwithstanding:
(a) The Seller shall perform all of its obligations under the
Contracts related to the Pool Receivables to the same extent as if
Shares had not been sold hereunder and the exercise by the Agent of
its rights hereunder shall not relieve the Seller from such
obligations or its obligations with respect to Pool Receivables;
and
(b) Neither the Agent nor the Owners shall have any
obligation or liability with respect to any Pool Receivables or
related Contracts, nor shall any of them be obligated to perform
any of the obligations of the Seller thereunder.
SECTION 6.05. Further Action Evidencing Purchases. (a) The Seller
agrees that from time to time, at its expense, it will promptly execute
and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Agent may
reasonably request, in order to perfect, protect or more fully evidence
the Shares purchased by the Owners hereunder, or to enable any of them
or the Agent to exercise and enforce any of their respective rights and
remedies hereunder or under the Certificate. Without limiting the
generality of the foregoing, the Seller will upon the request of the
A.gent: (i) execute and file such financing or continuation statements,
or amendments thereto or assignments thereof, and such other instruments
or notices, as may be necessary or desirable, or as the Agent may
request, in order to perfect, protect or evidence such Shares; (ii) mark
conspicuously each invoice evidencing each Pool Receivable and the
related Contract with a legend, acceptable to the Agent, evidencing that
such Shares have been sold in accordance with this Agreement; and (iii)
mark its master data processing records evidencing such Pool Receivables
and related Contracts with such legend.
(b) The Seller hereby authorizes the Agent to file one or
more financing or continuation statements, and amendments thereto and
assignments thereof, relating to all or any of the Contracts, or Pool
Receivables and the Related Security and Collections with respect
thereto now existing or hereafter arising without the signature of the
Seller where permitted by law. A photocopy or other reproduction of
this Agreement or any financing statement covering all or any of the
Contracts, or Pool Receivables and the Related Security and Collections
with respect thereto shall be sufficient as a financing statement where
permitted by law.
(c) If the Seller fails to perform any agreement contained
herein, the Agent may itself perform, or cause performance of, such
agreement, and the expenses of the Agent incurred in connection
therewith shall be payable by the Seller under Section 10.01 or Section
11.06, as applicable.
ARTICLE VII
EVENTS OF INVESTMENT INELIGIBILITY
SECTION 7.01. Events of Investment Ineligibility. If any of
the following events ("Events of Investment Ineligibility") shall occur
and 'be continuing:
(a) the Collection Agent (if the Seller or any of its
Affiliates) (i) shall fail to perform or observe any term, covenant or
agreement hereunder (other than as referred to in clause (ii) of this
Section 7.01(a)) and such failure shall remain unremedied for three
Business Days or (ii) shall fail to make any payment or deposit to be
made by it hereunder when due; or
(b) the Seller shall fail to perform or observe any term,
covenant or agreement contained in Section 5.02(c), 5.03(e) or 6.03(a);
or
(c) any representation or warranty or statement made by the
Seller (or any of its officers) under or in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(d) the Seller shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed and any such failure shall remain unremedied
for 10 days after written notice thereof shall have been given to the
Seller by the Agent; or
(e) the Seller shall fail to pay any principal of or premium
or interest on any Debt when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt;
or any such Debt shall be declared to be due and payable, or required to
be prepaid (other than by a regularly scheduled required prepayment),
prior to the stated maturity thereof; or
(f) any Purchase or any reinvestment pursuant to Section 2.05
shall for any reason (other than pursuant to the terms hereof) cease to
create, or any Share shall for any reason cease to be, a valid and
perfected first priority undivided percentage ownership interest to the
extent of the pertinent Share in each applicable Pool Receivable and the
Related Security and Collections with respect thereto or the Certificate
shall for any reason cease to evidence in the Owner of such Share legal
and equitable title to, and ownership of, an undivided percentage
ownership interest in Pool Receivables and Related Security to the
extent of such Share; or
(g) the Seller shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against the
Seller seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30 days,
or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or
for any substantial part of its property) shall occur; or the Seller
shall take any corporate action to authorize any of the actions set
forth above in this subsection (g); or
(h) the Default Ratio as at the last day of any calendar
month shall exceed 6% or the Delinquency Ratio as at the last day of any
calendar month shall exceed 20%; or
(i) the sum of the Shares percentage hereunder plus the
"Shares" percentage under the Citibank Agreement shall for a period of
five consecutive Business Days be equal to or exceed 100%; or
(j) there shall have been any material adverse change in the
financial condition or operations of the Seller since December 31, 1993,
or there shall have occurred any event which materially adversely
affects the collectibility of the Pool Receivables, or there shall have
occurred any other event which materially adversely affects the ability
of the Seller to collect Pool Receivables or the ability of the Seller
to perform hereunder;
then, and in any such event, the Agent may, by notice to the Seller
declare the Facility Termination Date to have occurred, whereupon the
Facility Termination Date shall forthwith occur, without demand, protest
or further notice of any kind, all of which are hereby expressly waived
by the Seller; provided that, in the event of an actual or deemed entry
of an order for relief with respect to the Seller under the Federal
Bankruptcy Code or the occurrence of any event described above in
subsection (f), the Facility Termination Date shall automatically occur,
without demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Seller. Upon any such termination of the
Facility, the Agent and the Owners shall have, in addition to all other
rights and remedies under this Agreement or otherwise, all other rights
and remedies provided under the UCC of the applicable jurisdiction and
other applicable laws, which rights shall be cumulative. Without
limiting the foregoing or the general applicability of Article IX
hereof, any Owner may elect to assign any Share owned by such Owner
pursuant to Section 9.01 following the occurrence of any Event of
Investment Ineligibility.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. The Owner hereby
appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated
to the Agent by the terms hereof, together with such powers as are
reasonably incidental thereto.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them as Agent under or
in connection with this Agreement (including, without limitation, the
Agent's servicing, administering or collecting Pool Receivables as
Collection Agent pursuant to Section 6.01), except for its or their own
gross negligence or willful misconduct. Without limiting the generality
of the foregoing, the Agent: (i) may consult with legal counsel
(including counsel for the Seller), independent public accountants and
other experts selected by it and shall not be liable for any action
taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (ii) makes no warranty
or representation to any Owner and shall not be responsible to any Owner
for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iii) shall not have
any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of this Agreement on the
part of the Seller or to inspect the property (including the books and
records) of the Seller; (iv) shall not be responsible to any Owner for
the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the Certificate or any other
instrument or document furnished pursuant hereto; and (v) shall incur no
liability under or in respect of this Agreement by acting upon any
notice (including notice by telephone), consent, certificate or other
instrument or writing (which may be by telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 8.03. CNAI and Affiliates. With respect to any Share
owned by it, CNAI shall have the same rights and powers under this
Agreement as any other Owner and may exercise the same as though it were
not the Agent. CNAI and its Affiliates may generally engage in any kind
of business with the Seller or any Obligor, any of their respective
Affiliates and any Person who may do business with or own securities of
the Seller or any Obligor or any of their respective Affiliates, all as
if CNAI were not the Agent and without any duty to account therefor to
the Owners.
SECTION 8.04. Investor's Purchase Decision. The Investor
acknowledges that it has, independently and without reliance upon the
Agent, any of its Affiliates or any other Owner and based on the
financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and, if it so
determines, to purchase an undivided ownership interest in Pool
Receivables hereunder. The Owner also acknowledges that it will,
independently and without reliance upon the Agent, any of its Affiliates
or any other Owner and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.
ARTICLE IX
ASSIGNMENT OF SHARES
SECTION 9.01. Assignability. (a) This Agreement and the
Owner's rights and obligations herein (including ownership of each
Share) shall be assignable by the Owner and its successors and assigns
to Citibank, CNAI, any of their Affiliates, any Person managed by
Citibank, CNAI or any of their Affiliates, or to any financial
institution or other entity which is acceptable to the Agent and
approved by the Seller, which approval shall not be unreasonably
withheld.
(b) Each assignor of a Share or any interest therein shall
notify the Agent and the Seller of any such assignment.
SECTION 9.02. Annotation of Certificate. The Agent shall
annotate the Certificate to reflect any assignments made pursuant to
Section 9.01 or otherwise.
ARTICLE X
INDEMNIFICATION
SECTION 10.01. Indemnities by the Seller. Without limiting
any other rights which the Agent, any Owner or any Affiliate of any
thereof (each, an "Indemnified Party") may have hereunder or under
applicable law, the Seller hereby agrees to indemnify each Indemnified
Party from and against any and all claims, losses and liabilities
(including reasonable attorneys' fees) (all of the foregoing being
collectively referred to as "Indemnified Amounts") growing out of or
resulting from this Agreement or the use of proceeds of Purchases or
reinvestments or the ownership of Shares or in respect of any Receivable
or any Contract, excluding, however, (a) Indemnified Amounts to the
extent resulting from gross negligence or willful misconduct on the part
of such Indemnified Party, (b) recourse (except as otherwise
specifically provided in this Agreement) for uncollectible Receivables
(or delayed payment thereon) due to creditworthiness of the Obligors, or
(c) any income taxes incurred by such Indemnified Party arising out of
or as a result of this Agreement or the ownership of Shares or in
respect of any Receivable or any Contract. Without limiting or being
limited by the foregoing (but subject to the restrictions described in
the foregoing clauses (a) and (b)), the Seller shall pay on demand to
each Indemnified Party (without duplication of any amounts payable by
the Sellers as a deemed Collection pursuant to Section 2.07) any and all
amounts necessary to indemnify such Indemnified Party from and against
any and all Indemnified Amounts relating to or resulting from any of the
following:
(i) the purported sale by the Seller (and acceptance of any
initial purchase price payment or reinvestment payment thereof) of
an undivided percentage ownership interest in any Pool Receivable
if at the time of such payment or reinvestment the aggregate
percentage interest in the Pool Receivables with respect to all
then outstanding Shares plus all then outstanding "Shares" under
the Parallel Purchase Commitment equals or exceeds 100%;
(ii) reliance on any representation or warranty or statement
made or deemed made by the Seller (or any of its officers) under or
in connection with this Agreement which shall have been incorrect
in any material respect when made;
(iii) the failure by the Seller to comply with any
applicable law, rule or regulation with respect to any Pool
Receivable or the related Contract, or the nonconformity of any
Pool Receivable or the related Contract with any such applicable
law, rule or regulation;
(iv) the failure to vest in the Owner of a Share an undivided
percentage ownership interest, to the extent of such Share, in the
Receivables in, or purporting to be in, the Receivables Pool and
the Related Security and Collections in respect thereof, free and
clear of any Adverse Claim;
(v) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable
laws with respect to any Receivables in, or purporting to be in,
the Receivables Pool and the Related Security and Collections in
respect thereof, whether at the time of any Purchase or
reinvestment or at any subsequent time;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the
payment of any Receivable in, or purporting to be in, the
Receivables Pool (including, without limitation, a defense based on
such Receivable or the related Contract not being a legal, valid
and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the
sale of the merchandise or services related to such Receivable or
the furnishing or failure to furnish such merchandise or services;
(vii) any failure of the Seller, as Collection Agent or
otherwise, to perform its duties or obligations in accordance with
the provisions of Article VI or to perform its duties or
obligations under the Contracts;
(viii) any products liability claim arising out of or in
connection with merchandise, insurance or services which are the
subject of any Contract;
(ix) any investigation, litigation or proceeding related to
this Agreement or the use of proceeds of Purchases or reinvestments
or the ownership of Shares or in respect of any Receivable, Related
Security or Contract;
(x) the commingling of Collections of Pool Receivables at any
time with other funds; or
(xi) any breakage and other expenses, if any, of the Investor
(including, without limitation, attorneys' fees and disbursements)
in the event Seller does not consummate a Purchase pursuant to the
terms of this Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement, and no consent to any departure by the
Seller herefrom, shall in any event be effective unless the same shall
be in writing and signed by the Agent as agent for the Owner, and then
such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 11.02. Notices, Etc. All notices and other
communications provided for hereunder shall, unless otherwise stated
herein, be in writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered, as to each party hereto, at its address set forth under its
name on the signature pages hereof or at such other address as shall be
designated by such party in a written notice to the other parties
hereto. All such notices and communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, be effective when deposited
in the mails, telecopied, delivered to the telegraph company, confirmed
by telex answerback or delivered to the cable company, respectively,
except that notices and communications to the Agent pursuant to Article
II shall not be effective until received by the Agent.
SECTION 11.03. No Waiver; Remedies. No failure on the part
of any Owner or the Agent to exercise, and no delay in exercising, any
right hereunder or under the Certificate shall operate as a waiver
thereof; nor shall any single or is a partial exercise of any right
hereunder 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 11.04. Binding Effect; Assignability. This Agreement
shall be binding upon and inure to the benefit of the Seller, the Agent
and each Owner and their respective successors and assigns, except that
the Seller shall not have the right to assign its rights hereunder or
any interest herein without the prior written consent of the Agent.
This Agreement shall create and constitute the continuing obligation of
the parties hereto in accordance with its terms, and shall remain in
full force and effect until such time, after the Facility Termination
Date, as no Capital of any Share shall be outstanding; provided that
rights and remedies with respect to the provisions of Article X and
Section 11.06, 11.07 and 11.08 shall be continuing and shall survive any
termination of this Agreement.
SECTION 11.05. Governing Law. This Agreement and the
Certificate shall be governed by, and construed in accordance with, the
laws of the State of New York, except to the extent that the validity or
perfection of the interests of the Owners, or remedies hereunder, in
respect of the Receivables, any Related Security or any Collections in
respect thereof, are governed by the laws of a jurisdiction other than
the State of New York.
SECTION 11.06. Costs and Expenses. In addition to the rights
of indemnification granted to the Indemnified Parties under Article X
hereof, the Seller agrees to pay on demand all costs and expenses in
connection with the preparation, execution, delivery, administration
(including periodic auditing), modification and amendment of this
Agreement, the Certificate and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Agent, the Investor, Citibank,
CNAI and their respective Affiliates with respect thereto and with
respect to advising the Agent, the Investor, Citibank, CNAI and their
respective Affiliates with respect thereto.
SECTION 11.07. No Proceedings. Each of the Seller, the
Agent, CNAI and each assignee of a Share or any interest therein and
each entity which enters into a commitment to purchase Shares or
interests therein hereby agrees that it will not institute against the
Investor any proceeding of the type referred to in Section 7.01(g) so
long as any commercial paper issued by the Owner shall be outstanding or
there shall not have elapsed one year plus one day since the last day on
which any such commercial paper shall have been outstanding.
SECTION 11.08. Confidentiality. Except to the extent
otherwise required by applicable law, the Seller agrees to maintain the
confidentiality of this Agreement (and all drafts thereof) and not to
disclose this Agreement or such drafts to third parties (other than to
its directors, officers, employees, accountants or counsel); provided
that the Agreement may be disclosed to third parties to the extent such
disclosure is (i) required in connection with a sale of securities of
the Seller, (ii) made solely to persons who are legal counsel for the
purchaser or underwriter of such securities, (iii) limited in scope to
the provisions of Articles V, VII, X and, to the extent defined terms
are used in Articles V, VII and X such terms defined in Article I of
this Agreement and (iv) made pursuant to a written agreement of
confidentiality in form and substance reasonably satisfactory to the
Agent.
SECTION 11.09. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall
constitute one and the same agreement.
SECTION 11.10. Amendment of the Original Certificate. The
Original Certificate is hereby amended in its entirety to read as set
forth in Exhibit A hereto and the Agent is authorized to endorse on the
Original Certificate the changes made pursuant hereto. Each reference
in this Agreement to "the Certificate" shall mean the Original
Certificate as amended by the amendment and restatement of the Original
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officer is hereunto duly authorized, as of
the date first above written.
IES UTILITIES INC.
By: _________________________
Title:
By: _________________________
Title:
200 First Street, S.E.
Cedar Rapids, IA 52401
CIESCO L.P.
By: CITICORP NORTH AMERICA, INC.,
as Attorney-in-Fact
By: _______________________
Vice President
450 Mamaroneck Avenue
Harrison, NY 10528
Attention: Vice President
Facsimile No. (914) 899-7890
CITICORP NORTH AMERICA, INC.
By: _____________________________
Vice President
450 Mamaroneck Avenue
Harrison, NY 10528
Attention: Corporate Asset
Funding Department
Facsimile No. (914) 899-7890
EXHIBIT A
CERTIFICATE OF ASSIGNMENT
Dated as of June 30, 1989
As amended and restated as of February 28, 1997
Reference is made to the Receivables Purchase and Sale
Agreement dated as of June 30, 1989, as amended and restated as of
February 28, 1997 (the "Agreement") among IES UTILITIES INC. (formerly
known as Iowa Electric Light and Power Company, the "Seller"), CIESCO
L.P. (formerly known as Commercial Industrial Trade-receivables
Investment Company) and Citicorp North America, Inc., as Agent. Terms
defined in the Agreement are used herein as therein defined.
The Seller hereby sells and assigns to the Agent for the
account of the Owner each Share as determined from time to time under
the Agreement.
Each Purchase of a Share by the Investor from the Seller, each
assignment of such Share by its Owner to an Assignee and each reduction
in Capital in respect of each Share evidenced hereby shall be endorsed
by the Agent on the grid attached hereto which is part of this
Certificate of Assignment. Such endorsement shall evidence the
ownership of such Share initially by the Investor and upon any
assignment, if any, thereof by the Assignee thereof and the amount of
Capital from time to time.
This Certificate of Assignment is made without recourse except
as otherwise provided in the Agreement.
This Certificate of Assignment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this
Certificate of Assignment to be duly executed and delivered by its duly
authorized officer as of the date first above written.
IES UTILITIES INC.
By:___________________________________
Title:_____________________________
By:___________________________________
Title:_____________________________
GRID
Number Capital Owner
of (Giving Effect (Giving Effect
Shares* Transaction** to Transaction) to Transaction)
* Shares will be numbered sequentially based upon date of Purchase.
** Transactions are Purchases, Reductions in Capital, Assignments,
Divisions of Shares and Combinations of Shares.
EXHIBIT B
FORM OF SELLER REPORT
EXHIBIT C
FORM OF OPINION OF COUNSEL FOR THE SELLER
[Date]
CIESCO L.P.
450 Mamaroneck Avenue
Harrison, NY 10528
Citicorp North America, Inc.,
as Agent
450 Mamaroneck Avenue
Harrison, NY 10528
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, IL 60661-3693
IES Utilities Inc.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.02(e)
of the amendment and restatement, dated as of February 28, 1997 (the
"Agreement"), of the Receivables Purchase and Sale Agreement, dated as
of June 30, 1989, among IES Utilities Inc. (the "Seller'), CIESCO L.P.
and Citicorp North America, Inc., as Agent. The terms defined in the
Agreement are used as defined in the Agreement.
As Attorney for the Seller, I have acted as counsel in
connection with the preparation, execution and delivery of the
Agreement.
In that connection I have examined:
(1) The Agreement and the Certificate.
(2) The documents of the Seller pursuant to Article
III of the Agreement.
(3) The Articles of Incorporation of the Seller and
all amendments thereto (the "Articles").
(4) The By-laws of the Seller and all amendments
thereto (the "By-Laws").
(5) Oral verification with the Secretary of State
of Iowa, dated _______________, 1997, as to the continued
existence and good standing of the Seller in such State.
I have also examined all of the indentures, loan or credit
agreements, leases, guarantees, mortgages, security agreements, bonds,
notes and other agreements or instruments and all of the orders, write,
judgments, awards, injunctions and decrees (collectively the
"Documents"), which affect or purport to affect the Seller's ability to
sell or otherwise dispose of Receivables or the Seller's obligations
under the Agreement. In addition, I have examined such other corporate
records of the Seller, certificates of public officials and of officers
of the Seller, and agreements, instruments and other documents, as I
have deemed necessary as a basis for the opinions expressed below. I
have assumed the due execution and delivery, pursuant to due
authorization, of the Agreement by the Investor and the Agent.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Iowa.
2. The execution, delivery and performance by the Seller of
the Agreement and the Certificate, and the Seller's use of the
proceeds of Purchases and reinvestments, are within the Seller's
corporate powers, have been duly authorized by all necessary
corporate action, and (A) do not contravene (i) the Articles or the
By-Laws or (ii) any law, rule or regulation applicable to the
Seller or, to the best of my knowledge, (iii) any contractual or
legal restriction contained in any Document listed above; (B) do
not result in or require the creation of any Adverse Claim (other
than pursuant to the Agreement) upon or with respect to any of the
Seller's properties; and (C) do not require compliance with any
bulk sales act or similar law. The Agreement and the Certificate
have been duly executed and delivered on behalf of the Seller.
3. No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by
the Seller of the Agreement or the Certificate or for the
perfection of or the exercise by the Agent or any Owner of their
respective rights and remedies under the Agreement and the
Certificate.
4. The Agreement and the Certificate are legal, valid and
binding obligations of the Seller enforceable against the Seller in
accordance with their respective terms.
5. To the best of my knowledge, there are no pending or
overtly threatened actions or proceedings against the Seller or any
of its subsidiaries before any court, governmental agency or
arbitrator which are likely to materially adversely affect (i) the
financial condition or operations of the Seller or any of its
subsidiaries or (ii) the ability of the Seller to perform its
obligations under the Agreement or the Certificate, or which
purport to affect the legality, validity, binding effect or
enforceability of the Agreement or the Certificate.
6. Each Share purchased prior to the date of this opinion
constituted, and each Share purchased pursuant to a subsequent
Purchase will constitute, a valid undivided ownership interest (an
"Undivided Interest"), to the extent of the Share purchased
pursuant to such Purchase, in each Pool Receivable then exiting or
thereafter arising and in the Related Security and Collections.
7. The nature of the Share is such that its purchase with
the proceeds of notes would constitute a "current transaction"
within the meaning of Section 3(a)(3) of the Securities Act of
1933, as amended (the "Securities Act"); since the date of initial
Purchase, the Pool Receivables have not been and will not be
applied by the Seller or any of its consolidated subsidiaries in
determining the total "current transactions" of the Seller and its
consolidated subsidiaries in claiming an exemption from
registration under the Securities Act. Each Purchase and each
reinvestment of Collections pursuant to the Agreement will
constitute a purchase or other acquisition of notes, drafts,
acceptances, open accounts receivable or other obligations
representing part or all of the sales price of merchandise,
insurance or services within the meaning of Section 3(c)(S) of the
Investment Company Act of 1940, as amended.
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in paragraph 4 above is subject to the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally.
(b) My opinion in paragraph 4 above is subject to the
effect of general principles of equity, including (without
limitation) concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether considered in a proceeding in
equity or at law).
(c) I express no opinion as to the priority of the
Undivided Interest as against any claim or lien in favor of the
United States or any agency or instrumentality thereof (including,
without limitation, federal tax liens and liens under Title IV of
ERISA).
Very truly yours,
Stephen W. Southwick
Attorney
EXHIBIT D
NOTICE OF PURCHASE OF
A SHARE AT A FIXED RATE
Citicorp North America, Inc.
as Agent
450 Mamaroneck Avenue
Harrison, New York 10528
Attention: ____________________
Ladies and Gentlemen:
The undersigned, IES Utilities Inc., refers to the Receivables
Purchase and Sale Agreement dated as of June 30, 1989, as amended and
restated as of February 28, 1997 (the "Agreement," the terms defined
therein being used herein as therein defined), among the undersigned,
Ciesco L.P., and you, as Agent, and hereby gives you notice pursuant to
Section 2.02 of the Agreement that the undersigned hereby requests
Ciesco L.P. to make a Purchase under the Agreement, and in that
connection sets forth below the terms on which such Purchase (the
"Proposed Purchase") is requested to be made:
(A) Date of purchase of
Share ______________
(B) Amount of Capital ______________
(C) Maturity date of Fixed Period ______________
(D) Fixed Rate ______________
(E) Interest Payment Date(s) ______________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Purchase of such Share:
(a) the representations and warranties contained in Section
4.01 are correct, before and after giving effect to the Proposed
Purchase and to the application of the proceeds therefrom, as
though made on and as of such date;
(b) no event has occurred and is continuing, or would result
from the Proposed Purchase or from the application of the proceeds
therefrom, which constitutes an Event of Investment Ineligibility
or would constitute an Event of Investment Ineligibility but for
the requirement that notice be given or time elapse or both.
The undersigned hereby confirms that the proposed Purchase of such Share
is to be made available to it in accordance with Section 2.02 of the
Agreement.
Very truly yours,
IES UTILITIES INC.
By: _________________________
Title:
SCHEDULE I
IES UTILITIES INC.
LIST OF SPECIAL ACCOUNT BANKS
ACCOUNT NUMBER
Firstar Bank Iowa, N.A. 110-00010-6
222 2nd Avenue S.E.
Cedar Rapids, IA 52401
Brenton Bank & Trust 136026
102 South Central Street
Marshalltown, IA 50158
Brenton National Bank 75130109
P.O. Box 149
Grinnell, IA 50112
Central State Bank 3228483
P.O. Box 146
Muscatine, IA 52761
Iowa State Bank and Trust 296023
P.O. Box 927
Fairfield, IA 52556
First Bank and Trust 136026
P.O. Box AA
Spirit Lake, IA 51360
First National Bank 136042
5th and Burnett
Ames, IA 50010
Firstar Bank Ottumwa, N.A. 01148109
123 East Third Street
Ottumwa, IA 52501
Firstar Bank Burlington, N.A. 621021453
P.O. Box 1088
Burlington, IA 52601
Mercantile Bank 786209
100 E. Jackson
Centerville, IA 52544
Mercantile Bank 346217
P.O. Box 1166
Newton, IA 50208
Iowa Falls State Bank 307761
P.O. Box 129
Iowa Falls, IA 50126
Iowa State Savings Bank 124109
P.O. Box 109
Creston, IA 50801
Iowa Trust & Savings Bank 244007
200 N. 10th
Centerville, IA 52544
Lee County Bank & Trust, N.A. 25577
8th Street & Avenue
Fort Madison, IA 52627
Security Bank 6101378
1402 Washington Street
Eldora, IA 50627
State Central Bank 3072121
601 Main Street
Keokuk, IA 52632
Washington State Bank 170054
Lock Box 311
Washington, IA 52353
Mercantile Bank 118079
101 South Filmore Street
Mount Ayr, IA 50854