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PURCHASE AND SALE AGREEMENT
between
MAIL-WELL I CORPORATION
as initial Servicer and as Guarantor,
THE ORIGINATORS FROM TIME TO TIME PARTY HERETO
and
MAIL-WELL TRADE RECEIVABLE CORPORATION,
as Purchaser
Dated as of July 1, 1999
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TABLE OF CONTENTS
ARTICLE I AMOUNTS AND TERMS OF THE PURCHASES -1-
SECTION 1.1. Agreement to Purchase and Sell -1-
SECTION 1.2. Purchases and Conveyance -2-
SECTION 1.3. Purchase Price -2-
SECTION 1.4. Payments of Purchase Price -2-
SECTION 1.5. The Originator Notes -3-
SECTION 1.6. Payments and Computations, Etc. -4-
SECTION 1.7. Limited Repurchase Obligation. -4-
SECTION 1.8. No Recourse -5-
SECTION 1.9. True Sales -5-
ARTICLE II CONDITIONS TO PURCHASES; REPRESENTATIONS AND WARRANTIES;
COVENANTS; PURCHASE AND SALE TERMINATION EVENTS -5-
SECTION 2.1. Conditions to Purchases -5-
SECTION 2.2. Representations and Warranties; Covenants -6-
SECTION 2.3. Purchase and Sale Termination Events -6-
ARTICLE III INDEMNIFICATION -6-
SECTION 3.1. Indemnities by each Originator and the Guarantor -6-
ARTICLE IV ADDITIONAL RIGHTS AND OBLIGATIONS
IN RESPECT OF THE RECEIVABLES POOL -8-
SECTION 4.1. Servicing of Receivables Pool and Related Assets -8-
SECTION 4.2. Rights of the Purchaser; Enforcement Rights -9-
SECTION 4.3. Responsibilities of each Originator -10-
SECTION 4.4. Further Action Evidencing Purchases -10-
ARTICLE V MISCELLANEOUS -11-
SECTION 5.1. Amendments, Etc. -11-
SECTION 5.2. Notices, Etc. -11-
SECTION 5.3. Acknowledgment and Consent -12-
SECTION 5.4. Binding Effect; Assignability -12-
SECTION 5.5. Costs, Expenses and Taxes -13-
SECTION 5.6. No Proceedings; Limitation on Payments -13-
SECTION 5.7. GOVERNING LAW AND JURISDICTION -13-
SECTION 5.8. Execution in Counterparts -14-
SECTION 5.9. Survival -14-
SECTION 5.10. WAIVER OF JURY TRIAL -14-
SECTION 5.11. Entire Agreement -14-
SECTION 5.12. Headings -14-
SECTION 5.13. Addition of Originators -14-
SECTION 5.14. Confidentiality -15-
SECTION 5.15. Performance Guaranty -15-
(i)
EXHIBIT I CONDITIONS OF PURCHASES
EXHIBIT II REPRESENTATIONS AND WARRANTIES
EXHIBIT III COVENANTS
EXHIBIT IV PURCHASE AND SALE TERMINATION EVENTS
ANNEX A DEFINITIONS
ANNEX B FORM OF ORIGINATOR NOTE
ANNEX C FORM OF JOINDER AGREEMENT
(ii)
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement") is entered
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into as of July 1, 1999 among MAIL-WELL I CORPORATION, a Delaware
corporation, as initial Servicer (the "Servicer") and as guarantor
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(the "Guarantor"), the Originators from time to time party hereto
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(each, an "Originator") and MAIL-WELL TRADE RECEIVABLE CORPORATION, a
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Colorado corporation, as purchaser (the "Purchaser").
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PRELIMINARY STATEMENTS
a. Unless otherwise defined herein or the context
otherwise requires, certain terms that are used throughout
this Agreement (including the Exhibits hereto) are defined
in (i) Annex A to this Agreement and (ii) if not otherwise
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defined herein or in Annex A, in Exhibit I to the
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Receivables Purchase Agreement, dated as of the date hereof,
among the Purchaser, the Servicer, Quincy Capital
Corporation, the Alternate Purchasers from time to time
party thereto and Bank of America National Trust and Savings
Association, as Administrator (as the same may be amended,
modified or supplemented from time to time, the "RPA").
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Any reference to "this Agreement" or "the Purchase and Sale
Agreement", including any such reference in any Exhibit
hereto, shall mean this Agreement in its entirety, including
the Exhibits and other attachments hereto, as amended,
modified or supplemented from time to time in accordance
with the terms hereof.
b. Each Originator wishes to sell Receivables that it now
owns and from time to time hereafter will own to the
Purchaser, and the Purchaser is willing, on the terms and
subject to the conditions contained in this Agreement, to
purchase or accept such Receivables from such Originator at
such time.
c. The Purchaser has entered into the RPA pursuant to
which, among other things, the Purchaser may sell to the
Issuer thereunder, undivided ownership interests in the
Receivables Pool and Related Assets.
In consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASES
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SECTION 1.1. Agreement to Purchase and Sell. On the terms and
conditions hereinafter set forth, each Originator agrees to sell to the
Purchaser, and the Purchaser agrees to purchase or accept from such
Originator, at the times set forth in Section 1.2 herein, but prior to
the Purchase
and Sale Termination Date, all of its right, title, and interest in, to
and under (a) all Receivables of such Originator, (b) all Related
Security with respect to such Receivables, (c) all Collections with
respect to each such Receivable, and (d) all proceeds of, and all other
amounts received or receivable under any or all of, the foregoing. The
items listed in clauses (b), (c) and (d) of the preceding sentence
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in relation to any Receivables are herein collectively called the
"Related Assets" or, with respect to any such Receivable, the
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"Related Asset".
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SECTION 1.2. Purchases and Conveyance.
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(a) Initial Purchase. Each Originator hereby sells,
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transfers, assigns and conveys to the Purchaser (without any formal or
other instrument of assignment and without further action by any Person)
all of its right, title and interest in and to all of the Receivables
and the Related Assets of such Originator that exist at the opening of
such Originator's business on the Effective Date (or, with respect to
any Originator added in accordance with Section 5.13, on the date such
Originator becomes a party hereto).
(b) Regular Purchases. After the date of the initial purchase
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hereunder until the Purchase and Sale Termination Date, each Receivable
and Related Asset of each Originator shall be deemed to have been sold,
transferred, assigned and conveyed to the Purchaser pursuant hereto
immediately (and without any formal or other instrument of assignment
and without further action by any Person) upon the creation of such
Receivable.
(c) Prior Purchases. Prior to the Effective Date, certain
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Originators party hereto on the date hereof sold, transferred, assigned
or conveyed Receivables and Related Assets to the Purchaser pursuant to
the Prior Purchase Agreement (the "Prior Transfers"). Each Originator
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hereby confirms and reaffirms the Prior Transfers, if any, made (or
purported to be made) by such Originator, acknowledges that such
Originator has received fair consideration for such Prior Transfers and
agrees that such Prior Transfers shall otherwise be subject to the
terms, conditions, representations, warranties, covenants, indemnities
and other provisions contained herein (excluding Sections 1.3, 1.4, 1.5
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and 2.1) as though such Prior Transfers were made on the Effective
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Date.
(d) Contribution. On the Effective Date, Mail-Well I
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Corporation shall, and hereby does, contribute to the capital of the
Purchaser, cash in an amount equal to $20,000,000.
SECTION 1.3. Purchase Price. The amount payable by the
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Purchaser to each Originator (the "Purchase Price") for each Pool
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Receivable and Related Asset purchased by Purchaser from such Originator
on each Payment Day under this Agreement shall be equal to the
Outstanding Principal Balance of such Pool Receivable minus the Discount
for such Pool Receivable.
SECTION 1.4. Payments of Purchase Price.
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(a) Upon fulfillment of the conditions set forth in Exhibit I,
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the Purchase Price for each Pool Receivable and Related Asset shall be
paid or provided for in the manner provided
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below on the day each such Pool Receivable and Related Asset is sold to
the Purchaser hereunder (each such day, a "Payment Day").
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(b) The Purchase Price for each Pool Receivable and Related
Asset shall be paid by the Purchaser to each Originator on each Payment
Day as follows:
(i) First, subject to the proviso to Section 1.7, by
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netting against such Purchase Price any Repurchase Amounts or
Dilution amounts owed by such Originator to Purchaser pursuant to
Section 1.7;
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(ii) Second, by making a cash payment to such
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Originator to the extent that the Purchaser has cash available to
make such payment (including cash from the net proceeds of a sale
of undivided interests in the Receivables Pool to the Issuer)
subject to the terms of the RPA; and
(iii) Third, the remaining portion of such Purchase
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Price not paid pursuant to clauses (i) and (ii) above, shall
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be paid by means of an automatic increase to the outstanding
principal amount of the Originator Note of such Originator.
SECTION 1.5. The Originator Notes.
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(a) On or prior to the Effective Date (or, with respect to any
Originator added in accordance with Section 5.13, on or prior to the
date such Originator becomes a party hereto), the Purchaser shall
deliver to each Originator a promissory note in the form of Annex B to
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this Agreement payable to the order of such Originator (each such
promissory note, as it may be amended, supplemented, endorsed or
otherwise modified from time to time, together with any promissory notes
issued from time to time in substitution therefor or renewal thereof in
accordance with the Transaction Documents, being called an "Originator
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Note"), which Originator Note shall, accordance with its terms, be
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subordinated to all interests in Receivables and Related Assets and all
obligations of the Purchaser, of any nature, whether now or hereafter
arising under or in connection with the RPA.
(b) The Servicer shall hold each Originator Note for the benefit
of the applicable Originator, and shall make all appropriate record-
keeping entries with respect to such Originator Note or otherwise to
reflect the payments on and adjustments of such Originator Note. The
Servicer's books and records shall constitute rebuttable presumptive
evidence of the principal amount of and accrued interest on such
Originator Note at any time. Each Originator hereby irrevocably
authorizes the Servicer to mark its Originator Note "CANCELLED" and to
return such Originator Note to the Purchaser upon the full and final
payment thereof after the Purchase and Sale Termination Date.
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SECTION 1.6. Payments and Computations, Etc.
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(a) All amounts to be paid or deposited by any Originator, the
Guarantor or the Servicer or the Purchaser hereunder shall be paid or
deposited no later than 12:00 noon (New York City time) on the day when
due in same day funds. All amounts received after 12:00 noon (New York
City time) will be deemed to have been received on the immediately
succeeding Business Day.
(b) Each Originator, the Servicer and the Guarantor shall, to
the extent permitted by law, pay interest on any amount not paid or
deposited by such Person when due hereunder, at an interest rate per
annum equal to 2.0% per annum above the Base Rate, payable on demand.
(c) Whenever any payment or deposit to be made hereunder shall
be due on a day other than a Business Day, such payment or deposit shall
be made on the next succeeding Business Day and such extension of time
shall be included in the computation of such payment or deposit.
SECTION 1.7. Limited Repurchase Obligation. In the event that
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(i) any of the representations or warranties of any Originator contained
in paragraphs (h) or (n) of Exhibit II hereof with respect to any
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Pool Receivable shall be or have been incorrect in any material respect
as of the date made or re-made, (ii) any Originator shall have failed to
comply with the provisions of paragraph (d) of Exhibit III hereof
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with respect to any Pool Receivable or (iii) any Pool Receivable from
any Originator shall be subject to any Dilution, then upon notice given
to such Originator by the Purchaser, the Servicer or the Administrator,
such Originator shall within fifteen (15) days after its receipt of such
notice, cure the default of such covenant or eliminate or otherwise cure
the circumstances or condition giving rise to such Dilution or in
respect of which the representation or warranty was incorrect as of the
time made, as the case may be. In the event that such Originator is
unable to so cure such default or so eliminate or otherwise cure such
circumstances or condition within such period of time, it shall
immediately purchase such Pool Receivable and Related Asset from the
Purchaser or pay to the Purchaser the amount of such Dilution, as the
case may be, by depositing Dollars in immediately available funds to the
Collections Account in an amount equal to the Outstanding Principal
Balance of such Pool Receivable plus the accrued and unpaid interest, if
any, payable thereunder as of the date of purchase (the "Repurchase
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Amount") or the amount of such Dilution, as the case may be;
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provided, however, that prior to the occurrence of any Purchase and
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Sale Termination Event or any Unmatured Purchase and Sale Termination
Event, any such Repurchase Amount or Dilution amount payable to the
Purchaser shall be netted against the Purchase Price of newly created
Receivables in accordance with Section 1.4(b)(i) but only to the
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extent of the Purchase Price payable on the Payment Day on which such
amount is due. Upon any such purchase, the Purchaser shall execute and
deliver such instruments of release, transfer or assignment, in each
case "as is" and without recourse, as shall be necessary to vest in such
Originator title to whatever interest the Purchaser may have in such
Pool Receivable and Related Asset.
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SECTION 1.8. No Recourse. Except as specifically provided in
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this Agreement, the purchase and sale of each Pool Receivable and
Related Asset under this Agreement shall be without recourse to any
Originator; provided, that each Originator shall be liable to the
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Purchaser for all representations, warranties, covenants and indemnities
made by such Originator pursuant to the terms of this Agreement, it
being understood that such liability of such Originator will not arise
on account of the failure of the Obligor for credit reasons to make any
payment in respect of a Pool Receivable.
SECTION 1.9. True Sales.
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(a) Each Originator and the Purchaser intend the transactions
hereunder to constitute true sales of Receivables and Related Assets by
each Originator to the Purchaser providing the Purchaser with the full
benefits of ownership thereof, and no party hereto intends the
transactions contemplated hereunder to be, or for any purpose to be
characterized as, a loan from the Purchaser to any Originator.
(b) In the event (but only to the extent) that the conveyance of
Receivables and Related Assets hereunder is characterized by a court or
other Governmental Authority as a loan rather than a sale, each
Originator shall be deemed hereunder to have granted to the Purchaser,
and each Originator hereby grants to the Purchaser, a security interest
in all of such Originator's right, title and interest in, to and under
all of the following, whether now or hereafter owned, existing or
arising: (A) all Receivables of such Originator, (B) all Related
Security with respect to each such Receivable, (C) all Collections with
respect to each such Receivable, and (D) all proceeds of, and all
amounts received or receivable under any or all of, the foregoing. Such
security interest shall secure all of such Originator's obligations
(monetary or otherwise) under this Agreement and the other Transaction
Documents to which it is a party, whether now or hereafter existing or
arising, due or to become due, direct or indirect, absolute or
contingent. The Purchaser shall have, with respect to the property
described in this Section 1.9(b), and in addition to all the other
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rights and remedies available to the Purchaser under this Agreement and
applicable law, all the rights and remedies of a secured party under any
applicable UCC, and this Agreement shall constitute a security agreement
under applicable law.
ARTICLE II
CONDITIONS TO PURCHASES; REPRESENTATIONS AND WARRANTIES;
COVENANTS; PURCHASE AND SALE TERMINATION EVENTS
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SECTION 2.1. Conditions to Purchases. The obligation of the
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Purchaser to make any purchase of any Receivable and Related Asset
hereunder is subject to satisfaction of the conditions to purchase set
forth in Exhibit I hereto.
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SECTION 2.2. Representations and Warranties; Covenants. Each
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Originator and the Guarantor hereby makes the representations and
warranties, and hereby agrees to perform and observe the covenants, set
forth in Exhibits II and III, respectively, hereto.
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SECTION 2.3. Purchase and Sale Termination Events. If any of
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the Purchase and Sale Termination Events set forth in Exhibit IV
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hereto shall occur, the Purchaser may, by notice to each Originator
(with a copy to the Administrator), declare the "Purchase and Sale
Termination Date" to have occurred; provided that automatically upon
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the occurrence of an event (without any requirement for the passage of
time or the giving of notice) described in clause (f) of Exhibit IV
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hereto the Purchase and Sale Termination Date shall occur.
The agreement of each Originator to sell Receivables and Related
Assets hereunder, and the agreement of the Purchaser to purchase or
accept Receivables and Related Assets from each Originator hereunder,
shall terminate automatically on the earlier to occur of (i) the
Purchase and Sale Termination Date and (ii) the Facility Termination
Date. Notwithstanding the occurrence of the Purchase and Sale
Termination Date, all obligations of each Originator and Purchaser under
the Transaction Documents that shall have arisen prior to the Purchase
and Sale Termination Date shall survive until each such obligation has
been finally and fully paid and performed by each such Originator or the
Purchaser, as applicable.
Upon the occurrence of a Purchase and Sale Termination Event, the
Purchaser shall have, in addition to all other rights and remedies under
this Agreement or otherwise, all other rights and remedies provided
under the UCC of each applicable jurisdiction and other applicable laws,
which rights shall be cumulative. Without limiting the foregoing, the
occurrence of a Purchase and Sale Termination Event hereunder shall not
deny to the Purchaser any remedy to which the Purchaser may be otherwise
appropriately entitled, whether by statute or applicable law, at law or
in equity.
ARTICLE III
INDEMNIFICATION
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SECTION 3.1. Indemnities by each Originator and the Guarantor.
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Without limiting any other rights which the Purchaser may have hereunder
or under applicable law, each Originator and the Guarantor hereby agrees
to indemnify the Purchaser from and against any and all claims, damages,
expenses, losses and liabilities (including Attorney Costs) (all of the
foregoing being collectively referred to as "Damages") arising out of
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or resulting from this Agreement (whether directly or indirectly) or the
use of proceeds of purchases or the ownership of any Pool Receivable or
Related Asset, excluding, however, (a) Damages to the extent resulting
from gross negligence or willful misconduct on the part of the
Purchaser, (b) recourse (except as otherwise specifically provided in
this Agreement) for uncollectible Pool Receivables to be written off
consistent with the Credit and Collection Policy, or (c) any net income
taxes or franchise taxes imposed on the Purchaser by the jurisdiction
under the laws of which the Purchaser is organized
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or qualified (or should be qualified) to do business or any political
subdivision thereof. Without limiting or being limited by the
foregoing, and subject to the exclusions set forth in the preceding
sentence, each Originator and the Guarantor shall pay on demand to the
Purchaser any and all amounts necessary to indemnify the Purchaser from
and against any and all Damages relating to or resulting from any of the
following:
(i) the failure of any Receivable sold by such
Originator to the Purchaser hereunder to be an Eligible Receivable
at the time of such sale, the failure of any information delivered
with respect to any such Receivable to be true and correct, or the
failure of any other information provided by such Originator to
the Purchaser, the Servicer or any Securitization Party with
respect to any Receivable or Related Asset or this Agreement to be
true and correct;
(ii) the failure of any representation or warranty or
statement made or deemed made by such Originator or Guarantor (or
any of its officers) under or in connection with this Agreement or
any other Transaction Document to have been true and correct in
all respects when made;
(iii) the failure by such Originator to comply with the
Credit and Collection Policy or any applicable law, rule or
regulation with respect to any Receivable or Related Asset; or the
failure of any Receivable or Related Asset created by such
Originator to conform to any such applicable law, rule or
regulation;
(iv) the failure to vest, and maintain vested, in the
Purchaser a valid and enforceable (A) ownership interest in each
Receivable and Related Asset created by such Originator and (B) a
first priority perfected security interest in the items described
in Section 1.9(b), in each case, free and clear of any Adverse
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Claim;
(v) Intentionally Omitted;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the
payment of any Receivable created by such Originator (including,
without limitation, a defense based on such Receivable or the
related Contract Document 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
goods or services related to such Receivable or the furnishing or
failure to furnish such goods or services or relating to
collection activities with respect to such Receivable (if such
collection activities were performed by such Originator, or any of
its Affiliates, acting as Servicer or by any agent or independent
contractor retained by such Originator or any of its Affiliates);
(vii) any failure of such Originator or Guarantor to
perform its duties or obligations in accordance with the
provisions of this Agreement or any other Transaction
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Document or to perform its duties or obligations in connection
with any Receivable or Related Asset;
(viii) any claim (including, without limitation, any breach
of warranty, product liability or environmental claim),
investigation, litigation or proceeding arising out of or in
connection with any Receivable or Related Asset;
(ix) the commingling of Collections of Receivables
created by such Originator at any time with other funds and any
lost, mutilated, destroyed or missing Contract Documents;
(x) any investigation, litigation or proceeding related
to this Agreement or any other Transaction Document or the use of
proceeds of purchases or reinvestments or the ownership of the
Purchased Interest or in connection with any Receivable or Related
Security created by such Originator;
(xi) any requirement that all or a portion of any
payments made by such Originator or Guarantor pursuant to this
Agreement shall be rescinded or otherwise must be returned for any
reason; or
(xii) the enforcement of any Transaction Document against
such Originator or Guarantor.
Indemnification under this Section 3.1 shall survive the
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termination of this Agreement and shall include, without limitation,
reasonable fees and expenses of counsel and expenses of litigation.
ARTICLE IV
ADDITIONAL RIGHTS AND OBLIGATIONS
IN RESPECT OF THE RECEIVABLES POOL
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SECTION 4.1. Servicing of Receivables Pool and Related Assets.
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Consistent with the Purchaser's ownership of the Receivables Pool and
the Related Assets, the Purchaser shall have the sole right to service,
administer and collect the Receivables Pool, to assign such right and to
delegate such right to others. In consideration of the Purchaser's
purchase of the Receivables Pool and the Related Assets, each Originator
agrees to cooperate fully with the Purchaser to facilitate the full and
proper performance of such duties and obligations for the benefit of the
Purchaser and the Securitization Parties.
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SECTION 4.2. Rights of the Purchaser; Enforcement Rights.
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(a) Subject to the repurchase obligation of each Originator
under Section 1.7, the Purchaser shall have no obligation (i) to
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account for, to replace, to substitute or to return any Pool Receivable
and Related Asset to any Originator or (ii) to account for, or to return
to any Originator any Collections, or any interest or other finance
charge collected pursuant thereto, without regard to whether such
Collections and charges are in excess of the Purchase Price for such
Pool Receivable and Related Asset.
(b) The Purchaser shall have the unrestricted right to further
assign, transfer, deliver, hypothecate, subdivide or otherwise deal with
the Receivables Pool and Related Assets, and all of the Purchaser's
right, title and interest in, to and under this Agreement, on whatever
terms the Purchaser shall determine.
(c) The Purchaser shall have the sole right to retain any gains
or profits created by buying, selling or holding the Receivables Pool
and Related Assets and shall have the sole risk of and responsibility
for losses or damages created by such buying, selling or holding.
(d) At any time following the designation of a successor
Servicer under the Servicing Agreement:
(i) the Administrator may direct the Obligors that
payment of all amounts payable under any Pool Receivable be made
directly to the Administrator or its designee;
(ii) the Administrator may instruct each Originator to
give notice of the Purchaser's or the Securitization Parties'
interest in the Pool Receivables created by such Originator to
each Obligor, which notice shall direct that payments be made
directly to the Administrator or its designee, and upon such
instruction from the Administrator, each such Originator shall
give such notice at the expense of such Originator; provided,
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that if such Originator fails to so notify each Obligor, the
Administrator may so notify such Obligors; and
(iii) the Administrator may request each Originator to,
and upon such request each such Originator shall, (A) assemble all
of the records necessary or desirable to collect the Pool
Receivables created by such Originator and the Related Assets, and
transfer or license the use of, to the successor Servicer, all
software (to the extent permitted under the terms of the
agreements governing the use of such software (or, in the event
not permitted, such Originator shall take reasonable steps to
assist in obtaining such permission)) necessary or desirable to
collect such Pool Receivables and the Related Assets, and make the
same available to the Administrator or its designee at a place
selected by the Administrator, and (B) segregate all cash, checks
and other instruments received by it from time to time
constituting Collections with respect to the Receivables Pool in a
manner acceptable to the Administrator and, promptly upon receipt,
remit all
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such cash, checks and instruments, duly endorsed or with duly
executed instruments of transfer, to the Administrator or its
designee.
(e) Each Originator hereby authorizes the Purchaser, and
irrevocably appoints the Purchaser as its attorney-in-fact with full
power of substitution and with full authority in the place and stead of
such Originator, which appointment is coupled with an interest, to take
any and all steps in the name of such Originator and on behalf of such
Originator necessary or desirable, in the determination of the
Purchaser, to collect any and all amounts or portions thereof due under
any Pool Receivable or Related Asset, including, without limitation,
endorsing the name of such Originator on checks and other instruments
representing Collections and on such instruments or documents as may be
necessary to effect foreclosure, repossession or other conversions of
the ownership of any Related Asset, and enforcing such Pool Receivable
and Related Asset. Notwithstanding anything to the contrary contained
in this subsection (e), none of the powers conferred upon such attorney-
in-fact pursuant to the immediately preceding sentence shall subject
such attorney-in-fact to any liability if any action taken by it shall
prove to be inadequate or invalid, nor shall they confer any obligations
upon such attorney-in-fact in any manner whatsoever.
SECTION 4.3. Responsibilities of each Originator. Anything
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herein to the contrary notwithstanding:
(a) Each Originator agrees to deliver directly to the
Servicer (for deposit to the Collection Account), within one
Business Day of receipt thereof, any Collections that it receives,
in the form so received, and agrees that all such Collections
shall be deemed to be received in trust for the Purchaser and
shall be maintained and segregated separate and apart from all
other funds and moneys of such Originator until delivery of such
Collections to the Servicer; and
(b) Each Originator shall (i) perform all of its
obligations hereunder and under each Pool Receivable and Related
Asset to the same extent as if such Pool Receivable and Related
Asset had not been sold hereunder, and the exercise by the
Purchaser or its designee or assignee of the Purchaser's rights
hereunder or in connection herewith shall not relieve such
Originator from such obligations and (ii) pay when due any taxes,
including, without limitation, any sales taxes payable in
connection with any Pool Receivable and their creation and
satisfaction.
SECTION 4.4. Further Action Evidencing Purchases. Each
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Originator agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and
take all further action upon the reasonable request of the Purchaser, in
order to perfect or protect the purchase by the Purchaser of the
Receivables Pool and Related Assets hereunder, or to enable the
Purchaser to exercise or enforce any of its rights hereunder or under
any other Transaction Document. Each Originator further agrees from
time to time, at its expense, promptly to take all action that the
Purchaser, the Servicer or the Administrator may reasonably request in
order to perfect or protect such purchase of the Receivables Pool and
-10-
Related Assets or to enable the Purchaser (and its successors and
assigns) to exercise or enforce any of its or their respective rights
hereunder or under any other Transaction Document in respect of the
Receivables Pool and Related Assets. Without limiting the generality of
the foregoing, upon the request of the Purchaser, each Originator or the
Administrator will:
(a) execute and file such financing or continuation
statements, or amendments thereto or assignments thereof, and such
other instruments or notices, as the Purchaser or the
Administrator may reasonably determine to be necessary or
appropriate; and
(b) mark the master data processing records to reflect
the sale of the Receivables Pool and Related Assets pursuant to
this Agreement.
Each Originator hereby authorizes the Purchaser or its designee or
assignee to file one or more financing or continuation statements, and
amendments thereto and assignments thereof, relative to all or any of
the Pool Receivables and Related Assets created by such Originator, in
each case whether now existing or hereafter generated. If any
Originator fails to perform any of its agreements or obligations under
this Agreement, the Purchaser or its designee or assignee may (but shall
not be required to) itself perform, or cause performance of, such
agreement or obligation, and the reasonable expenses of the Purchaser or
its designee or assignee incurred in connection therewith shall be
payable by such Originator under Section 5.5.
-----------
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1. Amendments, Etc. No amendment or waiver of any
----------------
provision of this Agreement or consent to any departure by any
Originator or the Guarantor therefrom shall be effective unless in a
writing signed by the parties hereto (and consented to by the
Administrator), and, any such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
No failure on the part of any Originator, the Purchaser, the Guarantor,
the Servicer or the Administrator to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right.
SECTION 5.2. Notices, Etc. All notices and other
-------------
communications hereunder shall, unless otherwise stated herein, be in
writing (which shall include facsimile communication) and sent or
delivered, to each party hereto, at its address set forth under its name
on the signature pages hereof or at such other address as shall be
designated by such party in a written notice to the other parties
hereto. Notices and communications by facsimile shall be effective when
sent (and shall be followed by hard copy sent by first class mail), and
notices and communications sent by other means shall be effective when
received.
-11-
SECTION 5.3. Acknowledgment and Consent.
--------------------------
(a) Each Originator and the Guarantor acknowledges that,
contemporaneously herewith or at any time hereafter, the Purchaser (i)
is assigning or will assign to the Issuer, pursuant to the RPA, one or
more undivided interests in all of the Purchaser's rights, title and
interest in, to and under the Receivables Pool and Related Assets, and
(ii) is assigning to the Issuer pursuant to the RPA all of the
Purchaser's right, title and interest in, to and under this Agreement,
it being understood that such assignment shall not relieve any party
hereto from (or require any of the Securitization Parties to undertake)
the performance of any term, covenant or agreement on the part of any
party hereto to be performed or observed under or in connection with
this Agreement. Each Originator and the Guarantor hereby consents to
such assignments, including, without limitation, the assignment by the
Purchaser to the Issuer of (i) the right of the Purchaser, at any time,
to enforce this Agreement against such Originator or Guarantor and the
obligations of such Originator or Guarantor hereunder, (ii) the right,
at any time, in accordance with the terms hereof, to give or withhold
any and all consents, requests, notices, directions, approvals, demands,
extensions or waivers under or with respect to this Agreement, any other
Transaction Document or the obligations in respect of such Originator or
Guarantor thereunder to the same extent as the Purchaser may do, and
(iii) all of the Purchaser's rights, remedies, powers and privileges,
and all claims of the Purchaser against such Originator or Guarantor,
under or with respect to this Agreement and the other Transaction
Documents (whether arising pursuant to the terms of this Agreement or
otherwise available at law or in equity). Each of the parties hereto
acknowledges and agrees that the Securitization Parties and the other
Affected Persons are third party beneficiaries of the rights of the
Purchaser arising hereunder and under the other Transaction Documents to
which any Originator or the Guarantor is a party.
(b) Each Originator and the Guarantor hereby agrees to execute
all agreements, instruments and documents, and to take all other action,
that the Purchaser or the Administrator determines is necessary or
reasonably desirable to evidence its consent described in
Section 5.3(a).
- --------------
(c) Each Originator and the Guarantor hereby acknowledges that
its obligations to the Securitization Parties, as assignees of the
Purchaser, are and shall be, to the extent permitted by applicable law
or not prohibited by any order of any court or administrative or
regulatory authority, absolute and unconditional under any and all
circumstances and shall be unaffected by any claims, offsets or other
defenses such Originator or Guarantor may have against the Purchaser,
and each Originator and the Guarantor agrees that it shall not interpose
any such claims, offsets or defenses as a defense to its performance of
its obligations under this Agreement or any other Transaction Documents
to which it is a party.
SECTION 5.4. Binding Effect; Assignability. This Agreement
-----------------------------
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. No Originator nor
the Guarantor may assign any of its rights or delegate its obligations
hereunder or any interest herein without the prior written consent of
the Purchaser and the
-12-
Administrator. Without limiting any other rights that may be available
under applicable law, the rights of the Purchaser may be enforced
through it or by its agents.
SECTION 5.5. Costs, Expenses and Taxes. In addition to the
-------------------------
rights of indemnification granted under Article III, each Originator
-----------
and the Guarantor agrees to pay on demand all costs and expenses,
including, without limitation, Attorney Costs incurred by Purchaser in
connection with (i) the preparation, execution, delivery and
administration (including, without limitation, periodic auditing of
Receivables Pool) of this Agreement and the other Transaction Documents,
(ii) any amendment, modification or waiver of any of the foregoing and
(iii) the enforcement of Purchaser's rights and remedies against such
Originator or Guarantor under this Agreement and the other Transaction
Documents.
SECTION 5.6. No Proceedings; Limitation on Payments.
--------------------------------------
(a) Each party hereto hereby agrees that it will not institute
against, or join any other Person in instituting against, the Purchaser
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding, or other proceeding under any federal or state bankruptcy or
similar law, for one year and one day after the latest maturing Note is
paid in full.
(b) Notwithstanding any provisions contained in this Agreement
to the contrary, the Purchaser shall not, and shall not be obligated to,
pay any amount pursuant to this Agreement unless the Purchaser has
excess cash flow from operations or has received funds with respect to
such obligation which may be used to make such payment.
SECTION 5.7. GOVERNING LAW AND JURISDICTION.
------------------------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT
TO THE CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-
EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN
RESPECT OF THIS AGREEMENT OR ANY TRANSACTION DOCUMENT. EACH PARTY
HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
-13-
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW
YORK LAW.
SECTION 5.8. Execution in Counterparts. This Agreement may be
-------------------------
executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement.
SECTION 5.9. Survival. The provisions of Section 1.7,
-------- -----------
Section 2.2, Article III, Section 5.1, Section 5.2, Section
- ----------- ----------- ----------- ----------- -
5.3, Section 5.4, Section 5.5, Section 5.6, Section 5.7,
- --- ----------- ----------- ----------- -----------
Section 5.10, Section 5.11, Section 5.12, Section 5.15 and
- ------------ ------------ ------------ ------------
Exhibits II, III and IV hereto and of this Section 5.9, shall
- ----------- --- -- -----------
survive any termination of this Agreement.
SECTION 5.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES
--------------------
ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES
HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS
WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT.
SECTION 5.11. Entire Agreement. This Agreement embodies the
----------------
entire agreement and understanding of the parties hereto, and supersedes
all prior or contemporaneous agreements and understandings of such
Persons, verbal or written, relating to the subject matter hereof and
thereof. The Exhibits, Schedules and Annexes to this Agreement shall be
deemed incorporated by reference into this Agreement as if set forth
herein.
SECTION 5.12. Headings. The captions and headings of this
--------
Agreement and in any Exhibit hereto are for convenience of reference
only and shall not affect the interpretation hereof or thereof.
SECTION 5.13. Addition of Originators. Additional direct or
-----------------------
indirect subsidiaries of Mail-Well, Inc. may be added as Originators
hereunder with the consent of the Purchaser and the
-14-
Administrator (which consent shall not be unreasonably withheld),
provided that the following conditions are satisfied on or before the
date of such addition:
(a) the Servicer shall have given the Purchaser and the
Administrator at least five (5) Business Days' prior written notice of
such proposed addition and the identity of the proposed additional
Originator;
(b) such proposed additional Originator has executed and
delivered to the Purchaser and the Administrator an agreement
substantially in the form attached hereto as Annex C (each, a
-------
"Joinder Agreement");
-----------------
(c) such proposed additional Originator has delivered to the
Purchaser and the Administrator each of the documents with respect to
such Originator described in paragraphs 1(b), 1(c), 1(d), 1(e),
--------------- ---- ---- ----
1(f), 1(i), 1(j), 1(n) and 1(o) of Exhibit II to the RPA; and
- ---- ---- ---- ---- ---- ----------
(d) no event has occurred and is continuing, or would result
from the addition of such Originator as a party hereto, that constitutes
a Purchase and Sale Termination Event or an Unmatured Purchase and Sale
Termination Event.
SECTION 5.14. Confidentiality. Unless otherwise required by
---------------
applicable law, the Originators and the Guarantor agree to maintain the
confidentiality of this Agreement and the other Transaction Documents
(and all drafts thereof) in communications with third parties and
otherwise; provided, however, that this Agreement may be disclosed
-------- -------
(a) to third parties to the extent such disclosure is made pursuant to a
written agreement of confidentiality in form and substance reasonably
satisfactory to the Purchaser and the Administrator, (b) to the
Originators' and the Guarantors' legal counsel and auditors if they
agree to hold it confidential and (c) as required by any law, rule or
regulation.
SECTION 5.15. Performance Guaranty. The Guarantor hereby
--------------------
unconditionally and irrevocably (a) guarantees to the Purchaser and each
Indemnified Party and their respective successors and assigns the
punctual payment and performance, as the case may be, when due of all
covenants, obligations, agreements, terms, conditions and indemnities to
be performed and observed by each Originator under the Transaction
Documents, in each case whether now or hereafter existing, and including
all obligations of each Originator in respect of the payment or delivery
of any sum or funds, whether for collections, indemnification, payments,
fees, interest, expenses or otherwise; (b) agrees to reimburse each of
the Purchaser and each Indemnified Party, on demand, in respect of any
and all reasonable costs and expenses incurred by such Person in
enforcing its rights against any Originator under any of the Transaction
Documents (including counsel fees and expenses) and (c) agrees to cause
each and every obligation, covenant, agreement and term imposed upon any
Originator under the Transaction Documents to be performed (all of the
obligations, covenants, agreements and terms described in and not
excluded from clauses (a), (b) and (c) above being herein collectively
called the "Guaranteed Obligations").
-15-
The obligations of the Guarantor under this Section 5.15
constitute a present and continuing guaranty of payment and performance
as set forth in the preceding paragraph, but not of collectibility of
any Receivable, and shall be absolute and unconditional, shall not be
subject to any counterclaim, set-off, deduction or defense based upon
any claim any Originator, the Servicer, the Guarantor, the Purchaser or
any Indemnified Party may have against each other or any other Person
and shall remain in full force and effect without regard to and shall
not be released, discharged or in any way affected or impaired by any
thing, event, happening, matter, circumstance or condition whatsoever
(whether or not the Guarantor shall have any knowledge or notice thereof
or consent thereto, including: (i) any amendment to any of the
Transaction Documents including any renewal or extension of the terms of
payment (or change in the manner or place of payment) of any sums due or
contingently due thereunder or the granting of time in respect of any
payment, or any security so furnished or accepted for the sum due or
contingently due thereunder or to add any parties thereto (including
additional Originators); (ii) any waiver, consent, extension, granting
of time, forbearance, indulgence or other action or inaction under or in
respect of any Transaction Document or any exercise or nonexercise of
any right, remedy or power in respect thereof; (iii) any Insolvency
Proceeding, bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceedings with
respect to any Originator or the properties or creditors thereof; (iv)
any invalidity or any unenforceability of, or any misrepresentation by
any Originator, irregularity or other defect in, any Transaction
Document or Guaranteed Obligation; (v) any transfer or purported
transfer of any asset or interest in property of any Originator; (vi)
any consolidation or merger of any Originator with or into any other
corporation or entity, or any change whatsoever in the objects, capital
structure, constitution or business of any Originator; (vii) the
occurrence of any default under any Transaction Document or any failure
on the part of any Originator to perform or comply with any term of any
Transaction Document or the failure of the Purchaser or any Indemnified
Party to exercise any right or remedy arising upon such occurrence;
(viii) any law, regulation or order of any jurisdiction affecting any
term of any Guaranteed Obligation or the rights of the Purchaser or any
Indemnified Party with respect thereto; (ix) any suit or other action
brought by any creditors of the any Originator for any reason
whatsoever, including any suit or action in any way attacking or
involving any Transaction Document; (x) any assignment or transfer of
any interest of the Purchaser or any Indemnified Party in or under any
Transaction Document (or any assignment or transfer thereof by any
subsequent assignee or transferee), or (xi) any other circumstance which
might otherwise constitute a defense (other than payment and
performance) available to, or a discharge of, any Originator or any
guarantor). The Purchaser or the Indemnified Party will use reasonable
efforts to provide notice to the Guarantor in connection with a demand
for payment hereunder; provided, however, that the failure or
-------- -------
inability of the Purchaser or any Indemnified Party to give such notice
at any time shall not impair the ability of the Purchaser or any
Indemnified Party to make a claim hereunder, and the Guarantor waives
promptness, protest and diligence with respect to any Guaranteed
Obligation and any requirement that the Purchaser or any Indemnified
Party exhaust any right or take any action against any Originator or
with respect to the Receivables or Related Assets (or any interest
therein) sold or otherwise transferred or purported to be transferred by
the Purchaser or any Indemnified Party, or with respect to any
collateral, any other guarantor or any other Person, prior to making
demand or receiving payment under this Section 5.15.
-16-
This is a continuing guaranty and shall remain in full force and
effect until the date which is one year and one day after all Guaranteed
Obligations shall have been paid and performed in full and each of the
Transaction Documents have been terminated. The undertakings of the
Guarantor hereunder shall continue to be effective or be reinstated, as
the case may be, if at any time any payment or other performance of any
of the Guaranteed Obligations is rescinded or must otherwise be returned
upon the insolvency, bankruptcy or reorganization of any Originator or
otherwise, all as though such payment had not been made or such
performance had not occurred. If the Guarantor shall make any payment
or render any other performance due in respect of the Transaction
Documents pursuant to this Section 5.15, until satisfaction in full of
the Guaranteed Obligations, the Guarantor shall not assert any claim as
a result thereof against any Originator, and until satisfaction in full
of the Guaranteed Obligations, the Guarantor shall not assert any right
it might otherwise have to be subrogated to the rights of the Purchaser
or any Indemnified Party in respect of which such payment or performance
shall have been made.
-17-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of
the date first above written.
MAIL-WELL I CORPORATION,
as initial Servicer and as Guarantor
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
MAIL-WELL TRADE RECEIVABLE
CORPORATION, as Purchaser
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
-18-
GRAPHIC ARTS CENTER, INC., as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
MURRAY ENVELOPE CORP.,
as an Originator
By: ___________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
-19-
MAIL-WELL COMMERCIAL PRINTING, INC.,
as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
-20-
MAIL-WELL I CORPORATION,
as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
MAIL-WELL LABEL USA, INC.,
as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
-21-
MAIL-WELL WEST, INC., as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
POSER BUSINESS FORMS INC.,
as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
-22-
WISCO II, LLC, as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
-23-
WISCO III, LLC, as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
23 Inverness Way East, Suite 160
Englewood, Colorado 80112
Attention: Robert Meyer
Telephone: (303) 790-8023
Facsimile: (303) 768-7380
-24-
EXHIBIT I
CONDITIONS OF PURCHASES
-----------------------
1. Conditions Precedent to Initial Purchase. The initial
----------------------------------------
purchase under this Agreement is subject to the condition precedent that
the Purchaser shall have received each of the following (with copies to
the Administrator), on or before the date of such purchase, each in form
and substance (including the date thereof) satisfactory to the Purchaser
and the Administrator:
(a) The RPA, duly executed by the parties thereto,
together with evidence reasonably satisfactory to the Purchaser
that all conditions precedent to the initial purchase of an
undivided interest thereunder (other than any condition relating
to the effectiveness of the purchase commitment under this
Agreement) shall have been met; and
(b) Such other agreements, instruments, UCC financing
statements, certificates, opinions and other documents as the
Purchaser or the Administrator may reasonably request.
2. Conditions Precedent to All Purchases. Each purchase
-------------------------------------
(including, without limitation, the initial purchase) hereunder is
subject to the satisfaction of each of the following conditions:
(a) The representations and warranties of each
Originator and the Guarantor hereunder shall be true and correct
on the date of such purchase (except to the extent such
representations and warranties relate solely to an earlier date
and then as of such earlier date), with the same effect as if then
made, and each Originator and the Guarantor shall have performed
all obligations to be performed by it hereunder on or prior to
such date; and
(b) On or prior to the date of such purchase, such
Originator shall have delivered to the Servicer (or one of its
sub-servicers) the Contract Documents, in each case relating to
the Receivables to be sold on such date.
3. Certification as to Representations and Warranties. Each
--------------------------------------------------
Originator, by accepting the Purchase Price paid for each purchase of
Receivables and Related Assets on any day, shall be deemed to have
certified that its representations and warranties contained in Exhibit
-------
II are true and correct on and as of such day, with the same effect as
- --
though made on and as of such day.
I-1
4. Effect of Payment of Purchase Price. Upon the payment of
-----------------------------------
the Purchase Price for any purchase of Receivables and Related Assets,
title to such Receivables and Related Assets shall vest in the
Purchaser, whether or not the conditions precedent to such purchase were
in fact satisfied; provided, that the Purchaser shall not be deemed to
--------
have waived any claim it may have under this Agreement for the failure
by any Originator in fact to satisfy any such condition precedent to be
satisfied by it.
I-2
EXHIBIT II
REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Purchaser to enter into this Agreement and
to make purchases hereunder, each Originator (which, for purposes of
paragraphs (a), (b), (c), (d), (e), (f), (i), (k), (r), (u), (w), (x),
(y), and (z), shall include the Guarantor) hereby represents and
warrants as follows:
(a) Organization and Good Standing. Such Originator
------------------------------
is a corporation or limited liability company duly organized,
validly existing and in good standing under the laws of its state
of formation, and is duly qualified to do business, and is in good
standing, in the jurisdiction where its principal place of
business and chief executive office are located and in every other
jurisdiction where the nature of its business requires it to be so
qualified.
(b) Power and Authority; Due Authorization; No
------------------------------------------
Violation. The execution, delivery and performance by such
---------
Originator of this Agreement and the other Transaction Documents
to which it is a party, including, without limitation, such
Originator's use of the proceeds of purchases, (i) are within such
Originator's powers, (ii) have been duly authorized by all
necessary action, (iii) do not contravene or result in a default
under or conflict with (1) such Originator's constating documents,
(2) any law, rule or regulation applicable to such Originator,
except to the extent such contravention, default or conflict will
not have a Material Adverse Effect, (3) any contractual
restriction binding on or affecting such Originator or its
property or (4) any order, writ, judgment, award, injunction or
decree binding on or affecting such Originator or its property and
(iv) do not result in or require the creation of any Adverse Claim
upon or with respect to any of its properties. This Agreement and
the other Transaction Documents to which it is a party have been
duly executed and delivered by such Originator.
(c) Government Approvals. No authorization or
--------------------
approval or other action by, and no notice to or filing with, any
Governmental Authority or other Person is required for the due
execution, delivery and performance by such Originator of this
Agreement or any other Transaction Document to which it is a
party.
(d) Validity and Binding Nature. Each of this
---------------------------
Agreement and the other Transaction Documents to which it is a
party constitutes the legal, valid and binding obligation of such
Originator enforceable against such Originator in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
II-1
(e) Financial Condition. The balance sheets of Mail-
-------------------
Well, Inc. and its subsidiaries as at December 31, 1998, and the
related statements of income and retained earnings for the fiscal
year then ended, copies of which have been furnished to the
Purchaser and the Administrator, fairly represent the financial
condition thereof as at such date and the results of operations
thereof for the period ended on such date, all in accordance with
generally accepted accounting principles consistently applied, and
since December 31, 1998 there has been no material adverse change
in the business, operations, property or financial or other
condition or operations of the Seller, or such Originator the
ability of the Seller, or such Originator to perform its
obligations under this Agreement or the other Transaction
Documents or the collectibility of the Pool Receivables, or which
affects the legality, validity or enforceability of the Agreement
or the other Transaction Documents.
(f) No Proceedings. There is no pending or threatened
--------------
action or proceeding affecting such Originator or any of its
Affiliates before any Governmental Authority or arbitrator which
could materially adversely affect the business, operations,
property, financial or other condition or operations of such
Originator or any of its Affiliates, the ability of such
Originator to perform its obligations under this Agreement or the
other Transaction Documents or the collectibility of the Pool
Receivables, or which affects or purports to affect the legality,
validity or enforceability of this Agreement or the other
Transaction Documents.
(g) Use of Proceeds. No proceeds of any purchase will
---------------
be used to acquire more than 5% of any class of any security in
any transaction which is subject to Sections 13 and 14 of the
Exchange Act, except for a nonhostile, invited Acquisition of a
Person (approved by the board of directors (or other body
exercising similar authority) of such Person) by such Originator
or any Subsidiary thereof, which does not violate any laws, rules
or regulations applicable thereto or any other provision of the
Transaction Documents.
(h) Quality of Title. Immediately prior to its sale
----------------
to the Purchaser under this Agreement, such Originator is the
legal and beneficial owner of each of the Receivables and Related
Assets sold hereunder free and clear of any Adverse Claim; and
upon each purchase hereunder, the Purchaser shall acquire a valid
and enforceable perfected ownership interest in such Receivables
and Related Assets, free and clear of any Adverse Claim. No
effective financing statement or other instrument similar in
effect covering any such Receivable or Related Asset is on file in
any recording office, except those filed in favor of the Purchaser
pursuant to this Agreement and in favor of any of the
Securitization Parties pursuant to the Transaction Documents and
except those which are both (i) indirectly covering any Pool
Receivable or the Related Security as proceeds which will be
released or terminated within 60 days after the Effective Date and
(ii) listed on Annex E to the RPA.
-------
II-2
(i) Accuracy of Information. Each certificate,
-----------------------
exhibit, financial statement, document, book, record, report or
other information furnished or to be furnished at any time by or
on behalf of such Originator to the Purchaser or any
Securitization Party in connection with this Agreement is or will
be accurate in all material respects as of its date or as of the
date so furnished, and no such item contains or will contain any
untrue statement of a material fact or omits or will omit to state
a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they
were made, not misleading.
(j) Offices. The principal place of business and
-------
chief executive office (as such terms are used in the UCC) of such
Originator and the office where such Originator keeps its records
concerning the Receivables are located at the address referred to
in paragraph (b) of Exhibit III.
(k) Governmental Authority. Such Originator is not in
----------------------
violation of any order of any court, arbitrator or Governmental
Authority which would have a Material Adverse Effect.
(l) Lock-Box Banks and Collection Account Bank. The
------------------------------------------
names and addresses of all the Lock-Box Banks and Collection
Account Bank, together with the account numbers of the related
Lock-Box Accounts or Collection Account, as applicable, are
specified in Schedule I to the RPA (or at such other Lock-Box
----------
Banks or Collection Account Bank, as applicable, and/or with such
other Lock-Box Accounts or Collection Account, as applicable, as
have been notified to the Administrator in accordance with the
Agreement) and the Collection Account is subject to the Collection
Account Agreement and all Lock-Box Accounts are subject to Lock-
Box Agreements, duly executed by the parties thereto (in the case
of certain Lock-Box Banks, within 30 days after the date hereof).
(m) Federal Reserve Regulations. No proceeds of any
---------------------------
purchase will be used for any purpose that violates any applicable
law, rule or regulation, including, without limitation,
Regulations T, U, and X of the Federal Reserve Board.
(n) Eligible Receivables. Each Pool Receivable
--------------------
created by such Originator, as of the date it was sold to the
Purchaser hereunder, will be an Eligible Receivable unless
otherwise specified to the Purchaser and Servicer on such date.
(o) No Purchase and Sale Termination Event. No event
--------------------------------------
has occurred and is continuing, or would result from a purchase by
the Purchaser hereunder or from the application of the proceeds
therefrom, which constitutes a Purchase and Sale Termination
Event.
II-3
(p) Accounting as Sales. Such Originator has
-------------------
accounted for each sale of Receivables and Related Assets
hereunder in its books and financial statements as a sale,
consistent with generally accepted accounting principles.
(q) Compliance With Credit and Collection Policy.
--------------------------------------------
Such Originator has complied in all material respects with the
Credit and Collection Policy in effect at the time with regard to
each Receivable.
(r) Compliance with Transaction Documents. Such
-------------------------------------
Originator has complied in all material respects with all of the
terms, covenants and agreements contained in this Agreement and
the other Transaction Documents and applicable to it.
(s) Trade Name. Such Originator's complete corporate
----------
name is set forth in the preamble to this Agreement, and such
Originator does not use and has not during the last five years
used any other corporate name, trade name, doing business name or
fictitious name, except for names first used after the date of
this Agreement and set forth in a notice delivered to the
Administrator pursuant to paragraph (b)(iii) of Exhibit III.
(t) Intentionally Omitted.
(u) Taxes. Such Originator has filed all material
-----
federal and other tax returns and reports required by law to have
been filed by it and has paid or made allowances for all material
taxes, or made allowances for, and governmental charges thereby
shown to be owing.
(v) Bulk Sales Act. No transaction contemplated by
--------------
this Agreement or any other Transaction Document requires
compliance with, or will be subject to avoidance under, any bulk
sales act or similar law.
(w) Investment Company Act. Such Originator is not,
----------------------
and is not controlled by, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a
"holding company," or a "subsidiary company" of a "holding
company," or an affiliate of a "holding company," or a "subsidiary
company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(x) Pension Plans. During the preceding twelve
-------------
months, no steps have been taken to terminate any Pension Plan,
and no contribution failure has occurred with respect to any
Pension Plan, which has given rise to a lien under section 302(f)
of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which could result in
the incurrence by such Originator of any material liability, fine
or penalty. Such Originator has no material unaccrued liability
with respect to any post-retirement benefit under a "welfare plan"
as defined in Section 3(1) of ERISA, other than liability for
continuation coverage described in Part 6 of title I of ERISA.
II-4
(y) Year 2000 Compliance. Any reprogramming required
--------------------
to permit the proper functioning, in and following the year 2000,
of the computer application systems used to conduct, operate and
manage the business, assets and operations of such Originator, as
so reprogrammed, will be completed by September 30, 1999, unless
failure to complete such reprogramming could not reasonably be
expected to have a Material Adverse Effect. With respect to any
computer hardware, such Originator: (i) has initiated a review and
assessment of all areas within such Originator's business and
operations, (ii) has developed a plan and timeline for addressing
any problems which would cause it not to be Year 2000 Compliant on
a timely basis, (iii) to date, has implemented such plan in
accordance with such timetable and (iv) believes, based upon the
foregoing, that the Seller will be Year 2000 Compliant prior to
January 1, 2000. There are no additional costs to such Originator
relating to becoming Year 2000 Compliant that will result in a
Purchase and Sale Termination Event or have a Material Adverse
Effect. The computer and management information systems used to
conduct, operate and manage the business, assets and operations of
such Originator are and with ordinary course upgrading and
maintenance (and with any additions to accommodate growth), will
continue for the term of this Agreement to be, sufficient to
permit such Originator to conduct its business without having a
Material Adverse Effect.
(z) Insolvency. (i) The fair value of the property of
----------
such Originator is greater than the total amount of liabilities,
including contingent liabilities, of such Originator, (ii) the
present fair salable value of the assets of such Originator is not
less than the amount that will be required to pay all probable
liabilities of such Originator on its debts as they become
absolute and matured, (iii) such Originator does not intend to,
and does not believe that it will, incur debts or liabilities
beyond such Originator's abilities to pay such debts and
liabilities as they mature, (iv) such Originator is not engaged in
a business or a transaction, and is not about to engage in a
business or a transaction, for which such Originator's property
would constitute unreasonably small capital and (v) the transfer
of the Receivables and Related Assets by such Originator will not
render such Originator insolvent.
(aa) Separate Existence. The Facts and Assumptions
------------------
with respect to such Originator are true and correct.
II-5
EXHIBIT III
COVENANTS
---------
Until the later of the Purchase and Sale Termination Date and the
Final Payout Date:
(a) Compliance with Laws, Etc. Each Originator and
--------------------------
the Guarantor shall comply in all material respects with all
applicable laws, rules, regulations and orders, and preserve and
maintain its existence, rights, franchises, qualifications, and
privileges except to the extent that the failure so to comply with
such laws, rules and regulations or the failure so to preserve and
maintain such existence, rights, franchises, qualifications, and
privileges would not have a Material Adverse Effect.
(b) Offices, Records and Books of Account; Etc. Each
------------------------------------------
Originator (i) shall keep its principal place of business and
chief executive office (as such terms are used in the UCC) at the
address of such Originator set forth under its name on the
signature page to this Agreement and the office where it keeps its
records concerning the Pool Receivables created by such Originator
at such address or the location for such Originator, if any,
specified in Schedule III to the RPA or, upon at least 60 days'
prior written notice of a proposed change to the Purchaser and
Administrator, at any other address or locations in jurisdictions
where all actions reasonably requested by the Purchaser or the
Administrator to protect and perfect the interests of the
Purchaser and the Securitization Parties in the Receivables Pool
and Related Assets have been taken and completed and (ii) shall
provide the Purchaser and Administrator with at least 60 days'
written notice prior to making any change in such Originator's
name or making any other change in such Originator's identity or
corporate structure (including, without limitation, a merger)
which could render any UCC financing statement filed in connection
with this Agreement "seriously misleading" as such term is used in
the UCC; each notice to the Purchaser and Administrator pursuant
to this sentence shall set forth the applicable change and the
effective date thereof. Each Originator also will maintain and
implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing the
Pool Receivables and Related Asset created by such Originator in
the event of the destruction of the originals thereof), and keep
and maintain all documents, books, records, computer tapes and
disks and other information reasonably necessary or advisable for
the collection of such Pool Receivables (including, without
limitation, records adequate to permit the daily identification of
such Pool Receivable and all Collections of and adjustments to
such Pool Receivable created by such Originator).
(c) Performance and Compliance with Receivables and
-----------------------------------------------
Credit and Collection Policy. Each Originator shall, at its
----------------------------
expense, timely and fully perform and comply with all material
provisions, covenants and other promises required to be observed
by it under the Pool Receivables, and timely and fully comply in
all material respects with the Credit and Collection Policy with
regard to each Pool Receivable created by such Originator.
III-1
(d) Ownership Interest, Etc. Each Originator shall,
-----------------------
at its expense, take all action necessary or desirable to
establish and maintain in favor of the Purchaser, a valid and
enforceable perfected ownership interest in the Receivables Pool
and the Related Assets, free and clear of any Adverse Claim,
including, without limitation, taking such action to perfect or
more fully evidence the interest of the Purchaser under this
Agreement as the Purchaser or the Securitization Parties may
request.
(e) Sales, Liens, Etc. No Originator shall sell,
------------------
assign (by operation of law or otherwise) or otherwise dispose of,
or create or suffer to exist any Adverse Claim upon or with
respect to, any or all of its right, title or interest in, to or
under, any Pool Receivable or Related Asset, except to the
Purchaser hereunder, or assign any right to receive income in
respect of any items contemplated by this paragraph (e).
-------------
(f) Extension or Amendment of Receivables. Except as
-------------------------------------
provided in the Agreement or the Servicing Agreement, no
Originator shall extend the maturity or adjust the Outstanding
Principal Balance or otherwise amend, modify or waive the terms of
any Pool Receivable.
(g) Change in Business or Credit and Collection
-------------------------------------------
Policy. No Originator nor the Guarantor shall make any material
------
change in the character of its business and no Originator shall
make any material change in the Credit and Collection Policy, or
any change in the Credit and Collection Policy that would
adversely affect the collectibility or enforceability of any Pool
Receivable or the ability of any Originator to perform its
obligations, if any, under any Pool Receivable or under this
Agreement or the other Transaction Documents to which it is a
party, in each case, without the prior written consent of the
Purchaser and the Administrator.
(h) Audits. Each Originator and the Guarantor shall,
------
from time to time during regular business hours as reasonably
requested by the Purchaser or the Administrator, permit the
Purchaser and/or the Administrator, or its agents or
representatives, (i) to examine and make copies of and abstracts
from all books, records and documents (including, without
limitation, computer tapes and disks) in the possession or under
the control of such Originator or Guarantor relating to the
Receivables Pool and Related Assets, and (ii) to visit the offices
and properties of such Originator or Guarantor for the purpose of
examining such materials described in clause (i) above, and to
discuss matters relating to the Receivables Pool and Related
Assets with any of the officers, employees, agents or contractors
of such Originator or Guarantor having knowledge of such matters,
and shall permit and cooperate with an annual (or more frequently
if reasonably required by the Purchaser or Administrator) audit
(conducted at such Originator's or Guarantor's expense) of such
Originator or Guarantor by the Purchaser or Administrator and the
independent accountants selected thereby.
III-2
(i) Lock Box Accounts and Collection Account.
----------------------------------------
(i) No Originator shall add or terminate any bank as a
Lock-Box Bank or any account as a Lock-Box Account from those
listed in Schedule I to the RPA, or make any change in its
----------
instructions to Obligors regarding payments to be made to the
Seller or payments to be made to any Lock-Box Account (or related
post office box), unless the Purchaser and the Administrator
shall have consented thereto in writing and the Purchaser and the
Administrator shall have received copies of all agreements and
documents (including, without limitation, Lock-Box Agreements)
that it may request in connection therewith.
(ii) Each Originator shall (A) instruct all Obligors to
make payments of all Receivables created by such Originator to
one or more Lock-Box Accounts or to post office boxes to which
only Lock-Box Banks have access (and shall instruct the Lock-Box
Banks to cause all items and amounts relating to such Receivables
received in such post office boxes to be removed and deposited
into a Lock-Box Account on a daily basis), and (B) deposit, or
cause to be deposited, any Collections (other than those described
in clause (b) of the definition thereof) of Pool Receivables
received by it into Lock-Box Accounts not later than two Business
Days after receipt thereof. Each Lock-Box Account shall at all
times be subject to a Lock-Box Agreement.
(iii) No Originator shall add or terminate any bank as a
Collection Account Bank or any account as a Collection Account
from those listed in Schedule I to the Agreement, unless the
----------
Purchaser and the Administrator shall have consented thereto
in writing and the Purchaser and the Administrator shall have
received copies of all agreements and documents (including,
without limitation, Collection Account Agreements) that it may
request in connection therewith.
(iv) Each Collection Account shall at all times be
subject to a Collection Agreement. No Originator will deposit
or otherwise credit, or cause or permit to be so deposited or
credited, to any Collection Account cash or cash proceeds other
than Collections.
(j) Marking of Records. At its expense, each
------------------
Originator shall mark (a) its master data processing records and
storage cabinets relating to the Pool Receivables, including with
a legend evidencing that the ownership interests in such Pool
Receivables have been sold in accordance with this Agreement and
(b) at the request of the Purchaser or the Administrator following
the occurrence of a Purchase and Sale Termination Event, each Pool
Receivable with a legend, in form satisfactory to the Purchaser
and the Administrator, to the effect that such Pool Receivable
have been sold in accordance with this Agreement.
(k) Separate Corporate Existence of the Purchaser.
---------------------------------------------
Each Originator and the Guarantor hereby acknowledges that the
Purchaser and the Securitization Parties are
III-3
entering into the transactions contemplated by the Transaction
Documents in reliance upon the Purchaser's identity as a legal
entity separate from the Servicer, the Guarantor and each
Originator. Therefore, from and after the date hereof, each
Originator and the Guarantor shall take all steps to continue the
Purchaser's identity as such a separate legal entity and to make
it apparent to third Persons that the Purchaser is an entity with
assets and liabilities distinct from those of the Servicer, the
Guarantor, any Originator or any other Person, and not a division
of the Servicer, the Guarantor, any Originator or any other
Person. Without limiting the generality of the foregoing, no
Originator nor the Guarantor shall cause, or take any action, or
omit to take any action, that would cause the Purchaser to violate
any of the provisions contained in paragraph (k) of Exhibit IV to
the RPA or would be inconsistent with the Facts and Assumptions.
(l) Mergers, Acquisitions, Sales, etc. Any Person (a)
---------------------------------
into which any Originator or the Guarantor may be merged or
consolidated, (b) which may result from any merger or
consolidation to which any Originator or the Guarantor shall be a
party (if such Originator or Guarantor is not the surviving
entity), or (c) which may succeed to the properties and assets of
any Originator or the Guarantor substantially as a whole, shall be
the successor to such Originator or Guarantor under this Agreement
without further action on the part of any of the parties to this
Agreement; provided, however, that no Originator nor the
-------- -------
Guarantor shall be a party to any merger, consolidation or
Acquisition with or of another Person (or substantially all of its
properties or assets) unless (i) immediately after giving effect
to such transaction, no Purchase and Sale Termination Event, and
no Unmatured Purchase and Sale Termination Event shall have
happened and be continuing, (ii) such Originator or Guarantor
shall have delivered to the Administrator (for the benefit of each
Securitization Party) an officer's certificate (and, if such
Originator or Guarantor is not the surviving entity, an Opinion of
Counsel) stating that such consolidation, merger or succession and
such agreement of assumption comply with this paragraph (l), and
(iii) such Originator or Guarantor shall have delivered to the
Administrator (for the benefit of each Securitization Party) an
officer's certificate (and, if such Originator or Guarantor is not
the surviving entity , an Opinion of Counsel) either (A) stating
that all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary
fully to preserve and protect the interest of each Securitization
Party in the Pool Receivables, and reciting the details of such
filings, or (B) stating that no such action shall be necessary to
preserve and protect such interest. Notwithstanding anything
herein to the contrary, no Originator nor the Guarantor shall
consummate any transaction of a type referred to in clauses (a),
(b) or (c) above without the prior written consent of the
Administrator (except if one Originator is merging or
consolidating with another Originator) and unless at or prior
thereto the foregoing agreement of assumption shall have been
executed and the conditions described in clauses (i), (ii) and
(iii) shall have been met to the reasonable satisfaction of the
Administrator.
III-4
(m) ERISA Matters. Each Originator and the Guarantor
-------------
shall notify the Purchaser and the Administrator as soon as is
practicable and in any event not later than two Business Days
after (i) the institution of any steps by such Originator or
Guarantor or any other Person to terminate any Pension Plan which
could have a Material Adverse Effect, (ii) the failure to make a
required contribution to any Pension Plan if such failure is
sufficient to give rise to a lien under section 302(f) of ERISA,
(iii) the taking of any action with respect to a Pension Plan
which could result in the requirement that such Originator or
Guarantor furnish a bond or other security to the PBGC or such
Pension Plan or (iv) the occurrence of any event with respect to
any Pension Plan which could have a Material Adverse Effect, or
any material increase in the contingent liability of such
Originator or Guarantor with respect to any post-retirement
"welfare plan" (as defined in Section 3(1) of ERISA) benefit.
(n) Reporting Requirements. Each Originator and the
----------------------
Guarantor will provide to the Purchaser and the Administrator (in
multiple copies, if requested by the Administrator) the following:
(i) as soon as available and in any event
within 45 days after the end of the first three quarters of
each fiscal year (beginning with the quarter ended June 30,
1999) of Mail-Well, Inc., balance sheets of Mail-Well, Inc.
and its subsidiaries as of the end of such quarter and
statements of income and retained earnings thereof for the
period commencing at the beginning of such previous fiscal
year and ending with the end of such quarter, certified by
the treasurer or assistant treasurer thereof (as
applicable);
(ii) as soon as available and in any event
within 90 days after the end of each fiscal year (beginning
with the year ended December 31, 1999) of Mail-Well, Inc., a
copy of the annual report for such year for Mail-Well, Inc.
and its subsidiaries containing financial statements for
such year audited by nationally-recognized independent
certified public accountants;
(iii) as soon as possible and in any event
within five days after the occurrence of each Purchase and
Sale Termination Event or event which, with the giving of
notice or lapse of time, or both, would constitute a
Purchase and Sale Termination Event, a statement of the
treasurer or assistant treasurer of such Originator or
Guarantor setting forth details of such Purchase and Sale
Termination Event or event and the action that such
Originator or Guarantor has taken and proposes to take with
respect thereto;
(iv) promptly after the sending or filing
thereof, copies of all reports that may be material to the
transactions contemplated hereby that such Originator or
Guarantor sends to any of its security holders, and copies
of all reports and registration statements that such
Originator or Guarantor or any
III-5
subsidiary files with the Securities and Exchange Commission
or any national securities exchange;
(v) promptly after the filing by such
Originator or Guarantor or receiving notice or knowledge
thereof, copies of all reports and notices that such
Originator or Guarantor or any Affiliate files under ERISA
with the Internal Revenue Service or the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor or that
such Originator or Guarantor or any Affiliate receives from
any of the foregoing or from any multiemployer plan (within
the meaning of Section 4001(a)(3) of ERISA) to which such
Originator or Guarantor or any Affiliate is or was, within
the preceding five years, a contributing employer, in each
case in respect of the assessment of withdrawal liability or
an event or condition which could result in the imposition
of liability on such Originator or Guarantor and/or any such
Affiliate in excess of $500,000 or which, in the aggregate,
could have a Material Adverse Effect;
(vi) at least 60 days prior to any change in
such Originator's name or any other change requiring the
amendment of UCC financing statements, a notice setting
forth such changes and the effective date thereof;
(vii) such other information respecting the
Receivables or the condition or operations, financial or
otherwise, of such Originator or Guarantor or any of its
Affiliates as the Purchaser or the Administrator may from
time to time reasonably request;
(viii) promptly after such Originator or
Guarantor obtains knowledge thereof, notice of any (a)
litigation, investigation or proceeding which may exist at
any time between such Originator or Guarantor and any
Governmental Authority which, if not cured or if adversely
determined, as the case may be, could have a Material
Adverse Effect; or (b) litigation or proceeding affecting
(i) such Originator or Guarantor which could have a Material
Adverse Effect which is not covered by insurance or in which
injunctive or similar relief is sought or (c) litigation or
proceedings relating to any Transaction Document;
(ix) promptly after the occurrence thereof,
notice of a material adverse change in the business,
operations, property or financial or other condition of such
Originator or Guarantor.
(o) Year 2000 Compliance. Each Originator and the
--------------------
Guarantor shall promptly notify the Administrator in the event
such Originator or Guarantor discovers or determines that any
computer application (including those of its suppliers or vendors)
that is material to its business and operations will not be Year
2000 Compliant on a timely basis, except to the extent that any
such failure to comply could not reasonably be
III-6
expected to have a Material Adverse Effect and could not
reasonably be expected to cause a Termination Event.
(p) Delivery of Credit and Collection Policy. Each
----------------------------------------
Originator shall deliver to the Purchaser and the Administrator a
document that sets forth the Credit and Collection Policy, which
document shall be reasonably satisfactory, in form and substance,
to the Purchaser and the Administrator.
III-7
EXHIBIT IV
PURCHASE AND SALE TERMINATION EVENTS
------------------------------------
Each of the following events or occurrences described in this
Exhibit IV shall constitute a "Purchase and Sale Termination Event":
- ---------- -----------------------------------
(a) A Termination Event of the type described in Exhibit
V to the RPA shall have occurred; or
(b) Any Originator or the Guarantor shall fail to make
any payment required under this Agreement or under any other
Transaction Document, and such failure shall remain unremedied for
more than two Business Days after any Originator or the Guarantor
had actual knowledge or notice thereof, of should have known,
after the exercise of reasonable diligence thereof; or
(c) Any representation or warranty made or deemed to be
made by any Originator or the Guarantor (or any of its officers)
under or in connection with this Agreement or any other
Transaction Document or any other writing or certificate delivered
by any Originator or the Guarantor pursuant to such Transaction
Document shall prove to have been incorrect or untrue in any
material respect when made or deemed made or delivered and shall
remain incorrect or untrue for more than 10 days after any
Originator or the Guarantor had actual knowledge or notice
thereof, or should have known, after the exercise of reasonable
diligence, thereof; or
(d) Any Originator or the Guarantor shall fail in any
material respect to perform or observe any other term, covenant or
agreement contained in this Agreement or any other Transaction
Document on its part to be performed or observed and any such
failure shall remain unremedied for ten days after any Originator
or the Guarantor had actual knowledge or notice thereof, or should
have known, after the exercise of reasonable diligence, thereof;
or
(e) This Agreement shall for any reason (other than
pursuant to the terms hereof) cease to create in favor of the
Purchaser a valid and enforceable perfected ownership interest in
each Pool Receivable and Related Asset in favor of the Purchaser
free and clear of any Adverse Claim; or
(f) Any Originator or the Guarantor or any Affiliate
thereof 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 any proceeding shall be instituted by or against any
Originator or the Guarantor or any Affiliate thereof seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of
IV-1
it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial
part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or
the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property)
shall occur; or any Originator or the Guarantor or any Affiliate
thereof shall take any corporate action to authorize any of the
actions set forth above in this paragraph (g).
IV-2
ANNEX A
DEFINITIONS
-----------
As used in the Agreement (including Exhibits and Annexes), 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). Unless otherwise indicated, all Section, Annex, Exhibit and
Schedule references in this Annex are Sections of and Annexes, Exhibits
and Schedules to the Agreement.
"Agreement" means this Purchase and Sale Agreement, amended,
---------
supplemented or otherwise modified from time to time in accordance with
the Transaction Documents.
"Cost Rate" means, for any Originator on any Servicer Report
---------
Date, the percentage established on such Servicer Report Date as such by
agreement of such Originator and the Purchaser; provided, however,
-------- -------
that if such Originator and the Purchaser are unable to so agree as to
the Cost Rate applicable to any Servicer Report Date, the Cost Rate
shall equal the product of (i) the quotient of the Average Maturity
divided by 180 multiplied by (ii) the sum of (a) the Eurodollar Rate on
such Servicer Report Date plus (b) 1.125% plus (c) the Servicing Fee
Rate on such Servicer Report Date plus (d) the amount, expressed as a
per annum percentage rate, of any fees, costs and expenses incurred by
the Purchaser during the month immediately preceding such Servicer
Report Date (and not accounted for in clauses (a), (b) or (c) above),
including, without limitation, reserve costs, tax payments, commitment
fees and indemnity obligations of the Purchaser for which the Purchaser
is not indemnified pursuant to this Agreement; provided, however,
-------- -------
that, for purposes of minimizing fluctuations in the rate calculated as
the Cost Rate, the Purchaser may allocate and spread any unscheduled or
unaccruable costs and expenses of the Purchaser over several Servicer
Reporting Dates, subject to the requirement that such allocation be
reasonably calculated to allow the Purchaser to recover such costs and
expenses over a reasonable period of time.
"Discount" means, for any Receivable of any Originator, the
--------
product of the Outstanding Principal Balance of such Receivable
multiplied by the sum of the Loss Rate plus the Cost Rate for such
Originator as measured on the preceding Servicer Report Date.
"Guaranteed Obligations" has the meaning set forth in
----------------------
Section 5.15 of the Agreement.
"Guarantor" has the meaning set forth in the preamble to the
--------- --------
Agreement.
"Joinder Agreement" has the meaning set forth in
-----------------
Section 5.13(b) of the Agreement.
- ---------------
"Loss Rate" means, for any Originator on any Servicer Report
---------
Date, the percentage established on such Servicer Report Date as such by
agreement of such Originator and the Purchaser; provided, however,
-------- -------
that if such Originator and the Purchaser are unable to so agree as to
the Loss Rate applicable to any Servicer Report Date, the Loss Rate
shall mean the ratio,
Annex A-1
expressed as a percentage, of (i) the losses (i.e., write-offs to the
----
bad debt reserve or other write-offs consistent with the Credit and
Collection Policy, in each case, net of recoveries) recognized for all
Receivables generated by such Originator during the six (6) preceding
Monthly Periods divided by (ii) the Collections on all Receivables
generated by such Originator received during such six (6)preceding
Monthly Periods.
"Officer's Certificate" has the meaning set forth in the
---------------------
Servicing Agreement.
"Opinion of Counsel" has the meaning set forth in the Servicing
------------------
Agreement.
"Originator" has the meaning set forth in the preamble to the
---------- --------
Agreement.
"Originator Note" has the meaning set forth in Section 1.5(b)
--------------- --------------
of the Agreement.
"Payment Day" has the meaning set forth in Section 1.4(a) of
----------- --------------
the Agreement.
"Pension Plan" means a "pension plan", as such term is defined
------------
in section 3(2) of ERISA, which is subject to title IV of ERISA (other
than a multiemployer plan as defined in section 4001(a)(3) of ERISA),
and to which any Originator, the Servicer, the Guarantor or the
Purchaser or any corporation, trade or business that is, along with any
Originator, the Servicer, the Guarantor or the Purchaser, a member of a
controlled group of corporations or a controlled group of trades or
businesses, as described in sections 414(b) and 414(c), respectively, of
the Internal Revenue Code of 1986, as amended, or section 4001 of ERISA
may have any liability, including any liability by reason of having been
a substantial employer within the meaning of section 4063 of ERISA at
any time during the preceding five years, or by reason of being deemed
to be a contributing sponsor under section 4069 of ERISA.
"Purchase and Sale Termination Date" means the date determined
----------------------------------
in accordance with Section 2.3 of the Agreement.
-----------
"Purchase Price" has the meaning set forth in Section 1.3 of
-------------- -----------
the Agreement.
"Purchaser" has the meaning set forth in the preamble to the
--------- --------
Agreement.
"Related Assets" has the meaning set forth in Section 1.1.
-------------- -----------
"Repurchase Amount" has the meaning set forth in Section 1.7
----------------- -----------
of the Agreement.
"RPA" has the meaning set forth in recital A to the Agreement.
--- ---------
"Unmatured Purchase and Sale Termination Event" means any event
---------------------------------------------
or condition which but for the giving of notice or lapse of time, or
both, would constitute a Purchase and Sale Termination Event.
Annex A-2
ANNEX B
FORM OF ORIGINATOR NOTE
___ ____, 199__
FOR VALUE RECEIVED, the undersigned, MAIL-WELL TRADE RECEIVABLES
CORPORATION, a Nevada corporation (the "Purchaser"), promises to pay
---------
to [NAME OF ORIGINATOR], a __________ corporation (the "Originator"),
----------
on the terms and subject to the conditions set forth herein and in the
Purchase and Sale Agreement referred to below, the aggregate unpaid
Purchase Price of all Receivables and Related Assets purchased and to be
purchased by the Purchaser from the Originator pursuant to the Purchase
and Sale Agreement (subject to adjustment pursuant to Section 1.7 of
such Purchase and Sale Agreement). Such amount as shown in the records
of the Servicer will be rebuttable presumptive evidence of the principal
amount owing under this Note.
1. Purchase and Sale Agreement. This Note is an "Originator
---------------------------
Note" described in, and is subject to the terms and conditions set forth
in, the Purchase and Sale Agreement, dated as of July 1, 1999 (as
amended, supplemented, or otherwise modified from time to time, the
"Purchase and Sale Agreement"), among the Purchaser, Mail-Well I
---------------------------
Corporation, as initial servicer and as guarantor, and the originators
from time to time party thereto, including the Originator. Reference
is hereby made to the Purchase and Sale Agreement for a statement of
certain other rights and obligations of the Purchaser and the
Originator. In the case of any conflict between the terms of this Note
and the terms of the Purchase and Sale Agreement, the terms of the
Purchase and Sale Agreement shall control.
2. Definitions. Capitalized terms used (but not defined)
-----------
herein have the meanings ascribed thereto in the Purchase and Sale
Agreement or in the RPA (as defined in the Purchase and Sale Agreement).
In addition, as used herein, the following terms have the following
meanings:
"Final Maturity Date" means the date that falls one year
-------------------
and one day after the later of (x) the Purchase and Sale
Termination Date and (y) the Final Payout Date.
"Junior Liabilities" means all obligations of the
------------------
Purchaser to the Originator under this Note.
"Senior Agent" means the Administrator.
------------
"Senior Interests" means (a) the undivided percentage
----------------
ownership interests acquired by the Senior Interest Holders
pursuant to the RPA and (b) all obligations of the Purchaser to
the Senior Interest Holders, howsoever created, arising or
Annex B-1
evidenced, whether direct or indirect, absolute or contingent, now
or hereafter existing, or due or to become due on or before the
Final Maturity Date.
"Senior Interest Holders" means, collectively, the Senior
-----------------------
Agent, the Issuer, the Alternate Purchasers and the other
Indemnified Parties.
"Subordination Provisions" means, collectively, clauses
------------------------ -------
(a) through (k) of Section 7 hereof.
--- --- ---------
3. Interest. Subject to the Subordination Provisions, the
--------
Purchaser promises to pay interest on the aggregate unpaid principal
amount of this Note outstanding on each day at a variable rate per
---
annum equal to the Alternate Rate, as determined by the Servicer.
- -----
4. Interest Payment Dates. Subject to the Subordination
----------------------
Provisions, the Purchaser shall pay accrued interest on this Note on
each Settlement Date and on the Final Maturity Date (or, if any such day
is not a Business Day, the next succeeding Business Day). The Purchaser
also shall pay accrued interest on the principal amount of each
prepayment hereof on the date of each such prepayment.
5. Basis of Computation. Interest accrued hereunder shall be
--------------------
computed for the actual number of days elapsed on the basis of a 360-day
year.
6. Principal Payment Dates. Subject to the Subordination
-----------------------
Provisions, any unpaid principal of this Note shall be paid on the Final
Maturity Date (or, if such date is not a Business Day, the next
succeeding Business Day). Subject to the Subordination Provisions, the
principal amount of and accrued interest on this Note may be prepaid on
any Business Day without premium or penalty.
7. Subordination Provisions. The Purchaser covenants and
------------------------
agrees, and the Originator, by its acceptance of this Note, likewise
covenants and agrees, that the payment of all Junior Liabilities is
hereby expressly subordinated in right of payment to the payment and
performance of the Senior Interests to the extent and in the manner set
forth in the following clauses of this Section 7:
---------
(a) No payment or other distribution of the Purchaser's
assets of any kind or character, whether in cash, securities, or
other rights or property, shall be made on account of this Note
except to the extent such payment or other distribution is (i)
permitted under the RPA and (ii) made pursuant to Section 4 or 6
--------- -
of this Note;
(b) If the Purchaser has taken any action or suffered any
event to occur of the type described in subsection (g) of
--------------
Exhibit V to the RPA or any other Insolvency Proceeding or the
---------
Purchase and Sale Termination Date has occurred, then the Senior
Interests shall first be paid and performed in full and in cash
before
Annex B-2
the Originator shall be entitled to receive and to retain any
payment or distribution in respect of the Junior Liabilities. In
order to implement the foregoing: (x) all payments and
distributions of any kind or character in respect of the Junior
Liabilities to which the Originator would be entitled except for
this subsection 7.(b) shall be made directly to the Senior Agent
----------------
(for the benefit of the Senior Interest Holders); and (y) the
Originator hereby irrevocably agrees that the Senior Agent, in the
name of the Originator or otherwise, may demand, sue for, collect,
receive and receipt for any and all such payments or
distributions, and file, prove and vote or consent in any such
proceeding with respect to any and all claims of the Originator
relating to the Junior Liabilities, in each case until the Senior
Interests shall have been paid and performed in full and in cash.
(c) In the event that the Originator receives any
payment or other distribution of any kind or character from the
Purchaser or from any other source whatsoever, in respect of the
Junior Liabilities, other than as expressly permitted by the terms
of this Note, such payment or other distribution shall be received
in trust for the Senior Interest Holders and shall be turned over
by the Originator to the Senior Agent (for the benefit of the
Senior Interest Holders) forthwith. All payments and
distributions received by the Senior Agent in respect of this
Note, to the extent received in or converted into cash, may be
applied by the Senior Agent (for the benefit of the Senior
Interest Holders) first to the payment of any and all reasonable
expenses (including, without limitation, reasonable attorneys'
fees and other legal expenses) paid or incurred by the Senior
Agent or the Senior Interest Holders in enforcing these
Subordination Provisions, or in endeavoring to collect or realize
upon the Junior Liabilities, and any balance thereof shall, solely
as between the Originator and the Senior Interest Holders, be
applied by the Senior Agent toward the payment of the Senior
Interests in a manner determined by the Senior Agent to be in
accordance with the Receivables Purchase Agreement; but as between
the Purchaser and its creditors, no such payments or
distributions of any kind or character shall be deemed to be
payments or distributions in respect of the Senior Interests.
(d) Upon the final payment in full and in cash of all
Senior Interests, the Originator shall be subrogated to the rights
of the Senior Interest Holders to receive payments or
distributions from the Purchaser that are applicable to the Senior
Interests until the Junior Liabilities are paid in full.
(e) These Subordination Provisions are intended solely for
the purpose of defining the relative rights of the Originator, on
the one hand, and the Senior Interest Holders, on the other hand.
Nothing contained in the Subordination Provisions or elsewhere in
this Note is intended to or shall impair, as between the
Purchaser, its creditors (other than the Senior Interest Holders)
and the Originator, the Purchaser's obligation, which is
unconditional and absolute, to pay the Junior Liabilities as and
when the same shall become due and payable in accordance with
Annex B-3
the terms hereof and of the Purchase and Sale Agreement or to
affect the relative rights of the Originator and creditors of the
Purchaser (other than the Senior Interest Holders).
(f) The Originator shall not, until the Senior Interests
have been finally paid and performed in full and in cash,
(i) cancel, waive, forgive, transfer or assign, or commence legal
proceedings to enforce or collect, or subordinate to any
obligation of the Purchaser, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, or
now or hereafter existing, or due or to become due, other than the
Senior Interests, the Junior Liabilities, or any rights in respect
thereof or (ii) convert the Junior Liabilities into an equity
interest in the Purchaser, unless, in the case of each of
clauses (i) and (ii) above, the Originator shall have received
----------- ----
the prior written consent of the Senior Agent in each case.
(g) The Originator shall not, without the advance written
consent of the Senior Agent, commence, or join with any other
Person in commencing, any Insolvency Proceedings with respect to
the Purchaser until at least one year and one day shall have
passed since the Senior Interests shall have been finally paid and
performed in full and in cash.
(h) If, at any time, any payment (in whole or in part) made
with respect to any Senior Interest is rescinded or must be
restored or returned by a Senior Interest Holder (whether in
connection with any Event of Bankruptcy or otherwise), these
Subordination Provisions shall continue to be effective or shall
be reinstated, as the case may be, as though such payment had not
been made.
(i) Each of the Senior Interest Holders may, from time to
time, at its sole discretion, without notice to the Originator,
and without waiving any of its rights under these Subordination
Provisions, take any or all of the following actions: (i) retain
or obtain an interest in any property to secure any of the Senior
Interests; (ii) retain or obtain the primary or secondary
obligations of any other obligor or obligors with respect to any
of the Senior Interests; (iii) extend or renew for one or more
periods (whether or not longer than the original period), alter or
exchange any of the Senior Interests, or release or compromise any
obligation of any nature with respect to any of the Senior
Interests; (iv) amend, supplement, or otherwise modify any
Transaction Document; and (v) release its security interest in, or
surrender, release or permit any substitution or exchange for all
or any part of any rights or property securing any of the Senior
Interests, or extend or renew for one or more periods (whether or
not longer than the original period), or release, compromise,
alter or exchange any obligations of any nature of any obligor
with respect to any such rights or property.
(j) The Originator hereby waives: (i) notice of acceptance
of these Subordination Provisions by any of the Senior Interest
Holders; (ii) notice of the
Annex B-4
existence, creation, non-payment or non-performance of all or any
of the Senior Interests; and (iii) all diligence in enforcement,
collection or protection of, or realization upon the Senior
Interests, or any thereof, or any security therefor.
(k) These Subordination Provisions constitute a continuing
offer from the Purchaser to all Persons who become the holders of,
or who continue to hold, Senior Interests; and these Subordination
Provisions are made for the benefit of the Senior Interest
Holders, and the Senior Agent may proceed to enforce such
provisions on behalf of each of such Persons.
8. Amendments, Etc. No failure or delay on the part of the
---------------
Originator in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No amendment, modification or
waiver of, or consent with respect to, any provision of this Note shall
in any event be effective unless (a) the same shall be in writing and
signed and delivered by the Purchaser and the Originator, and (b) all
consents required for such actions under the Transaction Documents shall
have been received by the appropriate Persons.
9. Limitation on Interest. Notwithstanding anything in this
----------------------
Note to the contrary, the Purchaser shall never be required to pay
unearned interest on any amount outstanding hereunder, and shall never
be required to pay interest on the principal amount outstanding
hereunder, at a rate in excess of the maximum interest rate that may be
contracted for, charged or received without violating applicable federal
or state law.
10. No Negotiation. This Note is not negotiable.
--------------
11. Governing Law. THIS NOTE SHALL GOVERNED BY, AND CONSTRUED
-------------
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
12. Captions. Paragraph captions used in this Note are
--------
provided solely for convenience of reference only and shall not affect
the meaning or interpretation of any provision of this Note.
Annex B-5
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed by its officer thereunto duly authorized on the date first
above written.
MAIL-WELL TRADE RECEIVABLES CORPORATION,
a Colorado corporation
By:_____________________________________
Title:__________________________________
Annex B-6
ANNEX C
FORM OF JOINDER AGREEMENT
-------------------------
THIS JOINDER AGREEMENT, dated as of , 199 (this
---------- -
"Agreement") is executed by , a corporation
--------- --------------------
organized under the laws of (the "Additional
----------- ----------
Originator"), with its principal place of business located at
- ----------
_______________.
BACKGROUND
i. Mail-Well Trade Receivables Corporation, as Purchaser,
MailWell I Corporation, as initial servicer and the guarantor, and the
Originators from time to time party thereto, have entered into the
Purchase and Sale Agreement, dated as of July 1, 1999 (as amended,
supplemented or otherwise from time to time, the "Purchase and Sale
-----------------
Agreement").
- ---------
ii. The Additional Originator desires to become an Originator
pursuant to Section 5.13 of the Purchase and Sale Agreement.
------------
NOW, THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Additional Originator hereby agrees as follows:
SECTION 1. Definitions. Capitalized terms used in this
-----------
Agreement and not otherwise defined herein shall have the meanings
assigned thereto in the Purchase and Sale Agreement or in the RPA (as
defined in the Purchase and Sale Agreement).
SECTION 2. Transaction Documents. The Additional Originator
---------------------
hereby agrees that it shall be bound by all of the terms, conditions and
provisions of, and shall be deemed to be a party to (as if it were an
original signatory to), the Purchase and Sale Agreement. From and after
the later of the date hereof and the date that the Additional Originator
has complied with all of the requirements of Section 5.13 of the
------------
Purchase and Sale Agreement, the Additional Originator shall be an
Originator for all purposes of the Transaction Documents and on such
date, and thereafter, shall sell, transfer, assign and convey its
Receivables and Related Assets in accordance with Section 1.2 of the
Purchase and Sale Agreement. The Additional Originator hereby
acknowledges that it has received copies of the Purchase and Sale
Agreement, its Originator Note and the other Transaction Documents
SECTION 3. Representations and Warranties. The Additional
------------------------------
Originator hereby makes all of the representations and warranties set
forth in Exhibit II of the Purchase and Sale Agreement as of the date
----------
hereof, as if such representations and warranties were fully set forth
herein. The Additional Originator hereby represents and warrants that
the chief place of business and chief executive office of the Additional
Originator, and the offices where the
Annex C-1
Additional Originator keeps all of its books, records and documents
evidencing or otherwise relating to the Receivables generated by it, and
the Related Assets, at the addresses set forth below:
_____________________________
_____________________________
_____________________________
SECTION 4. Miscellaneous. This Agreement shall be governed
-------------
by, and construed in accordance with, the internal laws of the State of
New York. This Agreement shall be binding upon, and shall inure to the
benefit of, the Additional Originator and its successors and permitted
assigns.
Annex C-2
IN WITNESS WHEREOF, the undersigned has caused this Agreement to
be executed by its duly authorized officer as of the date and year first
above written.
[NAME OF ADDITIONAL ORIGINATOR]
By:_________________________________________
Name Printed:____________________________
Title:___________________________________
Consented to:
MAIL-WELL TRADE RECEIVABLES CORPORATION
By:______________________________
Name:_________________________
Title:________________________
MAIL-WELL I CORPORATION
By:______________________________
Name:_________________________
Title:________________________
Acknowledged by:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS BANK, as Administrator
By:______________________________
Name:_________________________
Title:________________________
Annex C-3
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT, dated as of
July 1, 1999 (this "Amendment"), is entered into among the Originators
---------
from time to time party thereto (the "Originators"), MAIL-WELL I
-----------
CORPORATION, a Delaware corporation, as initial Servicer (the
"Servicer") and as guarantor (the "Guarantor"), and MAIL-WELL TRADE
-------- ---------
RECEIVABLES CORPORATION, a Colorado corporation, as purchaser (the
"Purchaser").
---------
RECITALS
1. The Originators, the Servicer, the Guarantor and the Purchaser
are parties to the Purchase and Sale Agreement, dated as of July 1, 1999
(the "Agreement"); and
---------
2. The parties hereto desire to amend the Agreement as set forth
herein.
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Certain Defined Terms. Capitalized terms used but not
---------------------
defined herein shall have the meaning set forth in Annex A to the
Agreement or in Exhibit I to the Receivables Purchase Agreement.
2. Amendments to the Agreement. The Agreement is hereby
---------------------------
amended as follows:
2.1 A new Section 1.2(e) is hereby added to the
Agreement to be and to read as follows:
(e) Additional Included Sites. Upon the addition
-------------------------
of a new location as an Included Site pursuant to Section
4.15 of the RPA, the applicable Originator hereby sells,
transfers, assigns and conveys to Purchaser (without any
formal or other instrument of assignment and without further
action by any Person) all of its right, title and interest
to all of the Receivables and Related Assets of such
Originator with respect to such new location that exist at
the opening of such Originator's business on the date such
location is added as Included Site. After the initial
purchase under this paragraph (e), regular purchases will be
made in accordance with paragraph (b) above.
2.2 Clause (ii)(A) of paragraph (i) in Exhibit III to
the Agreement is hereby amended by adding the following proviso,
immediately prior to the comma, at the end thereof:
; provided, however, that the Obligors of Receivables
originated by WISCO II, LLC or WISCO III, LLC may be
instructed to make payments directly to the Servicer (or
any sub-servicer), which payments shall be deposited by the
Servicer (or such sub-servicer) into a Lock-Box Account not
later than two Business Days after receipt thereof.
2.3 The first proviso of the definition of "Cost Rate"
in Annex A to the Agreement is hereby amended and restated to be
and to read as follows:
provided, however, that if such Originator and the
-------- -------
Purchaser are unable to so agree as to the Cost Rate
applicable to any Servicer Report Date, the Cost Rate shall
equal the product of (i) the quotient of the Average
Maturity divided by 360 multiplied by (ii) the sum of (a)
the highest Alternate Rate or CP Rate applicable to any
Portion of Capital on such Servicer Report Date plus (b) the
Servicing Fee Rate on such Servicer Report Date plus (c) the
amount, expressed as a per annum percentage rate, of any
fees, costs and expenses incurred by the Purchaser during
the month immediately preceding such Servicer Report Date
(and not accounted for in clauses (a) or (b) above),
including, without limitation, reserve costs, tax payments,
commitment fees and indemnity obligations of the Purchaser
for which the Purchaser is not indemnified pursuant to this
Agreement;
3. Effect of Amendment. Except as expressly amended and
-------------------
modified by this Amendment, all provisions of the Agreement shall remain
in full force and effect. After this Amendment becomes effective, all
references in the Agreement (or in any other Transaction Document) to
"this Agreement", "hereof", "herein" or words of similar effect
referring to the Agreement shall be deemed to be references to the
Agreement as amended by this Amendment. This Amendment shall not be
deemed, expressly or impliedly, to waive, amend or supplement any
provision of the Agreement other than as set forth herein.
4. Counterparts. This Amendment may be executed in any number
------------
of counterparts and by different parties on separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute but one and the same
instrument.
5. Governing Law. This Amendment shall be governed by, and
-------------
construed in accordance with, the law of the State of New York without
regard to any otherwise applicable principles of conflicts of law.
6. Section Headings. The various headings of this Amendment are
----------------
included for convenience only and shall not affect the meaning or
interpretation of this Amendment, the Agreement or any provision hereof
or thereof.
[signature pages on next page]
2
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first written above.
MAIL-WELL I CORPORATION,
as initial Servicer and as Guarantor
By: _______________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
MAIL-WELL TRADE RECEIVABLE CORPORATION,
as Purchaser
By: _______________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
GRAPHIC ARTS CENTER, INC., as an Originator
By: _______________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
MURRAY ENVELOPE CORP.,
as an Originator
By: _______________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
3
MAIL-WELL COMMERCIAL PRINTING, INC.,
as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
MAIL-WELL I CORPORATION,
as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
MAIL-WELL LABEL USA, INC.,
as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
MAIL-WELL WEST, INC., as an
Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
POSER BUSINESS FORMS INC.,
as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
4
WISCO II, LLC, as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax
WISCO III, LLC, as an Originator
By: ____________________________________
Name: Robert Meyer
Title: Vice President, Treasurer and Tax