PURCHASE AND CONTRIBUTION AGREEMENT Dated as of July 25, 2007 Among The parties listed on Schedule I hereto as Sellers and OLIN CORPORATION as Collection Agent and OLIN FUNDING COMPANY LLC as Purchaser
·¡³æ³ó¾±²ú¾±³ÙÌý10.1
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Dated
as
of July 25, 2007
Ìý
Ìý
Among
Ìý
The
parties listed on Schedule I hereto
Ìý
as
Sellers
Ìý
and
Ìý
▇▇▇▇
CORPORATION
Ìý
as
Collection Agent
Ìý
and
Ìý
▇▇▇▇
FUNDING COMPANY LLC
Ìý
as
Purchaser
Ìý
Ìý
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ARTICLE
I
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ARTICLEÌýII
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ARTICLE
III
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ARTICLE
IV
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ARTICLE
V
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ARTICLE
VI
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ARTICLE
VII
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ARTICLE
VIII
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ARTICLE
IX
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ii
EXHIBITS
AND SCHEDULES
Ìý
EXHIBIT
AÌýÌýÌýCredit and
Collection Policy
EXHIBIT
BÌýÌýÌýÌýDeposit
Accounts
EXHIBIT
CÌýÌýÌýÌýForm
of Deferred Purchase Price Note
EXHIBIT
DÌýÌýÌýForm of
Letter of Credit Request
EXHIBIT
EÌýÌýÌýÌýAddresses, Prior
Names, “Doing-Business-As� Names, Tradenames
EXHIBIT
FÌýÌýÌýÌýSellersâ€� UCC
Information
Ìý
SCHEDULE
IÌýÌýÌýÌýÌýÌýÌýÌýList of Sellers
iii
Ìý
Ìý
Dated
as
of July 25, 2007
Ìý
Each
of
the parties listed on Schedule I hereto (each, a �Seller� and
collectively, the �Sellers�), ▇▇▇▇ CORPORATION, a Virginia corporation
(the �Parent�), as Collection Agent, and ▇▇▇▇ FUNDING COMPANY LLC, a
Delaware limited liability company (the �Purchaser�), agree as
follows:
Ìý
PRELIMINARY
STATEMENTS.
Ìý
(1)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýCertain
terms which are capitalized and used throughout this Agreement (in addition
to
those defined above) are defined in Article I of this Agreement.
Ìý
(2)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Sellers have Receivables that they wish to sell to the Purchaser, and the
Purchaser is prepared to purchase such Receivables on the terms set forth in
this Purchase and Contribution Agreement (this �Agreement�).
Ìý
(3)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Parent may also wish to contribute Receivables to the capital of the Purchaser
on the terms set forth herein.
Ìý
NOW,
THEREFORE, the parties agree as follows:
Ìý
ARTICLE
I
Ìý
Ìý
SECTION
1.01.ÌýÌýCertain Defined
Terms.ÌýÌýAs used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
Ìý
�Adverse
Claim� means a lien, security interest, or other charge or encumbrance, or
any other type of preferential arrangement.
Ìý
�Affiliate�
means, as to any Person, any other Person that, directly or indirectly, is
in
control of, is controlled by or is under common control with such Person or
is a
director or officer of such Person.
Ìý
�Agreement�
has the meaning specified in the Preliminary Statements.
Ìý
�Alternate
Base Rate� means a fluctuating interest rate per annum as shall be in effect
from time to time, which rate shall be at all times equal to the highest
of:
Ìý
(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
rate of interest announced publicly by Citibank, N.A. in New York, New York,
from time to time as Citibank, N.A.’s base rate;
Ìý
Ìý
Ìý
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý1/2
of one percent above the latest three-week moving average of secondary market
morning offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week moving
average being determined weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank, N.A. on the basis of such rates
reported by certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by Citibank,
N.A.
from three New York certificate of deposit dealers of recognized standing
selected by Citibank, N.A., in either case adjusted to the nearest 1/4 of one
percent or, if there is no nearest 1/4 of one percent, to the next higher 1/4
of
one percent; and
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
Federal Funds Rate.
Ìý
�Available
Funds� has the meaning specified in Section 2.03(c).
Ìý
�Business
Day� means any day on which banks are not authorized or required to close in
New York City or the State of Missouri.
Ìý
�Canada-U.S.
Convention� means the Canada-United States Income Tax Convention (1980), as
amended, modified or replaced from time to time.
Ìý
�Canadian
Dollars� means dollars in the lawful currency of Canada.
Ìý
�Canadian
Receivable� means any Receivable, the Obligor of which has a billing address
in Canada.
Ìý
�Collection
Agent� means at any time the Person then authorized pursuant to Section 6.01
to service, administer and collect Transferred Receivables.
Ìý
�Collection
Agent Fee� has the meaning specified in Section 6.03.
Ìý
�Collections�
means, with respect to any Receivable, all cash collections and other cash
proceeds of such Receivable, including, without limitation, all cash proceeds
of
Related Security with respect to such Receivable, and all funds deemed to have
been received by a Seller or any other Person as a Collection pursuant to
Section 2.04.
Ìý
�Contract�
means an agreement between a Seller and an Obligor pursuant to or under which
such Obligor shall be obligated to pay for merchandise or services from time
to
time.
Ìý
�Contributed
Receivablesâ€� has the meaning specified in SectionÌý2.06.
Ìý
Ìý
2
Ìý
Ìý
�Credit
and Collection Policy� means those receivables credit and collection
policies and practices of the applicable Seller in effect on the date of this
Agreement applicable to the Receivables and described in ExhibitÌýA
hereto, as modified in compliance with this Agreement.
Ìý
�Debt�
means (i) indebtedness for borrowed money, (ii)Ìýobligations evidenced by
bonds, debentures, notes or other similar instruments, (iii)Ìýobligations to
pay the deferred purchase price of property or services, (iv)Ìýobligations
as lessee under leases which shall have been or should be, in accordance with
generally accepted accounting principles, recorded as capital leases, and (v)
obligations under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clauses (i) through (iv) above.
Ìý
�Defaulted
Receivable� means a Receivable:
Ìý
(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýas
to which any payment, or part thereof, remains unpaid (x) for more than 60
days
from the original due date for such payment, if such Receivable is not a
Winchester Extended Term Receivable, or (y) for more than 30 days from the
original due date for such payment, if such Receivable is a Winchester Extended
Term Receivable;
Ìý
(ii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýas
to which the Obligor thereof or any other Person obligated thereon or owning
any
Related Security in respect thereof has taken any action, or suffered any event
to occur, of the type described in Section 7.01(g);
Ìý
(iii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich,
consistent with the Credit and Collection Policy, would be written off as
uncollectible;
Ìý
(iv)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýfor
which the applicable Seller has (or, consistent with the Credit and Collection
Policy, should have) established a reserve specifically for the Obligor
obligated on such Receivable with respect to the non-payment by such Obligor
of
its obligations on any Receivable.
Ìý
�Deferred
Purchase Price� means the portion of the Purchase Price of Purchased
Receivables purchased on any Purchase Date from a Seller exceeding the amount
of
the Purchase Price under Section 2.02 to be paid in cash or by delivery of
a
Letter of Credit to such Seller.ÌýÌýThe obligations of the Purchaser in
respect of the Deferred Purchase Price shall be evidenced by the Purchaser’s
subordinated promissory note to each Seller in the form of Exhibit C
hereto.
Ìý
�Delinquent
Receivable� means a Receivable that is not a Defaulted Receivable
and:
Ìý
Ìý
3
Ìý
(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýas
to which any payment, or part thereof, remains unpaid (x) for 31-60 days from
the original due date for such payment, if such Receivable is not a Winchester
Extended Term Receivable, or (y) for one to 30 days from the original due date
for such payment, if such Receivable is a Winchester Extended Term Receivable;
or
Ìý
(ii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich,
consistent with the Credit and Collection Policy, would be classified as
delinquent by the applicable Seller.
Ìý
�Deposit
Account� means an account maintained at a Deposit Bank into which (i)
Collections in the form of checks and other items are deposited that have been
sent to one or more Lock-Boxes by Obligors and/or (ii) Collections in the form
of electronic funds transfers and other items are paid directly by
Obligors.
Ìý
�Deposit
Account Agreement� means an agreement among the applicable Seller, the
Purchaser (or its assignees or designees) and any Deposit Bank in form and
substance satisfactory to the Purchaser (or its assignees or
designees).
Ìý
�Deposit
Bank� means any of the banks holding one or more Deposit
Accounts.
Ìý
�Diluted
Receivable� means that portion (and only that portion) of any Receivable
which is either (a) reduced or canceled as a result of (i) any defective,
rejected or returned merchandise or services or any failure by a Seller to
deliver any merchandise or provide any services or otherwise to perform under
the underlying Contract, (ii) any change in the terms of or cancellation of,
a
Contract or any cash discount, discount for quick payment or other adjustment
by
a Seller which reduces the amount payable by the Obligor on the related
Receivable (except any such change or cancellation resulting from or relating
to
the financial inability to pay or insolvency of the Obligor of such Receivable)
or (iii) any set-off by an Obligor in respect of any claim by such Obligor
as to
amounts owed by it on the related Receivable (whether such claim arises out
of
the same or a related transaction or an unrelated transaction) or (b) subject
to
any specific dispute, offset, counterclaim or defense whatsoever (except the
discharge in bankruptcy of the Obligor thereof); provided that Diluted
Receivables are calculated assuming that all chargebacks are resolved in the
Obligor’s favor.
Ìý
�Discount�
means, in respect of each Purchase, 1.50% of the Outstanding Balance of the
Receivables that are the subject of such Purchase; provided,
however, the foregoing Discount may be revised prospectively by request
of any of the parties hereto to reflect changes in recent experience with
respect to write-offs, timing and cost of Collections and cost of funds,
provided that such revision is consented to by each of the parties (it being
understood that each party agrees to duly consider such request but shall have
no obligation to give such consent).
Ìý
Ìý
4
Ìý
Ìý
�Dollar
Equivalent� means, as of any date, the amount obtained by applying the rate
for converting currency into Dollars at the spot rate of exchange for that
currency as reasonably determined and advised by the Program Agent.
Ìý
�Dollars�
or �$� means dollars in the lawful currency of the United
States.
Ìý
�Eligible
Country� means a country other than the United States and Canada that
satisfies each of the following criteria:
Ìý
(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýit
has a foreign currency sovereign debt rating of at least BBB- by Standard &
Poor’s and Baa3 by ▇▇▇▇▇’▇ Investors Service, Inc.;
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýits
government or central bank shall not have (i) prohibited the sale of the
currency of such country in exchange for United States Dollars, (ii) admitted
in
writing its inability to pay its debts as the same become due, (iii) declared
a
moratorium on the payment of its debts or the debts of any national governmental
authority of such country, or (iv) ceased to be a member of the International
Monetary Fund or ceased to be eligible to use the resources of the International
Monetary Fund; and
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
United States shall not have imposed economic sanctions on such
country.
Ìý
�Eligible
Receivable� means a Receivable:
Ìý
(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
the Obligor of which has a billing address in the United States, Canada or
any
Eligible Country, and is not an Affiliate of any Seller or the
Purchaser;
Ìý
(ii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý[intentionally
omitted];
Ìý
(iii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich,
at the time of the transfer thereof to the Purchaser under this Agreement,
is
not a Defaulted Receivable;
Ìý
(iv)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
Obligor of which, at the time of the transfer of such Receivable under this
Agreement, is not the Obligor of any Defaulted Receivables which in the
aggregate constitute 20% or more of the aggregate Outstanding Balance of all
Receivables of such Obligor;
Ìý
(v)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich
has been billed and which, according to the Contract related thereto, is
required to be paid in full within 90 days of the original billing date
therefor; provided that the aggregate Outstanding Balance of all Eligible
Receivables that are required to be paid in full within 61-90 days of the
original billing date therefor according to the Contract related thereto shall
not at any time exceed 3.00% of the aggregate Outstanding Balance of all
Eligible Receivables; provided further that up to 10.00% of the aggregate
Outstanding Balance of all Eligible Receivables may be comprised of Winchester
Extended Term Receivables;
Ìý
Ìý
5
Ìý
Ìý
(vi)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich
is an obligation representing all or part of the sales price of merchandise,
insurance or services within the meaning of SectionÌý3(c)(5) of the
Investment Company Act of 1940, as amended, and the nature of which is such
that
its purchase with the proceeds of notes would constitute a “current transaction�
within the meaning of Section 3(a)(3) of the Securities Act of 1933, as
amended;
Ìý
(vii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich
is an �account� or �payment intangible� within the meaning of
Article 9 of the UCC of the applicable jurisdictions;
Ìý
(viii)ÌýÌýÌýÌýÌýÌýÌýÌýwhich
is denominated in Dollars or Canadian Dollars and is payable in the United
States or Canada;
Ìý
(ix)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich
arises under a Contract which, together with such Receivable, is in full force
and effect and constitutes the legal, valid and binding obligation of the
Obligor of such Receivable and is not subject to any Adverse Claim or any
dispute, offset, counterclaim or defense whatsoever (except the potential
discharge in bankruptcy of such Obligor);
Ìý
(x)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich,
together with the Contract related thereto, does not contravene in any material
respect any laws, rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to usury, consumer protection,
truth in lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy) and with respect to
which no party to the Contract related thereto is in violation of any such
law,
rule or regulation in any material respect;
Ìý
(xi)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich,
if the Obligor thereof has a billing address outside of the United States or
Canada (other than the Province of Quebec and, if the transfer of such
Receivable to the Purchaser under this Agreement occurs prior to August 1,
2007,
the Province of Ontario), arises under a Contract which does not contain a
legally enforceable provision requiring such Obligor to consent to the transfer,
sale or assignment of the rights and duties of the applicable Seller or the
Purchaser, unless a written consent of the Obligor has been
obtained;
Ìý
(xii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich
was generated in the ordinary course of the applicable Seller’s
business;
Ìý
(xiii)ÌýÌýÌýÌýÌýÌýÌýÌýwhich,
at the time of the transfer of such Receivable under this Agreement, has not
been extended, rewritten or otherwise modified from the original terms
thereof;
Ìý
Ìý
6
Ìý
Ìý
(xiv)ÌýÌýÌýÌýÌýÌýÌýÌýthe
transfer, sale or assignment of which does not contravene any applicable law,
rule or regulation;
Ìý
(xv)ÌýÌýÌýÌýÌýÌýÌýÌýÌýwhich
satisfies all applicable requirements of the Credit and Collection
Policy;
Ìý
(xvi)ÌýÌýÌýÌýÌýÌýÌýÌýthe
Obligor of which is not the Government of Canada or any agency, department,
instrumentality or political subdivision thereof or any federal or provincial
Crown corporation (other than those listed as exempt under applicable
legislation from restrictions or requirements for consent or notice of the
assignment of Receivables in respect of which they are obligors), or any
provincial or local government or government agency, department, instrumentality
or political subdivision of such provincial or local government if the
enforceability against such government, agency, department, instrumentality
or
political subdivision of an assignment of debts owing thereby is subject to
any
precondition which has not been fulfilled;
Ìý
(xvii)ÌýÌýÌýÌýÌýÌýÌýwhich,
if it is an obligation of an Obligor that is a government or a governmental
subdivision or agency, shall not cause the aggregate Outstanding Balance of
all
Receivables that are obligations of Obligors that are governments or
governmental subdivisions or agencies to exceed 10% of the aggregate Outstanding
Balance of all Receivables at such time;
Ìý
(xviii)ÌýÌýÌýÌýÌýÌýwhich
represents a bona fide obligation of the Obligor of such Receivable to pay
the
stated amount thereof;
Ìý
(xix)ÌýÌýÌýÌýÌýÌýÌýÌýas
to which the applicable Seller has satisfied and fully performed all obligations
with respect to such Receivable required to be fulfilled by it other than
customary warranty obligations, and no further action is required to be
performed by any Person with respect thereto other than payment thereon by
the
applicable Obligor;
Ìý
(xx)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýfor
which the related invoice has not been prepared or generated manually;
and
Ìý
(xxi)ÌýÌýÌýÌýÌýÌýÌýÌýas
to which, if such Receivable is a Canadian Receivable, (x) none of the services
(if any) giving rise to such Receivable were rendered to the Obligor thereof
in
Canada, and (y) if the Obligor has a billing address in the Province of Quebec,
(A) the Contract with respect to such Canadian Receivable is not governed by
the
laws of the Province of Quebec and (B) pursuant to the express terms of such
Contract, all Collections with respect thereto are payable only to locations
outside of the Province of Quebec.
Ìý
Ìý
7
Ìý
Ìý
�ERISA�
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time, and the regulations promulgated and rulings issued
thereunder.
Ìý
�Event
of Termination� has the meaning specified in Section 7.01.
Ìý
�Excluded
Receivable� means (a) all indebtedness or accounts receivable due from The
▇▇▇▇▇▇� Works Co. to Chase Brass & Copper Company, Inc. (whether or not such
indebtedness or accounts receivable has been sold or transferred by Chase Brass
& Copper Company, Inc.), (b) all indebtedness due to a Seller arising from
the sale of consigned goods by such Seller, (c) all indebtedness or accounts
receivable due from Honeywell International Inc. or a unit or subsidiary thereof
to �.�. ▇▇▇▇� Co. (whether or not such indebtedness or accounts receivable
has
been sold or transferred by �.�. ▇▇▇▇� Co.) and (d) all indebtedness or accounts
receivable due from Honeywell International Inc. or a unit or subsidiary thereof
to �.�. ▇▇▇▇� West, Inc. (whether or not such indebtedness or accounts
receivable has been sold or transferred by �.�. ▇▇▇▇� West, Inc.);
provided, that upon at least thirty (30) days prior written notice by the
relevant Originator to the Purchaser and the Collection Agent (A) stating that
all receivables financing or purchasing arrangements pertaining to the
indebtedness and accounts receivable described in clause (a), (c) or (d) above
have been terminated and all UCC Financing Statements filed in connection
therewith have been terminated (and attaching acknowledgment copies thereof),
(B) stating that the indebtedness or accounts receivable previously subject
to
such receivables financing or purchasing arrangements are free and clear of
Adverse Claims (and attaching appropriate UCC search results confirming such
statement) and (C) authorizing the Purchaser or its designee to file an
amendment of the applicable UCC Financing Statements filed in connection with
this Agreement to reflect that such indebtedness and accounts receivable are
no
longer Excluded Receivables, the indebtedness or accounts receivable due from
the Obligor specified in clause (a), (c) or (d) above, as applicable, shall
no
longer be deemed to be Excluded Receivables from and after the filing of such
UCC Financing Statement amendments.
Ìý
�Facility
Termination Date� means the earliest of (i) the “Facility Termination Date�
(as such term is defined in the RPA), (ii) the date determined pursuant
to
Section 7.01 and (iii) the date which the Sellers designate by at least three
Business Days� notice to the Purchaser and (prior to the RPA Final Payment Date)
the Program Agent.
Ìý
�Federal
Funds Rate� means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates
on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day
is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is
a
Business Day, the average of the quotations for such day on such transactions
received by Citibank, N.A. from three Federal funds brokers of recognized
standing selected by it.
Ìý
Ìý
8
Ìý
Ìý
�Finance
Charge� means, with respect to any Receivable, any interest, finance charges
or other similar charges payable at any time by an Obligor in connection with
such Receivable not having been paid on the due date thereof.
Ìý
�General
Trial Balance� of a Seller on any date means such Seller’s accounts
receivable trial balance (whether in the form of a computer printout, magnetic
tape or diskette) on such date, listing Obligors and the Receivables
respectively owed by such Obligors on such date together with the aged
Outstanding Balances of such Receivables, in form and substance satisfactory
to
the Purchaser.
Ìý
�Incipient
Event of Termination� means an event that but for notice or lapse of time or
both would constitute an Event of Termination.
Ìý
�Indemnified
Amounts� has the meaning specified in Section 8.01.
Ìý
�L/C
Bank� means Wachovia Bank, National Association.
Ìý
�Letter
of Credit� means a stand-by letter of credit issued by the L/C Bank in
Dollars upon application of Purchaser at the request of a Seller, as the same
may be extended from time to time in accordance with this Agreement and the
RPA.
Ìý
�Letter
of Credit Request� means a request in the form of Exhibit D hereto,
with appropriate insertions thereto, duly executed by a Seller.
Ìý
�Location�
means, with respect to any Person, such Person’s location for purposes of
Section 9-307 of the UCC as in effect in the State of New York on any date
of
determination.
Ìý
�Lock-Box�
means a post office box administered by a Deposit Bank for the purpose of
receiving Collections.
Ìý
�Obligor�
means a Person obligated to make payments to a Seller pursuant to a
Contract.
Ìý
�Outstanding
Balance� of any Receivable at any time means the then outstanding principal
balance thereof; provided, that to the extent that the amount of any
Receivable is, under the terms of the applicable Contract, expressed in Canadian
Dollars, such amount for the purposes of this definition shall be the Dollar
Equivalent thereof at the relevant time. Sales or use tax and any other taxes
and Finance Charges which may be billed in connection with a Receivable are
not
included in the Outstanding Balance.
Ìý
�Parent�
means ▇▇▇▇ Corporation, a Virginia corporation.
Ìý
�Person�
means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.
Ìý
Ìý
9
Ìý
Ìý
�Program
Agent� means Citicorp North America, Inc., as program agent under the RPA,
or any successor program agent under the RPA.
Ìý
�Purchase�
means a purchase by the Purchaser of Receivables from a Seller pursuant to
Article II.
Ìý
�Purchase
Date� means each day on which a Purchase is made pursuant to Article
II.
Ìý
�Purchase
Price� for any Purchase means an amount equal to the Outstanding Balance of
the Receivables that are the subject of such Purchase as set forth in the
applicable Seller’s General Trial Balance, minus the Discount for such
Purchase.
Ìý
�Purchased
Receivable� means any Receivable which is purchased by the Purchaser
pursuant to Section 2.02.
Ìý
�Purchaser�
has the meaning specified in the first paragraph of this Agreement.
Ìý
�Receivable�
means the indebtedness of any Obligor under a Contract (whether constituting
an
account, instrument, chattel paper or general intangible), and includes, except
if the Obligor thereof has a billing address in Canada, the right to payment
of
any interest or finance charges and other obligations of such Obligor with
respect thereto; provided, however, that the term
�Receivable� shall not include any Excluded Receivable.
Ìý
�Related
Security� means with respect to any Receivable:
Ìý
(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýall
of the applicable Seller’s interest in any merchandise (including returned
merchandise) relating to any sale giving rise to such Receivable;
Ìý
(ii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýall
security interests, hypothecs or liens and property subject thereto from time
to
time purporting to secure payment of such Receivable, whether pursuant to the
Contract related to such Receivable or otherwise, together with all financing
statements and similar instruments filed against an Obligor describing any
collateral securing such Receivable;
Ìý
(iii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýall
guaranties, insurance and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Receivable whether
pursuant to the Contract related to such Receivable or otherwise;
and
Ìý
Ìý
10
Ìý
(iv)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
Contract and all other books, records and other information (including, without
limitation, computer programs, tapes, discs, punch cards, data processing
software and related property and rights) relating to such Receivable and the
related Obligor.
Ìý
�RPA�
means that certain Receivables Purchase Agreement, dated as of the date hereof,
among the Purchaser, as seller, CAFCO, LLC and Variable Funding Capital Company
LLC, as investors, Citibank, N.A. and Wachovia Bank, National Association,
as
banks, Citicorp North America, Inc., and Wachovia Bank, National Association
as
investor agents, Citicorp North America, Inc., as program agent, and ▇▇▇▇
Corporation, as collection agent, as amended or restated from time to
time.
Ìý
�RPA
Final Payment Date� means the later of the “Facility Termination Date� (as
such term is defined in the RPA) and the date on which all Capital, Yield,
fees
and other obligations under the RPA are paid in full.
Ìý
�Seller�
and �Sellers� each have the meaning specified in the first paragraph of
this Agreement.
Ìý
�Seller
Report� means a report, in form and substance reasonably satisfactory to the
Purchaser, furnished by the Collection Agent to the Purchaser pursuant to
Section 6.02(b).
Ìý
�Settlement
Date� means the second Business Day of each month; provided,
however, that following the occurrence of an Event of Termination,
Settlement Dates shall occur on such days as are selected from time to time
by
the Purchaser or its designee in a written notice to the Collection
Agent.
Ìý
�Tangible
Net Worth� means at any time the excess of (i) the sum of (a) the product of
(x) 100% minus the Discount multiplied by (y) the Outstanding Balance of all
Transferred Receivables other than Defaulted Receivables plus (b) cash and
cash
equivalents of the Purchaser, minus (ii) the sum of (a) Capital (as such term
is
defined in the RPA) plus (b) the Deferred Purchase Price.
Ìý
�Tax
Act� means the Income Tax Act (Canada) and the Regulations thereunder, as
amended, modified or replaced from time to time.
Ìý
�Tax
Convention� means a convention for the avoidance of double income taxation
between Canada and another country.
Ìý
�Transferred
Receivable� means a Purchased Receivable or a Contributed
Receivable.
Ìý
“Treaty
Resident� means a Person that is or is deemed to be a resident of a country
with which Canada has a Tax Convention for purposes of that Convention,
including a resident of the United States for purposes of the Canada-U.S.
Convention, and for greater certainty does not currently include a limited
liability company that is treated as a disregarded entity or a partnership
for
U.S. federal income tax purposes.
Ìý
Ìý
Ìý
11
Ìý
Ìý
�UCC�
means the Uniform Commercial Code as from time to time in effect in the
specified jurisdiction.
Ìý
�U.S.
Treaty Resident� means a resident of the United States for purposes of the
Canada-U.S. Convention.
Ìý
�Winchester
Extended Term Receivable� means a Receivable (i) the Seller of which is the
Winchester Division of ▇▇▇▇ Corporation and (ii) which, according to the
Contract related thereto, is required to be paid in full within more than 90
days (but not more than 180 days) of the original billing date
therefor.
Ìý
SECTION
1.02.ÌýÌýOther Terms.ÌýÌýAll
accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles.ÌýÌýAll terms
used in Article 9 of the UCC in the State of New York, and not specifically
defined herein, are used herein as defined in such Article 9.
Ìý
ARTICLE
II
Ìý
Ìý
SECTION
2.01.ÌýÌýFacility.ÌýÌýOn the terms
and conditions hereinafter set forth and without recourse to the Sellers (except
to the extent specifically provided herein), (i) the Parent shall sell or
contribute to the Purchaser all Receivables originated by it from time to time
and the Purchaser shall purchase or accept as a contribution from the Parent
all
such Receivables from time to time, and (ii) each other Seller shall sell to
the
Purchaser all Receivables originated by it from time to time and the Purchaser
shall purchase from each such Seller all Receivables of such Seller from time
to
time, in each case during the period from the date hereof to the Facility
Termination Date.
Ìý
SECTION
2.02.ÌýÌýMaking Purchases.
Ìý
(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýInitial
Purchase.ÌýÌýThe Parent on behalf of the Sellers shall give the
Purchaser at least one Business Day’s notice of their request for the initial
Purchase hereunder, which request shall specify the date of such Purchase (which
shall be a Business Day) and the proposed Purchase Price for such
Purchase.ÌýÌýThe Purchaser shall promptly notify the Sellers whether it
has determined to make such Purchase.ÌýÌýOn the date of such Purchase,
the Purchaser shall, upon satisfaction of the applicable conditions set forth
in
Article III, pay the Purchase Price for such Purchase in the manner provided
in
Section 2.02(c).
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSubsequent
Purchases.ÌýÌýOn each Business Day following the initial Purchase
until the Facility Termination Date, each Seller shall sell to the Purchaser
and
the Purchaser shall purchase from such Seller, upon satisfaction of the
applicable conditions set forth in Article III, all Receivables originated
by
such Seller which have not previously been sold or contributed to the Purchaser;
provided, however, that the Parent may, at its option on any
Purchase Date, contribute all or any of such Receivables to the Purchaser
pursuant to Section 2.06, instead of selling such Receivables to the Purchaser
pursuant to this Section 2.02(b).ÌýÌýOn or within five Business Days
after the date of each such Purchase, the Purchaser shall pay the Purchase
Price
for such Purchase in the manner provided in Section 2.02(c).
Ìý
Ìý
Ìý
12
Ìý
Ìý
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýPayment
of Purchase Price.ÌýÌýThe Purchase Price for the initial Purchase
shall be paid on the Purchase Date therefor and the Purchase Price for each
subsequent Purchase shall be paid on or within five Business Days after the
Purchase Date therefor, in each case, by means of any one or a combination
of
the following: (i) a deposit in same day funds to the applicable Seller’s
account designated by such Seller, (ii) if the applicable Seller has delivered
a
Letter of Credit Request, by Purchaser’s obtaining and delivering a Letter of
Credit as contemplated by such Letter of Credit Request issued upon the
Purchaser’s application (with the issuance of such Letter of Credit constituting
payment of the Purchase Price to the applicable Seller in an amount equal to
the
face amount of such Letter of Credit), or (iii) an increase in the Deferred
Purchase Price payable to the applicable Seller.ÌýÌýThe allocation of
the Purchase Price as among such methods of payment shall be subject in each
instance to the approval of the Purchaser and the applicable Seller;
provided, however, that the aggregate Deferred Purchase Price may
not be increased to the extent that, after giving effect to such increase,
the
Tangible Net Worth would be less than 10.5% of the Outstanding Balance of the
Transferred Receivables.
Ìý
(d)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýOwnership
of Receivables and Related Security.ÌýÌýOn each Purchase Date, after
giving effect to the Purchase (and any contribution of Receivables) on such
date, the Purchaser shall own all Receivables originated by the Sellers as
of
such date (including Receivables which have been previously sold or contributed
to the Purchaser hereunder) other than Receivables repurchased pursuant to
Section 2.04(b).ÌýÌýThe Purchase or contribution of any Receivable shall
include all Related Security with respect to such Receivable.
Ìý
SECTION
2.03.ÌýÌýCollections.ÌýÌý(a)ÌýÌýThe
Collection Agent shall, on each Settlement Date, deposit into an account of
the
Purchaser all Collections of Transferred Receivables then held by the Collection
Agent.
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýIn
the event that a Seller believes that Collections which are not Collections
of
Transferred Receivables have been deposited into an account of the Purchaser,
such Seller shall so advise the Purchaser and, on the Business Day following
such identification, the Purchaser shall remit, or shall cause to be remitted,
all Collections so deposited which are identified, to the Purchaser’s
satisfaction, to be Collections of Receivables which are not Transferred
Receivables to such Seller.
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýOn
each Settlement Date, the Purchaser shall pay to the applicable Seller accrued
interest on the Deferred Purchase Price and the Purchaser may, at its option,
prepay in whole or in part the principal amount of the Deferred Purchase Price;
provided that (i) accrued interest and principal shall be payable pro rata
to
the Sellers based on the outstanding accrued interest and principal due to
each
Seller, and (ii) each such payment shall be made solely from (x) Collections
of
Transferred Receivables after all other amounts then due from the Purchaser
under the RPA have been paid in full and all amounts then required to be set
aside by the Purchaser or the Collection Agent under the RPA have been so set
aside or (y) excess cash flow from operations of the Purchaser which is not
required to be applied to the payment of other obligations of the Purchaser
(any
monies available for such payment, the �Available Funds�); and provided
further, that no such payment shall be made at any time when an Event of
Termination shall have occurred and be continuing.ÌýÌýFollowing the RPA
Final Payment Date, the Purchaser shall apply, on each Settlement Date, all
Collections of Transferred Receivables received by the Purchaser pursuant to
Section 2.03(a) (and not previously distributed) first to the payment of accrued
interest on the Deferred Purchase Price (payable pro rata to the Sellers based
on the outstanding amount of such accrued interest due to each Seller), and
then
to the reduction of the principal amount of the Deferred Purchase Price (payable
pro rata to the Sellers based on the outstanding principal amount due to each
Seller).
Ìý
Ìý
13
Ìý
Ìý
SECTION
2.04.ÌýÌýSettlement
Procedures.ÌýÌý(a)ÌýÌýIf on any day any Transferred
Receivable becomes (in whole or in part) a Diluted Receivable, the Seller which
originated such Receivable shall be deemed to have received on such day a
Collection of such Transferred Receivable in the amount of such Diluted
Receivable.ÌýÌýIf such Seller is not the Collection Agent, such Seller
shall pay to the Collection Agent on or prior to the next Settlement Date all
amounts deemed to have been received pursuant to this subsection.
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýUpon
discovery by a Seller or the Purchaser of a breach of any of the representations
and warranties made by such Seller in Section 4.01(j) with respect to any
Transferred Receivable, such party shall give prompt written notice thereof
to
the other party, as soon as practicable and in any event within three Business
Days following such discovery.ÌýÌýThe applicable Seller shall, upon not
less than two Business Days� notice from the Purchaser or its assignee or
designee, repurchase such Transferred Receivable on the next succeeding
Settlement Date for a repurchase price equal to the Outstanding Balance of
such
Transferred Receivable.ÌýÌýEach repurchase of a Transferred Receivable
shall include the Related Security with respect to such Transferred
Receivable.ÌýÌýThe proceeds of any such repurchase shall be deemed to be
a Collection in respect of such Transferred Receivable.ÌýÌýIf the
applicable Seller is not the Collection Agent, such Seller shall pay to the
Collection Agent on or prior to the next Settlement Date the repurchase price
required to be paid pursuant to this subsection.
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýExcept
as stated in subsection (a) or (b) of this Section 2.04 or as otherwise required
by law or the underlying Contract, all Collections from an Obligor of any
Transferred Receivable shall be applied to the Receivables of such Obligor
in
the order of the age of such Receivables, starting with the oldest such
Receivable, unless such Obligor designates its payment for application to
specific Receivables.
Ìý
SECTION
2.05.ÌýÌýPayments and Computations,
Etc.ÌýÌý(a)ÌýÌýAll amounts to be paid or deposited by a
Seller or the Collection Agent hereunder shall be paid or deposited no later
than 11:00 A.M. (New York City time) on the day when due in same day funds
to an
account or accounts designated by the Purchaser from time to time, which
accounts, prior to the RPA Final Payment Date, shall be those set forth in
the
RPA.
Ìý
Ìý
14
Ìý
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýEach
Seller shall, to the extent permitted by law, pay to the Purchaser interest
on
any amount not paid or deposited by such Seller (whether as Collection Agent
or
otherwise) when due hereunder at an interest rate per annum equal to 2% per
annum above the Alternate Base Rate, payable on demand.
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAll
computations of interest and all computations of fees hereunder shall be made
on
the basis of a year of 360 days for the actual number of days (including the
first but excluding the last day) elapsed.ÌýÌýWhenever 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.
Ìý
SECTION
2.06.ÌýÌýContributions.ÌýÌýThe
Parent may from time to time at its option, by notice to the Purchaser on or
prior to the date of the proposed contribution, identify Receivables which
it
proposes to contribute to the Purchaser as a capital contribution.ÌýÌýOn
the date of each such contribution and after giving effect thereto, the
Purchaser shall own the Receivables so identified and contributed (collectively,
the �Contributed Receivables�) and all Related Security with respect
thereto.ÌýÌýThe foregoing notwithstanding, on the date of the initial
Purchase hereunder the Parent agrees to contribute to the Purchaser all
Receivables originated by it which are not included in such initial
Purchase.
Ìý
SECTION
2.07.ÌýÌýIssuance, Extension and Modification
of Letters of Credit.ÌýÌýFrom time to time prior to the Facility
Termination Date, any Seller may, (i) by delivery of a Letter of Credit Request
to the Purchaser, request that the Purchaser arrange for the issuance of a
Letter of Credit, or (ii) if a Letter of Credit has previously been obtained
by
the Purchaser at such Seller’s request, request that the Purchaser arrange for
the extension of the expiration date of such Letter of Credit or otherwise
modify such Letter of Credit.
Ìý
SECTION
2.08.ÌýÌýExpiration of Letters of
Credit.ÌýÌýIn the event that any Letter of Credit expires without
being fully drawn or is surrendered for cancellation without being fully drawn,
the Purchaser shall promptly pay to the applicable Seller an amount equal to
the
undrawn balance of such Letter of Credit.ÌýÌýThe amount of such payment
shall be paid in cash to the extent of Available Funds or, at the Purchaser’s
election, by adding the amount to be paid to the outstanding balance under
the
note evidencing the Deferred Purchase Price payable to such Seller (provided
the
aggregate outstanding principal balance thereunder resulting from such addition
does not exceed the maximum amount permitted under
Section 2.02(c).
Section 2.02(c).
Ìý
Ìý
Ìý
15
Ìý
Ìý
ARTICLE
III
Ìý
Ìý
SECTION
3.01.ÌýÌýConditions Precedent to Initial
Purchase from the Sellers.ÌýÌýThe initial Purchase of Receivables
from the Sellers hereunder is subject to the conditions precedent that the
Purchaser shall have received on or before the date of such Purchase the
following, each (unless otherwise indicated) dated such date, in form and
substance satisfactory to the Purchaser:
Ìý
(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýCertified
copies of the resolutions of the Board of Directors (or similar governing body)
of each Seller approving this Agreement and certified copies of all documents
evidencing other necessary corporate or partnership action and governmental
approvals, if any, with respect to this Agreement.
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýA
certificate of the Secretary or Assistant Secretary of each Seller certifying
the names and true signatures of the officers of such Seller authorized to
sign
this Agreement and the other documents to be delivered by it
hereunder.
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAcknowledgment
copies of proper financing statements, duly filed on or before the date of
the
initial Purchase, naming each Seller as the seller/debtor and the Purchaser
as
the purchaser/secured party, or other similar instruments or documents, as
necessary to perfect the Purchaser’s ownership of and security interest in the
Transferred Receivables and Related Security and Collections with respect
thereto.
Ìý
(d)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAcknowledgment
copies of proper financing statements, if any, necessary to release all security
interests and other rights of any Person in the Transferred Receivables,
Contracts or Related Security previously granted by each Seller.
Ìý
(e)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýCompleted
requests for information, dated on or before the date of such initial Purchase,
listing the financing statements referred to in subsection (c) above and all
other effective financing statements filed in the jurisdictions referred to
in
subsection (c) above that name each Seller as debtor, together with copies
of
such other financing statements (none of which shall cover any Transferred
Receivables, Contracts or Related Security).
Ìý
(f)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýFavorable
opinions of (i) Cravath, Swaine & ▇▇▇▇� LLP, counsel for the Sellers,
substantially in the form of Exhibit I-1 hereto, (ii) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Finger, P.A., counsel for each Seller incorporated or formed in Delaware,
substantially in the form of Exhibit �-▇▇, �-▇▇, �-▇▇ or I-2D, as applicable,
hereto, (iii) ▇▇▇▇▇▇� ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Dodge LLP, counsel for each Seller
incorporated or having a Location in Rhode Island, substantially in the form
of
Exhibit I-3 hereto, (iv) Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for each Seller
incorporated in Virginia, substantially in the form of Exhibit I-4 hereto,
(v)Ìý▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, counsel for each Seller
incorporated in Ohio, substantially in the form of Exhibit I-5 hereto, and
(vi)
Blake, ▇▇▇▇▇▇� & ▇▇▇▇▇▇� LLP, substantially in the form of Exhibit I-6
hereto.
Ìý
Ìý
16
Ìý
(g)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýDeposit
Account Agreements in respect of each Lock-Box and Deposit Account, duly
executed by each applicable Seller and each Deposit Bank.
Ìý
SECTION
3.02.ÌýÌýConditions Precedent to All
Purchases.ÌýÌýEach Purchase (including the initial Purchase)
hereunder shall be subject to the further conditions precedent
that:
Ìý
(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýwith
respect to any such Purchase, on or prior to the date of such Purchase, the
applicable Seller shall have delivered to the Purchaser, if requested by the
Purchaser, (i) such Seller’s General Trial Balance (which if in magnetic tape or
diskette format shall be compatible with the Purchaser’s computer equipment) as
of a date not more than 31 days prior to the date of such Purchase, and (ii)
a
written report identifying, among other things, the Receivables to be included
in such Purchase and such additional information concerning such Receivables
as
may reasonably be requested by the Purchaser;
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýwith
respect to any such Purchase, on or prior to the date of such Purchase, the
Collection Agent shall have delivered to the Purchaser, in form and substance
reasonably satisfactory to the Purchaser, a completed Seller Report for the
most
recently ended reporting period for which information is required pursuant
to
Section 6.02(b) and containing such additional information as may reasonably
be
requested by the Purchaser;
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
applicable Seller shall have marked its master data processing records and
all
other relevant records evidencing the Receivables which are the subject of
such
Purchase with a legend, reasonably acceptable to the Purchaser and (prior to
the
RPA Final Payment Date) the Program Agent, stating that such Receivables, the
Related Security and Collections with respect thereto, have been sold in
accordance with this Agreement; and
Ìý
(d)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýon
the date of such Purchase the following statements shall be true (and the
applicable Seller, by accepting the Purchase Price for such Purchase, shall
be
deemed to have certified that):
Ìý
|
Ìý
|
(i)
|
the
representations and warranties made by such Seller in SectionÌý4.01
are (A) if such representation or warranty is not by its terms qualified
by materiality, correct in all material respects on and as of the
date of
such Purchase or (B) if such representation or warranty is by its
terms
qualified by materiality, correct on and as of the date of such Purchase,
in each case, as though made on and as of such date (except that
the
representation contained in the second sentence of Section 4.01(f)
shall
be made only on the date of the initial Purchase
hereunder);
|
Ìý
Ìý
17
Ìý
Ìý
|
Ìý
|
(ii)
|
no
event has occurred and is continuing, or would result from such Purchase,
that constitutes an Event of Termination or an Incipient Event of
Termination; and
|
Ìý
|
Ìý
|
(iii)
|
the
Purchaser shall not have delivered to the Sellers a notice that the
Purchaser shall not make any further Purchases
hereunder.
|
Ìý
ARTICLE
IV
Ìý
Ìý
SECTION
4.01.ÌýÌýRepresentations and Warranties of the
Sellers.ÌýÌýEach Seller represents and warrants as to itself as
follows (except that the representation and warranty in subsection (f) is made
only by the Parent):
Ìý
(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSuch
Seller is a corporation or partnership duly incorporated or formed, validly
existing and in good standing under the laws of the jurisdiction set forth
in
Exhibit F hereto (as such Exhibit F may be amended from time to
time pursuant to Section 5.01(b)), and is duly qualified to do business, and
is
in good standing, in every jurisdiction where the nature of its business
requires it to be so qualified, unless the failure to so qualify would not
have
a material adverse effect on (i) the interests of the Purchaser hereunder,
(ii)
the collectibility of the Transferred Receivables, or (iii) the ability of
such
Seller or the Collection Agent to perform their respective obligations
hereunder.
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
execution, delivery and performance by such Seller of this Agreement and the
other documents to be delivered by it hereunder, including such Seller’s sale
and contribution of Receivables hereunder and such Seller’s use of the proceeds
of Purchases, (i) are within such Seller’s corporate or partnership powers, (ii)
have been duly authorized by all necessary corporate or partnership action,
(iii) do not contravene (1) such Seller’s charter or by-laws or other
organizational documents, (2) any law, rule or regulation applicable to such
Seller, (3) any material contractual restriction binding on or affecting such
Seller or its property or (4) any order, writ, judgment, award, injunction
or
decree binding on or affecting such Seller or its property, and (iv) do not
result in or require the creation of any lien, security interest or other charge
or encumbrance upon or with respect to any of its properties (except for the
transfer of such Seller’s interest in the Transferred Receivables pursuant to
this Agreement).ÌýÌýThis Agreement has been duly executed and delivered
by such Seller.
Ìý
Ìý
18
Ìý
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNo
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution,
delivery and performance by such Seller of this Agreement or any other document
to be delivered by it hereunder, except for the filing of UCC financing
statements referred to herein.
Ìý
(d)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThis
Agreement constitutes the legal, valid and binding obligation of such Seller
enforceable against such Seller in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement
of
creditors� rights and (ii) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Ìý
(e)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSales
and contributions made pursuant to this Agreement will constitute a valid sale,
transfer, and assignment of the Transferred Receivables to the Purchaser,
enforceable against creditors of, and purchasers from, such
Seller.ÌýÌýSuch Seller shall have no remaining property interest in any
Transferred Receivable.
Ìý
(f)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
consolidated balance sheets of the Parent and its consolidated subsidiaries
as
at December 31, 2006, and the related consolidated statements of income and
retained earnings of the Parent and its consolidated subsidiaries for the fiscal
year then ended, copies of which have been furnished to the Purchaser, fairly
present the financial condition of the Parent and its consolidated subsidiaries
as at such date and the results of the operations of the Parent and its
consolidated subsidiaries for the period ended on such date, all in accordance
with generally accepted accounting principles in the United States consistently
applied.ÌýÌýSince December 31, 2006 there has been no material adverse
change in the business, operations, property or financial or other condition
of
the Parent and its consolidated subsidiaries.
Ìý
(g)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThere
is no pending or threatened action, investigation or proceeding affecting such
Seller or any of its subsidiaries before any court, governmental agency or
arbitrator which, if adversely determined, could reasonably be expected to
materially adversely affect the ability of such Seller to perform its
obligations under this Agreement, or which purports to affect the legality,
validity or enforceability of this Agreement.
Ìý
(h)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNo
proceeds of any Purchase will be used to acquire any equity security of a class
which is registered pursuant to Section 12 of the Securities Exchange Act of
1934.
Ìý
(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNo
transaction contemplated hereby requires compliance with any bulk sales act
or
similar law.
Ìý
Ìý
19
Ìý
(j)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýEach
Receivable originated by such Seller and characterized in any Seller Report
as
an Eligible Receivable is, as of the date of such Seller Report, an Eligible
Receivable.ÌýÌýEach Transferred Receivable, together with the Related
Security, is owned (immediately prior to its sale or contribution hereunder)
by
the applicable Seller free and clear of any Adverse Claim (other than any
Adverse Claim arising as the result of any action taken by the
Purchaser).ÌýÌýWhen the Purchaser makes a Purchase it shall acquire
valid and perfected first priority ownership of each Purchased Receivable and
the Related Security and Collections with respect thereto free and clear of
any
Adverse Claim (other than any Adverse Claim arising as the result of any action
taken by the Purchaser), and no effective financing statement or other
instrument similar in effect covering any Transferred Receivable, any interest
therein, the Related Security or Collections with respect thereto is on file
in
any recording office except such as may be filed in favor of the Purchaser
in
accordance with this Agreement or in connection with any Adverse Claim arising
as the result of any action taken by the Purchaser.
Ìý
(k)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýEach
Seller Report (if prepared by such Seller, or to the extent that information
contained therein is supplied by such Seller), information, exhibit, financial
statement, document, book, record or report furnished or to be furnished at
any
time by such Seller to the Purchaser in connection with this Agreement is or
will be accurate in all material respects as of its date or (except as otherwise
disclosed to the Purchaser at such time) as of the date so furnished, and no
such document contains or will contain any untrue statement of a material
fact.
Ìý
(l)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSuch
Seller is located in the jurisdiction of incorporation or, with respect to
â–�.â–�.
▇▇▇▇� Co., the Location set forth for such Seller in Exhibit F hereto for
the purposes of Section 9-307 of the UCC as in effect in the State of New York;
and the office in the jurisdiction of incorporation or, with respect to â–�.â–�.
▇▇▇▇� Co., the Location of such Seller in which a UCC financing statement is
required to be filed in order to perfect the security interest granted by such
Seller hereunder is set forth in Exhibit F hereto (in each case as such
Exhibit F may be amended from time to time pursuant to Section
5.01(b)).ÌýÌýThe office where such Seller keeps its records concerning
the Transferred Receivables is located at the address or addresses referred
to
in Section 5.01(b).ÌýÌýThe principal place of business and chief
executive office of such Seller were located during the period from July 25,
2002 to the date hereof at the address or addresses set forth on Exhibit
E hereto.ÌýÌýSuch Seller has not changed its name since July 25,
2002, except as set forth on Exhibit E hereto.
Ìý
(m)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
names and addresses of all the Deposit Banks, together with the post office
boxes and account numbers of the Lock-Boxes and Deposit Accounts at such Deposit
Banks, are specified in Exhibit B (as the same may be amended from time
to time pursuant to Section 5.01(g)).ÌýÌýThe Lock-Boxes and Deposit
Accounts are the only post office boxes and accounts into which Collections
of
Receivables are deposited or remitted.
Ìý
Ìý
20
Ìý
Ìý
(n)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSuch
Seller is not known by and does not use any tradename or doing-business-as
name
other than those set forth with respect to such Seller in Exhibit E
hereto.
Ìý
(o)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýWith
respect to any programs used by such Seller in the servicing of the Receivables,
no sublicensing agreements are necessary in connection with the designation
of a
new Collection Agent pursuant to Section 6.01 so that such new Collection Agent
shall have the benefit of such programs (it being understood
that, however, the Collection Agent, if other than Parent,
shall be
required to be bound by a confidentiality agreement reasonably acceptable to
Parent (on behalf of itself and each of the Sellers).
Ìý
(p)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
transfers of Transferred Receivables by such Seller to the Purchaser pursuant
to
this Agreement, and all other transactions between such Seller and the
Purchaser, have been and will be made in good faith and without intent to
hinder, delay or defraud creditors of such Seller.
Ìý
(q)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSuch
Seller has (i) timely filed all material federal, state and local tax returns
required to be filed, and (ii) paid or made adequate provision for the payment
of all taxes, assessments and other governmental charges (other than any tax,
assessment or governmental charge which is being contested in good faith and
by
proper proceedings, and with respect to which the obligation to pay such amount
is adequately reserved against in accordance with generally accepted accounting
principles).
Ìý
(r)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
location of such Seller for the purposes of the Personal Property Security
Act
(or, in the case of the Province of Quebec, the Civil Code) of any Canadian
province or territory the laws of which are required to be applied in connection
with the issue of perfection of interests in the Canadian Receivables is at
the
address referred to in Section 5.01(b).
Ìý
(s)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSuch
Seller, in the case of a U.S. Treaty Resident, does not carry on business in
Canada through a permanent establishment for the purposes of the Canada-U.S.
Convention, or in the case of a Seller that is not a U.S. Treaty Resident,
does
not carry on business in Canada for the purposes of the Tax Act.
Ìý
(t)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNone
of the services (if any) rendered to the Obligor by such Seller which give
rise
to any Canadian Receivables are rendered in Canada.
Ìý
(u)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýEach
Receivable constitutes an account, general intangible or tangible chattel paper
under the UCC as in effect in the State of New York on the date
hereof.
Ìý
Ìý
21
Ìý
Ìý
(v)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýEach
Canadian Receivable results only from the sale of merchandise by a Seller at
fair market value and the face value of each Canadian Receivable is equal to
the
fair market value of the merchandise provided.
Ìý
ARTICLE
V
Ìý
Ìý
SECTION
5.01.ÌýÌýCovenants of the
Sellers.ÌýÌýEach Seller covenants as to itself from the date hereof
until the first day following the Facility Termination Date on which all of
the
Transferred Receivables are either collected in full or become Defaulted
Receivables:
Ìý
(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýCompliance
with Laws, Etc.
Ìý
(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSuch
Seller will comply in all material respects with all applicable laws, rules,
regulations and orders.
Ìý
(ii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSuch
Seller, in the case of the Parent, will preserve and maintain, and cause each
of
its subsidiaries to preserve and maintain, its corporate or partnership
existence, and the rights (charter and statutory) and franchises material to
the
business of the Parent and its subsidiaries, taken as a whole; provided,
however, that (i) the Parent and its subsidiaries (other than the
Purchaser) may consummate any merger or consolidation permitted under clause
(i)
of Section 5.02(c) of the Credit Agreement (as defined in the RPA, but without
giving effect to any amendments to or waivers of Section 5.02(c) thereof that
became effective after the date hereof unless such amendments or waivers are
approved in writing by each of the Agents under the RPA) subject, however,
to
compliance with any other applicable provision of the Transaction Documents
(as
defined in the RPA) (including relating to notice and perfection), (ii) neither
the Parent nor any of its subsidiaries shall be required to preserve any such
right or franchise if the Parent or such subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of
the Parent or such subsidiary, as the case may be, and that the loss thereof
is
not disadvantageous in any material respect to the Parent, such subsidiary,
the
Purchaser or the Investors or Banks party to the RPA and (iii) no subsidiary
shall be required to preserve its corporate or partnership existence if the
Parent has determined to liquidate or dissolve such subsidiary and such
liquidation or dissolution will not violate any other provision of this
Agreement or any other Transaction Document (as defined in the
RPA).
Ìý
Ìý
22
Ìý
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýOffices,
Records, Name and Organization.ÌýÌýSuch Seller will keep its
principal place of business and chief executive office and the office where
it
keeps its records concerning the Transferred Receivables at the address of
such
Seller set forth on Exhibit E hereto or, upon 30 days� prior written
notice to the Purchaser, at any other locations within the United
States.ÌýÌýSuch Seller will not change its name or its Location, unless
(i) such Seller shall have provided the Purchaser with at least 30 days� prior
written notice thereof, together with an updated Exhibit F, and (ii) no
later than the effective date of such change, all actions required by Section
5.01(j) shall have been taken and completed.ÌýÌýUpon confirmation by the
Purchaser’s assignee (prior to the RPA Final Payment Date) or the Purchaser
(following the RPA Final Payment Date) of receipt of any such notice (together
with an updated Exhibit F)and the completion, as aforesaid, of all
actions required by Section 5.01(j), Exhibit F to this Agreement shall,
without further action by any party, be deemed to be amended and replaced by
the
updated Exhibit F accompanying such notice.ÌýÌýSuch Seller also
will maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Transferred
Receivables and related Contracts in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records and
other information reasonably necessary or advisable for the collection of all
Transferred Receivables (including, without limitation, records adequate to
permit the daily identification of each new Transferred Receivable and all
Collections of and adjustments to each existing Transferred
Receivable).ÌýÌýSuch Seller shall make a notation in its books and
records, including its computer files, to indicate which Receivables have been
sold or contributed to the Purchaser hereunder.
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýPerformance
and Compliance with Contracts and Credit and Collection
Policy.ÌýÌýSuch Seller will, at its expense, timely and fully
perform and comply with all material provisions, covenants and other promises
required to be observed by it under the Contracts related to the Transferred
Receivables, and timely and fully comply in all material respects with the
Credit and Collection Policy in regard to each Transferred Receivable and the
related Contract.
Ìý
(d)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSales,
Liens, Etc.ÌýÌýExcept for the sales and contributions of Receivables
contemplated herein, such Seller will not 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 Transferred Receivable, Related Security,
related Contract or Collections, or upon or with respect to any account to
which
any Collections of any Transferred Receivable are sent, or assign any right
to
receive income in respect thereof.
Ìý
(e)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýExtension
or Amendment of Transferred Receivables.ÌýÌýExcept as provided in
Section 6.02(c), such Seller will not extend, amend or otherwise modify the
terms of any Transferred Receivable, or amend, modify or waive any term or
condition of any Contract related thereto.
Ìý
(f)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýChange
in Business or Credit and Collection Policy.ÌýÌýSuch Seller will not
make any change in the character of its business or in the Credit and Collection
Policy that would, in either case, materially adversely affect the
collectibility of the Transferred Receivables or the ability of such Seller
to
perform its obligations under this Agreement.
Ìý
Ìý
23
Ìý
Ìý
(g)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýChange
in Payment Instructions to Obligors.ÌýÌýSuch Seller will not add or
terminate any post office box, bank, or bank account as a Lock-Box, Deposit
Bank
or Deposit Account from those listed in Exhibit B hereto, or make any
change in its instructions to Obligors regarding payments to be made to any
Lock-Box or Deposit Account, unless the Purchaser shall have received prior
notice of such addition, termination or change (including an updated Exhibit
B) and a fully executed Deposit Account Agreement with each new Deposit
Bank
or with respect to each new Lock-Box or Deposit Account.ÌýÌýUpon
confirmation by the Purchaser’s assignee (prior to the RPA Final Payment Date)
or the Purchaser (following the RPA Final Payment Date) of receipt of any such
notice and the related documents, Exhibit B hereto shall, without further
action by any party, be deemed to be amended and replaced by the updated
Exhibit B accompanying such notice.
Ìý
(h)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýDeposits
to Lock-Boxes and Deposit Accounts.ÌýÌýSuch Seller will instruct all
Obligors to remit all their payments in respect of Transferred Receivables
to
Lock-Boxes or Deposit Accounts.ÌýÌýIf such Seller shall receive any
Collections directly, it shall immediately (and in any event within two Business
Days) deposit the same to a Lock-Box or a Deposit Account.ÌýÌýSuch
Seller will not deposit or otherwise credit, or cause or permit to be so
deposited or credited, to any Deposit Account cash or cash proceeds other than
Collections of Transferred Receivables.
Ìý
(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAudits.ÌýÌýSuch
Seller will, from time to time during regular business hours as requested by
the
Purchaser or its assigns (including the Program Agent), permit the Purchaser,
or
its agents, representatives or assigns (including the Program Agent), (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 Seller relating to Transferred Receivables and the
Related Security, including, without limitation, the related Contracts, and
(ii)
to visit the offices and properties of such Seller for the purpose of examining
such materials described in clause (i) above, and to discuss matters relating
to
Transferred Receivables and the Related Security or such Seller’s performance
hereunder or under the Contracts with any of the officers or employees of such
Seller having knowledge of such matters.ÌýÌýNotwithstanding the
foregoing, the Sellers shall only be responsible for the reasonable costs and
expenses incurred in connection with one examination of and visit to the Sellers
during the twelve (12) month period beginning on the date hereof and on each
anniversary of the date hereof, in each case so long as (x) no Event of
Termination shall have occurred and be continuing and (y) the results of the
previous examination and visit were complete, not subject to any deficiencies
and were reasonably acceptable to the Purchaser and its assigns.
Ìý
Ìý
24
Ìý
Ìý
(j)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýFurther
Assurances.ÌýÌý(i)ÌýÌýSuch Seller agrees from time to time,
at its expense, promptly to execute and deliver all further instruments and
documents, and to take all further actions, that may be necessary, or that
the
Purchaser or its assignee may reasonably request, to perfect, protect or more
fully evidence the sale and contribution of Receivables under this Agreement,
or
to enable the Purchaser or its assignee to exercise and enforce its respective
rights and remedies under this Agreement.ÌýÌýWithout limiting the
foregoing, such Seller will, upon the request of the Purchaser or its assignee,
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments and documents, that may be necessary to
perfect, protect or evidence the sale and contribution of such Transferred
Receivables and Related Security granted hereunder, including, without
limitation, any such filing that is necessary as a result of amendments to
the
Personal Property Security Act or similar legislation of any Canadian province
or territory relating or otherwise applying to the issue of perfection of
interests in Canadian Receivables.
Ìý
(ii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSuch
Seller authorizes the Purchaser or its assignee to file financing or
continuation statements, and amendments thereto and assignments thereof,
relating to the Transferred Receivables and the Related Security, the related
Contracts and the Collections with respect thereto.
Ìý
(iii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSuch
Seller shall perform its obligations under the Contracts related to the
Transferred Receivables to the same extent as if the Transferred Receivables
had
not been sold or transferred.
Ìý
(k)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýReporting
Requirements.ÌýÌýParent will provide to the Purchaser the
following:
Ìý
(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýas
soon as available and in any event within 45 days after the end of each of
the
first three quarters of each fiscal year of the Parent, consolidated balance
sheets of the Parent and its consolidated subsidiaries as of the end of such
quarter and consolidated statements of income and retained earnings of the
Parent and its consolidated subsidiaries for the period commencing at the end
of
the previous fiscal year and ending with the end of such quarter, certified
by
the chief financial officer of the Parent;
Ìý
(ii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýas
soon as available and in any event within 90 days after the end of each fiscal
year of the Parent, a copy of the consolidated annual report for such year
for
the Parent and its consolidated subsidiaries, containing consolidated financial
statements for such year audited by KPMG LLP or other nationally recognized
independent public accountants;
Ìý
(iii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýas
soon as possible and in any event within five days after the Parent or any
Seller becomes aware of the occurrence of each Event of Termination or Incipient
Event of Termination, a statement of an officer of the Parent setting forth
details of such Event of Termination or Incipient Event of Termination and
the
action that the Parent and/or the applicable Seller has taken and proposes
to
take with respect thereto;
Ìý
Ìý
25
Ìý
Ìý
(iv)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý[intentionally
omitted];
Ìý
(v)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýpromptly
after the filing or receiving thereof, copies of all reports and notices that
the Parent 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 the Parent 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
the Parent 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, in the aggregate, result in
the
imposition of liability on the Parent and/or any such Affiliate in excess of
$25,000,000;
Ìý
(vi)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýat
least 30 days prior to any change in the Parent’s or any Seller’s name,
jurisdiction of organization or Location, a notice setting forth the new name,
jurisdiction of organization or Location for such Person and the effective
date
thereof; and
Ìý
(vii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýsuch
other information respecting the Transferred Receivables or the condition or
operations, financial or otherwise, of the Parent or any Seller as the Purchaser
may from time to time reasonably request.
Ìý
Reports
and financial statements required to be delivered pursuant to clauses (i) and
(ii) of this Section 5.01(k) shall be deemed to have been delivered on the
date
on which the Parent posts such reports, or reports containing such financial
statements, on the Parent’s website on the Internet at ▇▇�.▇▇▇▇.▇▇� or when such
reports, or reports containing such financial statements, are posted on the
SEC’s website at ▇▇�.▇▇�.▇▇�.
Ìý
(l)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýSeparate
Conduct of Business.ÌýÌýSuch Seller will:ÌýÌý(i) maintain
separate corporate or partnership records and books of account from those of
the
Purchaser; (ii) ensure that all oral and written communications, including
without limitation, letters, invoices, purchase orders, contracts, statements
and applications, will be made solely in its own name; (iii) have stationery
and
other business forms separate from those of the Purchaser; (iv)Ìýnot hold
itself out as having agreed to pay, or as being liable for, the obligations
of
the Purchaser; (v)Ìýnot engage in any transaction with the Purchaser except
as contemplated by this Agreement or as permitted by the RPA; (vi) continuously
maintain as official records the resolutions, agreements and other instruments
underlying the transactions contemplated by this Agreement; and (vii) disclose
on its annual financial statements (A) the effects of the transactions
contemplated by this Agreement in accordance with generally accepted accounting
principles and (B)Ìýthat the assets of the Purchaser are not available to
pay its creditors.
Ìý
Ìý
26
Ìý
Ìý
(m)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýBusiness
in Canada.ÌýÌýSuch Seller, in the case of a U.S. Treaty Resident,
will not carry on business in Canada through a permanent establishment for
purposes of the Canada-U.S. Convention, or in the case of a Seller that is
not a
U.S. Treaty Resident, will not carry on business in Canada for the purposes
of
the Tax Act.
Ìý
(n)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýRendering
of Services.ÌýÌýSuch Seller will not render any services giving rise
to Canadian Receivables to an Obligor thereof in Canada.
Ìý
(o)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýCanadian
Contracts.ÌýÌýSuch Seller will ensure that the Contract with respect
to each Canadian Receivable originated or acquired by it contains provisions
to
the effect that (i) all Collections with respect to such Canadian Receivable
are
payable only to locations in the United States or Canada (excluding the Province
of Quebec), (ii) any services rendered by such Seller or any of its assignees
thereunder will not be rendered in Canada, and (iii) if the relevant Obligor
has
a billing address in the Province of Quebec (A) such Contract is not governed
by
the laws of the Province of Quebec and (B) pursuant to the express terms of
such
Contract, all Collections with respect thereto are payable only to locations
outside of the Province of Quebec.
Ìý
SECTION
5.02.ÌýÌýCovenant of each Seller and the
Purchaser.ÌýÌýEach of the Sellers and the Purchaser have structured
this Agreement with the intention that each Purchase of Receivables hereunder
be
treated as a sale of such Receivables by the applicable Seller to the Purchaser
for all purposes and each contribution of Receivables hereunder shall be treated
as an absolute transfer of such Receivables by such Seller to the Purchaser
for
all purposes (except that, in accordance with applicable tax principles, each
purchase and contribution between the Parent and the Purchaser shall be ignored
for tax reporting purposes).ÌýÌýThe applicable Seller and the Purchaser
shall record each Purchase and contribution as a sale or purchase or capital
contribution, as the case may be, on its books and records, and reflect each
Purchase and contribution in its financial statements as a sale or purchase
or
capital contribution, as the case may be.ÌýÌýIn the event that, contrary
to the mutual intent of the Sellers and the Purchaser, any Purchase or
contribution of Receivables hereunder is not characterized as a sale or absolute
transfer, each Seller shall, effective as of the date hereof, be deemed to
have
granted (and each Seller hereby does grant) to the Purchaser a first priority
security interest in and to any and all Receivables, the Related Security and
the Collections and other proceeds thereof to secure the repayment of all
amounts advanced to such Seller hereunder with accrued interest thereon, and
this Agreement shall be deemed to be a security agreement.
Ìý
Ìý
27
Ìý
Ìý
ARTICLE
VI
Ìý
Ìý
SECTION
6.01.ÌýÌýDesignation of Collection
Agent.ÌýÌýThe servicing, administration and collection of the
Transferred Receivables shall be conducted by such Person (the �Collection
Agentâ€�) so designated hereunder from time to time.ÌýÌýUntil
the RPA Final Payment Date, the Parent (or such other Person as may be
designated from time to time under the RPA) is hereby designated as, and hereby
agrees to perform the duties and obligations of, the Collection Agent pursuant
to the terms hereof.ÌýÌýFollowing the RPA Final Payment Date, the
Purchaser, by notice to the Parent, may designate as Collection Agent any Person
(including itself) to succeed the Parent or any successor Collection Agent,
if
such Person shall consent and agree to the terms hereof.ÌýÌýUpon the
Parent’s receipt of such notice, the Parent agrees that it will terminate its
activities as Collection Agent hereunder in a manner which the Purchaser (or
its
designee) believes will facilitate the transition of the performance of such
activities to the new Collection Agent, and the Parent shall use its best
efforts to assist the Purchaser (or its designee) to take over the servicing,
administration and collection of the Transferred Receivables, including, without
limitation, providing access to and copies of all computer tapes or disks and
other documents or instruments that evidence or relate to Transferred
Receivables maintained in its capacity as Collection Agent and access to all
employees and officers of the Parent responsible with respect
thereto.ÌýÌýThe Collection Agent may subcontract with any Affiliate or,
with the prior consent of the Purchaser, subcontract with any other Person,
for
the servicing, administration or collection of Transferred
Receivables.ÌýÌýAny such subcontract shall not affect the Collection
Agent’s liability for performance of its duties and obligations pursuant to the
terms hereof, and any such subcontract shall terminate upon designation of
a
successor Collection Agent.
Ìý
SECTION
6.02.ÌýÌýDuties of Collection
Agent.ÌýÌý(a)ÌýÌýThe Collection Agent shall take or cause to
be taken all such commercially reasonable actions as may be necessary or
advisable to collect each Transferred Receivable from time to time, all in
accordance with applicable laws, rules and regulations, with reasonable care
and
diligence, and in accordance with the Credit and Collection
Policy.ÌýÌýThe Purchaser hereby appoints the Collection Agent, from time
to time designated pursuant to Section 6.01, as agent to enforce its ownership
and other rights in the Transferred Receivables, the Related Security and the
Collections with respect thereto.ÌýÌýIn performing its duties as
Collection Agent, the Collection Agent shall exercise the same care and apply
the same policies as it would exercise and apply if it owned the Transferred
Receivables and shall act in the best interests of the Purchaser and its
assignees.
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýOn
or prior to the 16 th
calendar
day of each month, the Collection Agent shall prepare and
forward to the Purchaser (i) a Seller Report, relating to all then outstanding
Transferred Receivables, and the Related Security and Collections with respect
thereto, in each case, as of the close of business of the Collection Agent
on
the last day of the immediately preceding month, and (ii) if requested by the
Purchaser, a listing by Obligor of all Transferred Receivables, together with
an
aging report of such Transferred Receivables.
Ìý
Ìý
28
Ìý
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýIf
no Event of Termination or Incipient Event of Termination shall have occurred
and be continuing, the Parent, while it is the Collection Agent, may, in
accordance with the Credit and Collection Policy, extend the maturity or adjust
the Outstanding Balance of any Transferred Receivable as the Parent deems
appropriate to maximize Collections thereof, or otherwise amend or modify other
terms of any Transferred Receivable.
Ìý
(d)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Sellers shall deliver to the Collection Agent, and the Collection Agent shall
hold in trust for the Sellers and the Purchaser in accordance with their
respective interests, all documents, instruments and records (including, without
limitation, computer tapes or disks) which evidence or relate to Transferred
Receivables.
Ìý
(e)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Collection Agent shall as soon as practicable following receipt turn over to
the
applicable Seller any cash collections or other cash proceeds received with
respect to Receivables not constituting Transferred Receivables.
Ìý
(f)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Collection Agent also shall perform the other obligations of the “Collection
Agent� set forth in this Agreement with respect to the Transferred
Receivables.
Ìý
(g)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Collection Agent will not itself or through an agent acting on its behalf
conduct any activities in Canada in connection with the servicing,
administration or collection of the Receivables on behalf of the Purchaser
or
any Seller.
Ìý
SECTION
6.03.ÌýÌýCollection Agent
Fee.ÌýÌýThe Purchaser shall pay to the Collection Agent, so long as
it is acting as the Collection Agent hereunder, a periodic collection fee (the
�Collection Agent Fee�) of 0.50% per annum on the average daily aggregate
Outstanding Balance of the Transferred Receivables, payable on the second
Business Day of each month or such other day during each calendar month as
the
Purchaser and the Collection Agent shall agree.
Ìý
SECTION
6.04.ÌýÌýCertain Rights of the
Purchaser.ÌýÌý(a)ÌýÌýEach Seller hereby transfers to the
Purchaser (and its assigns and designees) the exclusive ownership and control
of
the Lock-Boxes and Deposit Accounts maintained by such Seller for the purpose
of
receiving Collections.
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAt
any time following an Event of Termination, the Purchaser may (and, upon the
Purchaser’s request to the applicable Seller, and at such applicable Seller’s
expense, such Seller shall) give notice of the Purchaser’s ownership to each
Obligor of Transferred Receivables and direct that payments of all amounts
payable under the Transferred Receivables be made directly to the Purchaser
or
its designee.
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAt
any time following an Event of Termination, at the Purchaser’s request and at
the applicable Seller’s expense, each Seller and the Collection Agent shall (A)
assemble all of the documents, instruments and other records (including, without
limitation, computer tapes and disks) that evidence or relate to the Transferred
Receivables, and the related Contracts and Related Security, or that are
otherwise necessary or desirable to collect the Transferred Receivables, and
shall make the same available to the Purchaser at a place selected by the
Purchaser or its designee, and (B)Ìýsegregate all cash, checks and other
instruments received by it from time to time constituting Collections of
Transferred Receivables in a manner acceptable to the Purchaser and, promptly
upon receipt, remit all such cash, checks and instruments, duly indorsed or
with
duly executed instruments of transfer, to the Purchaser or its
designee.ÌýÌýThe Purchaser shall also have the right to make copies of
all such documents, instruments and other records at any time.
Ìý
Ìý
29
Ìý
Ìý
(d)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýEach
Seller authorizes the Purchaser, at any time following an Event of Termination,
to take any and all steps in such Seller’s name and on behalf of such Seller
that are necessary or desirable, in the determination of the Purchaser, to
collect amounts due under the Transferred Receivables, including, without
limitation, endorsing such Seller’s name on checks and other instruments
representing Collections of Transferred Receivables and enforcing the
Transferred Receivables and the Related Security and related
Contracts.
Ìý
SECTION
6.05.ÌýÌýRights and
Remedies.ÌýÌý(a)ÌýÌýIf any Seller or the Collection Agent
fails to perform any of its obligations under this Agreement, the Purchaser
may
(but shall not be required to) itself perform, or cause performance of, such
obligation, and, if such Seller (as Collection Agent or otherwise) fails to
so
perform, the costs and expenses of the Purchaser incurred in connection
therewith shall be payable by such Seller as provided in Section 8.01 or Section
9.04 as applicable.
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýEach
Seller shall perform all of its respective obligations under the Contracts
related to the Transferred Receivables to the same extent as if such Seller
had
not sold or contributed Receivables hereunder and the exercise by the Purchaser
of its rights hereunder shall not relieve such Seller from such obligations
or
its obligations with respect to the Transferred Receivables.ÌýÌýThe
Purchaser shall not have any obligation or liability with respect to any
Transferred Receivables or related Contracts, nor shall the Purchaser be
obligated to perform any of the obligations of such Seller
thereunder.
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýEach
Seller shall cooperate with the Collection Agent in collecting amounts due
from
Obligors in respect of the Transferred Receivables.
Ìý
(d)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýEach
Seller hereby grants to Collection Agent an irrevocable power of attorney,
with
full power of substitution, coupled with an interest, to take in the name of
such Seller all steps necessary or advisable to endorse, negotiate or otherwise
realize on any writing or other right of any kind held or transmitted by such
Seller or transmitted or received by Purchaser (whether or not from such Seller)
in connection with any Transferred Receivable.
Ìý
SECTION
6.06.ÌýÌýTransfer of Records to
Purchaser.ÌýÌýEach Purchase and contribution of Receivables
hereunder shall include the transfer to the Purchaser of all of the applicable
Seller’s right and title to and interest in the records relating to such
Receivables and, unless prohibited by the licensor thereof or any provision
of
applicable law, shall include an irrevocable non-exclusive license to the use
of
such Seller’s computer software system to access and create such
records.ÌýÌýSuch license shall be without royalty or payment of any
kind, is coupled with an interest, and shall be irrevocable until all of the
Transferred Receivables are either collected in full or become Defaulted
Receivables.
Ìý
Ìý
30
Ìý
Ìý
Each
Seller shall use commercially reasonable efforts to take such action requested
by the Purchaser, from time to time hereafter, that may be necessary or
appropriate to ensure that the Purchaser has an enforceable ownership interest
in the records relating to the Transferred Receivables and rights (whether
by
ownership, license or sublicense) to the use of such Seller’s computer software
system to access and create such records.
Ìý
In
recognition of each Seller’s need to have access to the records transferred to
the Purchaser hereunder, the Purchaser hereby grants to each Seller an
irrevocable license to access such records in connection with any activity
arising in the ordinary course of such Seller’s business or in performance of
its duties as Collection Agent, provided that (i) such Seller shall not disrupt
or otherwise interfere with the Purchaser’s use of and access to such records
during such license period and (ii) such Seller consents to the assignment
and
delivery of the records (including any information contained therein relating
to
such Seller or its operations) to any assignees or transferees of the Purchaser
provided they agree to hold such records confidential.
Ìý
ARTICLE
VII
Ìý
Ìý
SECTION
7.01.ÌýÌýEvents of
Termination.ÌýÌýIf any of the following events (â€�Events of
Termination�) shall occur and be continuing:
Ìý
(a)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThe
Collection Agent (i) shall fail to perform or observe any term, covenant or
agreement under this Agreement (other than as referred to in clause (ii), (iii)
or (iv) of this subsection (a)) and such failure shall remain unremedied for
30
days after the earlier of the Collection Agent’s actual knowledge thereof or
written notice to the Collection Agent from the Purchaser or its assignees,
or
(ii) shall fail to make when due any payment or deposit to be made by it under
this Agreement, or (iii) shall fail to deliver any Seller Report when required,
or (iv) shall fail to observe any term, covenant or agreement contained in
Section 6.02(g); or
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAny
Seller shall fail to make any payment required under SectionÌý2.04(a) or
2.04(b); or
Ìý
(c)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAny
representation or warranty made or deemed made by a Seller (or any of its
officers) under or in connection with this Agreement or any information or
report delivered by a Seller pursuant to this Agreement shall prove to have
been
incorrect or untrue in any material respect when made or deemed made or
delivered; or
Ìý
Ìý
31
Ìý
Ìý
(d)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAny
Seller shall fail to perform or observe (i) any term, covenant or agreement
contained in this Agreement (other than as referred to in Section 7.01(b) or
clause (ii) of this Section 7.01(d)) on its part to be performed or observed
and
any such failure shall remain unremedied for 30 days after the earlier of such
Seller’s or the Parent’s actual knowledge thereof or written notice thereof to
the applicable Seller from the Purchaser or its assignees, or (ii) any covenant
applicable to such Seller contained in Sections 5.01(d), 5.01(g) or 5.01(h);
or
Ìý
(e)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAny
Seller shall fail to pay any principal of or premium or interest on any of
its
Debt which is outstanding in a principal amount of at least $25,000,000 in
the
aggregate when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate the maturity of such Debt; or any such Debt shall be declared to
be
due and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to repay,
redeem, purchase or defease such Debt shall be required to be made, in each
case
prior to the stated maturity thereof; or
Ìý
(f)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAny
Purchase or contribution of Receivables hereunder, the Related Security and
the
Collections with respect thereto shall for any reason cease to constitute valid
and perfected ownership of such Receivables, Related Security and Collections
free and clear of any Adverse Claim; or
Ìý
(g)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAny
Seller 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 Seller seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any
law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial
part
of its property and, in the case of any such proceeding instituted against
it
(but not instituted by it), either such proceeding shall remain undismissed
or
unstayed for a period of 60 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 Seller shall take any action to authorize any of the actions set forth
above
in this subsection (g); or
Ìý
Ìý
32
Ìý
Ìý
(h)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýAn
Event of Termination shall have occurred under the RPA; or
Ìý
(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThere
shall have occurred any event which could reasonably be expected to have a
material adverse effect on (i) the collectibility of the Transferred Receivables
(it being understood and agreed that no such material adverse effect shall
arise
solely as a result of a material adverse change in the financial condition
of
the Sellers if such material adverse change in the financial condition of the
Sellers does not otherwise trigger this clause (i)) or (ii) the ability of
any
Seller to perform its obligations under this Agreement;
Ìý
then,
and
in any such event, the Purchaser may, by notice to the Sellers, take either
or
both of the following actions: (x) declare the Facility Termination Date to
have
occurred (in which case the Facility Termination Date shall be deemed to have
occurred) and (y) without limiting any right under this Agreement to replace
the
Collection Agent (but subject, prior to the RPA Final Payment Date, to the
designation made under the RPA), designate another Person to succeed the Parent
as Collection Agent; provided, that, automatically upon the occurrence of
any event (without any requirement for the passage of time or the giving of
notice) described in paragraph (g) of this Section 7.01, the Facility
Termination Date shall occur.ÌýÌýUpon any such declaration or
designation or upon such automatic termination, the Purchaser shall have, in
addition to the rights and remedies under this Agreement, all other rights
and
remedies with respect to the Receivables provided after default under the UCC
and under other applicable law, which rights and remedies shall be
cumulative.
Ìý
ARTICLE
VIII
Ìý
Ìý
SECTION
8.01.ÌýÌýIndemnities by the
Sellers.ÌýÌýWithout limiting any other rights which the Purchaser
may have hereunder or under applicable law, each Seller hereby agrees to
indemnify the Purchaser and its assigns and transferees (each, an
�Indemnified Party�) from and against any and all damages, claims,
losses, liabilities and related costs and expenses, including reasonable
attorneys� fees and disbursements (all of the foregoing being collectively
referred to as �Indemnified Amounts�), awarded against or incurred by any
Indemnified Party arising out of or as a result of this Agreement or the
purchase or contribution of any Transferred Receivables originated by such
Seller or in respect of any Transferred Receivable originated by such Seller
or
any related Contract, including, without limitation, arising out of or as a
result of:
Ìý
(i)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
characterization in any Seller Report or other statement made by such Seller
of
any Transferred Receivable as an Eligible Receivable which is not an Eligible
Receivable as of the date of such Seller Report or statement;
Ìý
(ii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýany
representation or warranty or statement made or deemed made by such Seller
(or
any of its officers) under or in connection with this Agreement, which shall
have been incorrect in any material respect when made;
Ìý
Ìý
33
Ìý
Ìý
(iii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
failure by such Seller to comply with any applicable law, rule or regulation
with respect to any Transferred Receivable or the related Contract; or the
failure of any Transferred Receivable or the related Contract to conform to
any
such applicable law, rule or regulation;
Ìý
(iv)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
failure to vest in the Purchaser absolute ownership of the Receivables
originated by such Seller that are, or that purport to be, the subject of a
Purchase or contribution under this Agreement and the Related Security and
Collections in respect thereof, free and clear of any Adverse
Claim;
Ìý
(v)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
failure of such Seller to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any Receivables
that are, or that purport to be, the subject of a Purchase or contribution
under
this Agreement and the Related Security and Collections in respect thereof,
whether at the time of any Purchase or contribution or at any subsequent
time;
Ìý
(vi)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýany
dispute, claim, offset or defense (other than discharge in bankruptcy of the
Obligor) of the Obligor to the payment of any Receivable originated by such
Seller that is, or that purports to be, the subject of a Purchase or
contribution under this Agreement (including, without limitation, a defense
based on such Receivable or the related Contract not being a legal, valid and
binding obligation of such Obligor enforceable against it in accordance with
its
terms), or any other claim resulting from the sale of the merchandise or
services related to such Receivable or the furnishing or failure to furnish
such
merchandise or services or relating to collection activities with respect to
such Receivable (if such collection activities were performed by the Parent
acting as Collection Agent);
Ìý
(vii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýany
failure of such Seller, as Collection Agent or otherwise, to perform its duties
or obligations in accordance with the provisions hereof or to perform its duties
or obligations under any Contract related to a Transferred
Receivable;
Ìý
(viii)ÌýÌýÌýÌýÌýÌýÌýÌýany
products liability or other claim arising out of or in connection with
merchandise, insurance or services which are the subject of any Contract
relating to a Receivable originated by such Seller;
Ìý
(ix)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
commingling of Collections of Transferred Receivables by such Seller or a
designee of such Seller, as Collection Agent or otherwise, at any time with
other funds of such Seller or an Affiliate of such Seller;
Ìý
(x)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýany
investigation, litigation or proceeding related to this Agreement or the use
of
proceeds of Purchases or the ownership of Receivables originated by such Seller,
the Related Security, or Collections with respect thereto or in respect of
any
Receivable originated by such Seller, Related Security or Contract (including,
without limitation, in connection with the preparation of a defense or appearing
as a third party witness in connection therewith and regardless of whether
such
investigation, litigation or proceeding is brought by any Seller, an Indemnified
Party or any other Person or an Indemnified Party is otherwise a party
thereto);
Ìý
Ìý
34
Ìý
Ìý
(xi)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýany
failure of such Seller to comply with its covenants contained in this
Agreement;
Ìý
(xii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýany
claim brought by any Person other than an Indemnified Party arising from any
activity by such Seller or any Affiliate of such Seller in servicing,
administering or collecting any Transferred Receivable;
Ìý
(xiii)ÌýÌýÌýÌýÌýÌýÌýÌýÌýany
Transferred Receivable originated by such Seller becoming (in whole or in part)
a Diluted Receivable; or
Ìý
(xiv)ÌýÌýÌýÌýÌýÌýÌýÌýÌýthe
inclusion as a Transferred Receivable in any Seller Report or other written
statement made by or on behalf of such Seller of any receivable which is an
Excluded Receivable as of the date of such Seller Report or other
statement.
Ìý
It
is
expressly agreed and understood by the parties hereto (i) that the foregoing
indemnification is not intended to, and shall not, constitute a guarantee of
the
collectibility or payment of the Transferred Receivables and (ii) that nothing
in this Section 8.01 shall require any Seller to indemnify any Person (A) for
Receivables which are not collected, not paid or uncollectible on account of
the
insolvency, bankruptcy, or financial inability to pay of the applicable Obligor,
(B) for damages, losses, claims or liabilities or related costs or expenses
to
the extent found in a final non-appealable judgment of a court of competent
jurisdiction to have resulted from such Person’s gross negligence or willful
misconduct, or (C) for any income taxes or franchise taxes incurred by such
Person arising out of or as a result of this Agreement or in respect of any
Transferred Receivable or any Contract; provided, that, for the sake of clarity,
each Seller agrees to indemnify each Indemnified Party for the full amount
of
any withholding taxes that are imposed by Canada or any political subdivision
thereof on any Indemnified Party in respect of any Collections or other payments
made hereunder or that are withheld from any Collections or other payments
made
hereunder, and any taxes that are imposed on any Indemnified Party as a result
of such Indemnified Party, in the case of an Indemnified Party that is a Treaty
Resident, having a permanent establishment in Canada for the purposes of a
Tax
Convention, or, in the case of an Indemnified Party that is not a Treaty
Resident, carrying on business in Canada for the purposes of the Tax Act (unless
it acquired such permanent establishment or carried on such business, as the
case may be, otherwise than as a result of the transactions contemplated
hereby), together in each case with any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, and whether or not
such
taxes were correctly or legally asserted.
Ìý
Ìý
35
Ìý
Ìý
ARTICLE
IX
Ìý
Ìý
SECTION
9.01.ÌýÌýAmendments, Etc.ÌýÌýNo
amendment or waiver of any provision of this Agreement or consent to any
departure by a Seller therefrom shall be effective unless in a writing signed
by
the Purchaser and, in the case of any amendment, also signed by the Sellers,
and
then such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.ÌýÌýNo failure on
the part of the Purchaser 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.ÌýÌýNotwithstanding any other
provision of this Section 9.01, ExhibitÌýB, Exhibit F and
Schedule I hereto may be amended in accordance with the procedures
set
forth in Sections 5.01(g), 5.01(b), and 9.10 respectively.
Ìý
SECTION
9.02.ÌýÌýNotices, Etc.ÌýÌýAll
notices and other communications hereunder shall, unless otherwise stated
herein, be in writing (which shall include facsimile communication) and be
faxed
or delivered, to each party hereto, at its address set forth on Exhibit E
hereto or at such other address as shall be designated by such party in a
written notice to the other parties hereto.ÌýÌýNotices and
communications by facsimile shall be effective when sent (and shall be followed
by hard copy sent by regular mail), and notices and communications sent by
other
means shall be effective when received.
Ìý
SECTION
9.03.ÌýÌýBinding Effect;
Assignability.ÌýÌý(a)ÌýÌýThis Agreement shall be binding
upon and inure to the benefit of the Sellers, the Purchaser and their respective
successors and assigns; provided, however, that the Sellers may
not assign their respective rights or obligations hereunder or any interest
herein without the prior written consent of the Purchaser.ÌýÌýIn
connection with any sale or assignment by the Purchaser of all or a portion
of
the Transferred Receivables, the buyer or assignee, as the case may be, shall,
to the extent of its purchase or assignment, have all rights of the Purchaser
under this Agreement (as if such buyer or assignee, as the case may be, were
the
Purchaser hereunder) except to the extent specifically provided in the agreement
between the Purchaser and such buyer or assignee, as the case may
be.
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýThis
Agreement shall create and constitute the continuing obligations of the parties
hereto in accordance with its terms, and shall remain in full force and effect
until such time, after the Facility Termination Date, when all of the
Transferred Receivables are either collected in full or become Defaulted
Receivables; provided, however, that rights and remedies with
respect to any breach of any representation and warranty made by any Seller
pursuant to Article IV and the provisions of Article VIII and Sections 9.04,
9.05 and 9.06 shall be continuing and shall survive any termination of this
Agreement.
Ìý
SECTION
9.04.ÌýÌýCosts, Expenses and
Taxes.ÌýÌý(a)ÌýÌýIn addition to the rights of
indemnification granted to the Purchaser pursuant to Article VIII hereof, the
Sellers jointly and severally agree to pay on demand all costs and expenses
in
connection with the preparation, execution and delivery of this Agreement and
the other documents and agreements to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Purchaser with respect thereto and with respect to advising the Purchaser as
to
its rights and remedies under this Agreement, and the Sellers jointly and
severally agree to pay all costs and expenses, if any (including reasonable
counsel fees and expenses), in connection with the enforcement of this Agreement
and the other documents to be delivered hereunder excluding,
however, any costs of enforcement or collection of Transferred
Receivables which are not paid on account of the insolvency, bankruptcy or
financial inability to pay of the applicable Obligor.
Ìý
Ìý
36
Ìý
Ìý
(b)ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýIn
addition, the Sellers jointly and severally agree to pay any and all stamp
and
other taxes and fees payable in connection with the execution, delivery, filing
and recording of this Agreement or the other documents or agreements to be
delivered hereunder, and the Sellers jointly and severally agree to save each
Indemnified Party harmless from and against any liabilities with respect to
or
resulting from any delay in paying or omission to pay such taxes and
fees.
Ìý
SECTION
9.05.ÌýÌýNo Proceedings.ÌýÌýEach
Seller hereby agrees that it will not institute against, or join any other
Person in instituting against, the Purchaser any proceeding of the type referred
to in Section 7.01(g) so long as there shall not have elapsed one year plus
one
day since the later of (i) the Facility Termination Date and (ii)Ìýthe date
on which all of the Transferred Receivables are either collected in full or
become Defaulted Receivables.
Ìý
SECTION
9.06.ÌýÌý[Intentionally
Omitted].
Ìý
SECTION
9.07.ÌýÌýGOVERNING LAW.ÌýÌýTHIS
AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICT OF LAWS
PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION, EXCEPT TO THE EXTENT THAT, PURSUANT TO THE UCC OF THE STATE OF
NEW
YORK, THE PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE
PURCHASER’S OWNERSHIP OF OR SECURITY INTEREST IN THE RECEIVABLES ARE GOVERNED BY
THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
Ìý
SECTION
9.08.ÌýÌýThird Party
Beneficiary.ÌýÌýEach of the parties hereto hereby acknowledges that
the Purchaser may assign all or any portion of its rights under this Agreement
and that such assignees may (except as otherwise agreed to by such assignees)
further assign their rights under this Agreement, and each Seller hereby
consents to any and all such assignments.ÌýÌýAll such assignees,
including parties to the RPA in the case of assignment to such parties, shall
be
third party beneficiaries of, and shall be entitled to enforce the Purchaser’s
rights and remedies under, this Agreement to the same extent as if they were
parties thereto, except to the extent specifically limited under the terms
of
their assignment.
Ìý
Ìý
37
Ìý
Ìý
SECTION
9.09.ÌýÌýExecution in
Counterparts.ÌýÌýThis 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.
Ìý
Ìý
[Remainder
of page intentionally blank]
Ìý
38
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.
Ìý
|
SELLER
AND COLLECTION
AGENT:
|
Ìý
▇▇▇▇
CORPORATION
Ìý
Ìý
|
Ìý | |
| Ìý |
By:
|
Ìý/s/ ▇▇▇▇▇▇â–� â–�. ▇▇▇▇▇▇ | Ìý |
| Ìý |
Name:
|
Ìý▇▇▇▇▇▇â–� â–�. ▇▇▇▇▇▇ | Ìý |
| Ìý |
Title:
|
ÌýVice President & Treasurer | Ìý |
|
SELLERS:
|
â–�.â–�.
▇▇▇▇� CO.
Ìý
Ìý
|
Ìý | |
| Ìý |
By:
|
Ìý/s/ ▇▇▇▇▇▇â–� â–�. Graboriau | Ìý |
| Ìý |
Name:
|
Ìý▇▇▇▇▇▇â–� â–�. Graboriau | Ìý |
| Ìý |
Title:
|
ÌýVice President | Ìý |
Ìý
|
Ìý
|
â–�.â–�.
▇▇▇▇� FOILS, INC.
Ìý
Ìý
|
Ìý | |
| Ìý |
By:
|
Ìý/s/ ▇▇▇▇▇▇â–� â–�. Graboriau | Ìý |
| Ìý |
Name:
|
Ìý▇▇▇▇▇▇â–� â–�. Graboriau | Ìý |
| Ìý |
Title:
|
ÌýVice President | Ìý |
Ìý
|
Ìý
|
â–�.â–�.
▇▇▇▇� WEST, INC.
Ìý
Ìý
|
Ìý | |
| Ìý |
By:
|
Ìý/s/ ▇▇▇▇▇▇â–� â–�. Graboriau | Ìý |
| Ìý |
Name:
|
Ìý▇▇▇▇▇▇â–� â–�. Graboriau | Ìý |
| Ìý |
Title:
|
ÌýVice President | Ìý |
Ìý
|
Ìý
|
▇▇▇▇�
METALS, INC.
Ìý
Ìý
|
Ìý | |
| Ìý |
By:
|
Ìý/s/ ▇▇▇▇ ▇▇▇▇▇▇ | Ìý |
| Ìý |
Name:
|
Ìý▇▇▇▇ ▇▇▇▇▇▇ | Ìý |
| Ìý |
Title:
|
ÌýVice President | Ìý |
Ìý
39
Ìý
Ìý
|
Ìý
|
CHASE
BRASS & COPPER COMPANY, INC.
Ìý
Ìý
|
Ìý | |
| Ìý |
By:
|
Ìý/s/ ▇▇â–� â–�. ▇▇▇▇▇▇â–� | Ìý |
| Ìý |
Name:
|
Ìý▇▇â–� â–�. ▇▇▇▇▇▇â–� | Ìý |
| Ìý |
Title:
|
ÌýVice President | Ìý |
Ìý
|
PURCHASER:
|
OLIN
FUNDING COMPANY LLC
Ìý
Ìý
|
Ìý | |
| Ìý |
By:
|
Ìý/s/ ▇▇▇▇▇▇â–� â–�. ▇▇▇▇▇▇ | Ìý |
| Ìý |
Name:
|
Ìý▇▇▇▇▇▇â–� â–�. ▇▇▇▇▇▇ | Ìý |
| Ìý |
Title:
|
ÌýTreasurer | Ìý |
Ìý
40
Ìý
Ìý
Ìý
SCHEDULE
I
Ìý
LIST
OF ▇▇▇▇▇▇�
Ìý
Ìý
▇▇▇▇
CORPORATION, a Virginia corporation
Ìý
â–�.â–�.
▇▇▇▇� CO., a Delaware general partnership
Ìý
â–�.â–�.
▇▇▇▇� FOILS, INC., a Delaware corporation
Ìý
â–�.â–�.
▇▇▇▇� WEST, INC., a Rhode Island corporation
Ìý
▇▇▇▇�
METALS, INC., an Ohio corporation
Ìý
CHASE
BRASS & COPPER COMPANY, INC., a Delaware corporation
Ìý
Ìý
41
Ìý
Ìý
EXHIBIT
A
Ìý
Ìý
CREDIT
AND COLLECTION POLICY
Ìý
Ìý
Ìý
Ìý
Ìý
Ìý
A-1
Ìý
Ìý
EXHIBIT
B
Ìý
Ìý
Ìý
DEPOSIT
ACCOUNTS
Ìý
Ìý
|
Name
and Address of Deposit Bank(s)
|
Name
of Accountholder*
Ìý
|
Account
Number(s)
Ìý
|
Lock-Box
Number(s) and Address(es)
Ìý
|
|
Ìý
Ìý
Ìý
|
Ìý
|
Ìý
|
|
|
Ìý
Ìý
Ìý
|
Ìý
|
Ìý
|
|
|
Ìý
Ìý
Ìý
|
Ìý
|
Ìý
|
Ìý
|
|
Ìý
Ìý
Ìý
|
Ìý
|
Ìý
|
|
|
Ìý
Ìý
Ìý
|
Ìý
|
Ìý
|
|
|
Ìý
Ìý
Ìý
|
Ìý
|
Ìý
|
Ìý
|
|
Ìý
Ìý
Ìý
|
Ìý
|
Ìý
|
|
|
*ÌýÌý
|
If
any Deposit Account Agreements are delivered post-closing, the
Deposit
Accounts are to be transferred to the Purchaser when the Deposit
Account
Agreements become effective.
|
Ìý
Ìý
B-1
Ìý
Ìý
EXHIBIT
C
Ìý
Ìý
FORM
OF
DEFERRED
PURCHASE PRICE NOTE
Ìý
|
Ìý
|
New
York, New York
|
Ìý
|
Ìý
|
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý,
200ÌýÌýÌý
|
Ìý
FOR
VALUE
RECEIVED, OLIN FUNDING COMPANY LLC, a Delaware limited liability company
(the
â€�Purchaserâ€�),Ìýhereby promises to pay to
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
(the �Seller�) the principal amount of this Note, determined as described
below, together with interest thereon at a rate per annum equal at all
times to
1.50% per annum above the Eurodollar Rate (as defined in the RPA) for periods
of
one month, in each case in lawful money of the United States of America.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to such terms in the Purchase and Contribution Agreement dated
as of
July 25, 2007 among the Seller, the other sellers named therein, ▇▇▇▇
Corporation, as collection agent and the Purchaser (such agreement, as
it may
from time to time be amended, restated or otherwise modified in accordance
with
its terms, the �Purchase and Contribution Agreement�). This Note is the
note referred to in the definition of “Deferred Purchase Price� in the Purchase
and Contribution Agreement.
Ìý
The
aggregate principal amount of this Note at any time shall be equal to the
difference between (a) the sum of the aggregate principal amount of this
Note on
the date of the issuance hereof and each addition to the principal amount
of
this Note pursuant to the terms of Section 2.02 of the Purchase and Contribution
Agreement minus (b) the aggregate amount of all payments made in respect
of the
principal amount of this Note, in each case, as recorded on the schedule
annexed
to and constituting a part of this Note, but failure to so record shall
not
affect the obligations of the Purchaser to the Seller.
Ìý
The
entire principal amount of this Note shall be due and payable one year
and one
day after the Facility Termination Date or such later date as may be agreed
in
writing by the Seller and the Purchaser. The principal amount of this Note
may,
at the option of the Purchaser, be prepaid in whole at any time or in part
from
time to time. Interest on this Note shall be paid in arrears on each Settlement
Date, at maturity and thereafter on demand. All payments hereunder shall
be made
by wire transfer of immediately available funds to such account of the
Seller as
the Seller may designate in writing.
Ìý
Notwithstanding
any other provisions contained in this Note, in no event shall the rate
of
interest payable by the Purchaser under this Note exceed the highest rate
of
interest permissible under applicable law.
Ìý
The
obligations of the Purchaser under this Deferred Purchase Price Note are
subordinated in right of payment, to the extent set forth in Section 2.03(c)
of
the Purchase and Contribution
Agreement, to the prior payment in full of all Capital, Yield, Fees and
other
obligations of the Purchaser under the RPA.
Ìý
C-3
Ìý
Notwithstanding
any provision to the contrary in this Deferred Purchase Price Note or elsewhere,
other than with respect to payments specifically permitted by Section 2.03(c)
of
the Purchase and Contribution Agreement, no demand for any payment may
be made
hereunder, no payment shall be due with respect hereto and the Seller shall
have
no claim for any payment hereunder prior to the occurrence of the Facility
Termination Date and then only on date, if ever, when all Capital, Yield,
Fees
and other obligations owing under the RPA shall have been paid in
full.
Ìý
In
the
event that, notwithstanding the foregoing provision limiting such payment
the
Seller shall receive any payment or distribution on this Deferred Purchase
Price
Note which is not specifically permitted by Section 2.03(c) of the Purchase
and
Contribution Agreement, such payment shall be received and held in trust
by the
Seller for the benefit of the entities to whom the obligations are owed
under
the RPA and shall be promptly paid over to such entities.
Ìý
The
Purchaser hereby waives diligence, presentment, demand, protest and notice
of
any kind whatsoever.
Ìý
Neither
this Note, nor any right of the Seller to receive payments hereunder, shall,
without the prior written consent of the Purchaser and (prior to the RPA
Final
Payment Date) the Agent under the RPA, be assigned, transferred, exchanged,
pledged, hypothecated, participated or otherwise conveyed.
Ìý
THIS
NOTE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF
NEW YORK.
Ìý
|
OLIN
FUNDING COMPANY LLC
Ìý
|
|
|
By:
|
Ìý |
|
Name:
|
Ìý |
|
Title:
|
Ìý |
Ìý
Ìý
C-4
Ìý
SCHEDULE
TO DEFERRED PURCHASE PRICE NOTE
Ìý
Ìý
|
Date
|
Addition
to Principal Amount
|
Amount
of Principal Paid or Prepaid
|
Unpaid
Principal Balance
|
Notation
Made By
|
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
| Ìý | Ìý | Ìý | Ìý | Ìý |
C-5
Ìý
EXHIBIT
D
Ìý
FORM
OF
LETTER OF CREDIT REQUEST
[Date]
Ìý
Ìý
To:ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýOlin
Funding Company LLC
▇▇�
▇▇▇▇�
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇�, ▇▇▇▇▇▇▇▇, ▇▇▇▇�
Ìý
Re:
LETTER OF CREDIT REQUEST
Ìý
Ìý
Ladies
and Gentlemen:
Ìý
Reference
is hereby made to the Purchase and Contribution Agreement, dated as of
July 25,
2007, among ▇▇▇▇ Corporation and certain of its subsidiaries, as Sellers,
and
▇▇▇▇ Funding Company LLC, as Purchaser (as amended, supplemented, restated
or
otherwise modified from time to time, the “Agreement�). Capitalized terms used
and not otherwise defined herein are used with the meanings attributed
to them
in the Agreement.
Ìý
As
payment for that portion of the Purchase Price of the Receivables to be
sold to
you on [date] by [Seller] pursuant to the Agreement that is calculated
from the
information below and in accordance with Section 2.02(c) of the Agreement,
you
are hereby requested to arrange for and obtain the issuance of a standby
letter
of credit with the following terms for your account:
Ìý
Ìý
| Ìý | Ìý1. | Name and address of beneficiary: |
| Ìý | Ìý2. |
To
be delivered by [overnight carrier/teletransmission/mail/other
(specify)]
|
| Ìý | Ìý3. | Currency and amount: US$ÌýÌýÌýÌýÌýÌýÌýÌý |
| Ìý | Ìý4. | Advising bank name and address, if applicable:ÌýÌýÌýÌý |
| Ìý | Ìý5. | Expiration date (not to exceed one year from the date of issuance or extension or the scheduled Commitment Termination Date under the RPA):ÌýÌýÌý |
| Ìý | Ìý6. | Credit to be available for payment against beneficiary's draft(s) drawn at sight accompanied by the following documents (check one): |
Ìý
| Ìý | Ìý |
q
|
Statement
purportedly signed by the beneficiary which reads as follows:Ìý
___________________________________.
|
| Ìý | Ìý | Ìý |
Ìý
|
| Ìý | Ìý |
qÌý
|
Other
Documents:ÌýÌý___________________________________
|
Ìý
Ìý
D-1
Ìý
Ìý
| Ìý | Ìý |
q
|
Special
Conditions (including, if you have a preference, selection
of UCP or
ISP98):Ìý ___________________________________
|
| Ìý | Ìý | Ìý |
Ìý
|
| Ìý | Ìý |
qÌý
|
Issue
substantially in form of attached
specimen.
|
Ìý
| Ìý | 7. | [If the beneficiary specified above is a financial institution that is to issue its own undertaking based on this requested letter of credit: Request beneficiary to issue and deliver its (specify type of undertaking) ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý in favor of ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý for an amount not exceeding the amount specified above, effective immediately relative to (specify contract number or other pertinent reference) ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý to expire onÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý.] |
Ìý
Ìý
Ìý
Sincerely,
____________________________________,
AS SELLER
By:
____________________________________
Name:
Title:
Ìý
Ìý
Ìý
D-2
Ìý
Ìý
EXHIBIT
E
ADDRESSES,
PRIOR NAMES,
�DOING-BUSINESS-AS�
NAMES,
TRADENAMES
|
SELLERS:
|
▇▇▇▇
CORPORATION
▇▇�
▇▇▇▇� ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇�, ▇▇▇▇▇▇▇▇, ▇▇▇▇�
Facsimile
No. (▇▇�) ▇▇�-▇▇▇▇
Ìý
|
| Ìý |
â–�.â–�.
▇▇▇▇� CO.
▇▇�
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇� ▇▇�
▇▇▇▇▇▇�,
▇▇▇▇� ▇▇▇▇▇▇ ▇▇▇▇�
Facsimile
No. (▇▇�) ▇▇�-▇▇▇▇
Ìý
|
| Ìý |
â–�.â–�.
▇▇▇▇� FOILS, INC.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇�
Facsimile
No. (▇▇�) ▇▇�-▇▇▇▇
Ìý
|
| Ìý |
â–�.â–�.
▇▇▇▇� WEST, INC.
▇▇▇▇�
▇▇ ▇▇▇▇� ▇▇▇▇▇▇
▇▇▇▇�
▇▇▇▇�, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇�
Facsimile
No. (▇▇�) ▇▇�-▇▇▇▇
Ìý
|
| Ìý |
▇▇▇▇�
METALS, INC.
▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇� ▇▇�
▇▇▇▇�,
▇▇▇▇ ▇▇▇▇�
Facsimile
No. (▇▇�) ▇▇�-▇▇▇▇
Ìý
|
| Ìý |
CHASE
BRASS & COPPER COMPANY, INC.
▇▇▇▇�
▇▇▇▇▇▇� ▇▇▇▇ �-▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇� ▇▇�
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇�
Facsimile
No. (▇▇�) ▇▇�-▇▇▇▇
Ìý
|
|
PURCHASER:
|
OLIN
FUNDING COMPANY LLC
▇▇�
▇▇▇▇� ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇�, ▇▇▇▇▇▇▇▇, ▇▇▇▇�
Ìý
|
Ìý
Ìý
E-1
Ìý
Ìý
|
Prior
principal place ofÌý business
and
chief executive office of the Sellers:
|
▇▇▇▇
CORPORATION
None
Ìý
|
| Ìý |
â–�.â–�.
▇▇▇▇� CO.
▇▇�
▇▇▇▇▇▇▇▇▇▇� ▇▇▇▇, ▇▇▇▇� ▇▇�
▇▇▇▇▇▇�,
▇▇▇▇� ▇▇▇▇▇▇ ▇▇▇▇�
Ìý
|
| Ìý |
â–�.â–�.
▇▇▇▇� FOILS, INC.
None
Ìý
|
| Ìý |
â–�.â–�.
▇▇▇▇� WEST, INC.
None
Ìý
|
| Ìý |
▇▇▇▇�
METALS, INC.
None
Ìý
|
| Ìý |
CHASE
BRASS & COPPER COMPANY, INC.
None
Ìý
|
|
Prior
names of the Sellers:
|
ÌýÌýÌý
▇▇▇▇ CORPORATION
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
None
Ìý
|
| Ìý |
ÌýÌýÌý
�.�. ▇▇▇▇� CO.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
ÌýÌýÌý Olin Aegis
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
ÌýÌýÌý Olin Interconnect Technologies, Inc.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
ÌýÌýÌý Olin Asahi Electronic Ceramics
Ìý
|
| Ìý |
ÌýÌýÌý
�.�. ▇▇▇▇� FOILS, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
ÌýÌýÌý None
Ìý
|
| Ìý |
ÌýÌýÌý
�.�. ▇▇▇▇� WEST, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNone
Ìý
|
| Ìý |
ÌýÌýÌý
▇▇▇▇� METALS, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNone
Ìý
|
| Ìý |
ÌýÌýÌý
CHASE BRASS & COPPER COMPANY, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNone
Ìý
|
Ìý
Ìý
Ìý
E-2
Ìý
|
“Doing-business-as�
names of the Sellers:
|
ÌýÌýÌý
▇▇▇▇ CORPORATION
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
ÌýÌýÌý Olin Brass and Winchester Inc.
Ìý
|
| Ìý |
ÌýÌýÌý
�.�. ▇▇▇▇� CO.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
ÌýÌýÌý None
Ìý
|
| Ìý |
ÌýÌýÌý
�.�. ▇▇▇▇� FOILS, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
ÌýÌýÌý None
Ìý
|
| Ìý |
ÌýÌýÌý
�.�. ▇▇▇▇� WEST, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
ÌýÌýÌý None
Ìý
|
| Ìý |
ÌýÌýÌý
▇▇▇▇� METALS, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
ÌýÌýÌý None
Ìý
|
| Ìý |
ÌýÌýÌý
CHASE BRASS & COPPER COMPANY, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý
None
Ìý
|
|
Tradenames
of the Sellers:
|
▇▇▇▇
CORPORATION
▇▇▇▇
Corporation, Brass Division
▇▇▇▇
Corporation Olin Brass Div
Olin
Brass
Olin
Brass Mill Products
Mill
Products
Ìý
|
| Ìý |
Olin
Fineweld Tube
Olin
Brass Fineweld Tube
Fineweld
Tube
Ìý
|
| Ìý |
Olin
Brass Fabricated Products
Olin
Fabricated Products
Fabricated
Products
Ìý
|
| Ìý |
Olin
Brass ▇▇▇▇▇▇ Thin Strip
▇▇▇▇
▇▇▇▇▇▇ Thin Strip
▇▇▇▇▇▇
Thin Strip/Brass Group
▇▇▇▇▇▇
Thin Strip
▇▇▇▇▇▇
Ìý
|
| Ìý |
ÌýÌýÌýÌý▇▇▇▇
Corporation, Winchester Division
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýWinchester
Ammunition
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý▇▇▇▇
Corporation, Winchester Division
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýWinchester
Division, ▇▇▇▇ Corporation
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýCanada
- ▇▇▇▇ Canada, Inc
Ìý
|
Ìý
Ìý
E-3
Ìý
| Ìý |
ÌýÌýÌý
Chlor Alkali Products
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý▇▇▇▇
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýChlor
Alkali Products Div.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý▇▇▇▇
Chlor Alkali
Ìý
|
| Ìý |
ÌýÌýÌý
�. �. ▇▇▇▇� CO.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýâ–�.
�. ▇▇▇▇� - Warwick
Ìý
|
| Ìý |
â–�.
�. ▇▇▇▇� � Watertown
â–�.
�. ▇▇▇▇� West, Inc.
Olin
Mexico, S.A. De C.V.
A.
J. ▇▇▇▇� ▇▇▇▇� Stream
â–�.
�. ▇▇▇▇� Allentown
â–�.
�. ▇▇▇▇� - Alliance
â–�.
�. ▇▇▇▇� Caribe, Inc.
â–�.
�. ▇▇▇▇� - Corporate
â–�.
�. ▇▇▇▇� South
Ìý
|
| Ìý |
ÌýÌýÌý
�. �. ▇▇▇▇� FOILS, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNone
Ìý
|
| Ìý |
ÌýÌýÌý
�. �. ▇▇▇▇� FOILS, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNone
Ìý
|
| Ìý |
ÌýÌýÌý
▇▇▇▇� METALS, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý▇▇▇▇â–�
Metals Inc A Subsidiary Of ▇▇▇▇ Corporation
Ìý
|
| Ìý |
CHASE
BRASS & COPPER COMPANY, INC.
ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýNone
Ìý
|
Ìý
Ìý
Ìý
E-4
Ìý
EXHIBIT
F
Ìý
Ìý
SELLERS�
UCC INFORMATION
|
Name:
|
▇▇▇▇
CORPORATION
|
|
Address:
|
▇▇�
▇▇▇▇� ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇�, ▇▇▇▇▇▇▇▇, ▇▇▇▇�
|
|
Jurisdiction
of Organization:
|
Virginia
|
|
UCC
Filing Office:
|
Office
of the State Corporate Commission of Virginia
|
| Ìý | Ìý |
|
Name:
|
â–�.â–�.
▇▇▇▇� CO.
|
|
Address:
|
▇▇�
▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇� ▇▇�, ▇▇▇▇▇▇�, ▇▇▇▇� ▇▇▇▇▇▇ ▇▇▇▇�
|
|
Jurisdiction
of Organization:
|
Delaware
|
|
UCC
Filing Office:
|
Rhode
Island Secretary of State
|
| Ìý | Ìý |
|
Name:
|
â–�.â–�.
▇▇▇▇� FOILS, INC.
|
|
Address:
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇�
|
|
Jurisdiction
of Organization:
|
Delaware
|
|
UCC
Filing Office:
|
Delaware
Secretary of State
|
| Ìý | Ìý |
|
Name:
|
â–�.â–�.
▇▇▇▇� WEST, INC.
|
|
Address:
|
▇▇▇▇�
▇▇ ▇▇▇▇� ▇▇�., ▇▇▇▇� ▇▇▇▇�, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇�
|
|
Jurisdiction
of Organization:
|
Rhode
Island
|
|
UCC
Filing Office:
|
Rhode
Island Secretary of State
|
| Ìý | Ìý |
|
Name:
|
▇▇▇▇�
METALS, INC.
|
|
Address:
|
▇▇▇▇
▇▇. ▇▇▇▇ ▇▇., �.�. ▇▇� ▇▇�, ▇▇▇▇�, ▇▇▇▇ ▇▇▇▇�
|
|
Jurisdiction
of Organization:
|
Ohio
|
|
UCC
Filing Office:
|
Ohio
Secretary of State
|
| Ìý | Ìý |
|
Name:
|
CHASE
BRASS & COPPER COMPANY, INC.
|
|
Address:
|
▇▇▇▇�
▇▇▇▇▇▇� ▇▇ �-▇▇, �.�. ▇▇� ▇▇� ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇�
|
|
Jurisdiction
of Organization:
|
Delaware
|
|
UCC
Filing Office:
|
Delaware
Secretary of State
|
Ìý
ÌýF-1