Exhibit 10.2
RECEIVABLES PURCHASE AGREEMENT
DATED AS OF JUNE 6, 2002
AMONG
RPM FUNDING CORPORATION, AS SELLER,
RPM, INC., AS SERVICER,
JUPITER SECURITIZATION CORPORATION,
BANK ONE, NA (MAIN OFFICE CHICAGO), INDIVIDUALLY AND AS JUPITER AGENT,
BLUE RIDGE ASSET FUNDING CORPORATION,
WACHOVIA BANK, NATIONAL ASSOCIATION, INDIVIDUALLY AND AS BLUE RIDGE AGENT,
AND
BANK ONE, NA (MAIN OFFICE CHICAGO), AS ADMINISTRATIVE AGENT
RECEIVABLES PURCHASE AGREEMENT
THIS RECEIVABLES PURCHASE AGREEMENT dated as of June 6, 2002,
is among:
(a) RPM Funding Corporation, a Delaware corporation
("SELLER"),
(b) RPM, Inc., an Ohio corporation ("RPM"), as initial
Servicer,
(c) Jupiter Securitization Corporation, a Delaware corporation
("JUPITER" or a "CONDUIT"), and Blue Ridge Asset Funding Corporation, a
Delaware corporation ("BLUE RIDGE" or a "CONDUIT"),
(d) Bank One, NA (Main Office Chicago), a national banking
association ("BANK ONE"), and its assigns (collectively, the "JUPITER
LIQUIDITY BANKS" and, together with Jupiter, the "JUPITER GROUP"), and
Wachovia Bank, National Association, a national banking association
("WACHOVIA"), and its assigns (collectively, the "BLUE RIDGE LIQUIDITY
BANKS" and, together with Blue Ridge, the "BLUE RIDGE GROUP"),
(e) Bank One, NA (Main Office Chicago), a national banking
association, in its capacity as agent for the Jupiter Group (the
"JUPITER AGENT" or a "CO-AGENT"), and Wachovia Bank, National
Association, a national banking association, in its capacity as agent
for the Blue Ridge Group (the "BLUE RIDGE AGENT" or a "CO-AGENT"), and
(f) Bank One, NA (Main Office Chicago), a national banking
association, in its capacity as administrative agent for the Jupiter
Group, the Blue Ridge Group and each Co-Agent (in such capacity,
together with its successors and assigns, the "ADMINISTRATIVE AGENT"
and, together with each of the Co-Agents, the "AGENTS").
UNLESS DEFINED ELSEWHERE HEREIN, CAPITALIZED TERMS USED IN THIS AGREEMENT SHALL
HAVE THE MEANINGS ASSIGNED TO SUCH TERMS IN EXHIBIT I.
PRELIMINARY STATEMENTS
Seller desires to transfer and assign Purchaser Interests to
the Purchasers from time to time.
Each of the Conduits may, in its absolute and sole discretion,
purchase its Percentage of each Purchaser Interest from Seller from
time to time.
In the event that either Conduit declines to make any such
purchase, its Liquidity Banks shall make such purchase.
Bank One, NA (Main Office Chicago) has been requested and is
willing to act as Jupiter Agent on behalf of the Jupiter Group in
accordance with the terms hereof.
Wachovia Bank, National Association has been requested and is willing
to act as Blue Ridge Agent on behalf of the Blue Ridge Group in accordance with
the terms hereof.
Bank One, NA (Main Office Chicago) has been requested and is willing to
act as Administrative Agent on behalf of the Purchasers in accordance with the
terms hereof.
ARTICLE I.
PURCHASE ARRANGEMENTS
Section 1.1 PURCHASE FACILITY.
(a) On the terms and subject to the conditions set forth in this
Agreement, Seller may from time to time prior to the Facility Termination Date,
sell Purchaser Interests to the Purchasers by delivering (or causing Servicer to
deliver, on Seller's behalf) a Purchase Notice to the Co-Agents in accordance
with Section 1.2. Upon receipt of a copy of each Purchase Notice from Seller or
Servicer, each of the Co-Agents shall determine whether its Conduit will
purchase its Percentage of such Purchaser Interest, and
(i) in the event that Jupiter elects not to make any such
purchase of its Percentage, the Jupiter Agent shall promptly notify
Seller and the Jupiter Liquidity Banks of such fact, whereupon each of
the Jupiter Liquidity Banks severally agrees to purchase its Ratable
Share of such Percentage, on the terms and subject to the conditions
hereof, PROVIDED that at no time may the aggregate Capital of the
Jupiter Group at any one time outstanding exceed the lesser of (A) the
aggregate amount of the Jupiter Liquidity Banks' Commitments hereunder,
and (B) Jupiter's Percentage of the Net Receivables Balance (such
lesser amount, the "JUPITER ALLOCATION LIMIT") less Aggregate Reserves;
and
(ii) in the event that Blue Ridge elects not to make any such
purchase of its Percentage, the Blue Ridge Agent shall promptly notify
Seller and each of the Blue Ridge Liquidity Banks of such fact,
whereupon each of the Blue Ridge Liquidity Banks severally agrees to
purchase its Ratable Share of such Percentage, on the terms and subject
to the conditions hereof, PROVIDED that at no time may the aggregate
Capital of the Blue Ridge Group at any one time outstanding exceed the
lesser of (A) the aggregate amount of the Blue Ridge Liquidity Banks'
Commitments hereunder, and (B) Blue Ridge's Percentage of the Net
Receivables Balance (such lesser amount, the "BLUE RIDGE ALLOCATION
LIMIT") less Aggregate Reserves.
In no event shall the Aggregate Capital outstanding hereunder exceed the lesser
of (1) the Purchase Limit and (2) the Net Receivables Balance less Aggregate
Reserves. All Liquidity Banks' Commitments to Seller under this Agreement shall
terminate on the Facility Termination Date.
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(b) Seller may, upon at least 10 Business Days' notice to the
Agents, terminate in whole or reduce in part, ratably between the Blue
Ridge Group and the Jupiter Group in accordance with their respective
Percentages (and within each Group, ratably among the Liquidity Banks
that are members thereof in accordance with their respective Ratable
Shares), the unused portion of the Purchase Limit; PROVIDED that each
partial reduction of the Purchase Limit shall be in an aggregate amount
equal to $10,000,000 or a larger integral multiple of $1,000,000.
Section 1.2 INCREASES. Seller (or Servicer, on Seller's behalf) shall
provide each of the Co-Agents with at least two (2) Business Days' prior notice
in a form set forth as Exhibit II hereto of each Incremental Purchase (a
"PURCHASE NOTICE"). Each Purchase Notice shall be subject to Section 6.2 hereof
and, except as set forth below, shall be irrevocable and shall specify the
requested Purchase Price (which shall not be less than $3,000,000) and date of
purchase (which, in the case of any Incremental Purchase (after the initial
Incremental Purchase hereunder), shall only be on a Settlement Date) and, in the
case of an Incremental Purchase to be funded by either Conduit's Liquidity
Banks, the requested Discount Rate and Tranche Period. Following receipt of a
Purchase Notice, each Co-Agent will determine whether its Conduit agrees to make
its purchase. If either Conduit declines to make a proposed purchase, the
Incremental Purchase of that Conduit's Percentage of such Purchaser Interest
will be made by such Conduit's Liquidity Banks while the other Conduit's
Percentage of such Purchaser Interest will be purchased by such other Conduit.
On the date of each Incremental Purchase, upon satisfaction of the applicable
conditions precedent set forth in Article VI, each of the Conduits or its
Liquidity Banks, as applicable, shall deposit to the Facility Account, in
immediately available funds, no later than 1:00 p.m. (Chicago time), an amount
equal to (i) in the case of a Conduit, its Percentage of the Purchase Price of
the Purchaser Interest then being purchased or (ii) in the case of a Liquidity
Bank, such Liquidity Bank's Ratable Share of its Conduit's Percentage of the
Purchase Price of the Purchaser Interest then being purchased.
Section 1.3 DECREASES. Seller (or Servicer, on Seller's behalf) shall
provide each of the Co-Agents with prior written notice in conformity with the
Required Notice Period (each, a "REDUCTION NOTICE") of any proposed reduction of
Aggregate Capital. Such Reduction Notice shall designate (i) the date (the
"PROPOSED REDUCTION DATE") upon which any such reduction of Aggregate Capital
shall occur (which date shall give effect to the applicable Required Notice
Period), (ii) the amount of Aggregate Capital to be reduced (the "AGGREGATE
REDUCTION"), (iii) each Group's Percentage of such Aggregate Reduction, which
shall be applied ratably to the Purchaser Interests of the Conduit and Liquidity
Banks in such Group in accordance with the amount of Capital (if any) owing to
such Conduit, on the one hand, and the amount of Capital (if any) owing to such
Liquidity Banks (ratably, based on their respective Ratable Shares), on the
other hand. Only one (1) Reduction Notice shall be outstanding at any time.
Section 1.4 PAYMENT REQUIREMENTS. All amounts to be paid or deposited
by any Seller Party pursuant to any provision of this Agreement shall be paid or
deposited in accordance with the terms hereof no later than 11:00 a.m. (Chicago
time) on the day when due in immediately available funds, and if not received
before 11:00 a.m. (Chicago time) shall be deemed to be received on the next
succeeding Business Day. If such amounts are payable to the Administrative
Agent, the Jupiter Agent or to a member of the Jupiter Group, they shall be paid
to account no. 59-48118 at Bank One, NA (Main Office Chicago), in Chicago,
Illinois, ABA No.
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01071000013 until otherwise notified by the Jupiter Agent or the Administrative
Agent (the "JUPITER GROUP ACCOUNT"). If such amounts are payable to the Blue
Ridge Agent or to a member of the Blue Ridge Group, they shall be paid to
account no. 8735-098787 at Wachovia Bank, National Association, in
Winston-Salem, North Carolina, ABA No. 053100494, until otherwise notified by
the Blue Ridge Agent (the "BLUE RIDGE GROUP ACCOUNT"). All computations of
Yield, per annum fees calculated as part of any CP Costs, per annum fees
hereunder and per annum fees under the Fee Letters shall be made on the basis of
a year of 360 days for the actual number of days elapsed. If any amount
hereunder shall be payable on a day which is not a Business Day, such amount
shall be payable on the next succeeding Business Day.
Section 1.5 EXTENSION OF EACH CONDUIT'S LIQUIDITY TERMINATION DATE.
Provided that no Amortization Event or Potential Amortization Event has
occurred, the Seller (or Servicer, on Seller's behalf) may request an extension
of each Conduit's Liquidity Termination Date by submitting a request for an
extension (each, an "EXTENSION REQUEST") to the Co-Agents no more than 120 days
and not less than 30 days prior to the Conduits' then current Liquidity
Termination Date. Upon receipt of such an Extension Request, the Blue Ridge
Agent shall notify the Blue Ridge Group, and the Jupiter Agent shall notify the
Jupiter Group, of the contents thereof and shall request each member of its
respective Group to approve the Extension Request. Each Purchaser approving the
Extension Request shall deliver its written approval to its Co-Agent no later
than thirty (30) days after the request (the "RESPONSE DATE"), whereupon such
Co-Agent shall notify the Administrative Agent, the other Co-Agent and the
Seller within one Business Day thereafter as to whether all members of such
Co-Agent's Group have approved the Extension Request. If all members of the Blue
Ridge Group and all members of the Jupiter Group have approved the Extension
Request by the Response Date, each Conduit's Liquidity Termination Date shall be
extended to the date which is 364 days from the earlier to occur of the Response
Date or the Administrative Agent's receipt of notice from each of the Co-Agents
that their respective Groups have unanimously approved the requested extension
(such earlier date, the "EXTENSION DATE"). If the members of either Group do not
unanimously agree to an Extension Request, the Seller (or Servicer, on Seller's
behalf) shall have the right to require the members of such Group to assign all,
but not less than all, of their Commitments (as applicable) and all, but not
less than all, of their outstanding Obligations (as applicable) by entering into
written assignment(s) with one or more Eligible Assignees (who shall, unless an
Amortization Event or Potential Amortization Event shall exist and be
continuing, be acceptable to RPM (or, once applicable, Parent), which consent
shall not be unreasonably withheld or delayed) not later than the 10th Business
Day after such Eligible Assignee(s) are identified. Each such assignment to an
Eligible Assignee (including, if agreed by the members of the other Group, to
the members of the other Group) shall become effective on the Business Day
following execution and delivery of the applicable written assignment; PROVIDED
THAT the assigning Purchasers receive payment in full of their Obligations (it
being understood that any breakage costs, expenses or other amounts which would
be owing to such Purchaser pursuant to any indemnification provision hereof
shall be payable by the Seller).
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ARTICLE II.
PAYMENTS AND COLLECTIONS
Section 2.1 PAYMENTS. Notwithstanding any limitation on recourse
contained in this Agreement, Seller (or Servicer, on Seller's behalf) shall
immediately remit to each of the Co-Agents when due, for the account of the
relevant Purchaser or Purchasers in its Group, on a full recourse basis, all of
the following (collectively, the "OBLIGATIONS"):
(i) such fees as set forth in the Fee Letters (which fees
shall be sufficient to pay all fees owing to the Liquidity Banks),
(ii) all CP Costs,
(iii) all amounts payable as Yield,
(iv) all amounts payable as Deemed Collections (which shall be
immediately due and payable by Seller and applied to reduce outstanding
Aggregate Capital hereunder in accordance with Sections 2.2 and 2.3
hereof),
(v) all amounts required pursuant to Section 2.6,
(vi) all amounts payable pursuant to Article X, if any,
(vii) all Servicer costs and expenses, including the Servicing
Fee, in connection with servicing, administering and collecting the
Receivables,
(viii) all Broken Funding Costs, and
(ix) all Default Fees.
If Seller fails to pay any of the Obligations when due, Seller agrees to pay, on
demand, the Default Fee in respect thereof until paid. Notwithstanding the
foregoing, no provision of this Agreement or the Fee Letters shall require the
payment or permit the collection of any amounts hereunder in excess of the
maximum permitted by applicable law. If at any time Seller receives any
Collections or is deemed to receive any Collections, Seller (or Servicer, on
Seller's behalf) shall immediately pay such Collections or Deemed Collections to
the Servicer for application in accordance with the terms and conditions hereof
and, at all times prior to such payment, such Collections or Deemed Collections
shall be held in trust by Seller for the exclusive benefit of the Purchasers and
the Agents.
Section 2.2 COLLECTIONS PRIOR TO AMORTIZATION. Prior to the
Amortization Date, any Collections and/or Deemed Collections received by the
Servicer shall be set aside and held in trust by the Servicer for the payment of
any accrued and unpaid Aggregate Unpaids or for a Reinvestment as provided in
this Section 2.2. If on any Business Day prior to the Amortization Date, any
Collections are received by the Servicer after payment of any Obligations that
are then due and owing, Seller hereby requests and the Purchasers hereby agree
to make, simultaneously with such receipt, a reinvestment (each a
"REINVESTMENT") with that portion of the balance of
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each and every Collection received by the Servicer that is part of any Purchaser
Interest, such that after giving effect to such Reinvestment, the amount of
Capital of such Purchaser Interest immediately after such receipt and
corresponding Reinvestment shall be equal to the amount of Capital immediately
prior to such receipt. On each Settlement Date prior to the occurrence of the
Amortization Date, the Servicer shall remit to the Blue Ridge Group's Account
and the Jupiter Group's Account each Group's respective Percentage of the
amounts set aside during the preceding Settlement Period that have not been
subject to a Reinvestment and apply such amounts (if not previously paid in
accordance with Section 2.1) to reduce the Obligations. Once such Obligations
shall be reduced to zero, any additional Collections received by the Servicer
(i) if applicable, shall be remitted to the Blue Ridge Group's Account and the
Jupiter Group's Account no later than 11:00 a.m. (Chicago time) to the extent
required to fund the Groups' respective Percentages of any Aggregate Reduction
on such Settlement Date and (ii) any balance remaining thereafter shall be
remitted from the Servicer to Seller on such Settlement Date.
Section 2.3 COLLECTIONS FOLLOWING AMORTIZATION. On the Amortization
Date and on each day thereafter, the Servicer shall set aside and hold in trust,
for the holders of each Purchaser Interest, all Collections received on such day
and an additional amount of the Seller's funds for the payment of any accrued
and unpaid Obligations owed by Seller and not previously paid by Seller in
accordance with Section 2.1. On and after the Amortization Date, the Servicer
shall, at any time upon the request from time to time by (or pursuant to
standing instructions from) any Agent (i) remit to the Blue Ridge Group's
Account and the Jupiter Group's Account the Groups' respective Percentages of
the amounts set aside pursuant to the preceding sentence, and (ii) apply such
amounts to reduce the applicable Group's Capital associated with each such
Purchaser Interest and any other Aggregate Unpaids.
Section 2.4 APPLICATION OF COLLECTIONS. If there shall be insufficient
funds on deposit for the Servicer to distribute funds in payment in full of the
aforementioned amounts pursuant to Section 2.2 or 2.3 (as applicable), the
Servicer shall distribute funds:
FIRST, to the payment of the Servicer's reasonably and
properly documented out-of-pocket costs and expenses in connection with
servicing, administering and collecting the Receivables, including the
Servicing Fee, if RPM or one of its Affiliates is not then acting as
the Servicer,
SECOND, to the reimbursement of the Administrative Agent's
costs of collection and enforcement of this Agreement,
THIRD, ratably to the payment of all accrued and unpaid fees
under the Fee Letters, CP Costs and Yield,
FOURTH, for the ratable payment of all other unpaid
Obligations, provided that to the extent such Obligations relate to the
payment of Servicer costs and expenses, including the Servicing Fee,
when RPM or one of its Affiliates is acting as the Servicer, such costs
and expenses will not be paid until after the payment in full of all
other Obligations,
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FIFTH, unless the Amortization Date has occurred or a
Reduction Notice has been delivered, to the making of a Reinvestment,
SIXTH, to the ratable reduction of the Aggregate Capital, and
SEVENTH, after the Aggregate Unpaids have been indefeasibly
reduced to zero, to Seller.
Collections applied to the payment of Aggregate Unpaids shall be distributed in
accordance with the aforementioned provisions, and, giving effect to each of the
priorities set forth above in this Section 2.4, shall be shared ratably (within
each priority) among the Agents and the Purchasers in accordance with the amount
of such Aggregate Unpaids owing to each of them in respect of each such
priority.
Section 2.5 PAYMENT RESCISSION. No payment of any of the Aggregate
Unpaids shall be considered paid or applied hereunder to the extent that, at any
time, all or any portion of such payment or application is rescinded by
application of law or judicial authority, or must otherwise be returned or
refunded for any reason. Seller shall remain obligated for the amount of any
payment or application so rescinded, returned or refunded, and shall promptly
pay to the applicable Co-Agent (for application to the Person or Persons who
suffered such rescission, return or refund) the full amount thereof, plus the
Default Fee from the date of any such rescission, return or refunding.
Section 2.6 MAXIMUM PURCHASER INTERESTS. Seller shall ensure that the
Purchaser Interests of the Purchasers shall at no time exceed in the aggregate
100%. If the aggregate of the Purchaser Interests of the Purchasers exceeds
100%, Seller shall pay to each of the Co-Agents within two (2) Business Days its
respective Percentage of an amount to be applied to reduce the aggregate Capital
outstanding from the members of its Group (as allocated by such Co-Agent), such
that after giving effect to such payment, the aggregate of the Purchaser
Interests equals or is less than 100%.
Section 2.7 CLEAN UP CALL. In addition to Seller's rights pursuant to
Section 1.3, Seller shall have the right (after providing written notice to the
Agents in accordance with the Required Notice Period), at any time following the
reduction of the Aggregate Capital to a level that is less than 20.0% of the
original Purchase Limit, to repurchase from the Purchasers all, but not less
than all, of the then outstanding Purchaser Interests. The purchase price in
respect thereof shall be an amount equal to the Aggregate Unpaids through the
date of such repurchase, payable in immediately available funds. Such repurchase
shall be without representation, warranty or recourse of any kind by, on the
part of, or against any Purchaser or any Agent except for a representation and
warranty that the reconveyance to Seller is being made free and clear of any
Adverse Claim created by any Agent or any Purchaser.
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ARTICLE III.
CONDUIT FUNDING
Section 3.1 CP COSTS. Seller shall pay CP Costs with respect to the
Capital associated with each Purchaser Interest of a Conduit for each day that
any Capital in respect of such Purchaser Interest is outstanding. Each Purchaser
Interest funded substantially with Pooled Commercial Paper will accrue CP Costs
each day on a pro rata basis, based upon the percentage share the Capital in
respect of such Purchaser Interest represents in relation to all assets held by
such Conduit and funded substantially with related Pooled Commercial Paper
Section 3.2 CP COSTS PAYMENTS. On each Settlement Date, Seller shall
pay to each of the Co-Agents (for the benefit of its Conduit) an aggregate
amount equal to all accrued and unpaid CP Costs in respect of the Capital
associated with all Purchaser Interests of such Conduit for the immediately
preceding Accrual Period in accordance with Article II.
Section 3.3 CALCULATION OF CP COSTS. Not later than the 3rd Business
Day immediately preceding each Settlement Date, each Conduit shall calculate the
aggregate amount of CP Costs allocated to the Capital of its Purchaser Interests
for the applicable Accrual Period and shall notify Seller in writing of such
aggregate amount.
ARTICLE IV.
LIQUIDITY BANK FUNDING
Section 4.1 LIQUIDITY BANK FUNDING. Each Purchaser Interest of either
Conduit's Liquidity Banks shall accrue Yield for each day during its Tranche
Period at either the LIBO Rate or the Prime Rate in accordance with the terms
and conditions hereof. Until Seller gives notice to the applicable Co-Agent of
another Discount Rate in accordance with Section 4.4, the initial Discount Rate
for any Purchaser Interest transferred by a Conduit to its Liquidity Banks
pursuant to the terms and conditions of its Liquidity Agreement shall be the
Prime Rate. If either Conduit's Liquidity Banks acquire by assignment from such
Conduit any Purchaser Interest pursuant to the applicable Liquidity Agreement,
each Purchaser Interest so assigned shall each be deemed to have a new Tranche
Period commencing on the date of any such assignment.
Section 4.2 YIELD PAYMENTS. On the Settlement Date for each Purchaser
Interest of a Conduit's Liquidity Banks, Seller shall pay to the applicable
Co-Agent (for the ratable benefit of the Liquidity Banks in its Group) an
aggregate amount equal to the accrued and unpaid Yield for the entire Tranche
Period of each such Purchaser Interest in accordance with Article II.
Section 4.3 SELECTION AND CONTINUATION OF TRANCHE PERIODS.
(a) Seller (or Servicer, on Seller's behalf) shall from time
to time request Tranche Periods for the Purchaser Interests of the
Liquidity Banks in such Co-Agent's Group, PROVIDED that if at any time
such Liquidity Banks shall have a Purchaser Interest, Seller shall
always request Tranche Periods such that at least one Tranche Period
shall end on the date specified in clause (A) of the definition of
Settlement Date.
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(b) Seller, Servicer (on Seller's behalf) or the applicable
Co-Agent, upon notice to and consent by the other received at least
three (3) Business Days prior to the end of a Tranche Period (the
"TERMINATING TRANCHE") for any Purchaser Interest, may, effective on
the last day of the Terminating Tranche: (i) divide any such Purchaser
Interest into multiple Purchaser Interests, (ii) combine any such
Purchaser Interest with one or more other Purchaser Interests that have
a Terminating Tranche ending on the same day as such Terminating
Tranche or (iii) combine any such Purchaser Interest with a new
Purchaser Interest to be purchased on the day such Terminating Tranche
ends, PROVIDED that in no event may a Purchaser Interest of a Conduit
be combined with a Purchaser Interest of its Liquidity Banks.
Section 4.4 LIQUIDITY BANK DISCOUNT RATES. Seller may select the LIBO
Rate or the Prime Rate for each Purchaser Interest of either Conduit's Liquidity
Banks. Seller shall by 11:00 a.m. (Chicago time): (i) at least three (3)
Business Days prior to the expiration of any Terminating Tranche with respect to
which the LIBO Rate is being requested as a new Discount Rate and (ii) at least
one (1) Business Day prior to the expiration of any Terminating Tranche with
respect to which the Prime Rate is being requested as a new Discount Rate, give
the applicable Co-Agent irrevocable notice of the new Discount Rate for the
Purchaser Interest associated with such Terminating Tranche. Until Seller gives
notice to the applicable Co-Agent of another Discount Rate, the initial Discount
Rate for any Purchaser Interest transferred to the Liquidity Banks in its Group
pursuant to the terms and conditions of the applicable Liquidity Agreement shall
be the Prime Rate.
Section 4.5 SUSPENSION OF THE LIBO RATE
(a) If any Liquidity Bank notifies the applicable Co-Agent
that it has determined that funding its Ratable Share of the Purchaser Interests
of the Liquidity Banks in its Group at a LIBO Rate would violate any applicable
law, rule, regulation, or directive of any governmental or regulatory authority,
whether or not having the force of law, or that (i) deposits of a type and
maturity appropriate to match fund its Purchaser Interests at such LIBO Rate are
not available or (ii) such LIBO Rate does not accurately reflect the cost of
acquiring or maintaining a Purchaser Interest at such LIBO Rate, then such
Co-Agent shall suspend the availability of such LIBO Rate for its Group and
require Seller to select the Prime Rate for any Purchaser Interest of its Group
accruing Yield at such LIBO Rate.
(b) If less than all of the Liquidity Banks in a Group give a
notice to their applicable Co-Agent pursuant to Section 4.5(a), each Liquidity
Bank which gave such a notice shall be obliged, at the request of Seller, the
applicable Conduit or the applicable Co-Agent, to assign all of its rights and
obligations hereunder to (i) another Liquidity Bank or (ii) another funding
entity reasonably acceptable to the applicable Conduit and Seller and willing to
participate in this Agreement through the Liquidity Termination Date in the
place of such notifying Liquidity Bank; PROVIDED that (i) the notifying
Liquidity Bank receives payment in full, pursuant to an Assignment Agreement, of
an amount equal to such notifying Liquidity Bank's Ratable Share of the Capital
and Yield owing to all of the Liquidity Banks in its Group and all accrued but
unpaid fees and other costs and expenses payable in respect of its Ratable of
the Purchaser Interests of such Liquidity Banks, and (ii) the replacement
Liquidity Bank otherwise satisfies the requirements of Section 12.1(b).
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.1 REPRESENTATIONS AND WARRANTIES OF SELLER . Seller hereby
represents and warrants to the Agents and the Purchasers, as to itself, as of
the date hereof and as of the date of each Incremental Purchase and the date of
each Reinvestment that:
(a) EXISTENCE AND POWER. Seller is duly organized, validly
existing and in good standing under the laws of its state of
organization. Seller is duly qualified to do business and is in good
standing as a foreign corporation, and has and holds all corporate
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 could not reasonably be expected to have a Material Adverse
Effect.
(b) POWER AND AUTHORITY; DUE AUTHORIZATION, EXECUTION AND
DELIVERY. The execution and delivery by Seller of this Agreement and
each other Transaction Document to which it is a party, the performance
of its obligations hereunder and thereunder and the use of the proceeds
of purchases made hereunder, are within its corporate powers and
authority and have been duly authorized by all necessary corporate
action on its part. This Agreement and each other Transaction Document
to which Seller Party is a party has been duly executed and delivered
by Seller.
(c) NO CONFLICT. The execution and delivery by Seller 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 certificate or articles of incorporation
or by-laws, (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 Seller (except as created
hereunder) except, in any case, where such contravention or violation
could not reasonably be expected to have a Material Adverse Effect; and
no transaction contemplated hereby 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 Seller 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. Seller represents and warrants that (i)
there are no actions, suits or proceedings pending, or to the best of
Seller's knowledge, threatened, against or affecting Seller, or any of
its properties, in or before any court, arbitrator or other body, that
could reasonably be expected to have a Material Adverse Effect, and
(ii) Seller is not in default with respect to any order of any court,
arbitrator or governmental body.
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(f) BINDING EFFECT. This Agreement and each other Transaction
Document to which Seller is a party constitute the legal, valid and
binding obligations of Seller enforceable against Seller in accordance
with their respective terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(g) ACCURACY OF INFORMATION. Seller represents and warrants
that all information heretofore furnished by Seller or by any
Responsible Officer of an Originator to any of the Agents or Purchasers
for purposes of or in connection with this Agreement, any of the other
Transaction Documents or any transaction contemplated hereby or thereby
is, and all such information hereafter furnished by Seller or any such
Responsible Officer to any of the Agents or Purchasers will be, true
and accurate in every material respect on the date such information is
stated or certified and does not and will not contain any material
misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein not misleading.
Servicer represents and warrants that each Monthly Report completed and
compiled by it accurately aggregates the information received by it
from the Originators and correctly computes the ratios and
concentrations set forth therein based upon such aggregates.
(h) USE OF PROCEEDS. Seller represents and warrants that it
will not use the proceeds of any purchase hereunder (i) for a purpose
that violates, or would be inconsistent with, Regulation T, U or X
promulgated by the Board of Governors of the Federal Reserve System
from time to time 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. Seller represents and warrants that
immediately prior to each purchase hereunder, Seller shall be the legal
and beneficial owner of the Receivables and Related Security with
respect thereto, free and clear of any Adverse Claim, except as created
by the Transaction Documents. Seller represents and warrants that 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 Seller's ownership or
security interest in each Receivable, its Collections and the Related
Security.
(j) PERFECTION. Seller represents and warrants that this
Agreement, together with the filing of the financing statements
contemplated hereby, is effective to, and shall, upon each purchase
hereunder, transfer to the Administrative Agent for the benefit of the
relevant Purchaser or Purchasers (and the Administrative Agent for the
benefit of such Purchaser or Purchasers shall acquire from Seller) a
valid and perfected first priority undivided percentage ownership or
security interest in each Receivable existing or hereafter arising and
in the Related Security and Collections with respect thereto, free and
clear of any Adverse Claim, except as created by the Transactions
Documents. Seller represents and warrants that there have been duly
filed all financing statements or other similar instruments or
documents necessary under the UCC (or any comparable law) of
11
all appropriate jurisdictions to perfect the Administrative Agent's (on
behalf of the Purchasers) ownership or security interest in the
Receivables, the Related Security and the Collections.
(k) PLACES OF BUSINESS AND LOCATIONS OF RECORDS. The principal
places of business and chief executive office of Seller and the offices
where it keeps all of its Records are located at the address(es) listed
on Exhibit III or such other locations of which the Agents have been
notified in accordance with Section 7.2(a) in jurisdictions where all
action required by Section 14.4(a) has been taken and completed.
Seller's Federal Employer Identification Number and Organizational
Identification Number are correctly set forth on Exhibit III.
(l) COLLECTIONS. Each of the Seller Parties represents and
warrants that the conditions and requirements set forth in Section
7.1(j) and Section 8.2 have at all times been satisfied and duly
performed. Seller represents and warrants that the names and addresses
of all Collection Banks, together with the account numbers of the
Collection Accounts of Seller at each Collection Bank and the post
office box number of each Lock-Box, are listed on Exhibit IV. Seller
represents and warrants that Seller has not granted any Person, other
than the Administrative Agent as contemplated by this Agreement,
dominion and control 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.
Notwithstanding the foregoing, Seller confirms that it has granted the
Servicer a right of access to the Lock-Boxes and Collection Accounts to
the extent permitted in the Collection Account Agreements.
(m) MATERIAL ADVERSE EFFECT. Seller represents and warrants
that since May 31, 2001, no event has occurred that would have a
Material Adverse Effect.
(n) NAMES. In the past five (5) years, Seller has not used any
corporate names, trade names or assumed names other than the name in
which it has executed this Agreement.
(o) OWNERSHIP OF SELLER. Seller represents and warrants that
RPM (or, once applicable, Parent) and the Originators, collectively,
own, directly or indirectly, 100% of the issued and outstanding capital
stock of all classes of Seller, free and clear of any Adverse Claim.
Seller represents and warrants that such capital stock is validly
issued, fully paid and nonassessable, and that there are no options,
warrants or other rights to acquire securities of Seller.
(p) NOT A HOLDING COMPANY OR AN INVESTMENT COMPANY. Seller 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. Seller 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. Seller has complied in all respects
with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which
12
it may be subject, except where the failure to so comply could 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, without limitation, 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 could not
reasonably be expected to have a Material Adverse Effect.
(r) COMPLIANCE WITH CREDIT AND COLLECTION POLICY. Seller has
complied in all material respects with the Credit and Collection Policy
with regard to each Receivable and the related Contract, and has not
made any material change to such Credit and Collection Policy, except
such material change as to which the Agents have been notified in
accordance with Section 4.1(a)(vii) of the Receivables Sale Agreement.
(s) PAYMENTS TO APPLICABLE ORIGINATOR. With respect to each
Receivable transferred to Seller under the Receivables Sale Agreement,
Seller has given reasonably equivalent value to the applicable
Originator in consideration therefor and such transfer was not made for
or on account of an antecedent debt. No transfer by any Originator of
any Receivable under the Receivables Sale Agreement is or may be
voidable under any section of the Bankruptcy Reform Act of 1978 (11
U.S.C.ss.ss.101 et seq.), as amended.
(t) ENFORCEABILITY OF CONTRACTS. Seller represents and
warrants that each Contract with respect to each Eligible 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
Eligible Receivable created thereunder and any accrued interest
thereon, enforceable against the Obligor in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or
limiting creditors' rights generally and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
(u) ELIGIBLE RECEIVABLES. Seller represents and warrants that
each Receivable included in the Net Receivables Balance as an Eligible
Receivable was an Eligible Receivable on the date so included.
(v) NET RECEIVABLES BALANCE. Seller represents and warrants
that Seller has determined that, immediately after giving effect to
each purchase hereunder, the Net Receivables Balance is at least equal
to the sum of (i) the Aggregate Capital, plus (ii) the Aggregate
Reserves.
(w) ACCOUNTING. The manner in which Seller accounts for the
transactions contemplated by this Agreement and the Receivables Sale
Agreement does not jeopardize the true sale analysis.
Section 5.2 LIQUIDITY BANK REPRESENTATIONS AND WARRANTIES. Each
Liquidity Bank hereby represents and warrants to the applicable Co-Agent and the
applicable Conduit that:
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(a) EXISTENCE AND POWER. Such Liquidity Bank is a corporation
or a banking association duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or
organization, and has all corporate power to perform its obligations
hereunder.
(b) NO CONFLICT. The execution and delivery by such Liquidity
Bank of this Agreement and the performance of its obligations hereunder
are within its corporate powers, have been duly authorized by all
necessary corporate action, do not contravene or violate (i) its
certificate or articles of incorporation or association or by-laws,
(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 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 its assets. This Agreement has been duly authorized,
executed and delivered by such Liquidity Bank.
(c) GOVERNMENTAL AUTHORIZATION. 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 Liquidity Bank of this Agreement and the performance
of its obligations hereunder.
(d) BINDING EFFECT. This Agreement constitutes the legal,
valid and binding obligation of such Liquidity Bank enforceable against
such Liquidity Bank in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors'
rights generally and by general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at
law).
ARTICLE VI.
CONDITIONS OF PURCHASES
Section 6.1 CONDITIONS PRECEDENT TO INITIAL INCREMENTAL PURCHASE. The
initial Incremental Purchase of a Purchaser Interest under this Agreement is
subject to the conditions precedent that (a) the Administrative Agent shall have
received on or before the date of such purchase those documents listed on
Schedule B, and (b) each of the Agents shall have received all fees and expenses
required to be paid on such date pursuant to the terms of this Agreement and the
applicable Fee Letter.
Section 6.2 CONDITIONS PRECEDENT TO ALL PURCHASES AND REINVESTMENTS.
Each purchase of a Purchaser Interest and each Reinvestment shall be subject to
the further conditions precedent that (a) in the case of each such purchase or
Reinvestment: (i) the Servicer shall have delivered to the Co-Agents on or prior
to the date of such purchase, in form and substance satisfactory to each of the
Co-Agents, all Monthly Reports as and when due under Section 8.5 and (ii) upon
either Co-Agent's reasonable request, the Servicer shall have delivered to the
Co-Agents at least three (3) days prior to such purchase or Reinvestment an
interim Monthly Report showing the amount of Eligible Receivables; (b) the
Facility Termination Date shall not have occurred; (c) the Agents shall have
received such other approvals, opinions or documents as it may reasonably
14
request and (d) on the date of each such Incremental Purchase or Reinvestment,
the following statements shall be true (and acceptance of the proceeds of such
Incremental Purchase or Reinvestment shall be deemed a representation and
warranty by Seller that such statements are then true):
(i) the representations and warranties set forth in
Section 5.1 are true and correct on and as of the date of such
Incremental Purchase or Reinvestment as though made on and as
of such date; PROVIDED, HOWEVER, that so long as the RPM
Credit Agreement does not require the datedown as of each
borrowing date of the absence of material adverse change
representation thereunder, the representation contained in
Section 5.1(m) of this Agreement need only be true as of the
date of the initial Purchase hereunder;
(ii) no event has occurred and is continuing, or
would result from such Incremental Purchase or Reinvestment,
that will constitute an Amortization Event, and no event has
occurred and is continuing, or would result from such
Incremental Purchase or Reinvestment, that would constitute a
Potential Amortization Event; and
(iii) the Aggregate Capital does not exceed the
Purchase Limit and the aggregate Purchaser Interests do not
exceed 100%.
It is expressly understood that each Reinvestment shall, unless otherwise
directed by any Agent or Purchaser, occur automatically on each day that the
Servicer shall receive any Collections without the requirement that any further
action be taken on the part of any Person and notwithstanding the failure of
Seller to satisfy any of the foregoing conditions precedent in respect of such
Reinvestment. The failure of Seller to satisfy any of the foregoing conditions
precedent in respect of any Reinvestment shall give rise to a right of each
Co-Agent, which right may be exercised at any time on demand of such Co-Agent,
to rescind the related purchase and direct Seller to pay to the Co-Agents for
the benefit of the Purchasers in their respective Group's their respective
Percentages of the Collections prior to the Amortization Date that shall have
been applied to the affected Reinvestment.
ARTICLE VII.
COVENANTS
Section 7.1 AFFIRMATIVE COVENANTS OF THE SELLER PARTIES. Until the date
on which the Aggregate Unpaids have been indefeasibly paid in full and this
Agreement terminates in accordance with its terms:
(a) FINANCIAL REPORTING. Such Seller Party will maintain, for
itself and each of its Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish or cause to be furnished to
the Agents:
(i) ANNUAL REPORTING. As soon as available and in any
event within 90 days after the end of each fiscal year of RPM (or, once
applicable, Parent), (A) the
15
audited annual financial statements of RPM required to be delivered
under SECTION 4.1(a)(i) of the Receivables Sale Agreement, together
with (B) comparable unaudited annual financial statements of Seller.
(ii) QUARTERLY REPORTING. As soon as available and in
any event within 60 days after the end of each fiscal quarter of RPM,
(A) the quarterly financial statements of RPM required to be delivered
under SECTION 4.1(a)(ii) of the Receivables Sale Agreement, together
with (B) comparable unaudited quarterly financial statements of Seller.
(iii) COMPLIANCE CERTIFICATE. Together with the
financial statements required hereunder, a compliance certificate in
substantially the form of Exhibit V signed by the applicable Seller
Party'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 REPORTS. Promptly upon
the furnishing thereof to the shareholders of RPM (or, once applicable,
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 (other than any registration
statements on Form S-8 or its equivalent) and any reports which RPM
(or, once applicable, 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 Originator, the Performance Guarantor or
any Collection Bank, copies of the same.
(vii) OTHER INFORMATION. Promptly, from time to time,
such other information, documents, records or reports relating to the
Receivables or the financial condition, operations, prospects or
business of such Seller Party as any of the Agents may from time to
time reasonably request in order to protect the interests of the Agents
and the Purchasers under or as contemplated by this Agreement.
(b) NOTICES. Such Seller Party will notify the Agents in
writing of any of the following promptly upon learning of the occurrence
thereof, describing the same and, if applicable, the steps being taken with
respect thereto:
(i) AMORTIZATION EVENTS OR POTENTIAL AMORTIZATION
EVENTS. The occurrence of each Amortization Event and each Potential
Amortization Event, by a statement of an Authorized Officer of such
Seller Party.
(ii) JUDGMENT AND PROCEEDINGS. (A) (1) The entry of any
judgment or decree against the Servicer or any of its respective
Subsidiaries if the aggregate amount of all judgments and decrees then
outstanding against the Servicer and its Subsidiaries exceeds
$35,000,000 after deducting (a) the amount with respect to which the
Servicer or any such Subsidiary is insured and with respect to which
the insurer has acknowledged
16
responsibility, and (b) the amount for which the Servicer or any such
Subsidiary is otherwise indemnified if the terms of such
indemnification are satisfactory to the Agents, and (2) the institution
of any litigation, arbitration proceeding or governmental proceeding
against the Servicer which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect; and (B) the
entry of any judgment or decree or the institution of any litigation,
arbitration proceeding or governmental proceeding against Seller.
(iii) MATERIAL ADVERSE EFFECT. The occurrence of any
event or condition that has had, or could 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
relating to a line of credit or Indebtedness in excess of $5 million in
aggregate principal amount pursuant to which such Originator is a
debtor or an obligor.
(v) TERMINATION DATE. The occurrence of the "TERMINATION
DATE" under and as defined in the Receivables Sale Agreement.
(vi) DOWNGRADE OF PERFORMANCE GUARANTOR. Any downgrade
in the rating of any Indebtedness of Performance Guarantor by Standard
& Poor's Ratings Group or by Moody's Investors Service, Inc., setting
forth the Indebtedness affected and the nature of such change.
(c) COMPLIANCE WITH LAWS AND PRESERVATION OF CORPORATE
EXISTENCE. Such Seller Party 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 could
not reasonably be expected to have a Material Adverse Effect. Such Seller Party
will preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation, and qualify and remain
qualified in good standing as a foreign corporation in each jurisdiction where
its business is conducted, except where the failure to so preserve and maintain
or qualify could not reasonably be expected to have a Material Adverse Effect.
(d) AUDITS. Such Seller Party will furnish to the Agents from
time to time such information with respect to it and the Receivables as any of
the Agents may reasonably request. Such Seller Party will, from time to time
during regular business hours as requested by any of the Agents upon reasonable
notice and at the sole cost of such Seller Party, permit each of the Agents, or
its agents or representatives (and shall cause each Originator to permit each of
the Agents or its agents or representatives): (i) to examine and make copies of
and abstracts from all Records in the possession or under the control of such
Person relating to the Receivables and the Related Security, including, without
limitation, the related Contracts, and (ii) to visit the offices and properties
of such Person for the purpose of examining such materials described in clause
(i) above, and to discuss matters relating to such Person's financial condition
or the Receivables and the Related Security or any Person's performance under
any of the Transaction Documents or any Person's performance under the Contracts
and, in each case, with any of the officers or employees of Seller or the
Servicer having knowledge of such matters (each of the foregoing
17
examinations and visits, a "REVIEW"); PROVIDED, HOWEVER, that, except in
connection with an Extension Request, so long as no Amortization Event or
Potential Amortization Event has occurred, the Seller Parties shall only be
responsible for the costs and expenses of one (1) Review in any one calendar
year.
(e) KEEPING AND MARKING OF RECORDS AND BOOKS.
(i) The Servicer will (and will cause each Originator
to) maintain and implement administrative and operating
procedures (including, without limitation, 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, without limitation, records adequate to permit the
immediate identification of each new Receivable and all
Collections of and adjustments to each existing Receivable).
The Servicer will (and will cause each Originator to) give the
Agents notice of any material change in the administrative and
operating procedures referred to in the previous sentence.
(ii) Servicer will (and will cause each Originator
to) (A) on or prior to the date hereof, mark its master data
processing records and other books and records relating to the
Purchaser Interests with a legend, acceptable to the Agents,
describing the Purchaser Interests and (B) upon the request of
any of the Agents following the occurrence of an Amortization
Event, deliver to the Administrative Agent all invoices
included in the Contracts (including, without limitation, all
multiple originals of any such invoice) relating to the
Receivables.
(f) COMPLIANCE WITH CONTRACTS AND CREDIT AND COLLECTION
POLICY. Servicer will (and will cause each Originator to) timely and fully (i)
perform and comply in all material respects with all provisions, covenants and
other promises required to be observed by it under the Contracts related to the
Receivables, and (ii) comply in all material respects with the Credit and
Collection Policy in regard to each Receivable and the related Contract.
(g) PERFORMANCE AND ENFORCEMENT OF RECEIVABLES SALE AGREEMENT
AND PERFORMANCE UNDERTAKING. Seller will, and will require each of the
Originators to, perform each of their respective obligations and undertakings
under and pursuant to the Receivables Sale Agreement, will purchase Receivables
thereunder in strict compliance with the terms thereof and will vigorously
enforce the rights and remedies accorded to Seller under the Receivables Sale
Agreement. Seller will take all actions to perfect and enforce its rights and
interests (and the rights and interests of the Agents and the Purchasers as
assignees of Seller) under the Receivables Sale Agreement as any Agent may from
time to time reasonably request, including, without limitation, making claims to
which it may be entitled under any indemnity, reimbursement or similar provision
contained in the Receivables Sale Agreement. In addition, Seller will vigorously
enforce the rights and remedies accorded to Seller under the Performance
Undertaking.
(h) OWNERSHIP. Seller will (or will cause each Originator to)
take all necessary action to (i) vest legal and equitable title to the
Receivables, the Related Security and the
18
Collections purchased under the Receivables Sale Agreement irrevocably in
Seller, free and clear of any Adverse Claims other than Adverse Claims in favor
of the Administrative Agent and the Purchasers (including, without limitation,
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 Seller's interest in such Receivables, Related Security and
Collections and such other action to perfect, protect or more fully evidence the
interest of Seller therein as any Agent may reasonably request), and (ii)
establish and maintain, in favor of the Administrative Agent, for the benefit of
the Purchasers, a valid and perfected first priority undivided percentage
ownership interest (and/or a valid and perfected first priority security
interest) in all Receivables, Related Security and Collections to the full
extent contemplated herein, free and clear of any Adverse Claims other than
Adverse Claims in favor of the Administrative Agent for the benefit of the
Purchasers (including, without limitation, 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 the
Administrative Agent's (for the benefit of the Purchasers) interest in such
Receivables, Related Security and Collections and such other action to perfect,
protect or more fully evidence the interest of the Administrative Agent for the
benefit of the Purchasers as any Agent may reasonably request).
(i) PURCHASERS' RELIANCE. Seller acknowledges that the Agents
and the Purchasers are entering into the transactions contemplated by this
Agreement in reliance upon Seller's identity as a legal entity that is separate
from the Norwegian Company, each of the Originators, the Performance Guarantor
and their respective other Affiliates (collectively, the "RPM GROUP").
Therefore, from and after the date of execution and delivery of this Agreement,
Seller shall take all reasonable steps, including, without limitation, all steps
that any Agent or Purchaser may from time to time reasonably request, to
maintain Seller's identity as a separate legal entity and to make it manifest to
third parties that Seller is an entity with assets and liabilities distinct from
those of the members of the RPM Group thereof and not just a division thereof.
Without limiting the generality of the foregoing and in addition to the other
covenants set forth herein, Seller will:
(A) conduct its own business in its own name and
require that all full-time employees of Seller, if any,
identify themselves as such and not as employees of any
member of the RPM Group (including, without limitation,
by means of providing appropriate employees with
business or identification cards identifying such
employees as Seller's employees);
(B) compensate all employees, consultants and
agents directly, from Seller's own funds, for services
provided to Seller by such employees, consultants and
agents and, to the extent any employee, consultant or
agent of Seller is also an employee, consultant or agent
of a member of the RPM Group, allocate the compensation
of such employee, consultant or agent between Seller and
the members of the RPM Group on a basis that reflects
the services rendered to Seller and the RPM Group;
(C) clearly identify its offices (by signage or
otherwise) as its offices and, if such office is located
in the offices of a member of the RPM Group, Seller
shall lease such office at a fair market rent;
19
(D) have separate stationery, invoices and checks
in its own name;
(E) conduct all transactions with the members of
the RPM Group strictly on an arm's-length basis,
allocate all overhead expenses (including, without
limitation, telephone and other utility charges) for
items shared between Seller and the RPM Group on the
basis of actual use to the extent practicable and, to
the extent such allocation is not practicable, on a
basis reasonably related to actual use;
(F) at all times have a Board of Directors
consisting of not less than three members, at least one
member of which is an Independent Director;
(G) observe all corporate formalities as a distinct
entity, and ensure that all corporate actions relating
to (A) the selection, maintenance or replacement of the
Independent Director, (B) the dissolution or liquidation
of Seller or (C) the initiation of, participation in,
acquiescence in or consent to any bankruptcy,
insolvency, reorganization or similar proceeding
involving Seller, are duly authorized by unanimous vote
of its Board of Directors (including the Independent
Director);
(H) maintain Seller's books and records separate
from those of the members of the RPM Group and otherwise
readily identifiable as its own assets rather than
assets of a member of the RPM Group;
(I) prepare its financial statements separately
from those of the RPM Group and insure that any
consolidated financial statements of the RPM Group (or
any member thereof) that include Seller and that are
filed with the Securities and Exchange Commission or any
other governmental agency have notes clearly stating
that Seller is a separate legal entity and that its
assets will be available first and foremost to satisfy
the claims of the creditors of Seller;
(J) except as herein specifically otherwise
provided, maintain the funds or other assets of Seller
separate from, and not commingled with, those of the
members of the RPM Group and only maintain bank accounts
or other depository accounts to which Seller alone is
the account party, into which Seller alone (or Servicer,
on Seller's behalf) makes deposits and from which Seller
alone (or Servicer, on Seller's behalf, or the
Administrative Agent hereunder) has the power to make
withdrawals;
(K) pay all of Seller's operating expenses from
Seller's own assets (except for certain payments by a
member of the RPM Group or other Persons pursuant to
allocation arrangements that comply with the
requirements of this Section 7.1(i));
20
(L) operate its business and activities such that:
it does not engage in any business or activity of any
kind, or enter into any transaction or indenture,
mortgage, instrument, agreement, contract, lease or
other undertaking, other than the transactions
contemplated and authorized by this Agreement and the
Receivables Sale Agreement; and does not create, incur,
guarantee, assume or suffer to exist any indebtedness or
other liabilities, whether direct or contingent, other
than (1) as a result of the endorsement of negotiable
instruments for deposit or collection or similar
transactions in the ordinary course of business, (2) the
incurrence of obligations under this Agreement, (3) the
incurrence of obligations, as expressly contemplated in
the Receivables Sale Agreement, to make payment to
Originators thereunder for the purchase of Receivables
from Originators under the Receivables Sale Agreement,
and (4) the incurrence of operating expenses in the
ordinary course of business of the type otherwise
contemplated by this Agreement;
(M) maintain its Organic Documents in conformity
with this Agreement, such that it does not amend,
restate, supplement or otherwise modify its Organic
Documents in any respect that would impair its ability
to comply with the terms or provisions of any of the
Transaction Documents, including, without limitation,
this Section 7.1(i);
(N) maintain the effectiveness of, and continue to
perform under the Receivables Sale Agreement and the
Performance Undertaking, such that it does not amend,
restate, supplement, cancel, terminate or otherwise
modify the Receivables Sale Agreement or the Performance
Undertaking, or give any consent, waiver, directive or
approval thereunder or waive any default, action,
omission or breach under the Receivables Sale Agreement
or the Performance Undertaking or otherwise grant any
indulgence thereunder, without (in each case) the prior
written consent of each of the Agents;
(O) maintain its legal separateness such that it
does not merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions, and except
as otherwise contemplated herein) all or substantially
all of its assets (whether now owned or hereafter
acquired) to, or acquire all or substantially all of the
assets of, any Person, nor at any time create, have,
acquire, maintain or hold any interest in any
Subsidiary;
(P) maintain at all times the Required Capital
Amount (as defined in the Receivables Sale Agreement)
and refrain from making any dividend, distribution,
redemption of capital stock or payment of any
subordinated indebtedness which would cause the Required
Capital Amount to cease to be so maintained;
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(Q) maintain its investment in the Norwegian
Company at a level not to exceed 5% of the Norwegian
Company's outstanding voting Equity Interests; and
(R) take such other actions as are necessary on its
part to ensure that the facts and assumptions set forth
in the opinion issued by Calfee, Halter & Griswold, LLP,
as counsel for Seller, in connection with the closing or
initial Incremental Purchase under this Agreement and
relating to substantive consolidation issues, and in the
certificates accompanying such opinion, remain true and
correct in all material respects at all times.
(j) COLLECTIONS. Such Seller Party 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. In
the event any payments relating to Receivables are remitted directly to Seller
or any Affiliate of Seller, Seller will remit (or will cause all such payments
to be remitted) directly to a Collection Bank and deposited into a Collection
Account within two (2) Business Days following receipt thereof, and, at all
times prior to such remittance, Seller will itself hold or, if applicable, will
cause such payments to be held in trust for the exclusive benefit of the Agents
and the Purchasers. Seller will maintain exclusive ownership, dominion and
control (subject to the terms of this Agreement) of each Lock-Box and Collection
Account and shall 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 the Administrative Agent as contemplated
by this Agreement and except that Seller may authorize the Servicer to make
deposits to and withdrawals from the Collection Accounts prior to delivery of
the Collection Notices.
(k) TAXES. Such Seller Party will file all tax returns and
reports required by law to be filed by it and will promptly pay all taxes and
governmental charges at any time owing, except any such taxes which are not yet
delinquent or are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books. Seller will pay when due any taxes payable in
connection with the Receivables, exclusive of taxes on or measured by income or
gross receipts of any of the Agents or Purchasers.
(l) INSURANCE. Seller will maintain in effect, or cause to be
maintained in effect, at Seller's own expense, such casualty and liability
insurance as Seller shall deem appropriate in its good faith business judgment.
(m) PAYMENT TO ORIGINATORS. With respect to any Receivable
purchased by Seller from an Originator, such sale shall be effected under, and
in strict compliance with the terms of, the Receivables Sale Agreement,
including, without limitation, the terms relating to the amount and timing of
payments to be made to such Originator in respect of the purchase price for such
Receivable.
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Section 7.2 NEGATIVE COVENANTS OF THE SELLER PARTIES. Until the date on
which the Aggregate Unpaids have been indefeasibly paid in full and this
Agreement terminates in accordance with its terms:
(a) NAME CHANGE, OFFICES AND RECORDS. Seller will not change
its name, identity or legal structure (within the meaning of Section 9-507(c) of
any applicable enactment of the UCC) or relocate its chief executive office or
any office where Records are kept unless it shall have: (i) given the Agents at
least forty-five (45) days' prior written notice thereof and (ii) delivered to
the Administrative Agent all financing statements, instruments and other
documents reasonably requested by any of the Agents in connection with such
change or relocation.
(b) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Except as may
be required by the Administrative Agent pursuant to Section 8.2(b), such Seller
Party 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 the Agents shall have received, at least
ten (10) days before the proposed effective date therefor, (i) written 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 the Servicer 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. No Seller Party will, and will not permit any Originator to, make any
change to the Credit and Collection Policy that could adversely affect the
collectibility of the Receivables or decrease the credit quality of any newly
created Receivables. Except as provided in SECTION 8.2(d), no Seller Party will,
or will permit any Originator to, extend, amend or otherwise modify the terms of
any Receivable or any Contract related thereto in any material respect other
than in accordance with the Credit and Collection Policy.
(d) SALES, LIENS. Seller 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, without
limitation, 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 arises, or any Lock-Box or Collection
Account, or assign any right to receive income with respect thereto (other than,
in each case, the creation of the interests therein in favor of the
Administrative Agent and the Purchasers provided for herein), and Seller will
defend the right, title and interest of the Agents and the Purchasers in, to and
under any of the foregoing property, against all claims of third parties
claiming through or under Seller or any Originator.
(e) NET RECEIVABLES BALANCE. At no time prior to the
Amortization Date shall Seller permit the Net Receivables Balance to be less
than an amount equal to the sum of (i) the Aggregate Capital plus (ii) the
Aggregate Reserves.
(f) TERMINATION DATE DETERMINATION. Seller will not designate
the Termination Date (as defined in the Receivables Sale Agreement), or send any
written notice to any
23
Originator in respect thereof, without the prior written consent of the Agents,
except with respect to the occurrence of such Termination Date arising pursuant
to Section 5.1(d) of the Receivables Sale Agreement.
(g) RESTRICTED JUNIOR PAYMENTS. From and after the occurrence
of any Amortization Event, Seller will not make any Restricted Junior Payment
if, after giving effect thereto, Seller would fail to meet its obligations set
forth in Section 7.2(e).
(h) SELLER INDEBTEDNESS. Seller will not incur or permit to
exist any Indebtedness or liability on account of deposits except: (i) the
Obligations, (ii) the Subordinated Loans (as defined in the Receivables Sale
Agreement), and (iii) other current accounts payable arising in the ordinary
course of business and not overdue.
(i) PROHIBITION ON ADDITIONAL NEGATIVE PLEDGES. Seller will
not (and will not authorize any Originator to) enter into or assume any
agreement (other than this Agreement and the other Transaction Documents)
prohibiting the creation or assumption of any Adverse Claim upon the
Receivables, Collections or Related Security except as contemplated by the
Transaction Documents, or otherwise prohibiting or restricting any transaction
contemplated hereby or by the other Transaction Documents. Seller will not (and
will not authorize any Originator to) enter into or assume any agreement
creating any Adverse Claim upon the Subordinated Notes (as defined in the
Receivables Sale Agreement).
ARTICLE VIII.
ADMINISTRATION AND COLLECTION
Section 8.1 DESIGNATION OF SERVICER.
(a) The servicing, administration and collection of the
Receivables shall be conducted by such Person (the "SERVICER") so
designated from time to time in accordance with this Section 8.1. RPM
is hereby designated as, and hereby agrees to perform the duties and
obligations of, the Servicer pursuant to the terms of this Agreement;
provided that, upon notice to the Purchasers, a Parent may succeed to
and assume in writing the duties and obligations of RPM as the Servicer
hereunder if (i) such Parent has become the borrower under the RPM
Credit Agreement, (ii) such Parent has the same or higher long-term
unsecured debt ratings from each of Standard & Poor's Ratings Group and
Moody's Investor Services, Inc. as RPM had immediately prior to such
Parent's assumption of the duties of the Servicer hereunder , (iii)
such Parent simultaneously assumes in writing RPM's responsibilities
under the Performance Undertaking, and (iv) no Amortization Event or
Potential Amortization Event exists and is continuing. At any time
after the occurrence of an Amortization Event, the Agents may at any
time designate as Servicer any Person to succeed RPM (or, once
applicable, Parent) or any successor Servicer.
(b) RPM (or, once applicable, Parent) may delegate, and RPM
hereby advises the Purchasers and the Agents that it has delegated, to
the Originators, as sub-servicers of the Servicer, certain of its
duties and responsibilities as Servicer hereunder in respect of the
Receivables originated by such Originators. Without the prior written
consent of the Co-
24
Agents, the Servicer shall not be permitted to delegate any of its
duties or responsibilities as Servicer to any Person other than (i)
Seller, (ii) the Originators, and (iii) with respect to certain
Charged-Off Receivables, outside collection agencies in accordance with
its customary practices, except as permitted in Section 8.1(a). Seller
shall not be permitted to further delegate to any other Person any of
the duties or responsibilities of Servicer delegated to it by RPM (or,
once applicable, Parent). If at any time following the occurrence of an
Amortization Event, the Co-Agents shall designate as Servicer any
Person other than RPM (or, once applicable, Parent), all duties and
responsibilities theretofore delegated by RPM (or, once applicable,
Parent) to Seller or any Originator may, at the discretion of any of
the Agents, be terminated forthwith on notice given by any Agent to the
other Agents, RPM (or, once applicable, Parent) and to Seller.
(c) Notwithstanding the foregoing subsection (b), (i) Servicer
shall be and remain primarily liable to the Agents and the Purchasers
for the full and prompt performance of all duties and responsibilities
of the Servicer hereunder and (ii) the Agents and the Purchasers shall
be entitled to deal exclusively with Servicer in matters relating to
the discharge by the Servicer of its duties and responsibilities
hereunder. The Agents and the Purchasers shall not be required to give
notice, demand or other communication to any Person other than Servicer
in order for communication to the Servicer and its sub-servicer or
other delegate with respect thereto to be accomplished. Servicer, at
all times that it is the Servicer, shall be responsible for providing
any sub-servicer or other delegate of the Servicer with any notice
given to the Servicer under this Agreement.
Section 8.2 DUTIES OF SERVICER.
(a) The Servicer shall take or cause to be taken all such
actions as may be necessary or advisable to collect each Receivable
from time to time, all in accordance with applicable laws, rules and
regulations, with reasonable care and diligence, and in accordance with
the Credit and Collection Policy.
(b) The Servicer will instruct all Obligors to pay all
Collections directly to a Lock-Box or Collection Account. The Servicer
shall effect a Collection Account Agreement substantially in the form
of Exhibit VI with each bank party to a Collection Account at any time.
In the case of any remittances received in any Lock-Box or Collection
Account that shall have been identified, to the satisfaction of the
Servicer, to not constitute Collections or other proceeds of the
Receivables or the Related Security, the Servicer shall promptly remit
such items to the Person identified to it as being the owner of such
remittances. From and after the date the Administrative Agent delivers
to any Collection Bank a Collection Notice pursuant to Section 8.3, the
Administrative Agent may request that the Servicer, and the Servicer
thereupon promptly shall instruct all Obligors with respect to the
Receivables, to remit all payments thereon to a new depositary account
specified by the Administrative Agent and, at all times thereafter,
Seller and the Servicer shall not deposit or otherwise credit, and
shall not permit any other Person to deposit or otherwise credit to
such new depositary account any cash or payment item other than
Collections.
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(c) The Servicer shall administer the Collections in
accordance with the procedures described herein and in Article II. The
Servicer shall set aside and hold in trust for the account of Seller
and the Purchasers their respective shares of the Collections (or such
funds or other assets arising therefrom) in accordance with Article II.
The Servicer shall, upon the request of any Agent, segregate, in a
manner acceptable to the Agents, all cash, checks and other instruments
received by it from time to time constituting Collections from the
general funds of the Servicer or Seller prior to the remittance thereof
in accordance with Article II. If the Servicer shall be required to
segregate Collections pursuant to the preceding sentence, the Servicer
shall segregate and deposit with a bank designated by the
Administrative Agent such allocable share of Collections of Receivables
set aside for the Purchasers on the first Business Day following
receipt by the Servicer of such Collections, duly endorsed or with duly
executed instruments of transfer.
(d) The Servicer may, in accordance with the Credit and
Collection Policy, extend the maturity of any Receivable or adjust the
Outstanding Balance of any Receivable as the Servicer determines to be
appropriate to maximize Collections thereof; PROVIDED, HOWEVER, that
such extension or adjustment shall not alter the status of such
Receivable as a Delinquent Receivable, Defaulted Receivable or
Charged-Off Receivable or limit the rights of the Agents or the
Purchasers under this Agreement. Notwithstanding anything to the
contrary contained herein, the Administrative Agent shall have the
absolute and unlimited right to direct the Servicer to commence or
settle any legal action with respect to any Receivable or to foreclose
upon or repossess any Related Security.
(e) The Servicer shall hold in trust for Seller and the
Purchasers all Records that (i) evidence or relate to the Receivables,
the related Contracts and Related Security or (ii) are otherwise
necessary or desirable to collect the Receivables and shall, as soon as
practicable upon demand of any Agent, deliver or make available to the
Administrative Agent all such Records, at a place selected by the
Administrative Agent. The Servicer shall, as soon as practicable
following receipt thereof turn over to Seller any cash collections or
other cash proceeds received with respect to Indebtedness not
constituting Receivables. The Servicer shall, from time to time at the
request of any Purchaser, furnish to the Purchasers (promptly after any
such request) a calculation of the amounts set aside for the Purchasers
pursuant to Article II.
(f) Any payment by an Obligor in respect of any indebtedness
owed by it to an Originator or Seller shall, except as otherwise
specified by such Obligor or otherwise required by contract or law and
unless otherwise instructed by the Administrative Agent, be applied as
a Collection of any Receivable of such Obligor (starting with the
oldest such Receivable) to the extent of any amounts then due and
payable thereunder before being applied to any other receivable or
other obligation of such Obligor.
Section 8.3 COLLECTION NOTICES. The Administrative Agent is authorized
at any time to date and to deliver to the Collection Banks the Collection
Notices. Seller hereby transfers to the Administrative Agent for the benefit of
the Purchasers, effective when the Administrative Agent delivers such notice,
the exclusive ownership and control of each Lock-Box and the Collection
Accounts. In case any authorized signatory of Seller whose signature appears on
a Collection
26
Account Agreement shall cease to have such authority before the delivery of such
notice, such Collection Notice shall nevertheless be valid as if such authority
had remained in force. Seller hereby authorizes the Administrative Agent, and
agrees that the Administrative Agent shall be entitled after the occurrence of
an Amortization Event to (i) endorse Seller's name on checks and other
instruments representing Collections, (ii) enforce the Receivables, the related
Contracts and the Related Security and (iii) take such action as shall be
necessary or desirable to cause all cash, checks and other instruments
constituting Collections of Receivables to come into the possession of the
Administrative Agent rather than Seller.
Section 8.4 RESPONSIBILITIES OF SELLER. Anything herein to the contrary
notwithstanding, the exercise by the Agents and the Purchasers of their rights
hereunder shall not release the Servicer, any Originator or Seller from any of
their duties or obligations with respect to any Receivables or under the related
Contracts. The Purchasers shall have no obligation or liability with respect to
any Receivables or related Contracts, nor shall any of them be obligated to
perform the obligations of Seller.
Section 8.5 REPORTS. The Servicer shall compile and complete the
following reports based on information received by it from the Originators under
the Receivables Sale Agreement and forward to the Agents (i) on the 15th day of
each month or if such date is not a Business Day, the next Business Day (the
"MONTHLY REPORTING Date"), and at such times as any Agent shall request, a
Monthly Report and (ii) at such times as any Agent shall reasonably request, a
listing by Obligor of all Receivables together with an aging of such
Receivables.
Section 8.6 SERVICING FEES. In consideration of RPM's agreement to act
as Servicer hereunder, the Purchasers hereby agree that, so long as RPM (or,
once applicable, Parent) shall continue to perform as Servicer hereunder, Seller
shall pay over to RPM (or, once applicable, Parent) a fee (the "SERVICING FEE")
on the first calendar day of each month, in arrears for the immediately
preceding month, equal to 1% per annum of the average aggregate Outstanding
Balance of all Receivables during such period, as compensation for its servicing
activities.
ARTICLE IX.
AMORTIZATION EVENTS
Section 9.1 AMORTIZATION EVENTS. The occurrence of any one or more of
the following events shall constitute an Amortization Event:
(a) Any Seller Party shall fail to make any payment or deposit
required under this Agreement or any other Transaction Document to
which it is a party on or within one (1) Business Day after the date on
which the same is required to be made.
(b) Any Seller Party shall fail to perform or observe any
covenant contained in any provision of SECTION 7.2 other than SECTION
7.2(c) or SECTION 8.5.
(c) Any Seller Party shall fail to perform or observe any
other covenant, agreement or other obligation hereunder (other than as
referred to in another paragraph of this SECTION 9.1) or any other
Transaction Document to which it is a party and such
27
failure shall continue for three (3) consecutive Business Days
following the earlier to occur of (i) notice from any Agent of such
non-performance or non-observance, or (ii) the date on which a
Responsible Officer of such Seller Party otherwise becomes aware of
such non-performance or non-observance.
(d) Any representation, warranty, certification or statement
made by any Seller Party in this Agreement, any other Transaction
Document or in any other document required to be delivered pursuant
hereto or thereto shall prove to have been incorrect when made or
deemed made in any material respect and is not cured within five (5)
Business Days following the earlier to occur of (i) notice from any
Agent of such inaccuracy or (ii) the date on which a Responsible
Officer of such Seller Party otherwise becomes aware of such
inaccuracy; PROVIDED THAT the materiality threshold in this subsection
shall not be applicable with respect to any representation or warranty
which itself contains a materiality threshold although the five (5)
Business Day cure period shall continue to apply.
(e) (i) Seller shall default in the payment when due of any
principal or of or interest on any Indebtedness, or any event or
condition shall occur which results in the acceleration of the maturity
of any such Indebtedness; or (ii) any Originator shall default, or the
Performance Guarantor or any of its Subsidiaries (other than an
Originator or Seller) shall default, in the payment when due of any
principal or of or interest on any Material Indebtedness; or any event
or condition shall occur which results in the acceleration of the
maturity of any such Material Indebtedness.
(f) (i) Any Seller Party, any Originator or any Significant
Subsidiary (as defined in the RPM Credit Agreement) 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) any proceeding shall be
instituted by or against any Seller Party, any Originator or any
Significant Subsidiary seeking to adjudicate it bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or
any substantial part of its property or (iii) any Seller Party, any
Originator or any Significant Subsidiary shall take any corporate
action to authorize any of the actions set forth in clauses (i) or (ii)
above in this subsection (f).
(g) Seller shall fail to comply with the terms of Section 2.6
hereof.
(h) As at the end of any calendar month:
(i) the average of the Dilution Ratios for the three
months then most recently ended shall exceed 5.5%;
(ii) the average of the Delinquency Ratios for the
three months then most recently ended shall exceed 2.75%; or
28
(iii) the average of the Past Due Ratios for the
three months then most recently ended shall exceed 7.5%.
(i) A Change of Control shall occur.
(j) (i) One or more final judgments for the payment of money
shall be entered against Seller or (ii) one or more final judgments for
the payment of money in an amount in excess of $35,000,000,
individually or in the aggregate, shall be entered against the Servicer
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 (30) consecutive days without a
stay of execution.
(k) Either (i) the "TERMINATION DATE" under and as defined in
the Receivables Sale Agreement shall occur with respect to any
Originator or (ii) any Originator shall for any reason cease to
transfer, or cease to have the legal capacity to transfer, or otherwise
be incapable of transferring Receivables to Seller under the
Receivables Sale Agreement, PROVIDED, HOWEVER, that upon 30 days' prior
written notice, an Originator may cease to sell or contribute
Receivables to the Seller under the Receivables Sale Agreement without
causing an Amortization Event under this Agreement if (1) such
Originator has consolidated or merged with or into another Originator,
or (2) to the extent that (a) Aggregate Capital plus Aggregate Reserves
continue to be equal to or less than the Net Receivables Balance after
such Originator ceases to sell or contribute, (b) RPM and the remaining
Originators agree to such modified transaction terms which may be
requested by the Agents as being necessary to maintain an implied
rating equivalent to the implied rating of the facility evidenced by
this Agreement prior to such Originator ceasing to sell or contribute,
as determined in the exercise of the Agents' reasonable credit
judgment, including to (I) establish the Dilution Ratio, Delinquency
Ratio and Past Due Ratio for this Agreement after such Originator
ceases to sell or contribute which shall be set and calculated
consistent with the methodology used to set and calculate such ratios
prior to such Originator ceasing to sell or contribute, (II) establish
Concentration Limits and Aggregate Reserves (such Aggregate Reserves to
be structured to an "A" level using Standard & Poor's Ratings Group's
trade receivables securitization methodology) for the facility
evidenced by this Agreement after such Originator ceases to sell or
contribute which shall be set and calculated consistent with such
methodology prior to such Originator's ceasing to sell or contribute
and (III) establish standards for items(ii)-(v) of the definition of
"ELIGIBLE RECEIVABLE" which are consistent with those required for the
Facility prior to such Originator's ceasing to sell or contribute and
are based on the Receivables of the remaining Originators, and (c) no
Amortization Event or Potential Amortization Event shall exist after
such Originator shall cease to sell or contribute.
(l) This Agreement shall terminate in whole or in part (except
in accordance with its terms), or shall cease to be effective or to be
the legally valid, binding and enforceable obligation of Seller, or any
Obligor shall directly or indirectly contest in any manner such
effectiveness, validity, binding nature or enforceability, or the
Administrative Agent for the benefit of the Purchasers shall cease to
have a valid and perfected first priority security interest in the
Receivables, the Related Security and the Collections with respect
thereto and the Collection Accounts.
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(m) The Performance Guarantor shall fail to pay, upon demand,
any amount required to be paid by it under the Performance Undertaking,
or the Performance Undertaking shall cease to be effective or to be the
legally valid, binding and enforceable obligation of RPM (or, once
applicable, Parent), or RPM (or, once applicable, Parent) shall
directly or indirectly contest in any manner such effectiveness,
validity, binding nature or enforceability.
(n) RPM (or, once applicable, Parent) shall permit the
Indebtedness of RPM (or, once applicable, Parent) and its Subsidiaries,
determined on a consolidated basis, on any date to exceed 65% of the
sum of such Indebtedness and consolidated shareholders' equity of RPM
(or, once applicable, Parent) and its consolidated Subsidiaries on such
date.
(o) RPM (or, once applicable, Parent) shall permit the ratio,
calculated as at the end of each fiscal quarter ending after the date
of this Agreement for the four fiscal quarters then ended, of EBITDA
for such period to Interest Expense for such period to be less than
3.5:1.0.
Section 9.2 REMEDIES. Upon the occurrence and during the continuation
of an Amortization Event, the Administrative Agent may, and upon the direction
of either of the Co-Agents, shall, take any of the following actions: (i)
replace the Person then acting as Servicer, (ii) declare the Amortization Date
to have occurred, whereupon the Amortization Date shall forthwith occur, without
demand, protest or further notice of any kind, all of which are hereby expressly
waived by each Seller Party; provided, however, that upon the occurrence of an
Amortization Event described in Section 9.1(f)(ii), or of an actual or deemed
entry of an order for relief with respect to any Seller Party under the Federal
Bankruptcy Code, the Amortization Date shall automatically occur, without
demand, protest or any notice of any kind, all of which are hereby expressly
waived by each Seller Party, (iii) to the fullest extent permitted by applicable
law, declare that the Default Fee shall accrue with respect to any of the
Aggregate Unpaids outstanding at such time, (iv) deliver the Collection Notices
to the Collection Banks, and (v) notify Obligors of the Purchasers' interest in
the Receivables. The aforementioned rights and remedies shall be without
limitation, and shall be in addition to all other rights and remedies of the
Agents and the Purchasers 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, without limitation, all rights and remedies
provided under the UCC, all of which rights shall be cumulative.
ARTICLE X.
INDEMNIFICATION
Section 10.1 INDEMNITIES BY THE SELLER. Without limiting any other
rights that any Agent or any Purchaser may have hereunder or under applicable
law, Seller hereby agrees to indemnify (and pay upon demand to) each of the
Agents, the Purchasers and their respective 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 (which attorneys may be
employees of
30
such Agent or such Purchaser) and disbursements (all of the foregoing being
collectively referred to as "INDEMNIFIED AMOUNTS") awarded against or incurred
by any of them arising out of or as a result of this Agreement or the
acquisition, either directly or indirectly, by a Purchaser of an interest in the
Receivables EXCLUDING, HOWEVER, in all of the foregoing instances:
(a) Indemnified Amounts to the extent a final judgment of a
court of competent jurisdiction holds that such Indemnified Amounts resulted
from gross 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 that are uncollectible on account of the insolvency,
bankruptcy or lack of creditworthiness of the related Obligor; or
(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 to the extent that the computation
of such taxes is consistent with the characterization for income tax purposes of
the acquisition by the Purchasers of Purchaser Interests as a loan or loans by
the Purchasers to Seller secured by the Receivables, the Related Security, the
Collection Accounts and the Collections;
PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the
liability of Seller or limit the recourse of the Purchasers to Seller for
amounts otherwise specifically provided to be paid by Seller under the terms of
this Agreement. Without limiting the generality of the foregoing
indemnification, Seller shall indemnify the Indemnified Parties for Indemnified
Amounts (including, without limitation, losses in respect of uncollectible
receivables, regardless of whether reimbursement therefor would constitute
recourse to Seller) relating to or resulting from:
(i) any representation or warranty made by any Seller
Party or any Originator (or any officers of any such Person)
under or in connection with this Agreement, any other
Transaction Document or any other information or report
required to be delivered by any such Person pursuant hereto or
thereto, which shall have been false or incorrect when made or
deemed made;
(ii) the failure by any Seller Party or any
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 any Originator to keep or perform
any of its obligations, express or implied, with respect to
any Contract;
(iii) any failure of any Seller Party or any
Originator to perform its duties, covenants or other
obligations in accordance with the provisions of this
Agreement or any other Transaction Document;
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(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, without limitation, a
defense based on such Receivable or the related Contract not
being a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms), or any
other claim resulting from the sale of the merchandise or
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 contemplated hereby,
the use of the proceeds of an Incremental Purchase or a
Reinvestment, the ownership of the Purchaser Interests or any
other investigation, litigation or proceeding relating to any
Seller Party or any Originator in which any Indemnified Party
becomes involved as a result of any of the transactions
contemplated hereby;
(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 Amortization Event described in Section
9.1(f);
(x) any failure of Seller to acquire and maintain
legal and equitable title to, and ownership of any Receivable
and the Related Security and Collections with respect thereto
from any Originator, free and clear of any Adverse Claim
(other than as created hereunder); or any failure of Seller to
give reasonably equivalent value to the applicable Originator
under the Receivables Sale Agreement in consideration of the
transfer by such Originator of any Receivable, or any attempt
by any Person to void such transfer under statutory provisions
or common law or equitable action;
(xi) any failure to vest and maintain vested in the
Administrative Agent for the benefit of the Purchasers, or to
transfer to the Administrative Agent for the benefit of the
Purchasers, legal and equitable title to, and ownership of, a
first priority perfected undivided percentage ownership
interest (to the extent of the Purchaser Interests
contemplated hereunder) or security interest in the
Receivables, the Related Security and the Collections, free
and clear of any Adverse Claim (except as created by the
Transaction Documents);
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(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, the
Related Security and Collections with respect thereto, and the
proceeds of any thereof, whether at the time of any
Incremental Purchase or Reinvestment or at any subsequent
time;
(xiii) any action or omission by any Seller Party
which reduces or impairs the rights of the Agents or the
Purchasers with respect to any Receivable or the value of any
such Receivable;
(xiv) any attempt by any Person to void any
Incremental Purchase or Reinvestment hereunder under statutory
provisions or common law or equitable action; and
(xv) the failure of any Receivable included in the
calculation of the Net Receivables Balance as an Eligible
Receivable to be an Eligible Receivable at the time so
included.
Section 10.2 INDEMNITIES BY THE SERVICER. Without limiting any other
rights that any Agent or any Purchaser may have hereunder or under applicable
law, Servicer hereby agrees to indemnify (and pay upon demand to) each
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 (which attorneys may be employees of such Agent or
such Purchaser) and disbursements (all of the foregoing being collectively
referred to as "SERVICER INDEMNIFIED AMOUNTS") awarded against or incurred by
any of them arising out of or as a result of Servicer's failure to duly and
punctually perform its obligations under this Agreement EXCLUDING, HOWEVER, in
all of the foregoing instances:
(a) Servicer Indemnified Amounts to the extent a final
judgment of a court of competent jurisdiction holds that such Servicer
Indemnified Amounts resulted from gross negligence or willful misconduct on the
part of the Indemnified Party seeking indemnification; and
(b) Servicer Indemnified Amounts to the extent the same
includes losses in respect of Receivables that are uncollectible on account of
the insolvency, bankruptcy or lack of creditworthiness of the related Obligor;
PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the
liability of Servicer or limit the recourse of the Purchasers to Servicer for
Collections received by the Servicer and required to be remitted by it under the
terms of this Agreement. Without limiting the generality of the foregoing
indemnification, Servicer shall indemnify the Indemnified Parties for Servicer
Indemnified Amounts (including, without limitation, losses in respect of
uncollectible receivables, regardless of whether reimbursement therefor would
constitute recourse to the Servicer) relating to or resulting from:
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(i) any representation or warranty made by Servicer
(or any officers of Servicer) under or in connection with this
Agreement, any other Transaction Document or any other
information or report delivered by any such Person pursuant
hereto or thereto, which shall have been false or incorrect
when made or deemed made;
(ii) the failure by Servicer to comply with any
applicable law, rule or regulation with respect to the
collection of any Receivable or Related Security;
(iii) any failure of Servicer to perform its duties,
covenants or other obligations in accordance with the
provisions of this Agreement or any other Transaction
Document;
(iv) the commingling by the Servicer of Collections
of Receivables or funds or other assets arising therefrom at
any time with other funds;
(v) any investigation, litigation or proceeding
relating to Servicer in which any Indemnified Party becomes
involved as a result of any of the transactions contemplated
hereby;
(vi) any Amortization Event of the described in
Section 9.1(f) with respect to Servicer; and
(vii) any action or omission by Servicer relating to
its obligations hereunder which reduces or impairs the rights
of the Agents or the Purchasers with respect to any Receivable
or the value of any such Receivable.
Section 10.3 INCREASED COST AND REDUCED RETURN. If after the date
hereof, any Funding Source shall be charged any fee, expense or increased cost
on account of the adoption of any applicable law, rule or regulation (including
any applicable law, rule or regulation regarding capital adequacy) or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency (a "REGULATORY CHANGE"): (i) that subjects any
Funding Source to any charge or withholding on or with respect to any Funding
Agreement or a Funding Source's obligations under a Funding Agreement, or on or
with respect to the Receivables, or changes the basis of taxation of payments to
any Funding Source of any amounts payable under any Funding Agreement (except
for changes in the rate of tax on the overall net income of a Funding Source or
taxes excluded by Section 10.1) or (ii) that imposes, modifies or deems
applicable any reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of a Funding
Source, or credit extended by a Funding Source pursuant to a Funding Agreement
or (iii) that imposes any other condition the result of which is to increase the
cost to a Funding Source of performing its obligations under a Funding
Agreement, or to reduce the rate of return on a Funding Source's capital as a
consequence of its obligations under a Funding Agreement, or to reduce the
amount of any sum received or receivable by a Funding Source under a Funding
Agreement or to require any payment calculated by reference to the amount of
34
interests or loans held or interest received by it, then, upon demand by the
applicable Co-Agent, Seller shall pay to such Co-Agent, for the benefit of the
relevant Funding Source, such amounts charged to such Funding Source or such
amounts to otherwise compensate such Funding Source for such increased cost or
such reduction. Notwithstanding the foregoing, no Funding Source that is not
organized under the laws of the United States of America, or a state thereof,
shall be entitled to reimbursement or compensation hereunder unless and until it
has delivered to the Seller two (2) duly completed and signed originals of
United States Internal Revenue Service Form W-8BEN or W-8ECI, as applicable,
certifying in either case that such Funding Source is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes.
Section 10.4 OTHER COSTS AND EXPENSES. Subject to the limitations set
forth in the Fee Letters, Seller shall pay to the Agents and Conduits on demand
all costs and out-of-pocket expenses in connection with the preparation,
execution, delivery and administration of this Agreement, the transactions
contemplated hereby and the other documents to be delivered hereunder, including
without limitation, the cost of Conduit's auditors auditing the books, records
and procedures of Seller, reasonable fees and out-of-pocket expenses of legal
counsel for Conduits and the Agents (which such counsel may be employees of a
Conduit or an Agent) with respect thereto and with respect to advising Conduits
and the Agents as to their respective rights and remedies under this Agreement.
Seller shall pay to the Agents on demand any and all costs and expenses of the
Agents and the Purchasers, 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 an Amortization Event.
ARTICLE XI.
THE AGENTS
Section 11.1 APPOINTMENT.
(a) Each Purchaser and Co-Agent hereby irrevocably designates
and appoints Bank One, NA as Administrative Agent hereunder, and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
the Transaction Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms of the
Transaction Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Purchaser or Co-Agent, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities on the part of
the Administrative Agent shall be read into this Agreement or otherwise exist
against the Administrative Agent.
(b) Each of Blue Ridge and the Blue Ridge Liquidity Banks
hereby irrevocably designates and appoints Wachovia Bank, National Association
as its Co-Agent hereunder, and authorizes such Co-Agent to take such action on
its behalf under the provisions of this Agreement, the Blue Ridge Fee Letter and
the Blue Ridge Liquidity Agreement and to exercise
35
such powers and perform such duties as are expressly delegated to such Co-Agent
by the terms of this Agreement, if any, together with such other powers as are
reasonably incidental thereto. Each of Jupiter and the Jupiter Liquidity Banks
hereby irrevocably designates and appoints Bank One, NA as its Co-Agent
hereunder, and authorizes such Co-Agent to take such action on its behalf under
the provisions of this Agreement, the Jupiter Fee Letter and the Jupiter
Liquidity Agreement and to exercise such powers and perform such duties as are
expressly delegated to such Co-Agent by the terms of this Agreement, if any,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Fee Letters or the Liquidity Agreements, no Co-Agent shall have any duties or
responsibilities, except those expressly set forth herein , or any fiduciary
relationship with any Purchaser, Liquidity Bank or other Agent, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities on
the part of such Co-Agent shall be read into this Agreement, the Fee Letters or
the Liquidity Agreements or otherwise exist against such Co-Agent.
(c) The provisions of this Article XI are solely for the
benefit of the Agents and the Purchasers, and neither of the Seller Parties
shall have any rights as a third-party beneficiary or otherwise under any of the
provisions of this Article XI, except that this Article XI shall not affect any
obligations which any Agent or any Purchaser may have to either of the Seller
Parties under the other provisions of this Agreement. Furthermore, no Purchaser
or Liquidity Bank shall have any rights as a third-party beneficiary or
otherwise under any of the provisions hereof in respect of a Co-Agent which is
not the Co-Agent for such Person.
(d) In performing its functions and duties hereunder, the
Administrative Agent shall act solely as the agent of the Purchasers and the
Co-Agents and does not assume nor shall be deemed to have assumed any obligation
or relationship of trust or agency with or for either of the Seller Parties or
any of their respective successors and assigns. In performing its functions and
duties hereunder, each Co-Agent shall act solely as the agent of its respective
Conduit and its respective Liquidity Bank(s), and does not assume nor shall be
deemed to have assumed any obligation or relationship of trust or agency with or
for either of the Seller Parties, any other Purchaser, Liquidity Bank or Agent,
or any of their respective successors and assigns.
Section 11.2 DELEGATION OF DUTIES. Each Agent may execute any of its
duties under the applicable Transaction Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
Section 11.3 EXCULPATORY PROVISIONS. No Agent nor any of its directors,
officers, agents or employees shall be (i) liable for any action lawfully taken
or omitted to be taken by it or them or any Person described in Section 11.2
under or in connection with the Transaction Documents (except for its, their or
such Person's own bad faith, gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Purchasers or other agents for any
recitals, statements, representations or warranties made by the Seller contained
in any Transaction Document or in any certificate, report, statement or other
document referred to or provided for in, or received under or in connection
with, any Transaction Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
document furnished in connection herewith, or for any failure of either of the
Seller Parties to
36
perform its respective obligations hereunder, or for the satisfaction of any
condition specified in Article VI, except receipt of items required to be
delivered to such Agent. No Agent shall be under any obligation to any
Purchaser, Liquidity Bank or other Agent to ascertain or to inquire as to the
observance or performance of any of the agreements or covenants contained in, or
conditions of, any Transaction Document, or to inspect the properties, books or
records of the Seller Parties. This Section 11.3 is intended solely to govern
the relationship between each Agent, on the one hand, and the Purchasers and
their respective Liquidity Banks, on the other.
Section 11.4 RELIANCE BY AGENTS.
(a) Each Agent shall in all cases be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Seller Parties), independent accountants and
other experts selected by such Agent. Each Agent shall in all cases be fully
justified in failing or refusing to take any action under this Agreement or any
other document furnished in connection herewith unless it shall first receive
such advice or concurrence of (i) in the case of the Administrative Agent, each
of the Co-Agents (except where another provision of this Agreement specifically
authorizes the Administrative Agent to take action based on the instructions of
either of the Co-Agents) or (ii) in the case of a Co-Agent, such of its
Purchasers and Liquidity Banks, as it shall determine to be appropriate under
the relevant circumstances, or it shall first be indemnified to its satisfaction
by its Constituent Liquidity Banks against any and all liability, cost and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
(b) Any action taken by the Administrative Agent in accordance
with Section 11.4(a) shall be binding upon all Purchasers and Agents.
(c) Each Co-Agent shall determine with its Conduit and, as
applicable, its Liquidity Banks, the number of such Persons which shall be
required to request or direct such Co-Agent to take action, or refrain from
taking action, under this Agreement on behalf of such Persons and whether any
consent of the rating agencies who rate such Conduit's Commercial Paper is
required (such Persons and, if applicable, rating agencies, a "VOTING BLOCK").
Such Co-Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement in accordance with a request of its
appropriate Voting Block, and such request and any action taken or failure to
act pursuant thereto shall be binding upon all of such Co-Agent's Constituents.
(d) Unless otherwise advised in writing by a Co-Agent or by
any Purchaser or Liquidity Bank on whose behalf such Co-Agent is purportedly
acting, each party to this Agreement may assume that (i) such Co-Agent is acting
for the benefit of each of its Constituent Purchasers and, as applicable,
Liquidity Banks, as well as for the benefit of each permitted assignee from any
such Person, and (ii) each action taken by such Co-Agent has been duly
authorized and approved by all necessary action on the part of its Voting Block.
Each Conduit (or, with the consent of all other Purchasers then existing, any
other Purchaser) shall have the right to designate a new Co-Agent (which may be
itself) to act on its behalf and on behalf of its
37
assignees and transferees for purposes of this Agreement by giving to the Agents
and the Seller Parties written notice thereof signed by such Purchaser(s) and
the newly designated Co-Agent. Such notice shall be effective when receipt
thereof is acknowledged by the retiring Co-Agent and the Seller Parties, which
acknowledgments shall not be withheld or unreasonably delayed, and thereafter
the party named as such therein shall be Co-Agent for such Purchasers under this
Agreement. Each Co-Agent and its Purchasers and Liquidity Banks shall agree
amongst themselves as to the circumstances and procedures for removal and
resignation of such Co-Agent.
Section 11.5 NOTICE OF AMORTIZATION EVENTS. No Agent shall be deemed to
have knowledge or notice of the occurrence of any Amortization Event or
Potential Amortization Event unless such Agent has received notice from another
Agent, a Purchaser, a Liquidity Bank or a Seller Party referring to this
Agreement, stating that an Amortization Event or Potential Amortization Event
has occurred hereunder and describing such Amortization Event or Potential
Amortization Event. In the event that any of the Agents receives such a notice,
it shall promptly give notice thereof to the other Agents for distribution, in
the case of a Co-Agent, to the members of its Group. The Administrative Agent
shall take such action with respect to such Amortization Event or Potential
Amortization Event as shall be directed by either of the Co-Agents.
Section 11.6 NON-RELIANCE ON AGENTS AND OTHER PURCHASERS. Each of the
Purchasers expressly acknowledges that no Agent, nor any of such Agent's
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by any Agent hereafter
taken, including, without limitation, any review of the affairs of the Seller
Parties, shall be deemed to constitute any representation or warranty by such
Agent. Each of the Purchasers also represents and warrants to the Agents and the
other Purchasers that it has, independently and without reliance upon any such
Person (or any of their Affiliates) and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, prospects, financial and other conditions
and creditworthiness of the Seller Parties and made its own decision to enter
into this Agreement. Each of the Purchasers also represents that it will,
independently and without reliance upon any Agent or any other Liquidity Bank or
Purchaser, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, prospects, financial and other condition and
creditworthiness of the Seller Parties. None of the Agents or the Purchasers,
nor any of their respective Affiliates, shall have any duty or responsibility to
provide any party to this Agreement with any credit or other information
concerning the business, operations, property, prospects, financial and other
condition or creditworthiness of the Seller Parties which may come into the
possession of such Person or any of its respective officers, directors,
employees, agents, attorneys-in-fact or affiliates, except that each of the
Co-Agents shall promptly distribute to its related Conduit (and, as applicable,
its Liquidity Banks), copies of financial and other information expressly
provided to such Co-Agent by either of the Seller Parties pursuant to this
Agreement for distribution to the Agents and/or Purchasers.
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Section 11.7 INDEMNIFICATION OF AGENTS.
(a) Each Liquidity Bank agrees to indemnify the Administrative
Agent and its officers, directors, employees, representatives and agents (to the
extent not reimbursed by the Seller Parties and without limiting the obligation
of the Seller Parties to do so), ratably in accordance with their respective
Percentages or Capital, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for the Administrative Agent or
such Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not the Administrative Agent in
its capacity as Administrative Agent or such Person shall be designated a party
thereto) that may at any time be imposed on, incurred by or asserted against the
Administrative Agent or such Person as a result of, or arising out of, or in any
way related to or by reason of, any of the transactions contemplated hereunder
or the execution, delivery or performance of this Agreement or any other
document furnished in connection herewith (but excluding any such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the bad faith, gross negligence
or willful misconduct of the Administrative Agent or such Person as finally
determined by a court of competent jurisdiction).
(b) Each Liquidity Bank agrees to indemnify its Co-Agent and
such Co-Agent's officers, directors, employees, representatives and agents (to
the extent not reimbursed by the Seller and without limiting the obligation of
the Seller to do so), ratably in accordance with their respective Percentages or
Purchaser Interests, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Co-Agent or such Person in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Co-Agent in its capacity as
Co-Agent or such Person shall be designated a party thereto) that may at any
time be imposed on, incurred by or asserted against such Co-Agent or such Person
as a result of, or arising out of, or in any way related to or by reason of, any
of the transactions contemplated hereunder or the execution, delivery or
performance of this Agreement or any other document furnished in connection
herewith (but excluding any such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from the bad faith, gross negligence or willful misconduct of such
Co-Agent or such Person as finally determined by a court of competent
jurisdiction).
Section 11.8 AGENTS IN THEIR INDIVIDUAL CAPACITIES. Each of the Agents
in its individual capacity and its affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Seller Parties and
their Affiliates as though such Agent were not an Agent hereunder. With respect
to its Purchaser Interests, if any, pursuant to this Agreement, each Agent shall
have the same rights and powers under this Agreement as any Purchaser and may
exercise the same as though it were not an Agent, and the terms "Purchaser" and
"Purchasers" shall include each of the Agents in their individual capacities.
Section 11.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent,
upon five (5) days' notice to the Seller Parties, the Purchasers and the
Co-Agents, may voluntarily resign and
39
may be removed at any time, with or without cause, by both Co-Agents, whereupon
Wachovia shall become the successor Administrative Agent; PROVIDED, HOWEVER,
that Bank One shall not voluntarily resign as the Administrative Agent so long
as any of the Jupiter Liquidity Banks' respective Commitments remain in effect
or Jupiter has any outstanding Purchaser Interests hereunder. Upon resignation
or replacement of any Administrative Agent in accordance with this Section 11.9,
the retiring Administrative Agent shall execute such UCC-3 assignments and
amendments, and assignments and amendments of the Transaction Documents, as may
be necessary to give effect to its replacement by a successor Administrative
Agent. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of Article X and this Article XI shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
Section 11.10 AGENTS' CONFLICT WAIVERS.
(a) Wachovia acts, or may in the future act, (i) as
administrative agent for Blue Ridge, (ii) as issuing and paying agent for Blue
Ridge's Commercial Paper Notes, (iii) to provide credit or liquidity enhancement
for the timely payment for Blue Ridge's Commercial Paper Notes and (iv) to
provide other services from time to time for Blue Ridge (collectively, the
"WACHOVIA ROLES"). Without limiting the generality of Sections 11.1 and 11.8,
each Agent, Purchaser and Liquidity Bank hereby acknowledges and consents to any
and all Wachovia Roles and agrees that in connection with any Wachovia Role,
Wachovia may take, or refrain from taking, any action which it, in its
discretion, deems appropriate, including, without limitation, in its role as
administrative agent for Blue Ridge, the giving of notice to Blue Ridge's
Liquidity Banks of a mandatory purchase pursuant to Blue Ridge's Liquidity
Agreement, and hereby acknowledges that neither Wachovia nor any of its
Affiliates has any fiduciary duties hereunder to any Purchaser (other than Blue
Ridge) or to any of Blue Ridge's Liquidity Banks arising out of any Wachovia
Roles.
(b) Bank One acts, or may in the future act, (i) as
administrative agent for Jupiter, (ii) as issuing and paying agent for Jupiter's
Commercial Paper, (iii) to provide credit or liquidity enhancement for the
timely payment for Jupiter's Commercial Paper and (iv) to provide other services
from time to time for Jupiter (collectively, the "BANK ONE ROLES"). Without
limiting the generality of Sections 11.1 and 11.8, each of the Agents and the
Purchasers hereby acknowledges and consents to any and all Bank One Roles and
agrees that in connection with any Bank One Role, Bank One may take, or refrain
from taking, any action which it, in its discretion, deems appropriate,
including, without limitation, in its role as administrative agent for Jupiter,
the giving of notice to Jupiter's Liquidity Banks of a mandatory purchase
pursuant to Jupiter's Liquidity Agreement, and hereby acknowledges that neither
Bank One nor any of its Affiliates has any fiduciary duties hereunder to any
Purchaser (other than Jupiter) or to any of Jupiter's Liquidity Banks arising
out of any Bank One Roles.
Section 11.11 UCC FILINGS. Each of the Purchasers hereby expressly
recognizes and agrees that the Administrative Agent may be designated as the
secured party of record on the various UCC filings required to be made under
this Agreement and the party entitled to amend, release and terminate the UCC
filings under the Receivable Sale Agreement in order to perfect their respective
interests in the Receivables, Collections and Related Security, that such
designation shall be for administrative convenience only in creating a record or
nominee holder
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to take certain actions hereunder on behalf of the Purchasers and that such
listing will not affect in any way the status of the Purchasers as the true
parties in interest with respect to the Purchaser Interests. In addition, such
listing shall impose no duties on the Administrative Agent other than those
expressly and specifically undertaken in accordance with this Article XI.
ARTICLE XII.
ASSIGNMENTS; PARTICIPATIONS
Section 12.1 ASSIGNMENTS.
(a) Each of the parties hereto hereby agrees and consents to
the complete or partial assignment by a Conduit of all or any portion
of its rights under, interest in, title to and obligations under this
Agreement to such Conduit's Liquidity Banks pursuant to its Liquidity
Agreement or to any other Person, and upon such assignment, such
Conduit shall be released from its obligations so assigned. Further,
each of the parties hereto hereby agrees that any assignee of a Conduit
of this Agreement or all or any of the Purchaser Interests of such
Conduit shall have all of the rights and benefits under this Agreement
as if the term "CONDUIT" explicitly referred to such party, and no such
assignment shall in any way impair the rights and benefits of such
Conduit hereunder. Neither Seller nor the Servicer shall have the right
to assign its rights or obligations under this Agreement.
(b) Any Liquidity Bank may at any time and from time to time
assign to one or more Persons ("PURCHASING LIQUIDITY BANKS") all or any
part of its rights and obligations under this Agreement and the
applicable Liquidity Agreement pursuant to an assignment agreement,
substantially in the form set forth in Exhibit VII hereto (the
"ASSIGNMENT AGREEMENT") executed by such Purchasing Liquidity Bank and
such selling Liquidity Bank. The consent of the applicable Conduit
shall be required prior to the effectiveness of any such assignment,
and prior to the occurrence of an Amortization Event, the consent of
the Seller (which consent shall not be unreasonably withheld or
delayed) shall also be required prior to the effectiveness of any such
assignment other than to an existing Liquidity Bank. Each assignee of a
Liquidity Bank must (i) have a short-term debt rating of A-1 or better
by Standard & Poor's Ratings Group and P-1 by Moody's Investor Service,
Inc. and (ii) agree to deliver to the applicable Co-Agent, promptly
following any request therefor by such Co-Agent or its Conduit, an
enforceability opinion in form and substance satisfactory to such
Co-Agent and Conduit. Upon delivery of the executed Assignment
Agreement to such Co-Agent, such selling Liquidity Bank shall be
released from its obligations hereunder and under the applicable
Liquidity Agreement to the extent of such assignment. Thereafter the
Purchasing Liquidity Bank shall for all purposes be a Liquidity Bank
party to this Agreement and shall have all the rights and obligations
of a Liquidity Bank under this Agreement and the applicable Liquidity
Agreement to the same extent as if it were an original party hereto and
thereto, and no further consent or action by Seller, the Purchasers or
the Agents shall be required.
(c) Each of the Liquidity Banks agrees that in the event that
it shall cease to have a short-term debt rating of A-1 or better by
Standard & Poor's Ratings Group and P-1 by
41
Moody's Investor Service, Inc. (an "AFFECTED LIQUIDITY BANK"), such
Affected Liquidity Bank shall be obliged, at the request of the
applicable Conduit or Co-Agent, to assign all of its rights and
obligations hereunder and under the applicable Liquidity Agreement to
(x) another Liquidity Bank or (y) another funding entity nominated by
such Co-Agent and acceptable to such Conduit, and willing to
participate in this Agreement and the applicable Liquidity Agreement
through the applicable Liquidity Termination Date in the place of such
Affected Liquidity Bank; PROVIDED that the Affected Liquidity Bank
receives payment in full, pursuant to an Assignment Agreement, of an
amount equal to such Liquidity Bank's Pro Rata Share of the Aggregate
Capital and Yield owing to the Liquidity Banks and all accrued but
unpaid fees and other costs and expenses payable in respect of its Pro
Rata Share of the Purchaser Interests of the Liquidity Banks.
Section 12.2 PARTICIPATIONS. Any Liquidity Bank may, in the ordinary
course of its business at any time sell to one or more Persons (each a
"PARTICIPANT") participating interests in its Ratable Share of the Commitments
and Purchaser Interests of the Liquidity Banks in its Group. Notwithstanding any
such sale by a Liquidity Bank of a participating interest to a Participant, such
Liquidity Bank's rights and obligations under this Agreement shall remain
unchanged, such Liquidity Bank shall remain solely responsible for the
performance of its obligations hereunder, and each of the parties hereto shall
continue to deal solely and directly with such Liquidity Bank in connection with
such Liquidity Bank's rights and obligations under this Agreement. Each
Liquidity Bank agrees that any agreement between such Liquidity Bank and any
such Participant in respect of such participating interest shall not restrict
such Liquidity Bank's right to agree to any amendment, supplement, waiver or
modification to this Agreement, except for any amendment, supplement, waiver or
modification described in Section 14.1(b)(i).
ARTICLE XIII.
[RESERVED].
ARTICLE XIV.
MISCELLANEOUS
Section 14.1 WAIVERS AND AMENDMENTS.
(a) No failure or delay on the part of any Agent or any
Purchaser 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 in accordance with
the provisions of this Section 14.1(b). Each
42
of the Conduits, Seller and the Agents may enter into written
modifications or waivers of any provisions of this Agreement, provided,
however, that no such modification or waiver shall:
(i) without the consent of each affected Purchaser,
(A) extend the Liquidity Termination Date or the date of any
payment or deposit of Collections by Seller or the Servicer,
(B) reduce the rate or extend the time of payment of Yield or
any CP Costs (or any component of Yield or CP Costs), (C)
reduce any fee payable to the Administrative Agent for the
benefit of the Purchasers, (D) except pursuant to Article XII
hereof, change the amount of the Capital of any Purchaser, any
Liquidity Bank's Pro Rata Share or any Liquidity Bank's
Commitment, (E) amend, modify or waive any provision of the
definition of this Section 14.1(b), (F) consent to or permit
the assignment or transfer by Seller of any of its rights and
obligations under this Agreement, (G) change the definition of
"ELIGIBLE RECEIVABLE," "LOSS RESERVE," "DEFAULT RATIO,"
"DILUTION RESERVE," "DILUTION RATIO," or "YIELD RESERVE" or
(H) amend or modify any defined term (or any defined term used
directly or indirectly in such defined term) used in clauses
(A) through (G) above in a manner that would circumvent the
intention of the restrictions set forth in such clauses; or
(ii) without the written consent of the then Agent,
amend, modify or waive any provision of this Agreement if the
effect thereof is to affect the rights or duties of such
Agent.
Notwithstanding the foregoing, (i) without the consent of the Liquidity Banks,
but with the consent of Seller, the Agents may amend this Agreement solely to
add additional Persons as Liquidity Banks hereunder and (ii) the Agents and
Conduits may enter into amendments to modify any of the terms or provisions of
Article XI, Article XII, or Section 14.13 of this Agreement without the consent
of Seller, provided that such amendment has no negative impact upon Seller. Any
modification or waiver made in accordance with this Section 14.1 shall apply to
each of the Purchasers equally and shall be binding upon Seller, the Purchasers
and the Agents.
Section 14.2 NOTICES. Except as provided in this Section 14.2, all
communications and notices provided for hereunder 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 (i) if given by telecopy, upon the receipt
thereof, (ii) if given by mail, three (3) Business Days after the time such
communication is deposited in the mail with first class postage prepaid or (iii)
if given by any other means, when received at the address specified in this
Section 14.2. Seller hereby authorizes the Co-Agents to effect purchases and
Tranche Period and Discount Rate selections based on telephonic notices made by
any Person whom the Administrative Agent in good faith believes to be acting on
behalf of Seller. Seller agrees to deliver promptly to the Administrative Agent
a written confirmation of each telephonic notice signed by an authorized officer
of Seller; provided, however, the absence of such confirmation shall not affect
the
43
validity of such notice. If the written confirmation differs from the action
taken by the Administrative Agent, the records of the Administrative Agent shall
govern absent manifest error.
Section 14.3 RATABLE PAYMENTS. If any Purchaser, whether by setoff or
otherwise, has payment made to it with respect to any portion of the Aggregate
Unpaids owing to such Purchaser (other than payments received pursuant to
Section 10.3 or 10.4) in a greater proportion than that received by any other
Purchaser entitled to receive a ratable share of such Aggregate Unpaids, such
Purchaser agrees, promptly upon demand, to purchase for cash without recourse or
warranty a portion of such Aggregate Unpaids held by the other Purchasers so
that after such purchase each Purchaser will hold its ratable proportion of such
Aggregate Unpaids; provided that if all or any portion of such excess amount is
thereafter recovered from such Purchaser, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without
interest.
Section 14.4 PROTECTION OF PURCHASER INTERESTS.
(a) Seller 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 the
Administrative Agent may request, to perfect, protect or more fully
evidence the Purchaser Interests, or to enable the Administrative Agent
or the Purchasers to exercise and enforce their rights and remedies
hereunder. At any time after the occurrence of an Amortization Event,
the Administrative Agent may, or the Administrative Agent may direct
Seller or the Servicer to, notify the Obligors of Receivables, at
Seller's expense, of the ownership or security interests of the
Purchasers 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 the Administrative Agent or its designee. Seller or the
Servicer (as applicable) shall, at any Purchaser's request, withhold
the identity of such Purchaser in any such notification.
(b) If any Seller Party fails to perform any of its
obligations hereunder, the Administrative Agent or any Purchaser may
(but shall not be required to) perform, or cause performance of, such
obligations, and the Administrative Agent's or such Purchaser's costs
and expenses incurred in connection therewith shall be payable by
Seller as provided in Section 10.4. Each Seller Party irrevocably
authorizes the Administrative Agent at any time and from time to time
in the sole discretion of the Administrative Agent, and appoints the
Administrative Agent as its attorney-in-fact, to act on behalf of such
Seller Party (i) to execute on behalf of Seller as debtor and to file
financing statements necessary or desirable in the Administrative
Agent's sole discretion to perfect and to maintain the perfection and
priority of the interest of the Purchasers in the Receivables 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 the Administrative Agent in its
sole discretion deems necessary or desirable to perfect and to maintain
the perfection and priority of the interests of the Purchasers in the
Receivables. This appointment is coupled with an interest and is
irrevocable.
44
Section 14.5 CONFIDENTIALITY. Each of the parties hereto agrees to
comply with the confidentiality provisions of Section 7.4 of the Receivables
Sale Agreement with the same force and effect as if it were a direct party to
such agreement.
Section 14.6 BANKRUPTCY PETITION. Each of Seller, the Servicer, the
Agents, the Liquidity Banks and the other Conduit 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 a Conduit, it will not institute
against, or join any other Person in instituting against, such Conduit 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 14.7 LIMITATION OF LIABILITY. Except with respect to any claim
arising out of the willful misconduct or gross negligence of any Agent or any
Purchaser, no claim may be made by any Seller Party or any other Person against
any Agent or Purchaser or their respective 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 contemplated
by this Agreement, or any act, omission or event occurring in connection
therewith; and each Seller Party 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.
Section 14.8 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 ILLINOIS.
Section 14.9 CONSENT TO JURISDICTION. EACH SELLER PARTY HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR STATE COURT SITTING IN CHICAGO, ILLINOIS, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH
PERSON PURSUANT TO THIS AGREEMENT AND EACH SELLER PARTY 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 ANY AGENT OR ANY PURCHASER TO BRING PROCEEDINGS AGAINST ANY
SELLER PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
ANY SELLER PARTY AGAINST ANY AGENT OR ANY PURCHASER OR ANY AFFILIATE OF ANY
AGENT OR ANY PURCHASER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT
EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY
IN A COURT IN CHICAGO, ILLINOIS.
Section 14.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
45
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 ANY SELLER PARTY PURSUANT TO THIS AGREEMENT OR THE
RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 14.11 INTEGRATION; BINDING EFFECT; SURVIVAL OF TERMS.
(a) 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.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns (including any trustee in bankruptcy). 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 Seller Party pursuant to
Article V, (ii) the indemnification and payment provisions of Article
X, and Sections 14.5 and 14.6 shall be continuing and shall survive any
termination of this Agreement.
Section 14.12 COUNTERPARTS; SEVERABILITY; SECTION REFERENCES. 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. Unless otherwise expressly indicated, all references herein
to "ARTICLE," "SECTION," "SCHEDULE" or "EXHIBIT" shall mean articles and
sections of, and schedules and exhibits to, this Agreement.
Section 14.13 BANK ONE ROLES. Each of the Liquidity Banks acknowledges
that Bank One acts, or may in the future act, (i) as administrative agent for
Jupiter or any Liquidity Bank, (ii) as issuing and paying agent for the
Commercial Paper, (iii) to provide credit or liquidity enhancement for the
timely payment for the Commercial Paper and (iv) to provide other services from
time to time for Conduit or any Liquidity Bank (collectively, the "BANK ONE
ROLES"). Without limiting the generality of this Section 14.13, each Liquidity
Bank hereby acknowledges and consents to any and all Bank One Roles and agrees
that in connection with any Bank One Role, Bank One may take, or refrain from
taking, any action that it, in its discretion, deems appropriate, including,
without limitation, in its role as administrative agent for Jupiter, and the
giving of notice to the Jupiter Liquidity Banks of a put pursuant to the Jupiter
Liquidity Agreement.
46
Section 14.14 CHARACTERIZATION.
(a) It is the intention of the parties hereto that each
purchase hereunder shall constitute and be treated as an absolute and
irrevocable sale, which purchase shall provide the applicable Purchaser
with the full benefits of ownership of the applicable Purchaser
Interest. Except as specifically provided in this Agreement, each sale
of a Purchaser Interest hereunder is made without recourse to Seller;
provided, however, that (i) Seller shall be liable to each of the
Purchasers and Agents for all representations, warranties, covenants
and indemnities made by Seller pursuant to the terms of this Agreement,
and (ii) such sale does not constitute and is not intended to result in
an assumption by any Purchaser or Agent or any assignee thereof of any
obligation of Seller or any Originator or any other Person arising in
connection with the Receivables, the Related Security, or the related
Contracts, or any other obligations of Seller or any Originator.
(b) In addition to any ownership interest which the
Administrative Agent may from time to time acquire pursuant hereto,
Seller hereby grants to the Administrative Agent for the ratable
benefit of the Purchasers a valid and perfected security interest in
all of Seller's right, title and interest in, to and under all
Receivables now existing or hereafter arising, the Collections, each
Lock-Box, each Collection Account, all Related Security, all other
rights and payments relating to such Receivables, and all proceeds of
any thereof prior to all other liens on and security interests therein
to secure the prompt and complete payment of the Aggregate Unpaids. The
Administrative Agent and the Purchasers shall have, in addition to the
rights and remedies that 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.
[SIGNATURE PAGES FOLLOW]
47
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.
RPM FUNDING CORPORATION, AS SELLER
By: /s/ P. Kelly Tompkins
--------------------------------------------------
Name: P. Kelly Tompkins
Title: Vice President, Secretary
ADDRESS:
RPM Funding Corporation
2628 Pearl Road, Suite 100
Medina, Ohio 44258
Attention: Treasurer
Phone: (330) 273-8837
Fax: (330) 225-6574
RPM, Inc., AS SERVICER
By: /s/ P. Kelly Tompkins
--------------------------------------------------
Name: P. Kelly Tompkins
Title: Vice President, General Counsel
and Secretary
ADDRESS:
RPM, Inc.
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
Attention: Treasurer
Phone: (330) 273-8837
Fax: (330) 225-6574
48
JUPITER SECURITIZATION CORPORATION
By: /s/ Sherri Gerner
--------------------------------------------------
Name: Sherri Gerner
Title: Authorized Signer
Address: c/o Bank One, NA (Main Office Chicago)
Asset Backed Finance
Suite IL1-0079, 1-19
1 Bank One Plaza
Chicago, Illinois 60670-0079
Fax: (312) 732-1844
BANK ONE, NA (MAIN OFFICE CHICAGO), INDIVIDUALLY , AS JUPITER AGENT AND AS
ADMINISTRATIVE AGENT
By: /s/ Sherri Gerner
--------------------------------------------------
Name: Sherri Gerner
Title: Director, Capital Markets
Address: c/o Bank One, NA (Main Office Chicago)
Asset Backed Finance
1 Bank One Plaza
Mail Suite IL1-0594
Attention: Portfolio Management
Chicago, IL 60670-0594
Fax: 312-732-2245
BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA BANK, NATIONAL ASSOCIATION, ATTORNEY-IN FACT
By: /s/ Douglas R. Wilson Sr.
--------------------------------------------------
Name: Douglas R. Wilson Sr.
Title: Vice President
ADDRESS:
Blue Ridge Asset Funding Corporation
100 North Main Street
Winston-Salem, NC 27150
Attention: John Dillon
Phone: (336) 735-6097
Fax: (336) 735-6099
WITH A COPY TO:
Blue Ridge Asset Funding Corporation
c/o AMACAR Group, L.L.C.
6525 Morrison Blvd., Suite 318
Charlotte, North Carolina 28211
Attention: Douglas K. Johnson
Phone: (704) 365-0569
Fax: (704) 365-1362
WACHOVIA BANK, NATIONAL ASSOCIATION, INDIVIDUALLY AND AS BLUE RIDGE AGENT
By: /s/ Kenny Karpowicz
--------------------------------------------------
Name: Kenny Karpowicz
Title: Vice President
ADDRESS:
Wachovia Bank, National Association
191 Peachtree Street, 26th Floor
GA8047
Atlanta, Georgia 30303
Attention: Elizabeth R. Wagner
Phone: (404) 332-1398
Fax: (404) 332-5152
EXHIBIT I
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"ACCRUAL PERIOD" means each calendar month, provided that the
initial Accrual Period hereunder means the period from (and including) the date
of the initial purchase hereunder to (and including) the last day of the
calendar month thereafter.
"ADJUSTED DILUTION RATIO" means, at any time, the rolling
average of the Dilution Ratio for the 12 Calculation Periods then most recently
ended.
"ADJUSTED ELIGIBLE RECEIVABLES" means the aggregate
Outstanding Balance of Eligible Receivables less (i) the Cash Discount Exposure
Factor; (ii) the Contractual Rebate Accruals; (iii) the aggregate Outstanding
Balance of all Government Receivables in excess of 3% of the aggregate
Outstanding Balance of all Receivables; (iv) the aggregate Outstanding Balance
of all Canadian Receivables in excess of 3% of the aggregate Outstanding Balance
of all Receivables; (v) the aggregate Outstanding Balance of all Eligible
Receivables which by their terms are due 62-91 days after the date of invoice in
excess of 15% of the aggregate Outstanding Balance of all Receivables; and (v)
the aggregate Outstanding Balance of all Eligible Receivables which by their
terms are due 92-121 days after the date of invoice in excess of 3% of the
aggregate Outstanding Balance of all Receivables.
"ADVERSE CLAIM" means a lien, security interest, charge or
encumbrance, or other right or claim in, of or on any Person's assets or
properties in favor of any other Person.
"AFFECTED LIQUIDITY BANK" has the meaning specified in Section
12.1(c).
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person or any Subsidiary of such Person. A
Person shall be deemed to control another Person if the controlling Person owns
10% or more of any class of voting securities of the controlled Person or
possesses, directly or indirectly, the power to direct or cause the direction of
the management or policies of the controlled Person, whether through ownership
of stock, by contract or otherwise.
"AGENT" has the meaning set forth in the preamble to this
Agreement.
"AGGREGATE CAPITAL" means, on any date of determination, the
aggregate amount of Capital of all Purchaser Interests outstanding on such date.
"AGGREGATE REDUCTION" has the meaning specified in Section
1.3.
51
"AGGREGATE RESERVES" means the Aggregate Reserve Percentage
multiplied by the Net Receivables Balance.
"AGGREGATE RESERVE PERCENTAGE" means, on any date of
determination, the sum of the Loss Reserve, the Yield Reserve and the Dilution
Reserve.
"AGGREGATE UNPAIDS" means, at any time, an amount equal to the
sum of all Aggregate Capital and unpaid Obligations (whether due or accrued) at
such time.
"AGREEMENT" means this Receivables Purchase Agreement, as it
may be amended or modified and in effect from time to time.
"AMORTIZATION DATE" means the earliest to occur of (i) the day
on which any of the conditions precedent set forth in Section 6.2 are not
satisfied, (ii) the Business Day immediately prior to the occurrence of an
Amortization Event set forth in Section 9.1(f)(ii), (iii) the Business Day
specified in a written notice from any Agent following the occurrence of any
other Amortization Event, and (iv) the date which is 30 days after the
Co-Agents' receipt of written notice from Seller that it wishes to terminate the
facility evidenced by this Agreement.
"AMORTIZATION EVENT" has the meaning specified in Article IX.
"APPLICABLE MARGIN" means the sum of (a) 0.25% per annum, plus
(b) the "Applicable Margin" from time to time in effect for "Eurodollar
Committed Loans" under the RPM Credit Agreement.
"ASSIGNMENT AGREEMENT" has the meaning set forth in Section
12.1(b).
"AUTHORIZED OFFICER" means, with respect to any Person, its
president, corporate controller, treasurer, chief financial officer or
secretary.
"BANK ONE" has the meaning specified in the preamble to this
Agreement.
"BLUE RIDGE" has the meaning specified in the preamble to this
Agreement.
"BLUE RIDGE ALLOCATION LIMIT" has the meaning set forth in
Section 1.1(a).
"BLUE RIDGE FEE LETTER" means that certain Blue Ridge Fee
Letter dated as of the date hereof by and among Seller, Blue Ridge and the Blue
Ridge Agent.
"BLUE RIDGE LIQUIDITY AGREEMENT" means the Liquidity Asset
Purchase Agreement dated as of the date hereof among Blue Ridge, the Blue Ridge
Agent, and the Blue Ridge Liquidity Banks from time to time party thereto, as
the same may be amended, restated, supplemented, replaced or otherwise modified
from time to time.
"BROKEN FUNDING COSTS" means for any Purchaser Interest which:
(i) has its Capital reduced without compliance by Seller with the notice
requirements hereunder or (ii) does not become subject to an Aggregate Reduction
following the delivery of any Reduction Notice or (iii) is assigned under a
Liquidity Agreement or terminated prior to the date on which it was
52
originally scheduled to end; an amount equal to the excess, if any, of (A) the
CP Costs or Yield (as applicable) that would have accrued during the remainder
of the Tranche Periods or the tranche periods for Commercial Paper determined by
the applicable Co-Agent to relate to such Purchaser Interest (as applicable)
subsequent to the date of such reduction, assignment or termination (or in
respect of clause (ii) above, the date such Aggregate Reduction was designated
to occur pursuant to the Reduction Notice) of the Capital of such Purchaser
Interest if such reduction, assignment or termination had not occurred or such
Reduction Notice had not been delivered, over (B) the sum of (x) to the extent
all or a portion of such Capital is allocated to another Purchaser Interest, the
amount of CP Costs or Yield actually accrued during the remainder of such period
on such Capital for the new Purchaser Interest, and (y) to the extent such
Capital is not allocated to another Purchaser Interest, the income, if any,
actually received during the remainder of such period by the holder of such
Purchaser Interest from investing the portion of such Capital not so allocated.
In the event that the amount referred to in clause (B) exceeds the amount
referred to in clause (A), the relevant Purchaser or Purchasers agree to pay to
Seller the amount of such excess. All Broken Funding Costs shall be due and
payable hereunder upon written demand.
"BUSINESS DAY" means any day on which banks are not authorized
or required to close in New York, New York, Atlanta, Georgia, or Chicago,
Illinois and The Depository Trust Company of New York is open for business, and,
if the applicable Business Day relates to any computation or payment to be made
with respect to the LIBO Rate, any day on which dealings in dollar deposits are
carried on in the London interbank market.
"CALCULATION PERIOD" means a calendar month.
"CANADIAN RECEIVABLE" means a Receivable as to which the
Obligor (a) if a natural person, is a resident of Canada, and (b) if a
corporation or other business entity, is organized under the laws of and/or
maintains its chief executive office in Canada.
"CAPITAL" of any Purchaser Interest means, at any time, (A)
the Purchase Price of such Purchaser Interest, minus (B) the sum of the
aggregate amount of Collections and other payments received by the
Administrative Agent which in each case are applied to reduce such Capital in
accordance with the terms and conditions of this Agreement; provided that such
Capital shall be restored (in accordance with Section 2.5) in the amount of any
Collections or other payments so received and applied if at any time the
distribution of such Collections or payments are rescinded, returned or refunded
for any reason.
"CAPITAL LEASE OBLIGATIONS" means, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property to the
extent such obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP (including Statement
of Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board) and, for purposes of this Agreement, the amount of such obligations shall
be the capitalized amount thereof, determined in accordance with GAAP (including
such Statement No. 13).
53
"CASH DISCOUNT EXPOSURE FACTOR" means 1.5% multiplied by the
aggregate Outstanding Balance of all Receivables less than 31 days past due.
"CHANGE OF CONTROL" has the meaning set forth in the
Receivables Sale Agreement.
"CHARGED-OFF RECEIVABLE" means a Receivable: (i) as to which
the Obligor thereof has taken any action, or suffered any event to occur, of the
type described in Section 9.1(f) (as if references to Seller Party therein refer
to such Obligor); (ii) as to which the Obligor thereof, if a natural person, is
deceased, (iii) which, consistent with the Credit and Collection Policy, would
be written off Seller's books as uncollectible, or (iv) which has been
identified by Seller as uncollectible.
"CODE" means the Internal Revenue Code of 1986, as amended, or
any successor statute.
"COLLECTION ACCOUNT" means each concentration account,
depositary account, lock-box account or similar account in which any Collections
are collected or deposited and which is listed on Exhibit IV.
"COLLECTION ACCOUNT AGREEMENT" means an agreement
substantially in the form of Exhibit VI among an Originator, Seller, the
Administrative Agent and a Collection Bank.
"COLLECTION BANK" means, at any time, any of the banks holding
one or more Collection Accounts.
"COLLECTION NOTICE" means a notice, in substantially the form
of Annex A to Exhibit VI, from the Administrative Agent to a Collection Bank.
"COLLECTIONS" means, with respect to any Receivable, all cash
collections and other cash proceeds in respect of such Receivable, including,
without limitation, all yield, Finance Charges or other related amounts accruing
in respect thereof and all cash proceeds of Related Security with respect to
such Receivable.
"COMMERCIAL PAPER" means promissory notes of Conduit issued by
Conduit in the commercial paper market.
"COMMITMENT" means, for each Liquidity Bank, the commitment of
such Liquidity Bank to purchase Purchaser Interests from (i) Seller and (ii)
Conduit, in an amount not to exceed (i) in the aggregate, the amount set forth
opposite such Liquidity Bank's name on Schedule A to this Agreement, as such
amount may be modified in accordance with the terms hereof and (ii) with respect
to any individual purchase hereunder, its Pro Rata Share of the Purchase Price
therefor.
"CONCENTRATION LIMIT" means, at any time, for any Obligor and
its Affiliates, considered as if they were one and the same Obligor, 6.5% of
Adjusted Eligible Receivables with long-term debt ratings of at least "Baa3" by
Moody's Investors Services, Inc. and at least "BBB-" by Standard & Poor's
Ratings Group, or 5% of the Adjusted Eligible Receivables, or
54
such other amount (a "SPECIAL CONCENTRATION LIMIT") for such Obligor designated
by the Co-Agents; PROVIDED that either of the Co-Agents may, upon not less than
five Business Days' notice to Seller, cancel any Special Concentration Limit. As
of the date hereof, (x) the Special Concentration Limit for The Home Depot, Inc.
and its Affiliates is the lesser of (i) $40,000,000 or (ii) 20% of Adjusted
Eligible Receivables; (y) the Special Concentration Limit for Wal-Mart Stores
Inc. and its Affiliates is the lesser of (i) $20,000,000 or (ii) 10% of Adjusted
Eligible Receivables; and (z) the Special Concentration Limit for Lowe's
Companies, Inc. and its Affiliates is the lesser of (i) $20,000,000 or (ii) 10%
of Adjusted Eligible Receivables.
"CONDUIT" has the meaning set forth in the preamble to this
Agreement.
"CONSTITUENTS" means, as to either Co-Agent, the Conduit
represented by it as specified in the preamble to this Agreement, and each of
such Conduit's Liquidity Banks, and the term "CONSTITUENT" when used as an
adjective shall have a correlative meaning.
"CONTINGENT OBLIGATION" of a Person means any agreement,
undertaking or arrangement by which such Person assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes or is contingently liable upon, the obligation or liability of
any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person, or otherwise assures any creditor
of such other Person against loss, including, without limitation, any comfort
letter, operating agreement, take-or-pay contract or application for a letter of
credit.
"CONTRACT" means, with respect to any Receivable, any and all
instruments, agreements, invoices or other writings pursuant to which such
Receivable arises or which evidences such Receivable.
"CONTRACTUAL REBATE ACCRUAL" means, with respect to any
Receivable on any date of determination, the ending balance of all accounting
accruals or reserves for potential volume rebates, seasonal and other
promotional discounts, advertising and other cooperative subsidies, or similar
contractual credits booked with respect to such Receivable.
"CP COSTS" means, for each Conduit for each day, the sum of
(i) discount or yield accrued on such Conduit's Pooled Commercial Paper on such
day, plus (ii) any and all accrued commissions in respect of placement agents
and Commercial Paper dealers, and issuing and paying agent fees incurred, in
respect of such Conduit's Pooled Commercial Paper for such day, plus (iii) other
costs associated with funding small or odd-lot amounts with respect to all
receivable purchase facilities which are funded by such Conduit's Pooled
Commercial Paper for such day, minus (iv) any accrual of income net of expenses
received on such day from investment of collections received under all
receivable purchase facilities funded substantially with such Conduit's Pooled
Commercial Paper, minus (v) any payment received on such day by such Conduit net
of expenses in respect of Broken Funding Costs related to the prepayment of any
Purchaser Interest of such Conduit pursuant to the terms of any receivable
purchase facilities funded substantially with its Pooled Commercial Paper. In
addition to the foregoing costs, if Seller shall request any Incremental
Purchase during any period of time determined by such Conduit's Co-Agent in its
sole discretion to result in incrementally higher CP Costs applicable to such
Incremental Purchase, the Capital associated with any such Incremental Purchase
shall,
55
during such period, be deemed to be funded by such Conduit in a special pool
(which may include capital associated with other receivable purchase facilities)
for purposes of determining such additional CP Costs applicable only to such
special pool and charged each day during such period against such Capital.
"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 VIII hereto, as modified
from time to time in accordance with this Agreement.
"CUT-OFF DATE" means the last day of a Calculation Period.
"DAYS SALES OUTSTANDING" means, as of any day, an amount equal
to the product of (x) 91, multiplied by (y) the amount obtained by dividing (i)
the aggregate Outstanding Balance of all Receivables as of the most recent
Cut-Off Date, by (ii) the aggregate amount of Receivables created during the
three (3) Calculation Periods including and immediately preceding such Cut-Off
Date.
"DEEMED COLLECTIONS" means the aggregate of all amounts Seller
shall have been deemed to have received as a Collection of a Receivable. Seller
shall be deemed to have received a Collection in full of a Receivable if at any
time any of the representations or warranties in Article V are no longer true
with respect to any Receivable. If (i) the Outstanding Balance of any Receivable
is either (x) reduced as a result of any defective or rejected goods or
services, any discount or any adjustment or otherwise by Seller (other than cash
Collections on account of the Receivables) or (y) 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),
Seller shall be deemed to have received a Collection of such Receivable to the
extent of such reduction or cancellation.
"DEFAULT FEE" means with respect to any amount due and payable
by Seller in respect of any Aggregate Unpaids, an amount equal to interest on
any such unpaid Aggregate Unpaids at a rate per annum equal to 2% above the
Prime Rate.
"DEFAULT HORIZON RATIO" means, as of any Cut-Off Date, the
ratio (expressed as a decimal) computed by dividing (a) the sum of (i) the
aggregate sales generated by the Originators during the three Calculation
Periods ending on such Cut-Off Date and (ii) 50% of the aggregate sales
generated by the Originators during the Calculation Period ending three Cut-Off
Dates prior to such Cut-Off Date, by (b) the Net Receivables Balance as of such
Cut-Off Date.
"DEFAULT RATIO" means, as of any Cut-Off Date, the ratio
(expressed as a percentage) computed by dividing (x) the total amount of
Receivables which became Defaulted Receivables or which became Charged-Off
Receivables before becoming Defaulted Receivables, in either case during the
Calculation Period that includes such Cut-Off Date, by (y) the aggregate sales
generated by the Originators during the Calculation Period occurring four months
prior to the Calculation Period ending on such Cut-Off Date.
56
"DEFAULTED RECEIVABLE" means a Receivable as to which any
payment, or part thereof, remains unpaid for 91 days or more from the original
due date for such payment.
"DELINQUENCY RATIO" means, at any time, a percentage equal to
(i) the aggregate Outstanding Balance of all Receivables that were Delinquent
Receivables at such time divided by (ii) the aggregate Outstanding Balance of
all Receivables at such time.
"DELINQUENT RECEIVABLE" means a Receivable as to which any
payment, or part thereof, remains unpaid for 61-90 days from the original due
date for such payment.
"DESIGNATED OBLIGOR" means an Obligor indicated by any of the
Agents to Seller in writing.
"DILUTION HORIZON RATIO" means, as of any Cut-off Date, a
ratio (expressed as a decimal), computed by dividing (i) the aggregate sales
generated by the Originators during the two Calculation Periods ending on such
Cut-Off Date, by (ii) the Net Receivables Balance as of such Cut-Off Date.
"DILUTION RATIO" means, as of any Cut-Off Date, a ratio
(expressed as a percentage), computed by dividing (a) the total amount of
Dilutions during the Calculation Period ending on such Cut-Off Date, by (b) the
aggregate sales generated by the Originators during the Calculation Period that
ended two Cut-Off Dates prior to such Cut-Off Date.
"DILUTION RESERVE" means, for any Calculation Period, the
greater of (i) 8% or (ii) the product (expressed as a percentage) of:
(a) the sum of (i) two (2) times the Adjusted Dilution Ratio
as of the Cutoff Date for such Calculation Period, plus (ii) the
Dilution Volatility Component as of the Cutoff Date for such
Calculation Period, TIMES
(b) the Dilution Horizon Ratio as of the Cutoff Date for such
Calculation Period.
"DILUTION VOLATILITY COMPONENT" means the product (expressed
as a percentage) of (i) the difference between (a) the highest three (3)-month
rolling average Dilution Ratio over the past 12 Calculation Periods and (b) the
Adjusted Dilution Ratio, and (ii) a fraction, the numerator of which is equal to
the amount calculated in (i)(a) of this definition and the denominator of which
is equal to the amount calculated in (i)(b) of this definition.
"DILUTIONS" means, at any time, the aggregate amount of
reductions or cancellations described in clause (i) of the definition of "Deemed
Collections" other than those for which a Contractual Rebate Accrual has been
booked.
"DISCOUNT RATE" means, the LIBO Rate or the Prime Rate, as
applicable, with respect to each Purchaser Interest of the Liquidity Banks.
"DOWNGRADED LIQUIDITY BANK" means a Liquidity Bank which has
been the subject of a Downgrading Event.
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"DOWNGRADING EVENT" with respect to any Person means the
lowering of the rating with regard to the short-term securities of such Person
to below (i) A-1 by S&P, or (ii) P-1 by Moody's.
"EBITDA" means, for any period, determined on a consolidated
basis for RPM and its Subsidiaries, net operating income of RPM and its
Subsidiaries (calculated before provision for income taxes, interest expense,
extraordinary items, income attributable to equity in Affiliates and all amounts
attributable to depreciation and amortization) for such period.
"ELIGIBLE ASSIGNEE" means (a) any "bankruptcy remote" special
purpose entity which is administered by Wachovia or Bank One (or any Affiliate
of the foregoing) that is in the business of acquiring or financing receivables,
securities and/or other financial assets and which issues commercial paper notes
that are rated at least A-1 by S&P and P-1 by Moody's, (b) any Qualifying
Liquidity Bank having a combined capital and surplus of at least $250,000,000,
or (c) any Downgraded Liquidity Bank whose liquidity commitment has been fully
drawn by the applicable Conduit or its Co-Agent and funded into a collateral
account.
"ELIGIBLE RECEIVABLE" means, at any time, a Receivable:
(i) the Obligor of which (a) if a natural person, is
a resident of the United States, Puerto Rico or Canada or, if
a corporation or other business organization, is organized
under the laws of the United States, Puerto Rico, Canada or
any political subdivision of the foregoing and has its chief
executive office in the United States, Puerto Rico or Canada;
(b) is not an Affiliate of any of the parties hereto; and (c)
is not a Designated Obligor;
(ii) the Obligor of which is not the Obligor of any
Charged-Off Receivable,
(iii) which is not a Charged-Off Receivable, a
Defaulted Receivable or a Delinquent Receivable,
(iv) which is not owing from an Obligor as to which
more than 25% of the aggregate Outstanding Balance of all
Receivables owing from such Obligor are Delinquent Receivables
or Defaulted Receivables,
(v) which by its terms is due and payable on or
within 121 days of the original billing date therefor and has
not had its payment terms extended,
(vi) which is an "account" within the meaning of
Section 9-102 of the UCC of all applicable jurisdictions,
(vii) which is denominated and payable only in United
States dollars in the United States,
(viii) which arises under a Contract in substantially
the form of one of the form contracts set forth on Exhibit IX
hereto or otherwise approved by the Co-Agents in writing,
which, together with such Receivable, is in full force and
effect
58
and constitutes the legal, valid and binding obligation of the
related Obligor enforceable against such Obligor in accordance
with its terms subject to no offset, counterclaim or other
defense,
(ix) which arises under a Contract which (A) does not
require the Obligor under such Contract to consent to the
transfer, sale or assignment of the rights and duties of the
applicable Originator or any of its assignees under such
Contract and (B) does not contain a confidentiality provision
that purports to restrict the ability of any Purchaser to
exercise its rights under this Agreement, including, without
limitation, its right to review the Contract,
(x) which arises under a Contract that contains an
obligation to pay a specified sum of money, contingent only
upon the sale of goods or the provision of services by the
applicable Originator,
(xi) which, together with the Contract related
thereto, does not contravene any law, rule or regulation
applicable thereto (including, without limitation, any law,
rule and regulation relating to truth in lending, fair credit
billing, fair credit reporting, equal credit opportunity, fair
debt collection practices and privacy) and with respect to
which no part of the Contract related thereto is in violation
of any such law, rule or regulation,
(xii) which satisfies in all material respects the
applicable requirements of the Credit and Collection Policy,
(xiii) which was generated in the ordinary course of
the applicable Originator's business,
(xiv) which arises solely from the sale of goods or
the provision of services to the related Obligor by an
Originator, and not by any other Person (in whole or in part),
(xv) as to which a Co-Agent has not notified Seller
that such Co-Agent has determined in the exercise of its
commercially reasonable credit judgment that such Receivable
or class of Receivables is not acceptable as an Eligible
Receivable, including, without limitation, because such
Receivable arises under a Contract that is not acceptable to
such Co-Agent,
(xvi) which is not subject to (A) any right of
rescission or set-off, or (B) any currently asserted
counterclaim or other defense (including defenses arising out
of violations of usury laws) of the applicable Obligor against
any Originator or any other Adverse Claim, and the Obligor
thereon holds no right as against any Originator to cause any
Originator to repurchase the goods or merchandise the sale of
which shall have given rise to such Receivable (except with
respect to sale discounts effected pursuant to the Contract,
or defective goods returned in accordance with the terms of
the Contract) ); PROVIDED, HOWEVER, that if such dispute,
offset, counterclaim or defense affects only a portion of the
Outstanding
59
Balance of such Receivable, then such Receivable may be deemed
an Eligible Receivable to the extent of the portion of such
Outstanding Balance which is not so affected, and PROVIDED,
FURTHER, that Receivables of any Obligor which has any
accounts payable by the applicable Originator or by a
wholly-owned Subsidiary of such Originator (thus giving rise
to a potential offset against such Receivables) may be treated
as Eligible Receivables to the extent that the Obligor of such
Receivables has agreed pursuant to a written agreement in form
and substance satisfactory to the Agents, that such
Receivables shall not be subject to such offset,
(xvii) as to which the applicable Originator has
satisfied and fully performed all obligations on its part with
respect to such Receivable required to be fulfilled by it, and
no further action is required to be performed by any Person
with respect thereto other than payment thereon by the
applicable Obligor, and
(xviii) all right, title and interest to and in which
has been validly transferred by the applicable Originator
directly to Seller under and in accordance with the
Receivables Sale Agreement, and Seller has good and marketable
title thereto free and clear of any Adverse Claim.
"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.
"EXTENSION REQUEST" has the meaning set forth in Section 1.5
of this Agreement.
"FACILITY ACCOUNT" means RPM Funding Corporation Collection
Account #657548978 at National City Bank, 1900 East Ninth St., Cleveland, Ohio
44114, ABA #041000124.
"FACILITY TERMINATION DATE" means the earliest of (i) June 4,
2005, (ii) the Liquidity Termination Date for either Conduit, and (iii) the
Amortization Date.
"FEDERAL BANKRUPTCY CODE" means Title 11 of the United States
Code entitled "Bankruptcy," as amended and any successor statute thereto.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate per annum for each day during such period equal to (a)
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York in the Composite Closing
60
Quotations for U.S. Government Securities; or (b) if such rate is not so
published for any day which is a Business Day, the average of the quotations at
approximately 10:30 a.m. (Chicago time) for such day on such transactions
received by the applicable Co-Agent from three federal funds brokers of
recognized standing selected by it.
"FEE LETTERS" means, collectively, the Blue Ridge Fee Letter
and the Jupiter Fee Letter.
"FINANCE CHARGES" means, with respect to a Contract, any
finance, interest, late payment charges or similar charges owing by an Obligor
pursuant to such Contract.
"FUNDING AGREEMENT" means this Agreement and any agreement or
instrument executed by any Funding Source with or for the benefit of Conduit.
"FUNDING SOURCE" means (i) any Liquidity Bank or (ii) any
insurance company, bank or other funding entity providing liquidity, credit
enhancement or back-up purchase support or facilities to Conduit.
"GAAP" means generally accepted accounting principles in
effect in the United States of America from time to time.
"GOVERNMENT RECEIVABLE" means a Receivable as to which the
Obligor is a government or a governmental subdivision or agency.
"GROUP" means the Blue Ridge Group or the Jupiter Group.
"GUARANTEED" has the meaning ascribed thereto in the
definition of "GUARANTY" in the RPM Credit Agreement.
"INCREMENTAL PURCHASE" means a purchase of a Purchaser
Interest which increases the total outstanding Aggregate Capital hereunder.
"INDEBTEDNESS" means, as to any Person (determined without
duplication): (i) indebtedness of such Person for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the deferred purchase
or acquisition price of property or services other than accounts payable (other
than for borrowed money) incurred in the ordinary course of such Person's
business, (ii) obligations of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other financial institutions
for the account of such Person (whether or not such obligations are contingent);
(iii) Capital Lease Obligations of such Person; (iv) obligations of such Person
to redeem or otherwise retire shares of capital stock of such Person; (v)
indebtedness of others of the type described in clause (i), (ii), (iii) or (iv)
above secured by a Lien on the property of such Person, whether or not the
respective obligation so secured has been assumed by such Person; and (vi)
indebtedness of others of the type described in clause (i), (ii), (iii) or (iv)
above Guaranteed by such Person.
"INDEPENDENT DIRECTOR" shall mean a member of the Board of
Directors of Seller who is not at such time, and has not been at any time during
the preceding five (5) years, (A) a director, officer, employee or affiliate of
any Seller Party, any Originator, or any of their
61
respective Subsidiaries or Affiliates, or (B) the beneficial owner (at the time
of such individual's appointment as an Independent Director or at any time
thereafter while serving as an Independent Director) of any of the outstanding
common shares of any Seller Party, any Originator, or any of their respective
Subsidiaries or Affiliates, having general voting rights.
"INTEREST EXPENSE" means, for any period, the sum (determined
without duplication) of the aggregate amount of interest accruing during such
period on Indebtedness of RPM and its Subsidiaries (on a consolidated basis),
including the interest portion of payments under Capital Lease Obligations and
any capitalized interest, and excluding amortization of debt discount and
expense.
"JUPITER" has the meaning provided in the preamble of this
Agreement.
"JUPITER AGENT" has the meaning provided in the preamble of
this Agreement.
"JUPITER ALLOCATION LIMIT" has the meaning set forth in
Section 1.1(b).
"JUPITER FEE LETTER" means that certain Jupiter Fee Letter
dated as of the date hereof by and among Seller, Jupiter and the Jupiter Agent.
"JUPITER LIQUIDITY AGREEMENT" means the Liquidity Asset
Purchase Agreement dated as of the date hereof among Jupiter, the Jupiter Agent,
and the Jupiter Liquidity Banks from time to time party thereto, as the same may
be amended, restated, supplemented, replaced or otherwise modified from time to
time.
"LIBO RATE" means the rate per annum equal to the sum of (i)
(a) the applicable British Bankers' Association Interest Settlement Rate for
deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m.
(London time) two Business Days prior to the first day of the relevant Tranche
Period, and having a maturity equal to such Tranche Period, provided that, (i)
if Reuters Screen FRBD is not available to the Administrative Agent for any
reason, the applicable LIBO Rate for the relevant Tranche Period shall instead
be the applicable British Bankers' Association Interest Settlement Rate for
deposits in U.S. dollars as reported by any other generally recognized financial
information service as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Tranche Period, and having a maturity equal to such
Tranche Period, and (ii) if no such British Bankers' Association Interest
Settlement Rate is available to the Administrative Agent, the applicable LIBO
Rate for the relevant Tranche Period shall instead be the rate determined by the
Administrative Agent to be the rate at which Bank One offers to place deposits
in U.S. dollars with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Tranche Period, in the approximate amount to be funded at the LIBO Rate
and having a maturity equal to such Tranche Period, divided by (b) one minus the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal or other reserves) which is imposed against the Administrative Agent in
respect of Eurocurrency liabilities, as defined in Regulation D of the Board of
Governors of the Federal Reserve System as in effect from time to time
(expressed as a decimal), applicable to such Tranche Period plus (ii) the
Applicable Margin per annum. The LIBO Rate shall be rounded, if necessary, to
the next higher 1/16 of 1%.
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"LIQUIDITY AGREEMENTS" means the Jupiter Liquidity Agreement
and Blue Ridge Liquidity Agreement.
"LIQUIDITY BANKS" means, collectively, the Blue Ridge
Liquidity Banks and the Jupiter Liquidity Banks.
"LIQUIDITY TERMINATION DATE" means June 4, 2003.
"LOCK-BOX" means each locked postal box with respect to which
a bank who has executed a Collection Account Agreement has been granted
exclusive access for the purpose of retrieving and processing payments made on
the Receivables and which is listed on Exhibit IV.
"LOSS RESERVE" means, for any Calculation Period, the greater
of (i) 20% and (ii) the product (expressed as a percentage) of (a) 2.0, times
(b) the highest three-month rolling average Default Ratio during the 12
Calculation Periods ending on the immediately preceding Cut-Off Date, times (c)
the Default Horizon Ratio as of the immediately preceding Cut-Off Date.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(i) the financial condition or operations of Seller or RPM and any of its
subsidiaries, taken as a whole, (ii) the ability of Seller to perform its
obligations under this Agreement or (at any time RPM is acting as Servicer or
Performance Guarantor), the ability of the Servicer or the Performance Guarantor
to perform its obligations under this Agreement or the Performance Undertaking,
as the case may be, (iii) the legality, validity or enforceability of this
Agreement or any other Transaction Document, (iv) any Purchaser's interest in
the Receivables generally or in any significant portion of the Receivables, the
Related Security or the Collections with respect thereto, or (v) the
collectibility of the Receivables generally or of any material portion of the
Receivables.
"MATERIAL INDEBTEDNESS" means (a) with respect to the
Performance Guarantor and its Subsidiaries (other than the Originators),
Indebtedness in excess of $20 million in aggregate principal amount and (b) with
respect to any Originator, Indebtedness in excess of $10 million in aggregate
principal amount.
"MONTHLY REPORT" means a report, in substantially the form of
Exhibit X hereto (appropriately completed), furnished by the Servicer to the
Co-Agents pursuant to Section 8.5.
"MONTHLY REPORTING DATE" shall have the meaning set forth in
Section 8.5.
"NET RECEIVABLES BALANCE" means, at any time, Adjusted
Eligible Receivables at such time reduced by the aggregate amount by which (a)
the difference of (i) the Outstanding Balance of all Eligible Receivables of
each Obligor and its Affiliates minus (ii) the Cash Discount Exposure Factor and
Contractual Rebate Accrual attributable to such Obligor and its Affiliates
exceeds (b) the Concentration Limit for such Obligor.
"NORWEGIAN COMPANY" means Carboline Norge A/S , a Norwegian
corporation.
"OBLIGATIONS" shall have the meaning set forth in Section 2.1.
"OBLIGOR" means a Person obligated to make payments pursuant
to a Contract.
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"ORGANIC DOCUMENT" means, relative to any Person, its
certificate of incorporation, its by-laws, its partnership agreement, its
memorandum and articles of association, its limited liability company agreement
and/or operating agreement, share designations or similar organization documents
and all shareholder agreements, voting trusts and similar arrangements
applicable to any of its authorized Equity Interests.
"ORIGINATOR" has the meaning specified in the Receivables Sale
Agreement.
"OUTSTANDING BALANCE" of any Receivable at any time means the
then outstanding principal balance thereof.
"PARENT" has the meaning set forth in the Receivables Sale
Agreement.
"PARTICIPANT" has the meaning set forth in Section 12.2.
"PAST DUE RATIO" means, at any time, the following quotient
(expressed as a percentage): (a) the sum (without duplication) of Defaulted
Receivables and Charged-Off Receivables at such time, DIVIDED BY (b) the
aggregate Outstanding Balance of all Receivables.
"PERCENTAGE" means (a) 60% as to Jupiter, and (b) 40% as to
Blue Ridge.
"PERFORMANCE GUARANTOR" means RPM and its successors.
"PERFORMANCE UNDERTAKING" means that certain Performance
Undertaking, dated as of June 6, 2002, by Performance Guarantor in favor of
Seller, substantially in the form of Exhibit XI, as the same may be amended,
restated or otherwise modified from time to time.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock company,
trust, unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"POOLED COMMERCIAL PAPER" means Commercial Paper notes of a
Conduit subject to any particular pooling arrangement by such Conduit, but
excluding Commercial Paper issued by such Conduit for a tenor and in an amount
specifically requested by any Person in connection with any agreement effected
by such Conduit.
"POTENTIAL AMORTIZATION EVENT" means an event which, with the
passage of any applicable cure period or the giving of notice, or both, would
constitute an Amortization Event.
"PRIME RATE" means, as to either Group, a rate per annum equal
to the prime rate of interest announced from time to time by the applicable
Co-Agent or its parent (which is not necessarily the lowest rate charged to any
customer), changing when and as said prime rate changes.
"PROPOSED REDUCTION DATE" has the meaning set forth in Section
1.3.
"PURCHASE LIMIT" means $125,000,000.
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"PURCHASE NOTICE" has the meaning set forth in Section 1.2.
"PURCHASE PRICE" means, with respect to any Incremental
Purchase of a Purchaser Interest, the amount paid to Seller for such Purchaser
Interest which shall not exceed the least of (i) the amount requested by Seller
in the applicable Purchase Notice, (ii) the unused portion of the Purchase Limit
on the applicable purchase date and (iii) the excess, if any, of the Net
Receivables Balance (less the Aggregate Reserves) on the applicable purchase
date over the aggregate outstanding amount of Aggregate Capital determined as of
the date of the most recent Monthly Report, taking into account such proposed
Incremental Purchase.
"PURCHASERS" means, collectively, the Conduits and the
Liquidity Banks.
"PURCHASER INTEREST" means, at any time, an undivided
percentage interest (computed as set forth below) associated with a designated
amount of Capital, selected pursuant to the terms and conditions hereof in (i)
each Receivable arising prior to the time of the most recent computation or
recomputation of such undivided interest, (ii) all Related Security with respect
to each such Receivable, and (iii) all Collections with respect to, and other
proceeds of, each such Receivable. Each such undivided percentage interest shall
equal:
C
----------------------
NRB - AR
WHERE:
C = the Capital of such Purchaser Interest.
AR = the Aggregate Reserves.
NRB = the Net Receivables Balance.
Such undivided percentage interest shall be initially computed on its date of
purchase. Thereafter, until the Amortization Date, each Purchaser Interest shall
be automatically recomputed (or deemed to be recomputed) on each day prior to
the Amortization Date. The variable percentage represented by any Purchaser
Interest as computed (or deemed recomputed) as of the close of the business day
immediately preceding the Amortization Date shall remain constant at all times
thereafter.
"PURCHASING LIQUIDITY BANK" has the meaning set forth in
Section 12.1(b).
"QUALIFYING LIQUIDITY BANK" means a Liquidity Bank with a
rating of its short-term securities equal to or higher than (i) A-1 by S&P and
(ii) P-1 by Moody's.
"RATABLE SHARE" means with respect to any Liquidity Bank, the
ratio which its Commitment bears to the sum of the Commitments of all Liquidity
Banks for the same Conduit.
"RECEIVABLE" means any "Receivable" under and as defined in
the Receivables Sale Agreement in which Seller now has or hereafter acquires any
right, title or interest. Indebtedness and other rights and obligations arising
from any one transaction, including,
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without limitation, 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 that any indebtedness, rights or obligations
referred to in the immediately preceding sentence shall be a Receivable
regardless of whether the account debtor or Seller treats such indebtedness,
rights or obligations as a separate payment obligation.
"RECEIVABLES SALE AGREEMENT" means that certain Receivables
Sale Agreement, dated as of June 6, 2002, between Originators and Seller, as the
same may be amended, restated or otherwise modified from time to time.
"RECORDS" means, with respect to any Receivable, all Contracts
and other documents, books, records and other information (including, without
limitation, computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Receivable, any
Related Security therefor and the related Obligor.
"REDUCTION NOTICE" has the meaning set forth in Section 1.3.
"REDUCTION PERCENTAGE" means, for any Purchaser Interest
acquired by the Liquidity Banks from Conduit for less than the Capital of such
Purchaser Interest, a percentage equal to a fraction the numerator of which is
the Conduit Transfer Price Reduction for such Purchaser Interest and the
denominator of which is the Capital of such Purchaser Interest.
"REGULATORY CHANGE" has the meaning set forth in Section
10.3(a).
"REINVESTMENT" has the meaning set forth in Section 2.2.
"RELATED SECURITY" means, with respect to any Receivable:
(i) all "Related Security" under and as defined in the
Receivables Sale Agreement in which Seller now has or hereafter acquires any
right, title or interest,
(ii) all of Seller's right, title and interest in, to and
under the Receivables Sale Agreement in respect of such Receivable and all of
Seller's right, title and interest in, to and under the Performance Undertaking,
and
(iii) all proceeds of any of the foregoing.
"REQUIRED NOTICE PERIOD" means the number of days required
notice set forth below applicable to the Aggregate Reduction indicated below:
- ------------------------------------------ ------------------------------
Aggregate Reduction Required Notice Period
------------------- ----------------------
- ------------------------------------------ ------------------------------
less than $100,000,000 two Business Days
- ------------------------------------------ ------------------------------
$100,000,000 to $125,000,000 five Business Days
- ------------------------------------------ ------------------------------
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"RESPONSE DATE" has the meaning set forth in Section 1.5 of
this Agreement.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
capital stock of Seller now or hereafter outstanding, except a dividend payable
solely in shares of that class of stock or in any junior class of stock of
Seller, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of capital stock of Seller now or hereafter outstanding, (iii) any
payment or prepayment of principal of, premium, if any, or interest, fees or
other charges on or with respect to, and any redemption, purchase, retirement,
defeasance, sinking fund or similar payment and any claim for rescission with
respect to the Subordinated Loans (as defined in the Receivables Sale
Agreement), (iv) any payment made to redeem, purchase, repurchase or retire, or
to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of capital stock of Seller now or hereafter
outstanding, and (v) any payment of management fees by Seller (except for
reasonable management fees to an Originator or its Affiliates in reimbursement
of actual management services performed).
"RPM CREDIT AGREEMENT" means that certain $500,000,000
Five-Year Credit Agreement dated as of July 14, 2000, as amended, restated or
replaced from time to time, among RPM, the Lenders party thereto and The Chase
Manhattan Bank, as administrative agent.
"SELLER" has the meaning set forth in the preamble to this
Agreement.
"SELLER PARTIES" means, collectively, (a) Seller, (b) at any
time that RPM is acting as Servicer or Performance Guarantor, RPM, and (c) at
any time that Parent is acting as Servicer or Performance Guarantor, Parent.
"SENIOR OFFICER" shall mean the chief executive officer,
president, chief financial officer or vice president-treasurer of the
Performance Guarantor.
"SERVICER" means at any time the Person (which may be the
Administrative Agent) then authorized pursuant to Article VIII to service,
administer and collect Receivables.
"SERVICING FEE" has the meaning set forth in Section 8.6.
"SETTLEMENT DATE" means (A) two (2) business days after each
Monthly Reporting Date, and (B) the last day of the relevant Tranche Period in
respect of each Purchaser Interest of the Liquidity Banks.
"SETTLEMENT PERIOD" means (A) in respect of each Purchaser
Interest of Conduit, the immediately preceding Accrual Period, and (B) in
respect of each Purchaser Interest of the Liquidity Banks, the entire Tranche
Period of such Purchaser Interest.
"SUBSIDIARY" of a Person means (i) any corporation more than
50% of the outstanding securities having ordinary voting power of which shall at
the time be owned or controlled, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, association, limited liability
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company, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" shall mean a Subsidiary of Servicer.
"TERMINATING TRANCHE" has the meaning set forth in Section
4.3(b).
"TRANCHE PERIOD" means, with respect to any Purchaser Interest
held by a Liquidity Bank:
(a) if Yield for such Purchaser Interest is calculated on the
basis of the LIBO Rate, a period of one, two, three or six months, or such other
period as may be mutually agreeable to the applicable Co-Agent and Seller,
commencing on a Business Day selected by Seller or such Co-Agent pursuant to
this Agreement. Such Tranche Period shall end on the day in the applicable
succeeding calendar month which corresponds numerically to the beginning day of
such Tranche Period, PROVIDED, HOWEVER, that if there is no such numerically
corresponding day in such succeeding month, such Tranche Period shall end on the
last Business Day of such succeeding month; or
(b) if Yield for such Purchaser Interest is calculated on the
basis of the Prime Rate, a period commencing on a Business Day selected by
Seller, PROVIDED that no such period shall exceed one month.
If any Tranche Period would end on a day which is not a Business Day, such
Tranche Period shall end on the next succeeding Business Day, PROVIDED, HOWEVER,
that in the case of Tranche Periods corresponding to the LIBO Rate, if such next
succeeding Business Day falls in a new month, such Tranche Period shall end on
the immediately preceding Business Day. In the case of any Tranche Period for
any Purchaser Interest which commences before the Amortization Date and would
otherwise end on a date occurring after the Amortization Date, such Tranche
Period shall end on the Amortization Date. The duration of each Tranche Period
which commences after the Amortization Date shall be of such duration as
selected by the applicable Co-Agent.
"TRANSACTION DOCUMENTS" means, collectively, this Agreement,
each Purchase Notice, the Receivables Sale Agreement, each Collection Account
Agreement, the Performance Undertaking, the Fee Letters, the Liquidity
Agreements, the Subordinated Notes (as defined in the Receivables Sale
Agreement) and all other instruments, documents and agreements required to be
executed and delivered pursuant hereto.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the specified jurisdiction.
"YIELD" means for each respective Tranche Period relating to
Purchaser Interests of the Liquidity Banks, an amount equal to the product of
the applicable Discount Rate for each Purchaser Interest multiplied by the
Capital of such Purchaser Interest for each day elapsed during such Tranche
Period, annualized on a 360 day basis.
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"YIELD RESERVE" means for any Calculation Period, the greater
of (A) 1.5% or (B) the product (expressed as a percentage) of (i) the sum of (a)
1.0% plus (b) the product of 1.5 times the Prime Rate as of the immediately
preceding Cut-Off Date times (ii) a fraction, the numerator of which is the
highest Days Sales Outstanding for the most recent 12 Calculation Periods and
the denominator of which is 360.
ALL ACCOUNTING TERMS NOT SPECIFICALLY DEFINED HEREIN SHALL BE
CONSTRUED IN ACCORDANCE WITH GAAP. ALL TERMS USED IN ARTICLE 9 OF THE UCC IN THE
STATE OF ILLINOIS, AND NOT SPECIFICALLY DEFINED HEREIN, ARE USED HEREIN AS
DEFINED IN SUCH ARTICLE 9.
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