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Exhibit 10.23
RECEIVABLES SALE AGREEMENT
DATED AS OF JULY 31, 2002
BY AND AMONG
SPHERION CORPORATION, SPHERION ASSESSMENT INC.,
NORCROSS TELESERVICES INC., COMTEX INFORMATION SYSTEMS, INC.,
SPHERION PACIFIC ENTERPRISES LLC, SPHERION ATLANTIC ENTERPRISES
LLC, SPHERION PACIFIC OPERATIONS LLC, AND SPHERION ATLANTIC
OPERATIONS LLC, SPHERION ATLANTIC RESOURCES LLC, SPHERION
ATLANTIC WORKFORCE LLC, SPHERION PACIFIC RESOURCES LLC,
SPHERION PACIFIC WORKFORCE LLC AND EACH OF SPHERION
CORPORATION'S DIRECT OR INDIRECT WHOLLY-OWNED SUBSIDIARIES
THAT HEREAFTER BECOMES AN ORIGINATOR HEREUNDER,
AS ORIGINATORS,
AND
SPHERION RECEIVABLES CORP.,
AS BUYER
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TABLE OF CONTENTS
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PAGE
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ARTICLE I AMOUNTS AND TERMS OF THE PURCHASE...................................................................... 2
SECTION 1.1 PURCHASE OF RECEIVABLES............................................................................. 2
SECTION 1.2 PAYMENT FOR THE PURCHASES........................................................................... 3
SECTION 1.3 PURCHASE PRICE CREDIT ADJUSTMENTS................................................................... 5
SECTION 1.4 PAYMENTS AND COMPUTATIONS, ETC...................................................................... 6
SECTION 1.5 LICENSE OF SOFTWARE; TRANSFER OF RECORDS............................................................ 6
SECTION 1.6 CHARACTERIZATION.................................................................................... 6
ARTICLE II REPRESENTATIONS AND WARRANTIES........................................................................ 7
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF ORIGINATORS....................................................... 7
ARTICLE III CONDITIONS OF PURCHASE............................................................................... 11
SECTION 3.1 CONDITIONS PRECEDENT TO PURCHASE.................................................................... 11
SECTION 3.2 CONDITIONS PRECEDENT TO SUBSEQUENT PURCHASES........................................................ 11
ARTICLE IV COVENANTS............................................................................................. 12
SECTION 4.1 AFFIRMATIVE COVENANTS OF ORIGINATORS................................................................ 12
SECTION 4.2 NEGATIVE COVENANTS OF ORIGINATORS................................................................... 16
ARTICLE V JOINDER OF ADDITIONAL ORIGINATORS...................................................................... 17
SECTION 5.1 ADDITION OF NEW ORIGINATORS......................................................................... 17
SECTION 5.2 DOCUMENTATION....................................................................................... 17
ARTICLE VI TERMINATION EVENTS.................................................................................... 17
SECTION 6.1 TERMINATION EVENTS.................................................................................. 17
SECTION 6.2 REMEDIES............................................................................................ 19
ARTICLE VII INDEMNIFICATION...................................................................................... 19
SECTION 7.1 INDEMNITIES BY ORIGINATORS.......................................................................... 19
SECTION 7.2 OTHER COSTS AND EXPENSES............................................................................ 21
ARTICLE VIII MISCELLANEOUS....................................................................................... 22
SECTION 8.1 WAIVERS AND AMENDMENTS............................................................................... 22
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SECTION 8.2 NOTICES............................................................................................. 22
SECTION 8.3 PROTECTION OF OWNERSHIP INTERESTS OF BUYER.......................................................... 22
SECTION 8.4 CONFIDENTIALITY..................................................................................... 23
SECTION 8.5 BANKRUPTCY PETITION................................................................................. 24
SECTION 8.6 LIMITATION OF LIABILITY............................................................................. 24
SECTION 8.7 CHOICE OF LAW....................................................................................... 25
SECTION 8.8 CONSENT TO JURISDICTION............................................................................. 25
SECTION 8.9 WAIVER OF JURY TRIAL................................................................................ 25
SECTION 8.10 INTEGRATION; BINDING EFFECT; SURVIVAL OF TERMS...................................................... 25
SECTION 8.11 COUNTERPARTS; SEVERABILITY.......................................................................... 26
SECTION 8.12 CONSTRUCTION OF THIS AGREEMENT AND CERTAIN TERMS AND PHRASES........................................ 26
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EXHIBITS AND SCHEDULES
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Exhibit I - Definitions
Exhibit II - Jurisdiction of Organization and Chief Executive Offices of each
Originator; Organizational Identification Number(s); Other Names
Exhibit III - Lock-Boxes; Collection Accounts; Collection Banks
Exhibit IV - Form of Compliance Certificate
Exhibit V - Copy of Credit and Collection Policy
Exhibit VI - Form of Subordinated Note
Exhibit VII - Form of Purchase Report
Exhibit VIII - Form of Joinder Agreement
Schedule A - List of Documents to Be Delivered to Buyer Prior to the Purchases
Schedule B - Monthly Accounting Periods
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RECEIVABLES SALE AGREEMENT
THIS RECEIVABLES SALE AGREEMENT, dated as of July 31, 2002, is by
and among Spherion Corporation, a Delaware corporation ("PARENT"), Spherion
Assessment Inc., a North Carolina corporation, Norcross Teleservices Inc., a
Delaware corporation, Comtex Information Systems, Inc., a Delaware corporation,
Spherion Pacific Enterprises LLC, a Delaware limited liability company, Spherion
Atlantic Enterprises LLC, a Delaware limited liability company, Spherion Pacific
Operations LLC, a Delaware limited liability company, Spherion Atlantic
Operations LLC, a Delaware limited liability company, Spherion Atlantic
Resources LLC, a Delaware limited liability company, Spherion Atlantic Workforce
LLC, a Delaware limited liability company, Spherion Pacific Resources LLC, a
Delaware limited liability company, and Spherion Pacific Workforce LLC, a
Delaware limited liability company (Parent and each of the foregoing, an
"ORIGINAL ORIGINATOR" and collectively, with each direct or indirect
wholly-owned subsidiary of Parent that hereafter becomes a party hereto, a "NEW
ORIGINATOR") by executing a joinder agreement in the form of Exhibit VIII (each,
a "JOINDER AGREEMENT") as originators (the "ORIGINATORS"), and Spherion
Receivables Corp., a Delaware corporation ("BUYER"). UNLESS DEFINED ELSEWHERE
HEREIN, CAPITALIZED TERMS USED IN THIS AGREEMENT SHALL HAVE THE MEANINGS
ASSIGNED TO SUCH TERMS IN EXHIBIT I (OR, IF NOT DEFINED IN EXHIBIT I, THE
MEANING ASSIGNED TO SUCH TERM IN EXHIBIT I TO THE CREDIT AND SECURITY
AGREEMENT).
PRELIMINARY STATEMENTS
Each of the Originators now owns, and from time to time hereafter
will own, Receivables. Each of the Originators wishes to sell and assign to
Buyer, and Buyer wishes to purchase from each Originator, all of such
Originator's right, title and interest in and to its Receivables, together
with the Related Security and Collections with respect thereto.
Each of the Originators and Buyer intend the Purchases of
Receivables from such Originator hereunder to be true sales to Buyer by
such Originator of the Receivables originated by it, providing Buyer with
the full benefits of ownership of such Receivables, and none of the
Originators nor Buyer intends such Purchases to be, or for any purpose to
be characterized as, loans from Buyer to such Originator.
Following the Purchase of Receivables from each Originator, Buyer
will borrow and pledge its assets pursuant to that certain Credit and
Security Agreement dated as of the date hereof (as the same may from time
to time hereafter be amended, supplemented, restated or otherwise modified,
the "CREDIT AND SECURITY AGREEMENT") originally by and among Buyer, as
Borrower, Parent, as initial Servicer, Blue Ridge Asset Funding Corporation
("BLUE RIDGE"), and Wachovia Bank, National Association or any successor
agent appointed pursuant to the Credit and Security Agreement, as agent (in
such capacity, the "ADMINISTRATIVE AGENT").
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NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASE
Section 1.1 PURCHASE OF RECEIVABLES.
(a) Effective on the Initial Sale Closing Date, in consideration
for the Purchase Price paid to each Originator and upon the terms and
subject to the conditions set forth herein, each Originator does hereby
sell, assign, transfer, set-over and otherwise convey to Buyer, without
recourse (except to the extent expressly provided herein), and Buyer does
hereby purchase from such Originator, all of such Originator's right, title
and interest in and to all Receivables originated by such Originator and
existing as of the close of business on the Business Day immediately prior
to the Initial Sale Closing Date (the "INITIAL CUTOFF DATE") and all
Receivables thereafter originated by such Originator through and including
the Termination Date, together, in each case, with all Related Security and
Collections with respect thereto. In accordance with the preceding
sentence, on the Applicable Closing Date for each Originator, Buyer shall
acquire all of such Originator's right, title and interest in and to all
Receivables existing as of the Applicable Cutoff Date and thereafter
arising through and including the Termination Date, together with all
Related Security and Collections with respect thereto. Buyer shall be
obligated to pay the Purchase Price for the Receivables purchased hereunder
from each Originator in accordance with Section 1.2.
(b) On the 15th Business Day of each monthly accounting period of
the Parent set forth on Schedule B (commencing with the first full
accounting period following its Applicable Closing Date), each Originator
shall (or shall require the Servicer to) deliver to Buyer a report in
substantially the form of Exhibit VII (each such report being herein called
a "PURCHASE REPORT") with respect to the Receivables sold by such
Originator to Buyer during the Settlement Period then most recently ended.
In addition to, and not in limitation of, the foregoing, in connection with
the payment of the Purchase Price for any Receivables purchased hereunder,
Buyer may request that the applicable Originator deliver, and such
Originator shall deliver, such approvals, opinions, information or
documents as Buyer may reasonably request.
(c) It is the intention of the parties hereto that each Purchase
of Receivables from an Originator made hereunder shall constitute a sale,
which sale is absolute and irrevocable and provides Buyer with the full
benefits of ownership of the Receivables originated by such Originator.
Except for the Purchase Price Credits owed to such Originator pursuant to
Section 1.3, the sale of Receivables hereunder by each Originator is made
without recourse to such Originator; PROVIDED, HOWEVER, that (i) such
Originator shall be liable to Buyer for all representations, warranties,
covenants and indemnities made by such Originator pursuant to the
Transaction Documents to which such Originator is a party, and (ii) such
sale does not constitute and is not intended to result in an assumption by
Buyer or any assignee thereof of any obligation of such Originator or
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any other Person arising in connection with the Receivables, the related
Contracts or other Related Security or any other obligations of such
Originator. In view of the intention of the parties hereto that each
Purchase of Receivables made hereunder shall constitute a sale of such
Receivables rather than loans secured thereby, each Originator agrees that
it will, on or prior to its Applicable Closing Date and in accordance with
Section 4.1(e)(ii), mark its master data processing records relating to the
Receivables originated by it with a legend acceptable to Buyer and to the
Administrative Agent (as Buyer's assignee), evidencing that Buyer has
purchased such Receivables hereunder and to note in its financial
statements that its Receivables have been sold to Buyer. Upon the request
of Buyer or the Administrative Agent (as Buyer's assignee), each Originator
will execute and file such financing or continuation statements, or
amendments thereto or assignments thereof, and such other instruments or
notices, as may be necessary or appropriate to perfect and maintain the
perfection of Buyer's ownership interest in the Receivables originated by
such Originator and the Related Security and Collections with respect
thereto, or as Buyer or the Administrative Agent (as Buyer's assignee) may
reasonably request.
Section 1.2 PAYMENT FOR THE PURCHASES.
(a) The Purchase Price for the Purchase from each Originator of
its Receivables in existence as of the close of business on the Initial
Cutoff Date shall be payable in full by Buyer to such Originator on the
Initial Sale Closing Date, and shall be paid to such Originator in the
following manner:
(i) by delivery of immediately available funds, to the
extent of funds made available to Buyer from its borrowings under
the Credit and Security Agreement and other cash on hand; and
(ii) the balance, by delivery of the proceeds of a
subordinated revolving loan from such Originator to Buyer (a
"SUBORDINATED LOAN") in an amount not to exceed the least of (1) the
remaining unpaid portion of such Purchase Price, (2) the maximum
Subordinated Loan that could be borrowed without rendering Buyer's
Net Worth less than the Required Capital Amount, and (3) fifteen
percent (15%) of such Purchase Price. Each Originator is hereby
authorized by Buyer to endorse on the schedule attached to its
Subordinated Note an appropriate notation evidencing the date and
amount of each advance thereunder, as well as the date of each
payment with respect thereto, PROVIDED THAT the failure to make such
notation shall not affect any obligation of Buyer thereunder.
The Purchase Price for each Receivable coming into existence after the Initial
Cutoff Date shall be due and owing in full by Buyer to the applicable Originator
or its designee on the date each such Receivable came into existence (except
that Buyer may, with respect to any such Purchase Price, offset against such
Purchase Price any amounts owed by such Originator to Buyer hereunder and which
have become due but remain unpaid) and shall be paid to such Originator in the
manner provided in the following paragraphs (b), (c) and (d).
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(b) With respect to any Receivables coming into existence after
the Initial Cutoff Date, on each Settlement Date, Buyer shall pay the
applicable Originator the Purchase Price therefor in accordance with
Section 1.2(d) and in the following manner:
FIRST, by delivery to the applicable Originator or its
designee of immediately available funds, to the extent of funds available
to Buyer from its borrowings under the Credit and Security Agreement or
other cash on hand;
SECOND, by delivery to the applicable Originator or its
designee of the proceeds of a Subordinated Loan, PROVIDED THAT the making
of any such Subordinated Loan shall be subject to the provisions set forth
in SECTION 1.2(a)(ii); and
THIRD, solely in the case of Receivables to be sold or
otherwise transferred by Parent, unless the Termination Date has occurred
in accordance with this Agreement, by accepting a contribution to Buyer's
capital in an amount equal to the remaining unpaid balance of such Purchase
Price.
Subject to the limitations set forth in SECTION 1.2(a)(ii), each Originator
irrevocably agrees to advance each Subordinated Loan requested by Buyer on or
prior to the Termination Date. The Subordinated Loans owing to each Originator
shall be evidenced by, and shall be payable in accordance with its Subordinated
Note and shall be payable solely from funds which Buyer is not required under
the Credit and Security Agreement to set aside for the benefit of, or otherwise
pay over to, the Lenders.
(c) From and after the Termination Date, (i) no Originator shall
be obligated to (but may, at its option) sell Receivables to Buyer, and
(ii) Parent shall not be obligated to (but may, at its option) contribute
Receivables to Buyer's capital pursuant to clause THIRD of Section 1.2(b).
(d) Although the Purchase Price for each Receivable coming into
existence after the Initial Cutoff Date shall be due and payable in full by
Buyer to the applicable Originator on the date such Receivable came into
existence, settlement of the Purchase Price between Buyer and such
Originator shall be effected on a monthly basis on Settlement Dates with
respect to all Receivables originated by such Originator during the same
Calculation Period and based on the information contained in the Purchase
Report delivered by such Originator for the Calculation Period then most
recently ended. Although settlement shall be effected on Settlement Dates,
increases or decreases in the amount owing under the Subordinated Note made
pursuant to Section 1.2 and any contribution of capital by Parent to Buyer
made pursuant to Section 1.2(b) shall be deemed to have occurred and shall
be effective as of the last Business Day of the Calculation Period to which
such settlement relates. During each Calculation Period, Parent, while it
is Servicer, will have the right to withdraw funds from the Collection
Accounts pursuant to the applicable Collection Account Agreement and remit
such funds to the Originators as advance payments on account of the
Purchase Price of the Receivables Purchased from the Originators by Buyer
during such Calculation Period provided that (i) a Collection Notice has
not been delivered pursuant to Section 8.3 of the Credit and Security
Agreement or (ii) no Amortization Event has occurred or is
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continuing. On each Settlement Date, Servicer shall reconcile the total
amounts so remitted to the Originators during the Calculation Period (plus
the total amounts, if any, remitted to the Originators as payment of
Purchase Price during the Calculation Period from funds made available to
Buyer under the Credit and Security Agreement) against the total Purchase
Price of all Receivables Purchased by Buyer during such Calculation Period.
To the extent the total amounts so remitted exceed such total Purchase
Price after giving effect to any Purchase Price Credit that have not been
previously granted to one or more Originators , Parent, on behalf of all
Originators, shall refund such excess to Buyer on such Settlement Date. To
the extent the total amount so remitted to the Originators is less than
such total Purchase Price, Buyer shall pay the balance of such Purchase
Price to the Originators in the manner provided in Section 1.2(b).
Section 1.3 PURCHASE PRICE CREDIT ADJUSTMENTS. If on any day:
(a) the Outstanding Balance of a Receivable purchased from any
Originator is:
(i) reduced as a result of any defective or rejected or
returned goods or services, any discount or any adjustment or
otherwise by such Originator (other than as a result of such
Receivable becoming a Defaulted Receivable or to reflect cash
Collections on account of such Receivable),
(ii) reduced or canceled as a result of a setoff in respect
of any claim by any Person (whether such claim arises out of the
same or a related transaction or an unrelated transaction), or
(b) any of the representations and warranties set forth in
Sections 2.1(h), (i), (j), (l), (r), (s), (t), (u), the second sentence of
Section 2.1(q) hereof and the last clause (relating to bulk sales laws) of
Section 2.1(c) are not true when made or deemed made with respect to any
Receivable,
then, in such event, Buyer shall be entitled to a credit (each, a "PURCHASE
PRICE CREDIT") against the Purchase Price otherwise payable to the applicable
Originator hereunder equal to the Outstanding Balance of such Receivable
(calculated before giving effect to the applicable reduction or cancellation).
If such Purchase Price Credit exceeds the Original Balance of the Receivables
originated by the applicable Originator on any day, such Originator shall pay
the remaining amount of such Purchase Price Credit in cash immediately, PROVIDED
THAT if the Termination Date has not occurred, such Originator shall be allowed
to deduct the remaining amount of such Purchase Price Credit from any
indebtedness owed to it under its Subordinated Note.
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Section 1.4 PAYMENTS AND COMPUTATIONS, ETC.. All amounts to be paid or
deposited by Buyer hereunder shall be paid or deposited in accordance with the
terms hereof on the day when due in immediately available funds to the account
of the applicable Originator designated from time to time by such Originator or
as otherwise directed by such Originator. If any payment owed by any Person
hereunder becomes due on a day that is not a Business Day, then such payment
shall be made on the next succeeding Business Day. If any Person fails to pay
any amount hereunder when due, such Person agrees to pay, on demand, the Default
Fee in respect thereof until paid in full; PROVIDED, HOWEVER, that such Default
Fee shall not at any time exceed the maximum rate permitted by applicable law.
All computations of interest payable hereunder shall be made on the basis of a
year of 360 days for the actual number of days (including the first but
excluding the last day) elapsed.
Section 1.5 LICENSE OF SOFTWARE; TRANSFER OF RECORDS.
(a) To the extent that any software used by any Originator to
account for the Receivables originated by it is non transferable, such
Originator hereby grants to each of Buyer, the Administrative Agent and the
Servicer an irrevocable, non-exclusive license to use, without royalty or
payment of any kind, all such software used by such Originator to account
for such Receivables, to the extent necessary to administer such
Receivables, whether such software is owned by such Originator or is owned
by others and used by such Originator under license agreements with respect
thereto, PROVIDED THAT should the consent of any licensor of such software
be required for the grant of the license described herein, to be effective,
such Originator hereby agrees that upon the request of Buyer (or Buyer's
assignee), such Originator will use its reasonable efforts to obtain the
consent of such third-party licensor. The license granted hereby shall be
irrevocable until the later to occur of (i) indefeasible payment in full of
the Obligations, and (ii) the date each of this Agreement and the Credit
and Security Agreement terminates in accordance with its terms.
(b) Each Originator (i) shall take such action requested by Buyer
or the Administrative Agent (as Buyer's assignee), from time to time
hereafter, that may be necessary or appropriate to ensure that Buyer and
its assigns under the Credit and Security Agreement have an enforceable
ownership interest in the Records relating to the Receivables purchased
from such Originator hereunder, and (ii) shall use its reasonable efforts
to ensure that Buyer, the Administrative Agent and the Servicer each has an
enforceable right (whether by license or sublicense or otherwise) to use
all of the computer software used to account for such Receivables or to
recreate such Records.
Section 1.6 CHARACTERIZATION. If, notwithstanding the intention of the
parties expressed in SECTION 1.1(c), any sale or contribution by an Originator
to Buyer of Receivables hereunder shall be characterized as a nonrecourse
secured loan and not a sale or such sale shall for any reason be ineffective or
unenforceable, then this Agreement shall be deemed to constitute a security
agreement under the UCC and other applicable law. For this purpose and without
being in derogation of the parties' intention that the sale of Receivables by
each Originator hereunder shall constitute a true sale thereof, such Originator
hereby grants to Buyer a duly perfected security interest in all of such
Originator's right, title and interest in, to and under all Receivables of such
Originator which are now existing or hereafter arising, all Collections and
Related
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Security with respect thereto, each Lock-Box and Collection Account, all
other rights and payments relating to such Receivables and all proceeds of the
foregoing to secure the prompt and complete payment of a nonrecourse loan deemed
to have been made in an amount equal to the Purchase Price of the Receivables
purchased from such Originator together with all other obligations of such
Originator hereunder, which security interest shall be prior to all other
Adverse Claims thereto. Buyer and its assigns shall have, in addition to the
rights and remedies which they may have under this Agreement, all other rights
and remedies provided to a secured creditor under the UCC and other applicable
law, which rights and remedies shall be cumulative.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF ORIGINATORS. Each
Originator hereby represents and warrants to Buyer on the Initial Sale Closing
Date, on the date of the Purchase from such Originator hereunder and on each
date that any Receivable is originated by such Originator on or after the date
of such Purchase, that:
(a) EXISTENCE AND POWER. Such Originator is a corporation or
limited liability company duly organized under the laws of the state set forth
after its name in the preamble to this Agreement (the "APPLICABLE STATE"), and
no other state or jurisdiction, and as to which such Applicable State must
maintain a public record showing the corporation or limited liability company to
have been organized. Such Originator is validly existing and in good standing
under the laws of its Applicable State and is duly qualified to do business and
is in good standing as a foreign entity, and has and holds all power and all
governmental licenses, authorizations, consents and approvals required to carry
on its business in each jurisdiction in which its business is conducted except
where the failure to so qualify or so hold would not reasonably be expected to
have a Material Adverse Effect.
(b) POWER AND AUTHORITY; DUE AUTHORIZATION, EXECUTION AND
DELIVERY. The execution and delivery by such Originator of this Agreement and
each other Transaction Document to which it is a party, and the performance of
its obligations hereunder and thereunder, and such Originator's use of the
proceeds of the Purchase made from it hereunder, are within its organizational
powers and authority and have been duly authorized by all necessary
organizational action on its part. This Agreement and each other Transaction
Document to which such Originator is a party has been duly executed and
delivered by such Originator.
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(c) NO CONFLICT. The execution and delivery by such Originator of
this Agreement and each other Transaction Document to which it is a party, and
the performance of its obligations hereunder and thereunder do not contravene or
violate (i) its Organizational Documents, (ii) any law, rule or regulation
applicable to it, (iii) any restrictions under any agreement, contract or
instrument to which it is a party or by which it or any of its property is
bound, or (iv) any order, writ, judgment, award, injunction or decree binding on
or affecting it or its property, and do not result in the creation or imposition
of any Adverse Claim on assets of such Originator or its Subsidiaries (except as
created by the Transaction Documents) except, in any case, where such
contravention or violation would not reasonably be expected to have a Material
Adverse Effect; and none of the Transactions requires compliance with any bulk
sales act or similar law.
(d) GOVERNMENTAL AUTHORIZATION. Other than the filing of the
financing statements required hereunder, no authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution and delivery by such
Originator of this Agreement and each other Transaction Document to which it is
a party and the performance of its obligations hereunder and thereunder.
(e) ACTIONS, SUITS. There are no actions, suits or proceedings
pending, or to the best of such Originator's knowledge, threatened, against or
affecting such Originator, or any of its properties, in or before any court,
arbitrator or other body, that would reasonably be expected to have a Material
Adverse Effect. Such Originator is not in default with respect to any order of
any court, arbitrator or governmental body.
(f) BINDING EFFECT. This Agreement and each other Transaction
Document to which such Originator is a party constitute the legal, valid and
binding obligations of such Originator enforceable against such Originator in
accordance with their respective terms.
(g) ACCURACY OF INFORMATION. All information heretofore furnished
by such Originator or any of its Affiliates to Buyer (or its assigns) pursuant
to this Agreement or any of the other Transaction Documents or the Transaction
including Affiliates to Buyer (or its assigns) is, true and accurate in every
material respect on the date such information is stated or certified and does
not contain any material misstatement of fact or omit to state a material fact
or any fact necessary to make the statements contained therein, taken as a
whole, not misleading.
(h) USE OF PROCEEDS. No portion of any Purchase Price payment
hereunder will be used (i) for a purpose that violates, or would be inconsistent
with, any law, rule or regulation applicable to such Originator or (ii) to
acquire any security in any transaction which is subject to Section 12, 13 or 14
of the Securities Exchange Act of 1934, as amended.
(i) GOOD TITLE. Immediately prior to the Purchase from such
Originator hereunder and upon the creation of each Receivable originated by such
Originator after the Initial Cut-Off Date, such Originator (i) is the legal and
beneficial owner of such Receivables and (ii) is the legal and beneficial owner
of the Related Security with respect thereto or possesses a valid and perfected
security interest therein, in each case, free and clear of any Adverse Claim,
except as created by the Transaction Documents. There have been duly filed all
financing statements or other similar instruments or documents necessary under
the UCC (or any comparable law) of all
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appropriate jurisdictions to perfect such Originator's ownership interest in
each such Receivable, its Collections and the Related Security.
(j) PERFECTION. This Agreement, together with the filing of the
financing statements contemplated hereby, is effective to transfer to Buyer (and
Buyer shall acquire from such Originator) (i) legal and equitable title to, with
the right to sell and encumber each Receivable originated by such Originator,
whether now existing and hereafter arising, together with the Collections with
respect thereto, and (ii) all of such Originator's right, title and interest in
the Related Security with respect to each such Receivable, in each case, free
and clear of any Adverse Claim, except as created by the Transactions Documents.
There have been duly filed all financing statements or other similar instruments
or documents necessary under the UCC (or any comparable law) of all appropriate
jurisdictions to perfect Buyer's ownership interest in such Receivables, the
Related Security and the Collections.
(k) PLACES OF BUSINESS, JURISDICTION OF ORGANIZATION AND
LOCATIONS OF RECORDS. The principal places of business, jurisdictions or
organization and chief executive office of such Originator and the offices where
it keeps all of its Records are located at the address(es) listed on EXHIBIT II
or such other locations of which Buyer has been notified in accordance with
SECTION 4.2(a) in jurisdictions where all action required by SECTION 4.2(a) has
been taken and completed. Such Originator's organizational number assigned to it
by the Applicable State Federal Employer Identification Number is correctly set
forth on EXHIBIT II. No Originator has, within a period of one year prior to the
date hereof, (i) changed the location of its principal place of business or
chief executive office or its corporate structure, (ii) changed its legal names,
(iii) become a "new debtor" (as defined in Section 9-102(a)(56) (or similar
section) of the UCC in effect in the Applicable States or (iv) changed its
jurisdiction of organization. Each Originator is a "registered organization"
(within the meaning of Section 9-102 (or similar section) of the UCC in effect
in the Applicable State).
(l) COLLECTIONS. The conditions and requirements set forth in
SECTION 4.1(i) have at all times been satisfied and duly performed. The names
and addresses of all Collection Banks, together with the account numbers of the
Collection Accounts of such Originator at each Collection Bank and the post
office box number of each Lock-Box, are listed on EXHIBIT III. Such Originator
has not granted any Person, other than Buyer (and its assigns) dominion and
control or "control" within the meaning of Section 9-104 of the UCC (or similar
section) of all applicable jurisdictions (other than the Administrative Agent as
contemplated by the Credit and Security Agreement) of any Lock-Box or Collection
Account, or the right to take dominion and control of any such Lock-Box or
Collection Account at a future time or upon the occurrence of a future event.
(m) MATERIAL ADVERSE EFFECT. Except for the downgrade of the
Parent by S&P on April 10, 2002, since December 28, 2001 through and including
the Initial Sale Closing Date, no event has occurred that would have a Material
Adverse Effect.
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(n) NAMES. The name in which such Originator has executed this
Agreement is identical to the name of such Originator as indicated on the public
record of its state of organization which shows such Originator to have been
organized. In the past five (5) years, such Originator has not used any
corporate names, trade names or assumed names other than the name in which it
has executed this Agreement and as listed on EXHIBIT II.
(o) OWNERSHIP OF BUYER. Parent owns, directly or indirectly, 100%
of the issued and outstanding Equity Interests of Buyer. Such Equity Interests
are validly issued, fully paid and nonassessable, and there are no options,
warrants or other rights to acquire securities of Buyer.
(p) NOT A HOLDING COMPANY OR AN INVESTMENT COMPANY. Such
Originator is not a "HOLDING COMPANY" or a "SUBSIDIARY HOLDING COMPANY" of a
"HOLDING COMPANY" within the meaning of the Public Utility Holding Company Act
of 1935, as amended, or any successor statute. Such Originator is not an
"INVESTMENT COMPANY" within the meaning of the Investment Company Act of 1940,
as amended, or any successor statute.
(q) COMPLIANCE WITH LAW. Such Originator has complied in all
respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, except where the
failure to so comply would not reasonably be expected to have a Material Adverse
Effect. Each Receivable, together with the Contract related thereto, does not
contravene any laws, rules or regulations applicable thereto (INCLUDING laws,
rules and regulations relating to truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection practices and
privacy), and no part of such Contract is in violation of any such law, rule or
regulation, except where such contravention or violation would not reasonably be
expected to have a Material Adverse Effect.
(r) COMPLIANCE WITH CREDIT AND COLLECTION POLICY. Such Originator
has complied in all material respects with the Credit and Collection Policy with
regard to each Receivable originated by it and the related Contract, and has not
made any material change to such Credit and Collection Policy, except such
material change as to which Buyer (or its assigns) has been notified in
accordance with SECTION 4.1(a)(vii).
(s) PAYMENTS TO SUCH ORIGINATOR. With respect to each Receivable
originated by such Originator and sold to Buyer hereunder, the Purchase Price
received by such Originator constitutes reasonably equivalent value in
consideration therefor. No transfer hereunder by such Originator of any
Receivable originated by such Originator is voidable under any section of the
Bankruptcy Reform Act of 1978 (11 U.S.C. Sections. 101 ET SEQ.), as amended.
(t) ENFORCEABILITY OF CONTRACTS. Each Contract with respect to
each Receivable is effective to create, and has created, a legal, valid and
binding obligation of the related Obligor to pay the Outstanding Balance of the
Receivable created thereunder and any accrued interest thereon, enforceable
against the Obligor in accordance with its terms.
(u) ELIGIBLE RECEIVABLES. Each Receivable reflected in any
Purchase Report as an Eligible Receivable was an Eligible Receivable on the date
of its Purchase by Buyer hereunder.
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(v) ACCOUNTING. The manner in which such Originator accounts for
the Purchases in its financial statements does not jeopardize the
characterization of the Purchases as being true sales.
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 CONDITIONS PRECEDENT TO PURCHASE. The Purchases are subject
to the conditions precedent that (a) Buyer shall have received on or before the
date of such purchase those documents listed on SCHEDULE A and (b) all of the
conditions to the initial loan under the Credit and Security Agreement shall
have been satisfied or waived in accordance therewith.
Section 3.2 CONDITIONS PRECEDENT TO SUBSEQUENT PURCHASES. Buyer's
obligation to Purchase Receivables coming into existence after each Originator's
Applicable Cutoff Date shall be subject to the further conditions precedent
that: (a) the Facility Termination Date shall not have occurred under the Credit
and Security Agreement; (b) Buyer (or its assigns) shall have received from such
Originator such other approvals, opinions or documents as Buyer may reasonably
request and (c) on the date such Receivable came into existence, the following
statements shall be true (and acceptance of the proceeds of any payment for such
Receivable shall be deemed a representation and warranty by such Originator that
such statements are then true):
(i) the representations and warranties set forth in
ARTICLE II are true and correct in all material respects on and as
of the date such Receivable came into existence as though made on
and as of such date ; PROVIDED THAT the materiality threshold in the
preceding clause shall not be applicable with respect to any
representation or warranty which itself contains a materiality
threshold; and
(ii) no event has occurred and is continuing that will
constitute a Termination Event or an Unmatured Termination Event;
and
(iii) no event has occurred that would reasonably be
expected to have a Material Adverse Effect.
Notwithstanding the foregoing conditions precedent, upon payment of the Purchase
Price for any Receivable (whether by payment of cash, through an increase in the
amounts outstanding under the Subordinated Note, by offset of amounts owed to
Buyer or by offset of capital contributions), title to such Receivable and the
Related Security and Collections with respect thereto shall vest in Buyer,
whether or not the conditions precedent to Buyer's obligation to pay for such
Receivable were in fact satisfied. The failure, however, of such Originator to
satisfy any of the foregoing conditions precedent shall give rise to a right of
Buyer to rescind the related Purchase and direct such Originator to pay to Buyer
an amount equal to the Purchase Price payment that shall have been made with
respect to any Receivables related thereto.
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ARTICLE IV
COVENANTS
Section 4.1 AFFIRMATIVE COVENANTS OF ORIGINATORS. From each Originator's
Applicable Closing Date until the date on which this Agreement terminates in
accordance with its terms, each Originator hereby covenants as set forth below:
(a) FINANCIAL PURCHASE REPORTING. Such Originator will maintain,
for itself and each of its Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and Parent will furnish to Buyer (or its
assigns):
(i) ANNUAL FINANCIAL REPORTING. Within 120 days after the
close of each of its respective fiscal years, audited, unqualified financial
statements (which shall include balance sheets, statements of income and
retained earnings and a statement of cash flows) for the Parent and its
Subsidiaries for such fiscal year certified in a manner acceptable to Buyer (or
its assigns) by Deloitte & Touche, LLP or such other independent public
accountants acceptable to Buyer (or its assigns) (which acceptance will not be
unreasonably withheld).
(ii) QUARTERLY FINANCIAL REPORTING. Within 60 days after
the close of the first three quarterly periods of each of its respective fiscal
years, unaudited balance sheets of the Parent and its Subsidiaries as at the
close of each such period and statements of income and retained earnings and an
unaudited statement of cash flows for the Parent and its Subsidiaries for the
period from the beginning of such fiscal year to the end of such quarter, all
certified by an Authorized Officer.
(iii) COMPLIANCE CERTIFICATE. Together with the financial
statements required hereunder, a compliance certificate in substantially the
form of EXHIBIT IV signed by Parent's Authorized Officer and dated the date of
such annual financial statement or such quarterly financial statement, as the
case may be.
(iv) SHAREHOLDERS STATEMENTS AND PURCHASE REPORTS. Promptly
upon the furnishing thereof to the shareholders of Parent, copies of all
financial statements, reports and proxy statements so furnished.
(v) S.E.C. FILINGS. Promptly upon the filing thereof,
copies of all registration statements and annual, quarterly, monthly or other
regular reports which Parent files with the Securities and Exchange Commission.
(vi) COPIES OF NOTICES. Promptly upon its receipt of any
notice, request for consent, financial statements, certification, report or
other communication under or in connection with any Transaction Document from
any Person other than Buyer, the Administrative Agent or Blue Ridge, copies of
the same.
(vii) CHANGE IN CREDIT AND COLLECTION POLICY. At least ten
(10) days prior to the effectiveness of any material change in or material
amendment to the Credit and Collection Policy, a copy of the Credit and
Collection Policy then in effect and a notice (1) indicating such proposed
change or amendment, and (2) if such proposed change or amendment would be
reasonably likely to affect adversely the collectability of the Receivables or
decrease
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the credit quality of any newly created Receivables, requesting Buyer's (and the
Administrative Agent's, as Buyer's assignee) consent thereto.
(viii) OTHER INFORMATION. Promptly, from time to time, such
other information, documents, records or reports relating to the Receivables
originated by such Originator or the condition or operations, financial or
otherwise, of such Originator as Buyer (or its assigns) may from time to time
reasonably request in order to protect the interests of Buyer (and its assigns)
under or as contemplated by this Agreement.
(b) NOTICES. Such Originator will notify Buyer (or its assigns)
of any of the following promptly upon learning of the occurrence thereof,
describing the same and, if applicable, the actions being taken with respect
thereto:
(i) TERMINATION EVENTS OR UNMATURED TERMINATION EVENTS.
The occurrence of each Termination Event and each Unmatured Termination Event,
by a statement of an Authorized Officer of such Originator.
(ii) JUDGMENT AND PROCEEDINGS. (1) The entry of any
judgment or decree against any Originator or any of its Material Subsidiaries if
the aggregate amount of all judgments and decrees then outstanding against the
Originators and their Material Subsidiaries exceeds $1,000,000 after deducting
(a) the amount with respect to which the applicable Originator or Material
Subsidiary is insured and with respect to which the insurer has assumed
responsibility in writing, and (b) the amount for which the applicable
Originator or Material Subsidiary is otherwise indemnified if the terms of such
indemnification are satisfactory to Buyer (or its assigns), and (2) the
institution of any litigation, arbitration proceeding or governmental proceeding
against any Originator which, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
(iii) MATERIAL ADVERSE EFFECT. The occurrence of any event
or condition that has had, or would reasonably be expected to have, a Material
Adverse Effect.
(iv) DEFAULTS UNDER OTHER AGREEMENTS. The occurrence of a
default or an event of default under any other financing arrangement pursuant to
which any Originator is a debtor or an obligor to the extent that any such other
financing arrangement has unsatisfied payment obligations in excess of
$1,000,000.
(v) ERISA EVENTS. The occurrence of any ERISA Event.
(vi) DOWNGRADE OF PARENT. Any downgrade in the rating of
any Indebtedness of Parent by S&P or by Moody's, setting forth the Indebtedness
affected and the nature of such change.
(c) COMPLIANCE WITH LAWS AND PRESERVATION OF EXISTENCE. Such
Originator will comply in all respects with all applicable laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject, except where the failure to so comply would not reasonably be
expected to have a Material Adverse Effect. Such Originator will preserve and
maintain its legal existence, rights, franchises and privileges in the
jurisdiction of its organization, and qualify and remain qualified in good
standing as a foreign entity in each
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jurisdiction where its business is conducted, except where the failure to so
qualify or remain in good standing would not reasonably be expected to have a
Material Adverse Effect.
(d) AUDITS. Such Originator will furnish to Buyer (or its
assigns) from time to time such information with respect to it and the
Receivables sold by it as Buyer (or its assigns) may reasonably request. Such
Originator will, from time to time during regular business hours as requested by
Buyer (or its assigns), upon reasonable notice and at the sole cost of such
Originator, permit Buyer (or its assigns) or their respective agents or
representatives, (i) to examine and make copies of and abstracts from all
Records in the possession or under the control of such Originator relating to
the Receivables and the Related Security, including the related Contracts, and
(ii) to visit the offices and properties of such Originator for the purpose of
examining such materials described in clause (i) above, and to discuss matters
relating to such Originator's financial condition or the Receivables and the
Related Security or such Originator's performance under any of the Transaction
Documents or such Originator's performance under the Contracts and, in each
case, with any of the officers or employees of such Originator having knowledge
of such matters (each of the foregoing examinations and visits, a "REVIEW");
PROVIDED, HOWEVER, that, so long as no Amortization Event has occurred and is
continuing: (1) the Originators, collectively, shall only be responsible for the
reasonable costs and expenses of one Review in any one calendar year, and (2)
the Administrative Agent (as Buyer's assignee) will not request more than four
Reviews in any one calendar year.
(e) KEEPING AND MARKING OF RECORDS AND BOOKS.
(i) Such Originator will maintain and implement
administrative and operating procedures (including an ability to
recreate records evidencing Receivables in the event of the
destruction of the originals thereof), and keep and maintain all
documents, books, records and other information reasonably necessary
or advisable for the collection of all Receivables (including
records adequate to permit the immediate identification of each new
Receivable and all Collections of and adjustments to each existing
Receivable). Such Originator will give Buyer (or its assigns) notice
of any material change in the administrative and operating
procedures referred to in the previous sentence.
(ii) Such Originator will (1) on or prior to the Initial
Sale Closing Date, mark its master data processing records and other
books and records relating to the Receivables with a legend,
acceptable to Buyer (or its assigns), describing Buyer's ownership
interests in the Receivables and further describing the Loans under
the Credit and Security Agreement and (2) upon the request of Buyer
(or its assigns): (x) mark each Contract with a legend describing
Buyer's ownership interests in the Receivables originated by such
Originator and further describing the Loans under the Credit and
Security Agreement and (y) deliver to Buyer (or its assigns) all
Contracts (including all multiple originals of any such Contract)
relating to such Receivables.
(f) COMPLIANCE WITH CONTRACTS AND CREDIT AND COLLECTION POLICY.
Such Originator will timely and fully (i) perform and comply with all
provisions, covenants and other promises required to be observed by it under the
Contracts related to the Receivables originated
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by it, and (ii) comply in all material respects with the Credit and Collection
Policy in regard to each such Receivable and the related Contract.
(g) OWNERSHIP. Such Originator will take all necessary action to
establish and maintain, irrevocably in Buyer, (1) legal and equitable title to
the Receivables originated by such Originator and the Collections and (2) all of
such Originator's right, title and interest in the Related Security associated
with the Receivables originated by such Originator, in each case, free and clear
of any Adverse Claims other than Adverse Claims in favor of Buyer (and its
assigns) (INCLUDING the filing of all financing statements or other similar
instruments or documents necessary under the UCC (or any comparable law) of all
appropriate jurisdictions to perfect Buyer's interest in such Receivables,
Related Security and Collections and such other action to perfect, protect or
more fully evidence the interest of Buyer as Buyer (or its assigns) may
reasonably request).
(h) LENDER'S RELIANCE. Such Originator acknowledges that the
Administrative Agent and the Lenders are entering into the transactions
contemplated by the Credit and Security Agreement in reliance upon Buyer's
identity as a legal entity that is separate from such Originator and any
Affiliates thereof. Therefore, from and after the date of execution and delivery
of this Agreement, such Originator will take all reasonable actions including
all actions that Buyer or any assignee of Buyer may from time to time reasonably
request to maintain Buyer's identity as a separate legal entity and to make it
manifest to third parties that Buyer is an entity with assets and liabilities
distinct from those of such Originator and any Affiliates thereof and not just a
division of such Originator or any such Affiliate. Without limiting the
generality of the foregoing and in addition to the other covenants set forth
herein, such Originator (i) will not hold itself out to third parties as liable
for the debts of Buyer nor purport to own any of the Receivables and other
assets acquired by Buyer, (ii) will take all other actions necessary on its part
to ensure that Buyer is at all times in compliance with the "separateness
covenants" set forth in SECTION 7.1(i) of the Credit and Security Agreement and
(iii) will cause all tax liabilities arising in connection with the Transactions
or otherwise to be allocated between such Originator and Buyer on an
arm's-length basis and in a manner consistent with the procedures set forth in
U.S. Treasury Regulations Sections. 1.1502-33(d) and 1.1552-1.
(i) COLLECTIONS. Such Originator will cause (1) all proceeds from
all Lock-Boxes to be directly deposited by a Collection Bank into a Collection
Account and (2) each Lock-Box and Collection Account to be subject at all times
to a Collection Account Agreement that is in full force and effect. If any
payments relating to Receivables are remitted directly to such Originator or any
Affiliate thereof, such Originator will remit (or will cause all such payments
to be remitted) directly to a Collection Bank and deposited into a Collection
Account within two Business Days following receipt thereof and, at all times
prior to such remittance, such Originator will itself hold or, if applicable,
will cause such payments to be held in trust for the exclusive benefit of Buyer
and its assigns. Such Originator will transfer exclusive ownership, dominion and
control of each Lock-Box and Collection Account to Buyer and, will not grant the
right to take dominion and control of any Lock-Box or Collection Account at a
future time or upon the occurrence of a future event to any Person, except to
Buyer (or its assigns) as contemplated by this Agreement and the Credit and
Security Agreement.
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(j) TAXES. Such Originator will file all tax returns and reports
required by law to be filed by it and promptly pay all taxes and governmental
charges at any time due and owing the non-filing or non-payment of which would
reasonably be expected to result in a Material Adverse Effect, except any such
taxes which are not yet delinquent or are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books. Such Originator will pay when
due any taxes payable in connection with the Receivables originated by it,
exclusive of taxes on or measured by income or gross receipts of Buyer and its
assigns.
Section 4.2 NEGATIVE COVENANTS OF ORIGINATORS. From each Originator's
Applicable Closing Date until the date on which this Agreement terminates in
accordance with its terms, each Originator hereby covenants that:
(a) NAME CHANGE, JURISDICTION OF ORGANIZATION, CORPORATE
STRUCTURE, OFFICES AND RECORDS. Such Originator will not change its jurisdiction
of organization, name, identity or structure (within the meaning of Sections
9-503 or 9-507 of the UCC of all applicable jurisdictions) or relocate its chief
executive office at any time while the location of its chief executive office is
relevant to perfection of Buyer's interest in the Receivables or the associated
Related Security and Collections with respect thereto or any office where
Records are kept unless it shall have: (i) given Buyer (and the Administrative
Agent, as its assignee) at least 30 days' prior notice thereof and (ii)
delivered to the Administrative Agent (as Buyer's assignee) all financing
statements, instruments and other documents requested by the Administrative
Agent in connection with such change or relocation.
(b) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Such Originator
will not add or terminate any bank as a Collection Bank, or make any change in
the instructions to Obligors regarding payments to be made to any Lock-Box or
Collection Account, unless Buyer (or its assigns) shall have received, at least
10 days before the proposed effective date therefor, (i) notice of such
addition, termination or change and (ii) with respect to the addition of a
Collection Bank or a Collection Account or Lock-Box, an executed Collection
Account Agreement with respect to the new Collection Account or Lock-Box;
PROVIDED, HOWEVER, that such Originator may make changes in instructions to
Obligors regarding payments if such new instructions require such Obligor to
make payments to another existing Collection Account.
(c) MODIFICATIONS TO CONTRACTS AND CREDIT AND COLLECTION POLICY.
Such Originator will not make any change to the Credit and Collection Policy
that would reasonably be expected to affect adversely the collectability of the
Receivables originated by it or decrease the credit quality of any of its newly
created Receivables. Except as otherwise permitted in its capacity as Servicer
pursuant to the Credit and Security Agreement, such Originator will not extend,
amend or otherwise modify the terms of any Receivable or any Contract related
thereto other than in accordance with the Credit and Collection Policy.
(d) SALES, LIENS. Except as otherwise provided in any Transaction
Document, such Originator will not sell, assign (by operation of law or
otherwise) or otherwise dispose of, or grant any option with respect to, or
create or suffer to exist any Adverse Claim upon (including the filing of any
financing statement) or with respect to, any Receivable, Related Security or
Collections, or upon or with respect to any Contract under which any Receivable
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arises, or any Lock-Box or Collection Account, or assign any right to receive
income with respect thereto, and such Originator will defend the right, title
and interest of Buyer in, to and under any of the foregoing property, against
all claims of third parties claiming through or under such Originator.
(e) ACCOUNTING FOR PURCHASE. Such Originator will not, and will
not permit any Affiliate to, financially account (whether in financial
statements or otherwise) for the Purchases in any manner other than the sale or
other outright conveyance by such Originator to Buyer of the Receivables
originated by such Originator and the associated Related Security with respect
thereto or in any other respect account for or treat the Purchases in any manner
other than as a sale of such Receivables and Related Security by such Originator
to Buyer except to the extent that such Purchases are not recognized on account
of consolidated financial reporting in accordance with GAAP.
ARTICLE V
JOINDER OF ADDITIONAL ORIGINATORS
Section 5.1 ADDITION OF NEW ORIGINATORS. From time to time upon not less
than 30 days' prior notice to the Buyer and the Administrative Agent (or such
shorter period of time as the Administrative Agent may agree upon), Parent may
propose that one or more of its existing or hereafter acquired wholly-owned
Subsidiaries become an Originator hereunder. No such addition shall become
effective (a) if such addition constitutes a Material Proposed Addition, without
the consent of the Administrative Agent and each of the rating agencies which is
then rating Commercial Paper of Blue Ridge but may become effective prior to
such 30th day if such consent is given more promptly and (b) unless all
conditions precedent to such addition required by SECTION 5.2 are satisfied
prior to such date.
Section 5.2 DOCUMENTATION. If the Buyer and the Administrative Agent
consent to the addition of a New Originator, such New Originator will execute a
Joinder Agreement and shall deliver each of the documents, certificates and
opinions required to be delivered under SECTION 3.1 prior to such New
Originator's Closing Date, together with such updated Schedules and Exhibits as
may be necessary to ensure that after giving effect to the addition of such New
Originator, each of the representations and warranties of such New Originator
under ARTICLE II will be true and correct, and the Buyer will deliver a
Subordinated Note to such New Originator.
ARTICLE VI
TERMINATION EVENTS
Section 6.1 TERMINATION EVENTS. The occurrence of any one or more of the
following events shall constitute a Termination Event:
(a) Any Originator shall fail to make any payment or deposit
required hereunder when due; PROVIDED, HOWEVER, that no Termination Event
shall occur under this Section 6.1(a) as a result of any late payment or
deposit which is cured within one Business Day if (i) such late payment or
deposit was due to circumstances beyond such Originator's control, (ii)
such late payment or deposit do not occur more than two times
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in any calendar year, and (iii) such Originator pays interest on the
overdue amount of such payment or deposit until paid at the Default Rate.
(b) Any Originator shall fail to perform or observe any term,
covenant or agreement hereunder (other than as referred to in clause (a) of
Section 6.1 or any other Transaction Document to which it is a party and
such failure shall continue for ten consecutive Business Days.
(c) Any representation, warranty, certification or statement made
by any Originator in this Agreement, any other Transaction Document or in
any other document delivered pursuant hereto or thereto shall prove to have
been incorrect in any material respect when made or deemed made; PROVIDED
THAT the materiality threshold in the preceding clause shall not be
applicable with respect to any representation or warranty which itself
contains a materiality threshold and PROVIDED FURTHER, that any
misrepresentation or certification for which Buyer has actually received a
Purchase Price Credit shall not constitute a Termination Event hereunder.
(d) Failure of any Originator to pay any Indebtedness when due in
excess of $5,000,000; or the default by any Originator in the performance
of any term, provision or condition contained in any agreement under which
any such Indebtedness was created or is governed, the effect of which is to
cause, or to permit the holder or holders of such Indebtedness to cause,
such Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of any Originator shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior
to the date of maturity thereof.
(e) (i) Any Originator or any of its Material Subsidiaries
shall generally not pay its debts as such debts become due or shall admit
in writing its inability to pay its debts generally or shall make a general
assignment for the benefit of creditors; or (ii) a case or other proceeding
shall be commenced, without the application or consent of such Originator
or any of its Material Subsidiaries, in any court, seeking the liquidation,
reorganization, debt arrangement, dissolution, winding up, or composition
or readjustment of debts of such Originator or any of its Material
Subsidiaries, the appointment of a trustee, receiver, custodian,
liquidator, assignee, sequestrator or the like for such Originator or any
of its Material Subsidiaries or all or substantially all of its assets, or
any similar action with respect to such Originator or any of its Material
Subsidiaries under any law relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts, and such
case or proceeding shall continue undismissed, or unstayed and in effect,
for a period of 60 consecutive days; or an order for relief in respect of
such Originator or any of its Material Subsidiaries shall be entered in an
involuntary case under the federal bankruptcy laws or other similar laws
now or hereafter in effect or (iii) any Originator or any of its Material
Subsidiaries shall take any corporate action to authorize any of the
actions set forth in the foregoing clauses (i) or (ii) of this subsection
(e).
(f) A Change of Control shall occur.
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(g) One or more final judgments for the payment of money in an
amount in excess of $5,000,000, individually or in the aggregate, shall be
entered against any Originator on claims not covered by insurance or as to
which the insurance carrier has denied its responsibility, and such
judgment shall continue unsatisfied and in effect for thirty consecutive
days without a stay of execution.
(h) An ERISA Event shall occur with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of any Originator under Title IV of ERISA to such
Pension Plan, such Multiemployer Plan or the PBGC in an aggregate amount in
excess of $1,000,000; (ii) the aggregate amount of Unfunded-Pension
Liability among all Pension Plans at any time exceeds $1,000,000; or (iii)
any Originator or any ERISA Affiliate shall fail to pay when due, after the
expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of $1,000,000.
Section 6.2 REMEDIES. Upon the occurrence and during the continuation of
a Termination Event, Buyer may take any of the following actions: (i) declare
the Termination Date to have occurred, whereupon the Termination Date shall
forthwith occur, without demand, protest or further notice of any kind, all of
which are hereby expressly waived by each Originator; PROVIDED, HOWEVER, that
upon the occurrence of a Termination Event described in Section 6.1(e), or of an
actual or deemed entry of an order for relief with respect to such Originator
under the Federal Bankruptcy Code, the Termination Date shall automatically
occur, without demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Originator and (ii) to the fullest extent
permitted by applicable law, declare that the Default Fee shall accrue with
respect to any amounts then due and owing by such Originator to Buyer. The
aforementioned rights and remedies shall be without limitation and shall be in
addition to all other rights and remedies of Buyer and its assigns otherwise
available under any other provision of this Agreement, by operation of law, at
equity or otherwise, all of which are hereby expressly preserved, including all
rights and remedies provided under the UCC, all of which rights shall be
cumulative.
ARTICLE VII
INDEMNIFICATION
Section 7.1 INDEMNITIES BY ORIGINATORS. Without limiting any other rights
that Buyer may have hereunder or under applicable law, each Originator hereby
agrees to indemnify (and pay upon demand to) Buyer and its assigns, officers,
directors, agents and employees (each an "INDEMNIFIED PARTY") from and against
any and all damages, losses, claims, taxes, liabilities, costs, expenses and for
all other amounts payable, including reasonable attorneys' fees and
disbursements (all of the foregoing being collectively referred to as
"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them to the extent
arising out of or as a result of this Agreement or the acquisition, either
directly or indirectly, by Buyer of an interest in the Receivables originated by
such Originator, EXCLUDING, HOWEVER:
(a) Indemnified Amounts to the extent a final judgment of a court
of competent jurisdiction holds that such Indemnified Amounts resulted from
gross
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negligence or willful misconduct on the part of the Indemnified Party
seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses in
respect of Receivables originated by such Originator that are uncollectible
on account of the insolvency, bankruptcy or lack of creditworthiness of the
related Obligor;
(c) taxes imposed by the jurisdiction in which such Indemnified
Party's principal executive office is located, on or measured by the
overall net income of such Indemnified Party; or
(d) amounts for which Buyer has actually received a Purchase
Price Credit as required by Section 1.3;
PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the
liability of such Originator or limit the recourse of Buyer to such Originator
for amounts otherwise specifically provided to be paid by such Originator under
the terms of this Agreement. Without limiting the generality of the foregoing
indemnification, but subject in each case to clauses (a), (b), (c) and (d)
above, each Originator shall indemnify (without duplication) Buyer for
Indemnified Amounts relating to or resulting from:
(i) any representation or warranty made or deemed made by
such Originator (or any officers of Performance Guarantor or such
Originator) under or in connection with any Purchase Report, this
Agreement, any other Transaction Document or any other information or
report delivered by Performance Guarantor or such Originator pursuant
hereto or thereto for which Buyer has not received a Purchase Price Credit
that shall have been false or incorrect when made or deemed made;
(ii) the failure by such Originator, to comply with any
applicable law, rule or regulation with respect to any Receivable or
Contract related thereto, or the nonconformity of any Receivable or
Contract included therein with any such applicable law, rule or regulation
or any failure of such Originator to keep or perform any of its
obligations, express or implied, with respect to any Contract;
(iii) any failure of Performance Guarantor or such
Originator to perform its duties, covenants or other obligations in
accordance with the provisions of this Agreement or any other Transaction
Document to which it is a party;
(iv) any products liability, personal injury or damage,
suit or other similar claim arising out of or in connection with
merchandise, insurance or services that are the subject of any Contract or
any Receivable;
(v) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment of
any Receivable (including a defense based on such Receivable or the related
Contract not being a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms), or
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any other claim resulting from the sale of the merchandise or service
related to such Receivable or the furnishing or failure to furnish such
merchandise or services;
(vi) the commingling of Collections of Receivables at any
time with other funds;
(vii) any investigation, litigation or proceeding related to
or arising from this Agreement or any other Transaction Document, the
Transactions, such Originator's use of the proceeds of the Purchase from it
hereunder, the ownership of the Receivables originated by such Originator
or any other investigation, litigation or proceeding relating to such
Originator in which any Indemnified Party becomes involved as a result of
any of the Transactions;
(viii) any inability to litigate any claim against any
Obligor in respect of any Receivable as a result of such Obligor being
immune from civil and commercial law and suit on the grounds of sovereignty
or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in SECTION 6.1(e);
(xi) any failure to vest and maintain vested in Buyer, or
to transfer to Buyer, legal and equitable title to, and ownership of, the
Receivables originated by such Originator and the associated Collections,
and all of such Originator's right, title and interest in the Related
Security associated with such Receivables, in each case, free and clear of
any Adverse Claim (except as otherwise contemplated by this Agreement or
any other Transaction Document);
(xii) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents under the
UCC of any applicable jurisdiction or other applicable laws with respect to
any Receivable originated by such Originator, the Related Security and
Collections with respect thereto, and the proceeds of any thereof, whether
at the time of the Purchase from such Originator hereunder or at any
subsequent time;
(xiii) any action or omission by such Originator which
reduces or impairs the rights of Buyer with respect to any Receivable or
the value of any such Receivable;
(xiv) any successful attempt by any Person to void the
Purchase from such Originator hereunder under statutory provisions or
common law or equitable action; and
(xvi) the failure of any Receivable reflected as an Eligible
Receivable on any Purchase Report prepared by such Originator to be an
Eligible Receivable at the time acquired by Buyer.
Section 7.2 OTHER COSTS AND EXPENSES. Each Originator shall pay to Buyer
on demand all costs and out-of-pocket expenses in connection with the
preparation, execution, delivery and
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administration of this Agreement, the Transactions and the other documents to be
delivered hereunder. Each Originator shall pay to Buyer on demand any and all
costs and expenses of Buyer, if any, including reasonable counsel fees and
expenses in connection with the enforcement of this Agreement and the other
documents delivered hereunder and in connection with any restructuring or
workout of this Agreement or such documents, or the administration of this
Agreement following a Termination Event.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 WAIVERS AND AMENDMENTS.
(a) No failure or delay on the part of Buyer (or its assigns),
the Servicer or any Originator in exercising any power, right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any
other further exercise thereof or the exercise of any other power, right or
remedy. The rights and remedies herein provided shall be cumulative and
nonexclusive of any rights or remedies provided by law. Any waiver of this
Agreement shall be effective only in the specific instance and for the
specific purpose for which given.
(b) No provision of this Agreement may be amended, supplemented,
modified or waived except in writing signed by each Originator and Buyer
and, to the extent required under the Credit and Security Agreement, the
Administrative Agent and the Liquidity Banks or the Required Liquidity
Banks. Any material amendment, supplement, modification of waiver will
required satisfaction of the Rating Agency Condition.
Section 8.2 NOTICES. All notices, consents, approvals, demands and other
communications provided for, permitted or contemplated hereunder (including
Sections 4.1(b), 4.2(a), 4.2(b), 5.1 and 8.10) shall be in writing (including
bank wire, telecopy or electronic facsimile transmission or similar writing) and
shall be given to the other parties hereto at their respective addresses or
telecopy numbers set forth on the signature pages hereof or at such other
address or telecopy number as such Person may hereafter specify for the purpose
of notice to each of the other parties hereto. Each such notice or other
communication shall be effective (a) if given by telecopy, upon the receipt
thereof, (b) if given by mail (other than certified or registered mail), five
Business Days after the time such communication is deposited in the mail with
first class postage prepaid or (c) if given by any other means, when received at
the address specified in this SECTION 8.2.
Section 8.3 PROTECTION OF OWNERSHIP INTERESTS OF BUYER.
(a) Each Originator agrees that from time to time, at its
expense, it will promptly execute and deliver all instruments and
documents, and take all actions, that may be necessary or desirable, or
that Buyer (or its assigns) may request, to perfect, protect or more fully
evidence the interest of Buyer hereunder, or to enable Buyer (or its
assigns) to exercise and enforce their rights and remedies hereunder.
Without limiting the foregoing, Originator will, upon the request of the
Buyer (or its assigns), file such
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financing or continuation statements, or amendments thereto or assignments
thereof, and execute and file such other instruments and documents, that
may be necessary or desirable, or that the Buyer may reasonably request, to
perfect, protect or evidence such interest of the Buyer hereunder. At any
time, Buyer (or its assigns) may, at such Originator's sole cost and
expense, direct such Originator to notify the Obligors of Receivables of
the ownership interests of Buyer under this Agreement and may also direct
that payments of all amounts due or that become due under any or all
Receivables be made directly to Buyer or its designee.
(b) If any Originator fails to perform any of its obligations
hereunder, Buyer (or its assigns) may (but shall not be required to)
perform, or cause performance of, such obligations, and Buyer's (or such
assigns') costs and expenses incurred in connection therewith shall be
payable by such Originator as provided in Section 8.2. Each Originator
irrevocably authorizes Buyer (and its assigns) at any time and from time to
time in the sole discretion of Buyer (or its assigns), and appoints Buyer
(and its assigns) as its attorney(ies)-in-fact, to act on behalf of such
Originator (i) to execute on behalf of such Originator as debtor and to
file financing statements necessary or desirable in Buyer's (or its
assigns') sole discretion to perfect and to maintain the perfection and
priority of the interest of Buyer in the Receivables originated by such
Originator and the Related Security and Collections with respect thereto
and (ii) to file a carbon, photographic or other reproduction of this
Agreement or any financing statement with respect to the Receivables as a
financing statement in such offices as Buyer (or its assigns) in its sole
discretion deem necessary or desirable to perfect and to maintain the
perfection and priority of Buyer's interests in such Receivables. This
appointment is coupled with an interest and is irrevocable. The
authorization of each Originator set forth in the second sentence of this
Section 8.3(b) is intended to meet all requirements for authorization by a
debtor under Article 9 of the UCC in effect in the Applicable State,
including, Section 9-509 thereof. Each Originator acknowledges and agrees
that it is not authorized to, and will not, file financing statements or
other filing or recording documents with respect to the Receivables or
Related Security (including any amendments thereto, or continuation or
termination statements thereof), without the express prior approval by the
Administrative Agent (as Buyer's assignee), consenting to the form and
substance of such filing or recording document. Each Originator approves,
authorizes and ratifies any filings or recordings made by or on behalf of
the Administrative Agent (as Buyer's assign) in connection with the
perfection of the ownership or security interests in favor of Buyer or the
Administrative Agent (as Buyer's assign).
Section 8.4 CONFIDENTIALITY.
(a) Each Originator and Buyer shall maintain and shall cause each
of its employees and officers to maintain the confidentiality of the Fee
Letter and the other confidential or proprietary information with respect
to the Administrative Agent and Blue Ridge and their respective businesses
obtained by it or them in connection with the structuring, negotiating and
execution of the Transactions, except that such Originator and its officers
and employees may disclose such information to such Originator's
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external accountants, attorneys and other advisors and as required by any
applicable law or order of any judicial or administrative proceeding.
(b) Each Originator hereby consents to the disclosure of any
nonpublic information with respect to it (i) to Buyer, the Administrative
Agent, the Liquidity Banks or Blue Ridge by each other, (ii) to any
prospective or actual assignee or participant of any of the Persons
described in clause (i), and (iii) to any rating agency, Commercial Paper
dealer or provider of a surety, guaranty or credit or liquidity enhancement
to Blue Ridge or any entity organized for the purpose of purchasing, or
making loans secured by, financial assets for which Wachovia acts as the
administrative agent and to any officers, directors, employees, outside
accountants and attorneys of any of the foregoing, PROVIDED each such
Person described in the foregoing clauses (ii) and (iii) is informed of the
confidential nature of such information. In addition, the Lenders and the
Administrative Agent may disclose any such nonpublic information pursuant
to any law, rule, regulation, direction, request or order of any judicial,
administrative or regulatory authority or proceedings (whether or not
having the force or effect of law).
Section 8.5 BANKRUPTCY PETITION.
(a) Each Originator and Buyer each hereby covenants and agrees
that, prior to the date that is one year and one day after the payment in full
of all outstanding senior indebtedness of Blue Ridge, it will not institute
against, or join any other Person in instituting against, Blue Ridge any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States.
(b) Each Originator covenants and agrees that, prior to the date
that is one year and one day after the payment in full of all outstanding
obligations of Buyer under the Credit and Security Agreement, it will not
institute against, or join any other Person in instituting against Buyer any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States.
Section 8.6 LIMITATION OF LIABILITY. Except with respect to any claim
arising out of the willful misconduct or gross negligence of any Originator,
Buyer, Blue Ridge, the Administrative Agent or any Liquidity Bank, no claim may
be made by any such Person (or its Affiliates, directors, officers, employees,
attorneys or agents) against any such other Person (or its Affiliates,
directors, officers, employees, attorneys or agents) for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the Transactions,
or any act, omission or event occurring in connection therewith; and each of the
parties hereto, on behalf of itself and its Affiliates, directors, officers,
employees, attorneys, agents, successors and assigns, hereby waives, releases,
and agrees not to sue upon any claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
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Section 8.7 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF NEW YORK.
Section 8.8 CONSENT TO JURISDICTION. ORIGINATOR HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW
YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY
ORIGINATOR PURSUANT TO THIS AGREEMENT AND ORIGINATOR HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF BUYER (OR ITS ASSIGNS) TO BRING PROCEEDINGS AGAINST
ORIGINATOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
ORIGINATOR AGAINST BUYER (OR ITS ASSIGNS) OR ANY AFFILIATE THEREOF INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY ORIGINATOR PURSUANT TO
THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.
Section 8.9 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY
ORIGINATOR PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER
OR THEREUNDER.
Section 8.10 INTEGRATION; BINDING EFFECT; SURVIVAL OF TERMS. This
Agreement and each other Transaction Document contain the final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof superseding all prior
oral or written understandings.
(a) This Agreement shall be binding upon and inure to the benefit
of the Originators, Buyer and their respective successors and permitted
assigns (including any trustee in bankruptcy). Except in connection with a
Permitted Restructuring, no Originator may assign any of its rights and
obligations hereunder or any interest herein without the prior consent of
Buyer. Buyer may assign at any time its rights and obligations hereunder
and interests herein to any other Person without the consent of any
Originator. Without limiting the foregoing, each Originator acknowledges
that Buyer, pursuant to the Credit and Security Agreement, may grant to the
Administrative Agent, for the benefit of the Lenders and as defined in the
Credit and Security Agreement, a security interest in its rights, remedies,
powers and privileges hereunder. Each Originator
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agrees that the Administrative Agent, as the assignee of Buyer, shall,
subject to the terms of the Credit and Security Agreement, have the right
to enforce this Agreement and to exercise directly all of Buyer's rights
and remedies under this Agreement (including the right to give or withhold
any consents or approvals of Buyer to be given or withheld hereunder) and
each Originator agrees to cooperate fully with the Administrative Agent in
the exercise of such rights and remedies. This Agreement shall create and
constitute the continuing obligations of the parties hereto in accordance
with its terms and shall remain in full force and effect until terminated
in accordance with its terms; PROVIDED, HOWEVER, that the rights and
remedies with respect to (i) any breach of any representation and warranty
made by any Originator pursuant to Article II; (ii) the indemnification and
payment provisions of Article VII; and (iii) Section 8.5 shall be
continuing and shall survive any termination of this Agreement.
Section 8.11 COUNTERPARTS; SEVERABILITY. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 8.12 CONSTRUCTION OF THIS AGREEMENT AND CERTAIN TERMS AND PHRASES.
(a) Unless the context of this Agreement otherwise requires, (i)
words of any gender include each gender; (ii) words using the singular or
plural number also include the plural or singular number, respectively;
(iii) the terms "hereof," "herein," "hereby," and derivative or similar
words refer to this entire Agreement and not to any particular provision of
this Agreement; and (iv) the terms "Article," "Section," "Schedule" and
"Exhibit" without reference to a specified document refer to the specified
Article, Section, Schedule and Exhibit, respectively, of this Agreement.
(b) The words "including," "include" and "includes" are not
exclusive and shall be deemed to be followed by the words "without
limitation"; if exclusion is intended, the word "compromising" is used
instead.
(c) The word "or" shall be construed to mean "and/or" unless the
context clearly prohibits that construction.
(d) Whenever this Agreement refers to a number of days, such
number shall refer to calendar days unless Business Days are specified.
(e) All accounting terms used herein and not expressly defined
herein shall have the meanings given to them under GAAP as consistently
applied by the Person whose financial statements or practices are at issue.
(f) All terms used in Article 9 of the UCC in the State of New
York and not specifically defined herein shall have the meaning given to
them in such Article 9.
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(g) Any representation or warranty contained herein as to the
enforceability of a contract shall be subject to the effect of any
bankruptcy, insolvency, reorganization, moratorium or other similar law
affecting the enforcement of creditors' rights generally and to general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
[SIGNATURE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date hereof.
SPHERION CORPORATION
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION ASSESSMENT INC.
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
NORCROSS TELESERVICES INC.
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Originator Signature Page to Spherion RSA]
<Page>
COMTEX INFORMATION SYSTEMS, INC.
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION PACIFIC ENTERPRISES LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Originator Signature Page to Spherion RSA]
<Page>
SPHERION ATLANTIC ENTERPRISES LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION PACIFIC OPERATIONS LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION ATLANTIC OPERATIONS LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Originator Signature Page to Spherion RSA]
<Page>
SPHERION ATLANTIC RESOURCES LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION ATLANTIC WORKFORCE LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
SPHERION PACIFIC RESOURCES LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Originator Signature Page to Spherion RSA]
<Page>
SPHERION PACIFIC WORKFORCE LLC
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance
and Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Originator Signature Page to Spherion RSA]
<Page>
SPHERION RECEIVABLES CORP.
By: /s/ Peter Houchin
--------------------------
Name: Peter Houchin
Title: Vice President, Corporate Finance and
Treasury and Treasurer
ADDRESS: 2050 Spectrum Boulevard
Fort Lauderdale, Florida 33309
Attention: General Counsel
Telephone: (954) 938-7600
Fax: (954) 938-7780
[Buyer Signature Page to Spherion RSA]
<Page>
EXHIBIT I
DEFINITIONS
As used in this Agreement, including the Exhibits and Schedules,
capitalized terms have the meanings set forth in this Exhibit I (such meanings
to be equally applicable to the singular and plural forms thereof). IF A
CAPITALIZED TERM IS USED IN THIS AGREEMENT, INCLUDING ANY EXHIBIT OR SCHEDULE,
AND IS NOT OTHERWISE DEFINED THEREIN OR IN THIS EXHIBIT I, SUCH TERM SHALL HAVE
THE MEANING ASSIGNED THERETO IN EXHIBIT I TO THE CREDIT AND SECURITY AGREEMENT.
"ADMINISTRATIVE AGENT" has the meaning set forth in the Preliminary
Statements to this Agreement.
"AGREEMENT" means the Receivables Sale Agreement, dated as of July 31,
2002, among Originators and Buyer, as the same may be amended, restated or
otherwise modified from time to time.
"APPLICABLE CLOSING DATE" means (a) with respect to each Existing
Originator, the Initial Sale Closing Date, and (b) with respect to each New
Originator, its New Originator Closing Date.
"APPLICABLE CUT-OFF DATE" means (a) with respect to each Existing
Originator, the Initial Cut-Off Date, (b) with respect to each New Originator,
its New Originator Cut-Off Date, and (c) with respect to all Originators, each
Cut-Off Date after the applicable date in the preceding clause (a) or clause
(b).
"BLUE RIDGE" has the meaning set forth in the Preliminary Statements
to this Agreement.
"BUYER" has the meaning set forth in the preamble to this Agreement.
"CALCULATION PERIOD" means each accounting month or portion thereof
which elapses during the term of this Agreement. The first Calculation Period
shall commence on the date of the Purchases hereunder and the final Calculation
Period shall terminate on the Termination Date.
"CHANGE OF CONTROL" means the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 20% or more of the outstanding voting stock of Parent
or, except in connection Permitted Restructuring, any other Originator.
"CREDIT AND COLLECTION POLICY" means the Originators' credit and
collection policies and practices relating to Contracts and Receivables existing
on the date hereof and summarized in EXHIBIT V, as modified from time to time in
accordance with this Agreement.
"CREDIT AND SECURITY AGREEMENT" has the meaning set forth in the
Preliminary Statements to this Agreement.
I-1
<Page>
"DEFAULT FEE" means a PER ANNUM rate of interest equal to the sum of
(i) the Prime Rate, PLUS (ii) 2% per annum.
"DISCOUNT FACTOR" means a percentage calculated to provide Buyer with
a reasonable return on its investment in the Receivables Buyer Purchases
hereunder after taking account of (a) the time value of money based upon the
anticipated dates of collection of such Receivables and the cost to Buyer of
financing its investment in such Receivables during such period and (b) the risk
of nonpayment by the respective Obligors. Each Originator and Buyer may agree
from time to time to change the Discount Factor based on changes in one or more
of the items affecting the calculation thereof, PROVIDED THAT any change to the
Discount Factor shall take effect as of the commencement of a Calculation
Period, shall apply only prospectively and shall not affect the Purchase Price
payment made prior to the Calculation Period during which such Originator and
Buyer agree to make such change. As of the Initial Sale Closing Date, the
Discount Factor in respect of Eligible Receivables is 1% and the Discount Factor
in respect of all other Receivables is 1%.
"EQUITY INTERESTS" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, whether outstanding on the date
hereof or issued after the date of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with any Originator within the meaning of
Section 414(b) or (c) of the Tax Code (and Sections 414(m) and (o) of the Tax
Code for purposes of provisions relating to Section 412 of the Tax Code).
"ERISA EVENT" means (a) a Purchase Reportable Event with respect to a
Pension Plan; (b) a withdrawal by any Originator or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001 (a) (2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by any Originator or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Tide IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon any Originator or any ERISA Affiliate.
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"EXISTING ORIGINATOR" has the meaning set forth in the preamble to
this Agreement.
"INDEMNIFIED PARTY" has the meaning set forth in SECTION 7.1.
"INITIAL CUTOFF DATE" has the meaning set forth in SECTION 1.1.
"INITIAL SALE CLOSING DATE" means the date on which the Originators
have delivered a notice to the Buyer to consummate the initial Purchase
hereunder.
"JOINDER AGREEMENT" has the meaning set forth in the preamble to this
Agreement.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
financial condition or operations of the Originators and their Subsidiaries,
considered as a whole, (b) the ability of any Originator to perform its
obligations under this Agreement or any other Transaction Document to which it
is a party, (c) the legality, validity or enforceability of this Agreement or
any other Transaction Document, (d) any Originator's, Buyer's, the
Administrative Agent's or any Lender's interest in the Receivables generally or
in any significant portion of the Receivables, the Related Security or
Collections with respect thereto, or (e) the collectability of the Receivables
generally or of any material portion of the Receivables.
"MATERIAL SUBSIDIARY" means with respect to any Person (a) a
Subsidiary of such Person formed under the laws of the United States and a state
or territory within the United States and (b) a Subsidiary of such Person formed
under the laws of any jurisdiction other than the Untied States of a state or
territory within the United States to the extent such Subsidiary would be deemed
a "significant subsidiary" pursuant to the definition thereof in Rule 1-02 of
the Regulation S-X promulgated under the Securities Act of 1933, as amended.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan," within the meaning
of Section 4001(a)(3) of ERISA, to which any Originator or any ERISA Affiliate
makes, is making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make, contributions.
"NET WORTH" means as of the last Business Day of each Calculation
Period preceding any date of determination, the excess, if any, of (a) the
aggregate Outstanding Balance of the Receivables at such time, OVER (b) the sum
of (i) the Aggregate Invested Amount outstanding at such time, PLUS (ii) the
aggregate outstanding principal balance of the Subordinated Loans (including any
Subordinated Loan proposed to be made on the date of determination).
"NEW ORIGINATOR" means any direct or indirect wholly owned Subsidiary
of Parent that hereafter becomes a Originator under this Agreement by executing
a Joinder Agreement and complying with the provisions of ARTICLE V.
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"NEW ORIGINATOR CLOSING DATE" means, as to any New Originator, the
Business Day on which each of the conditions set forth in ARTICLE V has been
satisfied.
"NEW ORIGINATOR CUT-OFF DATE" means, with respect to each New
Originator, the Cut-Off Date immediately preceding its New Originator Closing
Date.
"ORGANIZATIONAL DOCUMENTS" means, for any Person, the documents for
its formation and organization, which, for example, (a) for a corporation are
its corporate charter and bylaws, (b) for a partnership are its certificate of
partnership (if applicable) and partnership agreement, (c) for a limited
liability company are its certificate of formation or organization and its
operating agreement, regulations or the like and (d) for a trust is the trust
agreement, declaration of trust, indenture or bylaws under which it is created.
"ORIGINAL BALANCE" means, with respect to any Receivable coming into
existence after the Initial Cutoff Date, the Outstanding Balance of such
Receivable on the date it was created.
"ORIGINAL ORIGINATOR" has the meaning set forth in the preamble to
this Agreement.
"ORIGINATOR" has the meaning set forth in the preamble to this
Agreement.
"PARENT" has the meaning set forth in the preamble to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PENSION PLAN" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which any Originator sponsors or maintains,
or to which it makes, is making, or is obligated to make contributions, or in
the case of a multiple employer plan (as described in Section 4064(a) of ERISA)
has made contributions at any time during the immediately preceding five plan
years.
"PLAN" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which any Originator or any of its ERISA Affiliates sponsors or maintains
or to which any Originator or any of its ERISA Affiliates makes, is making, or
is obligated to make contributions and includes any Pension Plan, other than a
Plan maintained outside the United States primarily for the benefit of Persons
who are not U.S. residents.
"PURCHASE" means the purchase by Buyer from an Originator pursuant to
SECTION 1.1(a) of the Receivables originated by such Originator and the Related
Security and Collections with respect thereto, together with all related rights
in connection therewith.
"PURCHASE PRICE" means, with respect to the Purchase from each
Originator, the aggregate price to be paid by Buyer to such Originator for such
Purchase in accordance with SECTION 1.2 for the Receivables originated by such
Originator and the Related Security and Collections with respect thereto being
sold to Buyer, which price shall equal on any date (a) the product of (i) the
Outstanding Balance of such Receivables on such date, MULTIPLIED BY (ii) one
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minus the Discount Factor in effect on such date, minus (ii) any Purchase Price
Credits to be credited against the Purchase Price otherwise payable in
accordance with SECTION 1.3.
"PURCHASE PRICE CREDIT" has the meaning set forth in SECTION 1.3.
"PURCHASE REPORT" has the meaning set forth in SECTION 1.1(b).
"RECEIVABLE" means all indebtedness and other obligations owed to an
Originator (at the times it arises, and before giving effect to any transfer or
conveyance under this Agreement) or to Buyer (after giving effect to the
transfers under this Agreement) (including any indebtedness, obligation or
interest constituting an account, chattel paper, instrument or general
intangible) arising in connection with the sale of goods or the rendering of
services by such Originator and further includes the obligation to pay any
Finance Charges with respect thereto. Indebtedness and other rights and
obligations arising from any one transaction, including indebtedness and other
rights and obligations represented by an individual invoice, shall constitute a
Receivable separate from a Receivable consisting of the indebtedness and other
rights and obligations arising from any other transaction; PROVIDED, FURTHER,
that any indebtedness, rights or obligations referred to in the immediately
preceding sentence shall be a Receivable regardless or whether the account
debtor or such Originator treats such indebtedness, rights or obligations as a
separate payment obligation.
"RELATED SECURITY" means, with respect to any Receivable:
(i) all of the applicable Originator's interest in the
inventory and goods (including returned or repossessed inventory or goods),
if any, the sale, financing or lease of which by such Originator gave rise
to such Receivable, and all insurance contracts with respect thereto,
(ii) all other security interests or liens and property subject
thereto from time to time, if any, purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable or
otherwise, together with all financing statements and security agreements
describing any collateral securing such Receivable,
(iii) all guaranties, letters of credit, insurance and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivable whether pursuant to the
Contract related to such Receivable or otherwise,
(iv) all service contracts and other contracts and agreements
associated with such Receivable,
(v) all Records related to such Receivable,
(vi) all of the applicable Originator's right, title and
interest in each Lock-Box and each Collection Account, and
(vii) all proceeds of any of the foregoing.
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"REPORTABLE EVENT" means any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, other than any such event for
which the 30-day notice requirement under ERISA has been waived in regulations
issued by the PBGC.
"REQUIRED CAPITAL AMOUNT" means, as of any date of determination, an
amount equal to the greater of (a) 3% of the Aggregate Commitment under the
Credit and Security Agreement, and (b) the product of (i) 1.5 times the product
of the Default Ratio times the Default Horizon Ratio, each as determined from
the most recent Monthly Report received from the Servicer under the Credit and
Security Agreement, and (ii) the Outstanding Balance of all Receivables as of
such date, as determined from the most recent Monthly Report received from the
Servicer under the Credit and Security Agreement.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"SETTLEMENT DATE" means, with respect to each Calculation Period, the
date that is the 17th Business Day of the month following such Calculation
Period.
"SUBORDINATED LOAN" has the meaning set forth in SECTION 1.2(a).
"SUBORDINATED NOTE" means a promissory note in substantially the form
of EXHIBIT VI as more fully described in SECTION 1.2 as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"TAX CODE" means the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"TERMINATION DATE" means the earliest to occur of (a) the Facility
Termination Date, (b) the Business Day immediately prior to the occurrence of a
Termination Event set forth in SECTION 6.1(e), (c) the Business Day specified in
a notice from Buyer to the Originators following the occurrence of any other
Termination Event, and (d) the date which is 10 Business Days after Buyer's
receipt of notice from any Originator that it wishes to terminate the facility
evidenced by this Agreement.
"TERMINATION EVENT" has the meaning set forth in SECTION 6.1.
"TRANSACTIONS" means the transactions contemplated by this Agreement.
"TRANSACTION DOCUMENTS" means, collectively, this Agreement, each
Collection Account Agreement, each Subordinated Note, each Joinder Agreement,
and all other instruments, documents and agreements executed and delivered
pursuant hereto.
"UNMATURED TERMINATION EVENT" means an event which, with the passage
of time or the giving of notice, or both, would constitute a Termination Event
hereunder.
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