Table of Contents
Receivables
Sale Agreement
Receivables Sale
Agreement,
dated as of
September 28, 2001, among
Albany
International Receivables Corporation
, a Cayman Islands company, as
Seller (the
“Seller”
),
Albany International Corp
., a
Delaware corporation, as initial Collection Agent (the
“Initial Collection Agent,”
and, together with any successor thereto, the
“Collection Agent”
), ABN
AMRO Bank N.V., as agent for the Purchasers (the
“Agent”
), the committed
purchasers party hereto (the
“Committed Purchasers”
) and Amsterdam
Funding Corporation (
“Amsterdam”
). Certain capitalized terms used herein, and certain rules of construction,
are defined in Schedule I. The
Committed Purchasers and the Commitments of the Committed Purchasers are listed
on Schedule II.
T
he
parties hereto agree as follows:
Article I
Purchases
from Seller and Settlements
Section 1.1
.
Sales
.
(a)
The Sold
Interest.
Subject to the
terms and conditions hereof, the Seller may, from time to time before the
Liquidity Termination Date, sell to Amsterdam or, only if Amsterdam declines to
make the applicable purchase, ratably to the Committed Purchasers (who hereby
agree, subject to the terms and conditions hereof, in such event to make such
purchase) an undivided percentage ownership interest in the Receivables, the
Related Security and all related Collections.
Any such purchase (a
“Purchase”
) shall be made by each relevant
Purchaser remitting funds to the Seller, through the Agent, pursuant to
Section 1.1(c) or by the Collection Agent remitting Collections to the
Seller pursuant to Section 1.1(d).
The aggregate percentage ownership interest so acquired by a Purchaser
in the Receivables, the Related Security and related Collections (its
“Purchase
Interest”
) shall equal at any time the sum of the following
percentages:
where:
I = the
outstanding Investment of such Purchaser at such time;
ER = the
Eligible Receivables Balance at such time; and
PRP = the
Purchaser Reserve Percentage at such time.
Except during a Liquidation Period for a
Purchaser, such Purchaser’s Purchase Interest will change whenever its
Investment, its Purchaser Reserve Percentage or the Eligible Receivables
Balance changes. During a Liquidation
Period for a Purchaser its Purchase Interest shall remain constant at the
percentage in effect as of the day immediately preceding the commencement of
the relevant Liquidation Period, except for redeterminations to reflect
Investment acquired from or transferred to another Purchaser under the Transfer
Agreement. The sum of all Purchasers’
Purchase Interests at any time is referred to herein as the
“Sold
Interest”
, which at any time is the aggregate percentage ownership
interest then held by the Purchasers in the Receivables, the Related Security
and Collections.
(b)
Amsterdam
Purchase Option and Other Purchasers’ Commitments
.
Subject to Section 1.1(d) concerning Reinvestment Purchases, at no
time will Amsterdam have any obligation to make a Purchase. Each purchaser listed on Schedule II
hereto (together, the
“Committed Purchasers”
and each, a
“Committed
Purchaser”
) severally hereby agrees, subject to Section 7.2 and
the other terms and conditions hereof (including, in the case of an Incremental
Purchase (as defined below), that Amsterdam has refused to make a requested
Purchase), to make Purchases before the Liquidity Termination Date, based on
its Ratable Share of each Purchase, to the extent its Investment would not
thereby exceed its Commitment, the Aggregate Investment would not thereby
exceed the Purchase Limit, and the Matured Aggregate Investment would not
thereby exceed the Aggregate Commitments.
Each Purchaser’s first Purchase and each additional Purchase by such
Purchaser not made from Collections pursuant to Section 1.1(d) is referred
to herein as an
“Incremental Purchase.”
Each Purchase made by a Purchaser with the proceeds of Collections in
which it has a Purchase Interest, which does not increase the outstanding
Investment of such Purchaser, is referred to herein as a
“Reinvestment Purchase.”
(c)
Incremental
Purchases
. In order to
request an Incremental Purchase from a Purchaser, the Seller must provide to
the Agent an irrevocable written request substantially in the form of
Exhibit A, by (i) 10:00 a.m. (Chicago time) two Business Days
before the requested date (the
“Purchase Date”
) of such Purchase, in the
case of each Purchase by Amsterdam, (ii) 10:00 a.m. (Chicago time)
three Business Days before the Purchase Date in the case of each Purchase by
the Committed Purchasers that is to accrue Discount at the Eurodollar Rate and
(iii) 10:00 a.m. (Chicago time) on the Purchase Date in the case of each
Purchase by the Committed Purchasers that is to accrue Discount at the Prime
Rate, or, in each of the foregoing cases, such later time or day as Amsterdam
shall agree. Each such notice shall
specify the requested Purchase Date (which must be a Business Day) and the
requested amount (the
“Purchase Amount”
) of such Purchase, which
must be in a minimum amount of $500,000 (or, if less, an amount equal to the
Maximum Incremental Purchase Amount).
An Incremental Purchase may only be requested from Amsterdam unless
Amsterdam, in its sole discretion, determines not to make such Incremental
Purchase, in which case the Seller may request such Incremental Purchase from
the Committed Purchasers. The Agent
shall promptly notify the contents of any such request to each Purchaser from which
the Purchase is requested. If Amsterdam
determines, in its sole discretion, to make all or any portion of the requested
Purchase, Amsterdam shall transfer to the Agent’s Account the Purchase Amount
(or portion thereof) on the requested Purchase Date. If Amsterdam determines, in its sole discretion, not to make all
or any portion of a requested Purchase and the Seller requests the Incremental
Purchase from the Committed Purchasers subject to Section 7.2 and the
other terms and conditions hereof, each Committed Purchaser shall transfer its
Ratable Share of that portion of the requested Purchase Amount not funded by
Amsterdam into the Agent’s Account by no later than 12:00 noon (Chicago time)
on the Purchase Date (which, in the case of a Purchase that is to accrue
Discount at the Eurodollar Rate, in no event will be earlier than three
Business Days after such request is made to the Committed Purchasers). The Agent shall transfer to the Seller
Account the proceeds of any Incremental Purchase delivered into the Agent’s
Account.
(d)
Reinvestment
Purchases
. Unless Amsterdam
has provided to the Agent, the Seller, and the Collection Agent a notice (which
notice has not been revoked by Amsterdam) that it no longer wishes to make
Reinvestment Purchases (in which case Amsterdam’s Reinvestment Purchases, but
not those of the Committed Purchasers, shall cease), on each day before the
Liquidity Termination Date that any Collections are received by the Collection
Agent and no Interim Liquidation is in effect, a Purchaser’s Purchase Interest
in such Collections shall automatically be used to make a Reinvestment Purchase
by such Purchaser. Amsterdam may revoke
any notice provided under the first sentence of this Section 1.1(d) by
notifying the Agent, the Seller, and the Collection Agent that it will make
Reinvestment Purchases.
Section 1.2
.
Interim
Liquidations
. (a)
Optional
.
The Seller may at any time direct that Reinvestment Purchases cease and
that an Interim Liquidation commence for all Purchasers by giving the Agent and
the Collection Agent at least three Business Days’ prior written notice
specifying the date on which the Interim Liquidation shall commence and, if
desired, when such Interim Liquidation shall cease (identified as a specific
date prior to the Liquidity Termination Date or as when the Aggregate
Investment is reduced to a specified amount).
If the Seller does not so specify the date on which an Interim
Liquidation shall cease, it may cause such Interim Liquidation to cease at any
time before the Liquidity Termination Date, subject to Section 1.2(b)
below, by giving the Agent and the Collection Agent at least three Business
Days' prior written notice before the date on which it desires such Interim
Liquidation to cease.
(b)
Mandatory
. If at any time before the Liquidity
Termination Date any condition in Section 7.2 is not fulfilled,
Reinvestment Purchases shall cease and an Interim Liquidation shall commence,
which shall cease only upon the Seller confirming to the Agent that the
conditions in Section 7.2 are fulfilled.
Section 1.3
.
Selection of Discount Rates and Tranche
Periods
.
(a)
Amsterdam.
Amsterdam's Investment will accrue Funding
Charges for each day on which it is outstanding. On each Settlement Date the Seller shall pay to the Agent (for
the benefit of Amsterdam) an aggregate amount equal to all accrued and unpaid
Funding Charges in respect of such Investment for the immediately preceding
Discount Period. The Agent shall allocate the Investment of Amsterdam to
Tranche Periods in its sole discretion.
(b)
Committed
Purchasers
. All Investment
of the Committed Purchasers shall be allocated to one or more Tranches
reflecting the Discount Rates at which such Investment accrues Discount and the
Tranche Periods for which such Discount Rates apply. In each request for an Incremental Purchase from the Committed
Purchasers and three Business Days before the expiration of any Tranche Period
applicable to any Committed Purchaser’s Investment, the Seller may direct
(subject to Section 1.3(c)) the Tranche Period(s) to be applicable to such
Investment and the Discount Rate(s) applicable thereto. All Investment of the Committed Purchasers
may accrue Discount at either the Eurodollar Rate or the Prime Rate, in all
cases as established for each Tranche Period applicable to such
Investment. Any Investment of the
Committed Purchasers not allocated to a Tranche Period shall be a Prime
Tranche. During the pendency of a
Termination Event, the Agent may reallocate any outstanding Investment of the
Committed Purchasers to a Prime Tranche.
All Discount accrued on the Investment of the Committed Purchasers
during a Tranche Period shall be payable by the Seller on the last day of such
Tranche Period or, for a Eurodollar Tranche with a Tranche Period of more than
three months, three months after the commencement, and on the last day, of such
Tranche Period. If, by the time
required by this Section 1.3(b), the Seller fails to select a Discount
Rate or Tranche Period for any Investment of the Committed Purchasers, such
amount of Investment shall automatically accrue Discount at the Prime Rate for
a three Business Day Tranche Period.
Any Investment purchased from Amsterdam pursuant to the Transfer
Agreement shall accrue interest at the Prime Rate and have an initial Tranche
Period of three Business Days.
(c) If
the Agent or any Committed Purchaser reasonably determines (i) that maintenance
of any Eurodollar Tranche would violate any applicable law or regulation, (ii)
that deposits of a type and maturity appropriate to match fund any of such
Purchaser’s Eurodollar Tranches are not available or (iii) that the maintenance
of any Eurodollar Tranche will not adequately and fairly reflect the cost of
such Purchaser of funding Eurodollar Tranches, then the Agent, upon the direction
of such Purchaser, shall suspend the availability of future Eurodollar Tranches
until such time as the Agent or applicable Committed Purchaser provides notice
that the circumstances giving rise to such suspension no longer exist, and, if
required by any applicable law or regulation, terminate any outstanding,
Eurodollar Tranche so affected. All
Investment allocated to any such terminated Eurodollar Tranche shall be
reallocated to a Prime Tranche.
Section 1.4
.
Fees
and Other Costs and Expenses
. (a) The Seller shall pay to the Agent
(i) for the ratable benefit of the Committed Purchasers, such amounts as agreed
to with the Committed Purchasers and the Agent in the Fee Letter.
(b) If (i) the
amount of Amsterdam’s Investment is reduced (other than as a result of a Put)
on any date other than the last day of a CP Tranche, (ii) the amount of
Investment allocated to any LIBOR Tranche is reduced on any day other than the
last day of its Tranche Period or (iii) if a requested Incremental Purchase at
the Eurodollar Rate does not take place on its scheduled Purchase Date (other
than due to acts or omissions of the applicable Purchaser or Agent), the Seller
shall pay the Early Payment Fee to each Purchaser that had its Investment so
reduced or scheduled Purchase not made.
(c) Investment,
Discount and Funding Charges shall not be recourse obligations of the Seller
and shall be payable solely from Collections and from amounts payable under
Sections 1.5, 1.7 and 6.1 (to the extent amounts paid under
Section 6.1 indemnify against reductions in or non–payment of
Receivables). The Seller shall pay, as
a full recourse obligation, all other amounts payable hereunder.
Section 1.5.
Maintenance of Sold Interest; Deemed
Collection
. (a)
General
.
If at any time before the Liquidity Termination Date the Eligible
Receivables Balance is less than the sum of the Aggregate Investment (or, if a
Termination Event exists, the Matured Aggregate Investment) plus the Aggregate
Reserve, the Seller shall pay to the Agent an amount equal to such deficiency
for application to reduce the Investments of the Purchasers ratably in
accordance with the principal amount of their respective Investments, applied
first
to Prime Tranches and
second
to the other Tranches with the
shortest remaining maturities unless otherwise specified by the Seller. Any amount so applied to reduce Amsterdam’s
Investment shall be deposited in the Special Transaction Subaccount.
(b)
Deemed
Collections
. If on any day
the Outstanding Balance of a Receivable is reduced or cancelled as a result of
any defective or rejected goods or services, any cash discount or adjustment
(including any adjustment resulting from the application of any special refund
or other discounts or any reconciliation), any setoff or credit (whether such
claim or credit arises out of the same, a related, or an unrelated transaction)
or other reason not arising from the financial inability of the Obligor to pay
undisputed indebtedness, the Seller shall be deemed to have received on such
day a Collection on such Receivable in the amount of such reduction or
cancellation. If on any day any
representation, warranty, covenant or other agreement of the Seller related to
a Receivable set forth in Section 4.1(e) or 4.1(k) hereof is not true or
is not satisfied, the Seller shall be deemed to have received on such day a
Collection in the amount of the Outstanding Balance of such Receivable. All such Collections deemed received by the
Seller under this Section 1.5(b) shall be remitted by the Seller to the Collection
Agent in accordance with Section 5.1(i).
(c)
Adjustment
to Sold Interest
. At any
time before the Liquidity Termination Date that the Seller is deemed to have
received any Collection under Section 1.5(b) (
“Deemed Collections”
) that
derives from a Receivable that is otherwise reported as an Eligible Receivable,
so long as no Liquidation Period then exists, the Seller may satisfy its
obligation to deliver such amount to the Collection Agent by instead notifying
the Agent that the Sold Interest should be recalculated by decreasing the
Eligible Receivables Balance by the amount of such Deemed Collections, so long
as such adjustment does not cause the Sold Interest to exceed 100%.
(d)
Payment
Assumption
. Unless an
Obligor otherwise specifies or another application is required by contract or
law, any payment received by the Seller from any Obligor shall be applied as a
Collection of Receivables of such Obligor (starting with the oldest such
Receivable) and remitted to the Collection Agent as such.
Section 1.6
.
Reduction
in Commitments
. The Seller may, upon at least five Business
Days’ notice to the Agent, reduce the Aggregate Commitment in increments of
$1,000,000, so long as the Aggregate Commitment as so reduced is no less than
the Matured Aggregate Investment. Each
such reduction in the Aggregate Commitment shall reduce the Commitment of each
Committed Purchaser in accordance with its Ratable Share and shall reduce the
Purchase Limit so that the Aggregate Commitment remains at least 102% of the
Purchase Limit and the Purchase Limit is no less than the outstanding Aggregate
Investment.
Section 1.7
.
Optional
Repurchases
.
At any time that the Aggregate Investment is
less than 10% of the Aggregate Commitment in effect on the date hereof, the
Seller may, upon at least five Business Days’ notice to the Agent, repurchase
the entire Sold Interest from the Purchasers at a price equal to the
outstanding Matured Aggregate Investment and all other amounts then owed
hereunder. No Early Payment Fee shall
be payable in connection with a repurchase made in accordance with the terms of
this Section.
Section 1.8
.
Security
Interest
.
(a) The Seller hereby grants to the
Agent, for its own benefit and for the ratable benefit of the Purchasers, a
security interest in all Receivables, Related Security, Collections and
Lock-Box Accounts to secure the payment of all amounts other than Investment
owing hereunder and (to the extent of the Sold Interest) to secure the
repayment of all Investment.
The
Seller and Collection Agent shall hold in trust for the benefit of the Persons
entitled thereto any Collections received pending their application pursuant to
Section 1.1(c), Section 2.3 or Article III hereof. After the occurrence of a Termination Event,
the Seller and Collection Agent shall not, without the prior written consent of
the Instructing Group, distribute any Collections to any Person other than the
Agent and the Purchasers (and to the Collection Agent, in payment of the
Collection Agent Fee to the extent permitted hereto) (whether as payment on a
Note or otherwise) until all amounts owed under the Transaction Documents the
Agent and the Purchasers shall have been indefeasibly paid in full.
(b) The
Seller hereby assigns and otherwise transfers to the Agent (for the benefit of
the Agent, each Purchaser and any other Person to whom any amount is owed
hereunder), all of the Seller’s right, title and interest in, to and under the
Purchase Agreement and the Limited Guaranty as security for fulfillment of
Seller’s obligations under the Transaction Documents. The Seller shall execute, file and record all financing
statements, continuation statements and other documents required to perfect or
protect such assignment. This
assignment includes (a) all monies due and to become due to the Seller
from the Originators or the Parent under or in connection with the Purchase
Agreement and the Limited Guaranty (including fees, expenses, costs,
indemnities and damages for the breach of any obligation or representation
related to such agreement) and (b) all rights, remedies, powers,
privileges and claims of the Seller against the Originators or the Parent under
or in connection with the Purchase Agreement and the Limited Guaranty. All provisions of the Purchase Agreement and
the Limited Guaranty shall inure to the benefit of, and may be relied upon by,
the Agent, each Purchaser and each such other Person. At any time that a Termination Event has occurred and is
continuing, the Agent shall have the sole right to enforce the Seller’s rights and
remedies under the Purchase Agreement and the Limited Guaranty to the same
extent as the Seller could absent this assignment, but without any obligation
on the part of the Agent, any Purchaser or any other such Person to perform any
of the obligations of the Seller under the Purchase Agreement (or the
promissory note executed thereunder) or the Limited Guaranty. All amounts distributed to the Seller under
the Purchase Agreement from Receivables sold to the Seller thereunder shall
constitute Collections hereunder and shall be applied in accordance herewith.
(c) This
agreement shall be a security agreement for purposes of the UCC. Upon the occurrence of a Termination Event,
the Agent shall have all rights and remedies provided under the UCC as in effect
in all applicable jurisdictions.
Article II
Sales
to and from Amsterdam; Allocations
Section 2.1.
Required Purchases from Amsterdam
.
(a) Amsterdam may, at any time, and on the earlier of the Amsterdam Termination
Date and ten Business Days following the Agent and Amsterdam learning of a
continuing Termination Event, Amsterdam shall, sell to the Committed Purchasers
pursuant to the Transfer Agreement any percentage designated by Amsterdam of
Amsterdam’s Investment and its related Amsterdam Settlement (each, a
“Put”
).
(b) Any
portion of Amsterdam’s Investment and related Amsterdam Settlement purchased by
a Committed Purchaser shall be considered part of such Purchaser’s Investment
and related Amsterdam Settlement from the date of the relevant Put. Immediately upon any purchase by the
Committed Purchasers of any portion of Amsterdam’s Investment on or after the
occurrence of a Termination Event, the Seller shall pay to the Agent (for the
ratable benefit of such Purchasers) an amount equal to the sum of (i) the
Assigned Amsterdam Settlement and (ii) all unpaid Discount owed to Amsterdam
(whether or not then due) to the end of each applicable Tranche Period to which
any Investment being Put has been allocated, (iii) all accrued but unpaid fees
(whether or not then due) payable to Amsterdam in connection herewith at the
time of such purchase and (iv) all accrued and unpaid costs, expenses and
indemnities due to Amsterdam from the Seller in connection herewith.
(c) The
proceeds from each Put received by Amsterdam (other than amounts described in
clauses (iii) and (iv) of the last sentence of Section 2.1(b)), shall
be transferred into the Special Transaction Subaccount and used solely to pay
that portion of the outstanding commercial paper of Amsterdam issued to fund or
maintain the Investment of Amsterdam so transferred. Until used to pay commercial paper, all proceeds of any Put
pursuant to this Section shall be invested in Permitted Investments. All earnings on such Permitted Investments
shall be promptly remitted to the Committed Purchasers (ratably, in accordance
with their Commitments) unless the Seller shall have paid the amounts described
in the second sentence of Section 2.1(b), in which case such amounts shall
be remitted to the Seller.
Section 2.2
.
Purchases
by Amsterdam
.
Amsterdam may at any time deliver to the
Agent and each Committed Purchaser a notification of assignment in
substantially the form of Exhibit B.
If Amsterdam delivers such notice, each Committed Purchaser shall sell
to Amsterdam and Amsterdam shall purchase in full from each Committed
Purchaser, the Investment of the Committed Purchasers on the last day of the
relevant Tranche Periods, at a purchase price equal to such Investment plus
accrued and unpaid Discount thereon. Any sale from any Committed Purchaser to
Amsterdam pursuant to this Section 2.2 shall be without recourse,
representation or warranty except for the representation and warranty that the
Investment sold by such Committed Purchaser is free and clear of any Adverse
Claim created or granted by such Committed Purchaser and that such Purchaser
has not suffered a Bankruptcy Event.
Section 2.3
.
Allocations
and Distributions
.
(a)
Amsterdam
Termination and Non-Reinvestment Periods.
Before the Liquidity Termination Date (unless an Interim
Liquidation is in effect), on each day during a period that Amsterdam has an
outstanding Investment and is not making Reinvestment Purchases (as established
under Section 1.1(d)) and at all times on and after the Amsterdam
Termination Date, the Collection Agent (i) shall set aside and hold in
trust solely for the benefit of Amsterdam (or deliver to the Agent, if so
instructed pursuant to Section 3.2(a)) Amsterdam’s Purchase Interest in
all Collections received on such day and (ii) shall distribute on the last
day of each CP Tranche Period to the Agent (for the benefit of Amsterdam) the
amounts so set aside up to the amount of Amsterdam’s Investment allocated to
such Tranche Period and, to the extent not already paid in full, all Discount
thereon and all other amounts then due from the Seller in connection with such
Investment and Tranche Period. If any
part of the Sold Interest in any Collections is applied to pay any amounts that
are recourse obligations of the Seller pursuant to Section 1.4(c) and
after giving effect to such application the Sold Interest is greater than 100%,
the Seller shall pay, as a recourse obligation for distribution as part of the
Sold Interest in Collections, to the Collection Agent the amount so applied to
the extent necessary so that after giving effect to such payment the Sold
Interest is no greater than 100%.
(b)
Liquidity
Termination Date and Interim Liquidations.
On each day during any Interim Liquidation and on each day on
and after the Liquidity Termination Date, the Collection Agent shall set aside
and hold in trust solely for the account of the Agent, for the benefit of the
Agent and the Purchasers, (or deliver to the Agent, if so instructed pursuant
to Section 3.2(a)) the Sold Interest in all Collections received on such
day and such Collections shall be allocated as follows:
(i)
first,
to the Purchasers
(ratably, based on the Matured Value of their respective Investments)
until all Investment of, Funding Charges with respect to Amsterdam and Discount
with respect to the Committed Purchasers, as applicable, due but not already
paid to, Amsterdam and the Committed Purchasers have been paid in full;
(ii)
second,
to the Purchasers until all other
amounts owed to the Purchasers have been paid in full;
(iii)
third,
to the Agent until all amounts owed
to the Agent have been paid in full;
(iv)
fourth,
to any other Person (other than
the Seller, the Collection Agent or an Originator) to whom any amounts are owed
under the Transaction Documents until all such amounts have been paid in full;
and
(v)
fifth,
to the Collection Agent until all
amounts owed to the Collection Agent under the Agreement have been paid in
full; and
(vi)
sixth,
to the Seller.
On the last day of each Tranche Period (unless
otherwise instructed by the Agent pursuant to Section 3.2(a)), the
Collection Agent shall deposit into the Agent’s Account, from such set aside
Collections, all amounts allocated to such Tranche Period and all Tranche
Periods that ended before such date that are due in accordance with the
priorities in clauses (i)-(ii) above.
No distributions shall be made to pay amounts under clauses (iii) -
(vi) until sufficient Collections have been set aside to pay all amounts
described in clauses (i) and (ii) that may become payable for all outstanding
Tranche Periods. All distributions by
the Agent shall be made ratably within each priority level in accordance with
the respective amounts then due each Person included in such level unless
otherwise agreed by the Agent and all Purchasers. If any part of the Sold Interest in any Collections is applied to
pay any amounts payable hereunder that are recourse obligations of the Seller
pursuant to Section 1.4(c) and after giving effect to such application the
Sold Interest is greater than 100%, the Seller shall pay, as a recourse
obligation for distribution in respect of each applicable Purchaser's
Investment as part of the Sold Interest in Collections, to the Collection Agent
the amount so applied to the extent necessary so that after giving effect to
such payment the Sold Interest is no greater than 100%.
Article III
Administration and Collections
Section 3.1
.
Appointment
of Collection Agent
.
(a) The servicing,
administering and collecting of the Receivables shall be conducted exclusively
by a Person (the
“Collection Agent”
) designated to so act on behalf of the
Purchasers under this Article III. As
the Initial Collection Agent, the Parent is hereby designated as, and agrees to
perform the duties and obligations of, the Collection Agent. The Initial Collection Agent acknowledges
that the Agent and each Purchaser have relied on the Initial Collection Agent’s
agreement to act as Collection Agent (and the agreement of any of the
sub-collection agents to so act) in making the decision to execute and deliver
this Agreement and agrees that it will not voluntarily resign as Collection
Agent nor permit any sub-collection agent to voluntarily resign as a
sub-collection agent. At any time after
(and only after) the occurrence of a Collection Agent Replacement Event, the
Agent may designate a new Collection Agent to succeed the Parent (or any
successor Collection Agent). Any
replacement Collection Agent may not be a direct or indirect competitor of any
Seller Entity and shall agree to be bound by a confidentiality agreement
substantively identical to that set forth in Section 9.10.
(b) The
Initial Collection Agentmay delegate its duties and obligations as
Collection Agent to anAffiliate of the Initial Collection Agent
(acting as a sub-collection agent).
Notwithstanding such delegation, the Initial Collection Agent shall
remain primarily liable for the performance of the duties and obligations so
delegated, and the Agent and each Purchaser shall have the right to look solely
to the Initial Collection Agentfor such performance. The Agent may at any time after (and only
after) the occurrence of a Collection Agent Replacement Event remove or replace
any sub-collection agent.
(c) If
replaced as provided herein, the Collection Agent agrees it will terminate, and
will cause each existing sub-collection agent to terminate, its collection
activities in a manner reasonably requested by the Agent to facilitate the
transition to a new Collection Agent.
The Collection Agent shall reasonably cooperate with and assist any new
Collection Agent (including providing reasonable access to, and transferring,
all Records and allowing (to the extent permitted by applicable law and
contract) the new Collection Agent to use all licenses, hardware or software
necessary or desirable to collect the Receivables). The Initial Collection Agentirrevocably agrees reasonably to act (if
requested to do so) as the data-processing agent for any new Collection Agent
in substantially the same manner as the Initial Collection Agent conducted
such data-processing functions while it acted as the Collection Agent.
Section 3.2
.
Duties
of Collection Agent
.
(a) The Collection Agent shall take, or cause
to be taken, all action necessary or advisable to collect each Receivable in
accordance (in all material respects) with this Agreement, the Credit and
Collection Policy and all applicable laws, rules and regulations using the
skill and attention the Collection Agent exercises in collecting other
receivables or obligations owed solely to it.
The Collection Agent shall, in accordance herewith, separately account
for all Collections to which a Purchaser is entitled and pay from such
Collections all Funding Charges and Discount when due. If so instructed by the Agent, after the
occurrence of a Collection Agent Replacement Event, the Collection Agent shall
transfer to the Agent the amount of Collections to which the Agent and the
Purchasers are entitled by the Business Day following receipt. Each party hereto exclusively hereby
appoints the Collection Agent to enforce such Person’s rights and interests in
the Receivables, but (notwithstanding any other provision in any Transaction
Document) the Agent shall at all times after the occurrence of a Collection
Agent Replacement Event have the sole right to direct the Collection Agent to
commence or settle any legal action to enforce collection of any Receivable.
(b) If
no Termination Event exists and the Collection Agent determines that such
action is appropriate, the Collection Agent may, in accordance with the Credit
and Collection Policy, extend the maturity of any Receivable (but no such
extension shall be for a period of more than thirty days) or adjust the
Outstanding Balance of any Receivable in respect of any defective or rejected
goods, any goods not timely delivered, or any good which do not meet design or
performance specifications. Any such
extension or adjustment shall not alter the status of a Receivable as a
Defaulted Receivable or Delinquent Receivable or limit any rights of the Agent
or the Purchasers hereunder. If a
Termination Event exists, the Collection Agent may make such extensions or
adjustments only with the prior consent of the Instructing Group.
(c) The
Collection Agent shall turn over to the Seller (i) any percentage of Collections
in excess of the Sold Interest, less all reasonable costs and expenses of the
Collection Agent for servicing, collecting and administering the Receivables
and (ii) subject to Section 1.5(d), the collections and records for
any indebtedness owed to the Seller that is not a Receivable. The Collection Agent shall have no
obligation to remit any such funds or records to the Seller until the
Collection Agent receives evidence (reasonably satisfactory to the Agent) that
the Seller is entitled to such items.
The Collection Agent has no obligations concerning indebtedness that is
not a Receivable other than to deliver the collections and records for such
indebtedness to the Seller when required by this Section 3.2(c).
(d) The
Collection Agent shall take all actions necessary to maintain the perfection
and priority of the security interest of the Agent in the Receivables.
(e) Any
replacement Collection Agent may not be a direct or indirect competitor of any
Seller Entity and shall agree to be bound by a confidentiality agreement
substantively identical to that set forth in Section 9.10.
Section 3.3
.
Reports
.
On or
before the twentieth day of each month, and, after the occurrence of a
Termination Event, at such other times covering such other periods as is
requested by the Agent or the Instructing Group, the Collection Agent shall
deliver to the Agent a report reflecting information as of the close of
business of the Collection Agent for the immediately preceding Settlement
Period or such other preceding period as is requested (each a
“Periodic
Report”
),
containing the information described on Exhibit C (with such modifications
or additional information as reasonably requested by the Agent or the
Instructing Group).
Section 3.4
.
Lock-Box
Arrangements
.
The Agent is hereby authorized to give
notice at any time after the occurrence of a Collection Agent Replacement Event
to any or all Lock-Box Banks that the Agent is exercising its rights under the
Lock-Box Letters and to take all actions permitted under the Lock-Box
Letters. The Seller agrees to take any
action reasonably requested by the Agent to facilitate the foregoing. After the Agent takes any such action under
the Lock-Box Letters, the Seller shall immediately deliver to the Agent any
Collections received by the Seller. If
the Agent takes control of any Lock-Box Account, the Agent shall distribute
Collections it receives in accordance herewith and shall deliver to the
Collection Agent, for distribution under Section 3.2, all other amounts it
receives from such Lock-Box Account.
Section 3.5
.
Enforcement
Rights
. (a) The Agent may at any time after the
occurrence of a Collection Agent Replacement Event direct the Obligors and the
Lock-Box Banks to make all payments on the Receivables directly to the Agent or
its designee. The Agent may, and the
Seller shall at the Agent’s request, withhold the identity of the Purchasers
from the Obligors and Lock-Box Banks.
Upon the Agent’s request after the occurrence of a Collection Agent
Replacement Event, the Seller (at the Seller’s expense) shall (i) give
notice to each Obligor of the Agent’s ownership of the Sold Interest and direct
that payments on Receivables be made directly to the Agent or its designee,
(ii) assemble for the Agent all Records and collateral security for the
Receivables and the Related Security and transfer to the Agent (or its
designee), or (to the extent permitted by applicable law and contract) license
to the Agent (or its designee) the use of, all software useful to collect the
Receivables and (iii) segregate in a manner acceptable to the Agent all
Collections the Seller receives and, promptly upon receipt, remit such
Collections in the form received, duly endorsed or with duly executed
instruments of transfer, to the Agent or its designee.
(b) Prior
to the occurrence of a Termination Event, neither the Agent nor any Purchaser
will contact or communicate with any Obligor without the prior written consent
of the Seller. After the occurrence of
a Collection Agent Replacement Event, the Seller hereby irrevocably appoints
the Agent as its attorney-in-fact coupled with an interest, with full power of
substitution and with full authority in the place of the Seller, to take any
and all steps deemed desirable by the Agent, in the name and on behalf of the
Seller to (i) collect any amounts due under any Receivable, including endorsing
the name of the Seller on checks and other instruments representing Collections
and enforcing such Receivables and the Related Security, and (ii) exercise any
and all of the Seller’s rights and remedies under the Purchase Agreement. The Agent’s powers under this
Section 3.5(b) shall not subject the Agent to any liability if any action
taken by it proves to be inadequate or invalid, nor shall such powers confer
any obligation whatsoever upon the Agent.
(c) Neither
the Agent nor any Purchaser shall have any obligation to take or consent to any
action to realize upon any Receivable or Related Security or to enforce any
rights or remedies related thereto. To
the extent that the Agent and the Purchasers elect not to enforce any rights
they may have been granted by the Seller with respect to the Receivables and
the Related Security, the Seller may exercise such rights in accordance with
the terms hereof.
Section 3.6
.
Collection
Agent Fee
. On or before the twentieth day of each
calendar month, the Seller shall pay to the Collection Agent a fee for the
immediately preceding calendar month as compensation for its services (the
“Collection
Agent Fee”
) equal to (a) at all times an Affiliate of the
Seller is the Collection Agent, such consideration as is acceptable to it, so
long as such consideration is upon fair and reasonable terms no less favorable
to the Seller than could be obtained in a comparable arm's–length
transaction with a Person other than a Seller Entity, the receipt and
sufficiency of which is hereby acknowledged, and (b) at all times any
other Person is the Collection Agent, a reasonable amount agreed upon by the
Agent and the new Collection Agent on an arm’s–length basis reflecting
rates and terms prevailing in the market at such time. The Collection Agent may apply to payment of
the Collection Agent Fee only the portion of the Collections in excess of
Collections that fund Reinvestment Purchases and that pay Funding Charges and
Discount. The Agent may, with the
consent of the Instructing Group, pay the Collection Agent Fee to the
Collection Agent from the Sold Interest in Collections. The Seller shall be obligated to reimburse
any such payment.
Section 3.7
.
Responsibilities
of the Seller
. The Seller shall, or shall cause the
Originators to, pay when due all Taxes payable in connection with the
Receivables and the Related Security or their creation or satisfaction other
than Taxes for which the Seller is not obligated to indemnify the Agent and the
Purchasers pursuant to Section 6.1.
The Seller shall, and shall cause the Originators to, perform all of its
obligations under agreements related to the Receivables and the Related
Security to the same extent as if interests in the Receivables and the Related
Security had not been transferred hereunder or, in the case of the Originators,
under the Purchase Agreement. The
Agent’s or any Purchaser’s exercise of any rights hereunder shall not relieve
the Seller or the Originators from such obligations. Neither the Agent nor any Purchaser shall have any obligation to
perform any obligation of the Seller or of the Originators or any other
obligation or liability in connection with the Receivables or the Related
Security.
Section 3.8
.
Actions by
Seller
. The Seller shall defend and indemnify the
Agent and each Purchaser against all costs, expenses, claims and liabilities
for any action taken by the Seller, the Originators or any other Affiliate of
the Seller or of the Originators (whether acting as Collection Agent or
otherwise) related to any Receivable and the Related Security, or arising out
of any alleged failure of compliance of any Receivable or the Related Security
with the provisions of any law or regulation, except to the extent such costs,
expenses, claims and liabilities are attributable to the gross negligence or
willful misconduct of the Person seeking their recovery. If any goods related to a Receivable are
repossessed, the Seller agrees to resell, or to have the Originators or another
Affiliate resell, such goods in a commercially reasonable manner for the
account of the Agent and remit, or have remitted, to the Agent the Purchasers’
share in the gross sale proceeds thereof net of any out-of-pocket expenses and
any equity of redemption of the Obligor thereon. Any such moneys collected by the Seller or the Originators or
other Affiliate of the Seller pursuant to this Section 3.8 shall be
segregated and held in trust for the Agent and remitted to the Agent’s Account
within one Business Day of receipt as part of the Sold Interest in Collections
for application as provided herein.
Section 3.9
.
Indemnities by the Collection Agent
.
Without limiting any other rights any Person
may have hereunder or under applicable law, the Collection Agent hereby
indemnifies and holds harmless the Seller, the Agent and each Purchaser and
their respective officers, directors, agents and employees (each a
“Collection
Agent Indemnified Party”
) from and against any and all damages, losses,
claims, liabilities, penalties, Taxes, costs and expenses (including attorneys’
fees and court costs) (all of the foregoing collectively, the
“Collection
Agent Indemnified Losses”
) at any time imposed on or incurred by any
Collection Agent Indemnified Party to the extent arising out of or otherwise
relating to:
(i) any representation or warranty made
by the Collection Agent in this Agreement or any Periodic Report or any other
information or report delivered by the Collection Agent pursuant hereto, which
shall have been false or incorrect in any material respect when made;
(ii) the failure by the Collection Agent
to comply with any applicable law, rule or regulation related to any Receivable
or the Related Security;
(iii) any loss of a perfected security
interest (or in the priority of such security interest) as a result of any
commingling by the Collection Agent of funds to which the Agent or any
Purchaser is entitled hereunder with any other funds;
(iv) the imposition of any Lien with
respect to any Receivable, Related Security or Lock-Box Account as a result of
any action taken by the Collection Agent under any Transaction Documents; or
(v) any failure of the Collection Agent
to perform its duties or obligations in accordance with the provisions of this
Agreement (including, without limitation, compliance with the Credit and
Collection Policy) or any other Transaction Document to which the Collection
Agent is a party;
whether arising by reason of the acts to
be performed by the Collection Agent hereunder or otherwise, excluding only
Collection Agent Indemnified Losses to the extent (a) a final judgment of
a court of competent jurisdiction determined that such Collection Agent
Indemnified Losses resulted solely from gross negligence or willful misconduct
of the Collection Agent Indemnified Party seeking indemnification,
(b) solely due to the credit risk of the Obligor and for which
reimbursement would constitute recourse to the Collection Agent for
uncollectible Receivables, or (c) such Collection Agent Indemnified Losses
include Taxes on, or measured by, the overall net income of the Agent or any
Purchaser computed in accordance with the Intended Tax Characterization;
provided,
however,
that nothing contained in this sentence shall limit the
liability of the Collection Agent or limit the recourse of the Agent and each
Purchaser to the Collection Agent for any amounts otherwise specifically
provided to be paid by the Collection Agent hereunder.
Section 3.10
.
Currency
Conversion
.
The Collection Agent shall
remit all Collections on Receivables that are not denominated in US Dollars in
US Dollars converted at the applicable Exchange Rate. Each Exchange Rate
notified by the Collection Agent to the Agent in a Periodic Report will be
determined by the Collection Agent in good faith.
Article IV
Representations and Warranties
Section 4.1
.
Representations and Warranties
.
The Seller represents and warrants to the
Agent and each Purchaser as of the Closing Date, the date of each Incremental
Purchase, and (except for the representations and warranties set forth in
Section 4.1(g) and (h)) the date of each Reinvestment Purchase, that:
(a)
Corporate Existence and Power.
Each of the Seller and each Seller Entity is
an exempted company or corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
corporate power and authority and all governmental licenses, authorizations,
consents and approvals required to carry on its business in each jurisdiction
in which its business is now conducted, except where failure to obtain such
license, authorization, consent or approval would not have a material adverse
effect on (i) its ability to perform its obligations under, or the
enforceability of, any Transaction Document, (ii) the business or
financial condition of the Parent and its Subsidiaries, taken as a whole,
(iii) the interests of the Agent or any Purchaser under any Transaction
Document or (iv) the enforceability or collectibility of a material portion
of the Receivables.
(b)
Corporate Authorization and No Contravention.
The execution, delivery and performance by
each of the Seller and each Seller Entity of each Transaction Document to which
it is a party and the creation of all security interests provided for herein
and therein (i) are within its powers, (ii) have been duly authorized
by all necessary action, (iii) do not contravene or constitute a default
under (A) any applicable law, rule or regulation, (B) its or any other
Seller Entity’s memorandum and articles of association or charter or by-laws or
(C) any agreement, order or other instrument to which it or any other
Seller Entity is a party or its property is subject and (iv) will not
result in any Adverse Claim on any Receivable other than pursuant to the
Transaction Documents, the Related Security or Collection or give cause for the
acceleration of any indebtedness of the Seller or any other Seller Entity.
(c)
No Consent Required.
No approval, authorization or other action
by, or filings with, any Governmental Authority or other Person is required in
connection with the execution, delivery and performance by the Seller or any
Seller Entity of any Transaction Document to which it is a party or any
transaction contemplated thereby.
(d)
Binding Effect.
Each Transaction Document to which the Seller or any Seller Entity
is a party constitutes the legal, valid and binding obligation of such Person
enforceable against that Person in accordance with its terms, except as limited
by bankruptcy, insolvency, or other similar laws of general application
relating to or affecting the enforcement of creditors’ rights generally and
subject to general principles of equity.
(e)
Perfection of Ownership Interest
. The Cayman Islands is not a jurisdiction
whose law generally requires information concerning the existence of a
non-possessory security interest in the Receivables, Collections or Related
Security to be made generally available in a filing, recording or registration
system as a condition or result of the security interest’s obtaining priority
over the rights of a lien creditor with respect thereto. Immediately preceding its sale of
Receivables to the Seller, an Originator was the owner of, had good title to,
and effectively sold, such Receivables to the Seller, free and clear of any
Adverse Claim. The Seller owns and has
good title to the Receivables free of any Adverse Claim other than the
interests of the Purchasers (through the Agent) therein that are created
hereby, and each Purchaser shall at all times have a valid and continuing
undivided percentage ownership interest, which shall be a first priority
perfected security interest for purposes of Article 9 of the applicable Uniform
Commercial Code enforceable as such against creditors of and purchasers from
the Seller, in the Receivables and Collections to the extent of its Purchase
Interest then in effect. Other than the
ownership or security interest granted to the Agent pursuant to this Agreement,
the Seller has not pledged, assigned, sold or granted a security interest in,
or otherwise conveyed, the Receivables or the Collections. The Seller has not authorized the filing of
and is not aware of any financing statements against the Seller that include a
description of collateral covering the Receivables or the Collections other
than any financing statement relating to the security interest granted to the
Agent hereunder. The Seller has caused
or will have caused, within ten days after the date hereof, the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under the applicable law in order to perfect the conveyance of
Receivables by Seller hereunder.
(f)
Accuracy of Information.
The information furnished by the Seller, any
Seller Entity or any Affiliate of any such Person to the Agent or any Purchaser
in connection with any Transaction Document, or any transaction contemplated
thereby, taken as a whole, is true and accurate in all material respects (and
is not incomplete by omitting any information necessary to prevent such
information from being materially misleading),
provided
that, with respect
to projected financial information, Seller represents only that such
information was prepared in good faith, subject to any express qualifications
set forth in such projections, based upon assumptions believed to be reasonable
at the time.
(g)
No Actions, Suits.
Except for such proceedings as are described
in the Initial Collection Agent’s most recent Quarterly Report on Form 10–Q
filed with the Securities Exchange Commission,there are no actions, suits
or other proceedings (including matters relating to environmental liability)
pending or threatened against or affecting the Seller, any Seller Entity or any
Subsidiary, or any of their respective properties, that (i)
have a reasonable
likelihood of an adverse outcome and, if adversely determined (individually or
in the aggregate), can reasonably be expected to have a material adverse effect
on the financial condition of the Seller or the Parent and its Subsidiaries,
taken as a whole, or on the collectibility of a material portion of the
Receivables or (ii) involve any Transaction Document or any transaction
contemplated thereby. None of the
Seller, any Seller Entity or any Subsidiary is in default of any contractual
obligation or in violation of any order, rule or regulation of any Governmental
Authority, which default or violation is reasonably likely to have a material
adverse effect upon (i) the financial condition of the Seller, the Seller
Entities and the Subsidiaries taken as a whole or (ii) the collectibility
of a material portion of the Receivables.
(h)
No Material Adverse Change.
Except as described in the Parent’s Quarterly
Reports on Form 10–Q for the fiscal quarters ended March 31,
2001 and June 30, 2001, there has been no material adverse change since
December 31, 2000 in the collectibility of a material portion of the
Receivables or the (i) financial condition, business, operations or
prospects of the Seller or of the Parent and its Subsidiaries, taken as a
whole, or (ii) ability of the Seller or any Seller Entity to perform its
obligations under any Transaction Document.
(i)
Accuracy of Exhibits; Lock-Box Arrangements.
All information on Exhibits D-F (listing
offices and names of the Seller and the Originators and where they maintain
Records; the Subsidiaries; and Lock Boxes) is true and complete in all material
respects, subject to any changes permitted by, and notified to the Agent in
accordance with, Article V. None of the
Seller's or Originators’ locations (including without limitation their
respective chief executive offices and principal places of business) has
changed within the past 12 months (or such shorter period as the Seller has
been in existence). During the past 12
months, neither the Seller nor any Originator has used any corporate,
fictitious or trade name other than a name set forth of Exhibit D. Exhibit D lists the federal employer
identification numbers of the Seller and the Originators. The Seller has delivered a copy of all
Lock-Box Agreements (or, with respect to Collections on the Receivables
originated by the Canadian Originators, will deliver (or has delivered) such
Lock-Box Agreements within 60 days after the date of this Agreement) to the
Agent. The Seller has not granted any
interest in any Lock-Box or Lock-Box Account to any Person other than the Agent
and, upon delivery to a Lock-Box Bank of the related Lock-Box Letter, the Agent
will have exclusive ownership and control of the Lock-Box Account at such Lock-Box
Bank.
(j)
Sales by the Originators
. Each sale by the Originators to the Seller
of an interest in Receivables and their Collections has been made in accordance
with the terms of the Purchase Agreement, including the payment by the Seller
to the Originators of the purchase price described in the Purchase
Agreement. Each such sale has been made
for
“reasonably
equivalent value”
(as such term is used in Section 548 of the
Bankruptcy Code) and not for or on account of
“antecedent debt”
(as such
term is used in Section 547 of the Bankruptcy Code) owed by the
Originators to the Seller.
(k)
Eligible Receivables.
Each Receivable listed on the Periodic Report as part
of the Eligible Receivables Balance was an Eligible Receivable as of the date
of such Periodic Report.
(l)
Location of Receivables.
The contracts relating to any Receivable are
not governed by the laws of the Cayman Islands. None of the Receivables are
located in the Cayman Islands within the meaning of Cayman Islands law.
Article V
Covenants
Section 5.1
.
Covenants
of the Seller
. The Seller hereby covenants and agrees to
comply with the following covenants and agreements, unless the Agent (with the
consent of the Instructing Group) shall otherwise consent:
(a)
Financial
Reporting
. The Seller will
maintain a system of accounting established and administered in accordance with
GAAP and will furnish to the Agent and each Purchaser:
(i)
Annual Financial Statements.
Within 90 days after each fiscal year of
(A) the Parent, a copy of Parent’s annual audited financial statements
(including a consolidated balance sheet, consolidated statement of income and
retained earnings and statement of cash flows, with related footnotes)
certified by PriceWaterhouseCoopers or other independent certified public
accountants of national standing and prepared on a consolidated basis in
conformity with GAAP, and (B) each of the Seller and the Originators
(other than the Parent) the balance sheet for such Person (and, additionally
for the Seller, an annual profit and loss statement) certified by a Designated
Financial Officer thereof, in each case prepared on a consolidated basis in
conformity with GAAP as of the close of such fiscal year for the fiscal year
then ended;
(ii)
Quarterly Financial Statements.
Within 45 days after each (except the last)
fiscal quarter of each fiscal year of (A) the Parent, copies of its
unaudited financial statements (including at least a consolidated balance sheet
as of the close of such quarter and statements of income, retained earnings and
cash flows for the period from the beginning of the fiscal year to the close of
such quarter) certified by a Designated Financial Officer and prepared in a
manner consistent with the financial statements described in part (A) of clause
(i) of this Section 5.l(a) and (B) each of the Seller and the Originators
(other than a Parent), the quarterly balance sheet as of the end of such
quarter for such Person (and, additionally for the Seller, a profit and loss
statement) for the period from the beginning of such fiscal year to the close
of such quarter, in each case certified by a Designated Financial Officer
thereof and prepared in a manner consistent with part (B) of clause (i) of
Section 5.1(a);
(iii)
Officer’s Certificate.
Each time financial statements are furnished
pursuant to clause (i) or (ii) of this Section 5.1(a), a compliance
certificate (in substantially the form of Exhibit G) signed by a
Designated Financial Officer, dated the date of such financial statements;
(iv)
Public Reports.
Promptly upon becoming available, a copy of each report or proxy
statement filed by the Parent with the Securities Exchange Commission or any
securities exchange; and
(v)
Other Information.
With reasonable promptness, such other
information (including non-financial information) as may be reasonably
requested by the Agent or any Purchaser (with a copy of such request to the
Agent).
(b)
Notices
. Promptly upon a Financial Officer (as
defined in the Credit Agreement) or other executive officer of Seller or any Seller
Entity becoming aware of any of the following the Seller will notify the Agent
and provide a description of:
(i)
Potential Termination Events.
The occurrence of any Potential Termination
Event;
(ii)
Representations and Warranties.
The failure of any representation or
warranty herein to be true (when made or at any time thereafter) in any
material respect;
(iii)
Downgrading.
The downgrading, withdrawal or suspension of any rating by any
rating agency of any indebtedness of any Seller Entity;
(iv)
Litigation.
The institution of any litigation, arbitration proceeding or
governmental proceeding reasonably likely to be material to any Seller Entity
or the collectibility or quality of a material portion of the Receivables;
(v)
Judgments.
The entry of any judgment, award or decree against any Seller
Entity if the aggregate amount of all unsatisfied and unstayed judgments then
outstanding against the Seller, the Seller Entities and the Subsidiaries
exceeds $10,000,000or the entry of a judgment, award or
decree against the Seller that exceeds $10,775; or
(vi)
Changes in Business.
Any change in the character of any Seller
Entity’s business that is reasonably expected to impair the collectibility or
quality of any material portion of the Receivables.
If the Agent receives such a notice, the Agent
shall promptly give notice thereof to each Purchaser.
(c)
Conduct
of Business.
The Seller will
perform all actions necessary to remain duly incorporated, validly existing and
in good standing in its jurisdiction of incorporation and to maintain all
requisite authority to conduct its business in each jurisdiction in which it
conducts business.
(d)
Compliance
with Laws.
The Seller will
comply with all laws, regulations, judgments and other directions or orders
imposed by any Governmental Authority to which such Person or any Receivable,
any Related Security or Collection may be subject, except to the extent
non-compliance will have a material adverse effect on (i) the collectibility of
the Receivables, or (ii) the financial condition, business or operations of
Parent and its Subsidiaries, taken as a whole.
(e)
Furnishing
Information and Inspection of Records.
The
Seller will furnish to the Agent and the Purchasers such information concerning
the Receivables and the Related Security as the Agent or a Purchaser may
reasonably request. The Seller will,
and will cause the Originators to, permit, at any time during regular business
hours, upon reasonable advance notice, the Agent or any Purchaser (or any
representatives thereof) (i) to examine and make copies of all Records,
(ii) to visit the offices and properties of the Seller and the Originators
for the purpose of examining the Records and (iii) to discuss matters
relating hereto with any of the Seller’s or the Originators’ officers,
directors, employees or independent public accountants having knowledge of such
matters. Once during each calendar year
in connection with any proposed extension of the Liquidity Termination Date or
at any time after the occurrence and during the continuation of a Termination
Event or a Potential Termination Event relating to a Termination Event
described in clause (f) of the definition thereof, the Agent may (at the
expense of the Seller) have an independent public accounting firm conduct an
audit of the Records or make test verifications of the Receivables and
Collections (it being understood that the Agent has already conducted such
audit for calendar year 2001).
(f)
Keeping
Records.
(i) The Seller
will, and will cause the Originators to, have and maintain
(A) administrative and operating procedures (including an ability to
recreate Records if originals are destroyed), (B) adequate facilities,
personnel and equipment and (C) all Records and other information necessary
or advisable for collecting the Receivables (including Records adequate to
permit the immediate identification of each new Receivable and all Collections
of, and adjustments to, each existing Receivable). The Seller will give the Agent prior notice of any material change
in such administrative and operating procedures.
(ii) The
Seller will, (A) at all times from and after the date hereof, clearly and
conspicuously mark its computer and master data processing books and records
with a legend describing the Agent’s and the Purchasers’ interest in the
Receivables and the Collections and (B) upon the request of the Agent
after a Termination Event, so mark each contract relating to a Receivable and
deliver to the Agent all such contracts (including all multiple originals of
such contracts), with any appropriate endorsement or assignment, or segregate
(from all other receivables then owned or being serviced by the Seller) the
Receivables and all contracts relating to each Receivable and hold in trust and
safely keep such contracts so legended in separate filing cabinets or other
suitable containers at such locations as the Agent may specify.
(g)
Perfection.
(i) The Seller will, and
will cause each Originator to, at its expense, promptly execute and deliver all
instruments and documents and take all action necessary or reasonably requested
by the Agent (including the execution and filing of financing or continuation
statements, amendments thereto or assignments thereof) to enable the Agent to
exercise and enforce all its rights hereunder and to vest and maintain vested
in the Agent a valid, first priority perfected security interest in the
Receivables, the Collections, the Related Security, the Purchase Agreement, the
Lock-Box Accounts and proceeds thereof free and clear of any Adverse Claim
(other than the Seller’s interest therein) (and a perfected ownership interest
in the Receivables and Collections to the extent of the Sold Interest). The Agent will be permitted to sign and file
any continuation statements, amendments thereto and assignments thereof without
the Seller’s signature.
(ii) The
Seller will, and will cause each Originator to, only change its name, identity
structure or relocate its jurisdiction of organization or chief executive
office or the Records following thirty (30) days advance written notice to
the Agent and the delivery to the Agent of all financing statements,
instruments and other documents (including direction letters) reasonably
requested by the Agent.
(iii) Each of
the Seller and each Originator (other than the Canadian Originators) will at
all times maintain its chief executive offices and each Originator will
maintain its jurisdiction of organization within a jurisdiction in the USA in
which Article 9 of the UCC is in effect.
The Canadian Originators will maintain their jurisdictions of
organization and chief executive offices in the Province of Canada in which
they are currently located. If the
Seller or any Originator moves its chief executive office to a location that
imposes Taxes, fees or other charges to perfect the Agent’s and the Purchasers’
interests hereunder or the Seller’s interests under the Purchase Agreement, the
Seller will pay all such amounts and any other costs and expenses incurred in
order to maintain the enforceability of the Transaction Documents, the Sold
Interest and the interests of the Agent and the Purchasers in the Receivables,
the Related Security, Collections, Purchase Agreement and Lock-Box Accounts.
(h)
Performance
of Duties.
The Seller will
perform its respective duties or obligations in accordance with the provisions
of each of the Transaction Documents.
The Seller (at its expense) will (i) fully and timely perform in all
material respects all agreements required to be observed by it in connection
with each Receivable, (ii) comply in all material respects with the Credit and
Collection Policy, and (iii) refrain from any action that may materially impair
the rights of the Agent or the Purchasers in the Receivables, the Related
Security, Collections, Purchase Agreement or Lock-Box Accounts.
(i)
Payments on
Receivables, Accounts.
The
Seller will at all times instruct all Obligors to deliver payments on the
Receivables (including Deemed Collections) to a Lock-Box or Lock-Box
Account. The provisions of the previous
sentence shall only apply to payments on Receivables originated by the Canadian
Originators on and after the 61
st
day following the date of this
Agreement. If any such payments or
other Collections are received by the Seller or any Originator, it shall hold
such payments in trust for the benefit of the Agent and the Purchasers and
promptly (but in any event within two Business Days after receipt) remit such
funds into a Lock-Box Account. The
Seller will cause each Lock-Box Bank to comply with the terms of each
applicable Lock-Box Letter. The Seller
will not permit the funds of any Affiliate to be deposited into any Lock-Box
Account. If such funds are nevertheless
deposited into any Lock-Box Account, the Seller will promptly identify and
separate such funds for segregation.
The Seller will not commingle Collections or other funds to which the
Agent or any Purchaser is entitled with any other funds. The Seller shall only add, and shall only
permit the Originators to add, a Lock-Box Bank, Lock-Box, or Lock-Box Account
to those listed on Exhibit E if the Agent has received notice of and has
consented to such addition, a copy of any new Lock-Box Agreement and an
executed and acknowledged copy of a Lock-Box Letter substantially in the form
of Exhibit F (with such changes as are acceptable to the Agent) from any
new Lock-Box Bank. The Seller shall
only terminate a Lock-Box Bank or Lock-Box, or close a Lock-Box Account, upon
30 days advance notice to the Agent.
(j)
Sales and
Adverse Claims Relating to Receivables.
Except as otherwise provided herein, the Seller will not (by
operation of law or otherwise) dispose of or otherwise transfer, or create or
suffer to exist any Adverse Claim upon, any Receivable or any proceeds thereof.
(k)
Extension or
Amendment of Receivables.
Except
as otherwise permitted in Section 3.2(b) and then subject to
Section 1.5, the Seller will not extend, amend, rescind or cancel any
Receivable.
(l)
Change in
Business or Credit and Collection Policy.
The Seller will not make any material change in the character
of its business and will not make any material adverse change to the Credit and
Collection Policy.
(m)
Certain
Agreements.
The Seller will
not amend, modify, waive, revoke or terminate any Transaction Document to which
it is a party or Section 3 of the Seller’s memorandum of association or
Section 86 or Section 95(b) of the Seller’s Articles of Association.
(n)
Other
Business.
The Seller will
not: (i) engage in any business other
than the transactions contemplated by the Transaction Documents, (ii) create,
incur or permit to exist any Debt of any kind (or cause or permit to be issued
for its account any letters of credit or bankers’ acceptances) other than
pursuant to this Agreement or the Note, or (iii) form any Subsidiary or make
any investments in any other Person;
provided, however,
that the Seller shall
be permitted to incur minimal obligations to the extent necessary for the
day-to-day operations of the Seller (such as expenses for stationery, audits,
maintenance of legal status, etc.).
(o)
Nonconsolidation.
The Seller will operate in such a manner
that the separate corporate existence of the Seller and each Seller Entity and
Affiliate thereof would not be disregarded in the event of the bankruptcy or
insolvency of any Seller Entity and Affiliate thereof and, without limiting the
generality of the foregoing:
(i) the Seller will not engage in any
activity other than those activities expressly permitted under the Seller’s
organizational documents and the Transaction Documents, nor will the Seller
enter into any agreement other than this Agreement, the other Transaction
Documents to which it is a party and, with the prior written consent of the
Agent, any other agreement necessary to carry out more effectively the provisions
and purposes hereof or thereof;
(ii) the Seller will maintain a business
office separate from that of each of the Seller Entities and the Affiliates
thereof (which office may be located within the physical premises of the Parent
pursuant to an arms’ length agreement);
(iii) the Seller will cause the financial
statements and books and records of the Seller to reflect the separate
corporate existence of the Seller;
(iv) the Seller will not, except as
otherwise expressly permitted hereunder, under the other Transaction Documents
and under the Seller’s organizational documents, authorize any Seller Entity or
Affiliate thereof to (A) pay the Seller’s expenses, (B) guarantee the Seller’s
obligations, or (C) advance funds to the Seller for the payment of expenses or
otherwise except that Parent may make contributions to the capital of Seller;
and
(v) the Seller will not act as agent for
any Seller Entity or Affiliate, but instead will present itself to the public
as a corporation separate from each such Person and independently engaged in
the business of purchasing and financing Receivables.
(p)
Mergers,
Consolidations and Acquisitions.
The Seller will not merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or purchase,
lease or otherwise acquire (in one transaction or a series of transactions) all
or substantially all of the assets of any other Person (whether directly by
purchase, lease or other acquisition of all or substantially all of the assets
of such Person or indirectly by purchase or other acquisition of all or
substantially all of the capital stock of such other Person) other than the
acquisition of the Receivables and Related Security pursuant to the Purchase
Agreement.
Article VI
Indemnification
Section 6.1
.
Indemnities
by the Seller
. Without limiting any other rights any Person
may have hereunder or under applicable law, the Seller hereby indemnifies and
holds harmless, on an after-Tax basis, the Agent and each Purchaser and their
respective officers, directors, agents and employees (each an
“Indemnified
Party”
) from and against any and all damages, losses, claims,
liabilities, penalties, Taxes, costs and expenses (including attorneys’ fees
and court costs) (all of the foregoing collectively, the
“Indemnified Losses”
) at any
time imposed on or incurred by any Indemnified Party arising out of or
otherwise relating to any Transaction Document, the transactions contemplated
thereby or any action taken or omitted by any of the Indemnified Parties
(including any action taken by the Agent as attorney-in-fact for the Seller
pursuant to Section 3.5(b)), whether arising by reason of the acts to be
performed by the Seller hereunder or otherwise, excluding only Indemnified
Losses to the extent (a) a final judgment of a court of competent
jurisdiction holds such Indemnified Losses resulted from gross negligence or
willful misconduct of the Indemnified Party seeking indemnification, (b) due to
the credit risk of the Obligor and for which reimbursement would constitute
recourse to the Seller or the Collection Agent for uncollectible Receivables,
(c) such Indemnified Losses include Taxes on, or measured by, the overall
net income of the Agent or any Purchaser computed in accordance with the Intended
Tax Characterization or (d) such Taxes include Taxes imposed in any
jurisdiction other than the United States, Canada or the Cayman Islands by
reason of the organization of the Agent or any Purchaser (or any of their
Affiliates) in such jurisdiction, the location of assets of the Agent or any
Purchaser (or any of their Affiliates) in such jurisdiction, or the conduct of
activities by the Agent or any Purchaser (or any of their Affiliates) in such
jurisdiction. Without limiting the
foregoing indemnification, but subject to the limitations set forth in
clauses (a), (b), (c) and (d) of the previous sentence, the Seller shall
indemnify each Indemnified Party for Indemnified Losses relating to or
resulting from:
(i) any representation or warranty made
by the Seller (or any employee or agent of the Seller) under or in connection
with this Agreement, any Periodic Report or any other information or report
delivered by the Seller, any Seller Entity or the Collection Agent pursuant
hereto, which shall have been false or incorrect in any material respect when
made or deemed made;
(ii) the failure by the Seller to comply
with any applicable law, rule or regulation related to any Receivable, or the
nonconformity of any Receivable with any such applicable law, rule or
regulation or the failure by the Seller to satisfy any of its obligations under
any Transaction Document;
(iii) the failure of the Seller to vest and
maintain vested in the Agent, for the benefit of the Purchasers, a perfected
ownership or security interest in the Sold Interest and the property conveyed
pursuant to Section 1.1 and Section 1.8, free and clear of any
Adverse Claim;
(iv) any commingling of funds to which the
Agent or any Purchaser is entitled hereunder with any other funds;
(v) any failure of a Lock-Box Bank to
comply with the terms of the applicable Lock-Box Letter;
(vi) any dispute, claim, offset or defense
(other than discharge in bankruptcy of the Obligor) of the Obligor to the
payment of any Receivable, or any other claim resulting from the sale or lease
of goods or the rendering of services related to such Receivable or the
furnishing or failure to furnish any such goods or services or other similar
claim or defense not arising from the financial inability of any Obligor to pay
undisputed indebtedness;
(vii) any failure of the Seller to perform
its duties or obligations in accordance with the provisions of this Agreement
or any other Transaction Document to which it is a party;
(viii) any action taken by the Agent as attorney-in-fact for the Seller pursuant
to Section 3.5(b); or
(ix) any environmental liability claim,
products liability claim or personal injury or property damage suit or other
similar or related claim or action of whatever sort, arising out of or in
connection with any Receivable or any other suit, claim or action of whatever
sort relating to any of the Transaction Documents.
Section 6.2
.
Increased Cost and Reduced Return
. If the adoption after the date hereof of any
applicable law, rule or regulation, or any change therein after the date
hereof, or any change after the date hereof in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Amsterdam
Funding Source, the Agent or any Purchaser (collectively, the
“Funding
Parties”
) with any request or directive (whether or not having the
force of law) issued after the date hereof of any such Governmental Authority
(a
“Regulatory
Change”
) (a) subjects any Funding Party to any additional
charge or withholding on or in connection with the Transfer Agreement or this
Agreement (collectively, the
“Funding Documents”
) or any Receivable,
(b) changes the basis of taxation of payments to any of the Funding
Parties of any amounts payable under any of the Funding Documents, other than
(i) any Taxes referred to in Section 6.4 or (ii) any Taxes
imposed on or measured by the net income of the Funding Party,
(c) imposes, modifies or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or any credit extended by, any of the
Funding Parties, (d) has the effect of reducing the rate of return on such
Funding Party’s capital to a level below that which such Funding Party could
have achieved but for such adoption, change or compliance (taking into
consideration such Funding Party’s policies concerning capital adequacy) or
(e) imposes any other condition, and the result of any of the foregoing is
(x) to impose a cost on, or increase the cost to, any Funding Party of its
commitment under any Funding Document or of purchasing, maintaining or funding
any interest acquired under any Funding Document, (y) to reduce the amount
of any sum received or receivable by, or to reduce the rate of return of, any
Funding Party under any Funding Document or (z) to require any payment
calculated by reference to the amount of interests held or amounts received by
it hereunder, then, upon demand by the Agent, the Seller shall pay to the Agent
for the account of the Person such additional amounts as will compensate the
Agent or such Purchaser (or, in the case of Amsterdam, will enable Amsterdam to
compensate any Amsterdam Funding Source) for such increased cost or reduction. Notwithstanding the foregoing, no Person
shall be entitled to receive any amount under this Section to the extent that
such amount relates to an increased cost or reduction incurred for a date that
is more than 180 days prior to the date that the Seller first receives notice
thereof, provided, that if such increased cost or reduction is imposed
retroactively, such 180-day period shall be extended to include the period of
the retroactive effect thereof.
Section 6.3
.
Other
Costs and Expenses
. The Seller shall pay to the Agent on demand
all reasonable costs and expenses in connection with (a) the preparation,
execution, delivery and administration (including amendments of any provision)
of the Transaction Documents, (b) the sale of the Sold Interest, (c) the
perfection of the Agent’s rights in the Receivables and Collections,
(d) the enforcement by the Agent or the Purchasers of the obligations of
the Seller under the Transaction Documents or of any Obligor under a Receivable
and (e) the maintenance by the Agent of the Lock-Boxes and Lock-Box
Accounts, including fees, costs and expenses of legal counsel for the Agent
relating to any of the foregoing or, after the occurrence of a Termination
Event, to advising the Agent and any Purchaser about its rights and remedies
under any Transaction Document and all costs and expenses (including counsel
fees and expenses) of the Agent and each Purchaser in connection with the
enforcement of the Transaction Documents and in connection with the
administration of the Transaction Documents following a Termination Event. The Seller shall reimburse the Agent and
Amsterdam for the cost of the Agent’s or Amsterdam’s auditors (which may be
employees of such Person) auditing the books, records and procedures of the
Seller. Except as limited above, the
Seller shall reimburse Amsterdam on demand for all other costs and expenses
incurred by Amsterdam to the extent attributable to implementing the
Transaction Documents or the transactions contemplated thereby, including the
cost of the Rating Agencies confirming that the execution, delivery, and
performance of the Transaction Documents will not adversely affect the Ratings.
Section 6.4
.
Withholding
Taxes
. (a) All payments made by the Seller
hereunder shall be made without withholding for or on account of any present or
future taxes (other than overall net income taxes on the recipient) imposed by
the United States, Canada or the Cayman Islands or any political subdivision or
taxing authority thereof. If any such
withholding is so required, the Seller shall make the withholding, pay the
amount withheld to the appropriate authority before penalties attach thereto or
interest accrues thereon and pay such additional amount as may be necessary to
ensure that the net amount actually received by each Purchaser and the Agent
free and clear of such taxes (including such taxes on such additional amount)
is equal to the amount that Purchaser or the Agent (as the case may be) would
have received had such withholding not been made;
provided, however,
that no
such additional amounts shall be payable in respect of (i) any Taxes
imposed on the net income of the Agent or Purchaser or franchise taxes imposed
on the Agent or Purchaser by the jurisdiction under which the laws of which the
Agent or Purchaser is organized or has its principal place of business or where
it purchased its Purchase Interest or (ii) any Taxes imposed by reason of
the Agent’s or Purchaser’s failure to comply with the provisions of
Section 6.4(b). If the Seller pays
any such taxes, penalties or interest, it shall deliver official tax receipts
evidencing that payment or certified copies thereof to the Purchaser or Agent
on whose account such withholding was made (with a copy to the Agent if not the
recipient of the original) promptly after the Seller’s receipt thereof.
(b) (i) Before
the first date on which any amount is payable hereunder for the account of any
Purchaser not incorporated under the laws of the USA such Purchaser shall
deliver to the Seller and the Agent each two (2) duly executed and
completed originals of United States Internal Revenue Service Form W-8BEN or
W-8ECI (or successor applicable form)
certifying that such Purchaser is entitled to receive payments hereunder without
deduction or withholding of any United States federal income taxes. Each such Purchaser shall replace or update
such forms when necessary to maintain any applicable exemption and as requested
by the Agent or the Seller. Before the
first date on which any amount is payable hereunder for the account of any
Purchaser incorporated under the laws of the USA such Purchaser shall deliver
to the Seller and the Agent each two (2) duly executed and completed originals
of United States Internal Revenue Service Form W-9 (or successor applicable
form) certifying that such Purchaser is entitled to receive payments hereunder
without deduction or withholding of any United States federal income
taxes. Each such Purchaser shall
replace or update such forms when necessary to maintain any applicable
exemption and as requested by the Agent or the Seller.
(ii) The
Purchaser agrees to comply, before the first date on which any amount is
payable hereunder, with any certification, identification, documentation,
reporting or other similar requirement if such compliance is required by law,
regulation, administrative practice or an applicable treaty as a precondition
to exemption from, or reduction in the rate of, deduction or withholding of any
taxes for which the Seller is required to pay additional amounts pursuant to Section 6.4(a)
hereof.
Section 6.5
.
Payments
and Allocations
. If any Person seeks compensation pursuant to
this Article VI, such Person shall deliver to the Seller and the Agent a
certificate setting forth the amount due to such Person, a description of the
circumstance giving rise thereto and the basis of the calculations of such
amount. Absent error, the Seller shall
pay to the Agent (for the account of such Person) the amount shown as due on
any such certificate within 10 Business Days after receipt of the notice.
Article VII
Conditions Precedent
Section 7.1
.
Conditions
to Closing
. This Agreement shall become effective on the
first date all conditions in this Section 7.1 are satisfied. On or before such date, the Seller shall
deliver to the Agent the following documents in form, substance and quantity
acceptable to the Agent:
(a) A certificate of the Secretary of
each of the Seller and each Seller Entity certifying (i) the resolutions
of the Seller’s and each Seller Entity’s board of directors approving each
Transaction Document to which it is a party, (ii) the name, signature, and
authority of each officer who executes on the Seller’s or any Seller Entity’s
behalf a Transaction Document (on which certificate the Agent and each
Purchaser may conclusively rely until a revised certificate is received),
(iii) the Seller’s certificate of incorporation, certified by the
Registrar of Companies of the Cayman Islands, and each Seller Entity’s
certificate or articles of incorporation, certified by the Secretary of State
of its state of incorporation, (iv) a copy of the Seller’s memorandum and
articles of association and of each Seller Entity’s by-laws and (v) good
standing certificates issued by the Secretaries of State of each jurisdiction
where the Seller or any Seller Entity has material operations.
(b) All instruments and other documents
required, or deemed desirable by the Agent, to perfect the Agent’s first
priority interest in the Receivables, Collections, the Purchase Agreement and
the Lock-Box Accounts in all appropriate jurisdictions.
(c) UCC search reports (and equivalent
reports for the Canadian Originators) from all jurisdictions the Agent
requests.
(d) Executed copies of (i) all
consents and authorizations necessary in connection with the Transaction
Documents (ii) all Lock-Box Letters (other than Lock-Box Letters relating to
the Receivables of the Canadian Originators, which shall be delivered within 60
days after the date of this Agreement), (iii) a compliance certificate in
the form of Exhibit G covering the period ending August 31, 2001,
(iv) a Periodic Report covering the Settlement Period ended
August 31, 2001 and (v) each Transaction Document.
(e) Favorable opinions of counsel to the
Seller and each Seller Entity covering such matters as Amsterdam or the Agent
may request.
(f) Such other approvals, opinions or
documents as the Agent or Amsterdam may request.
(g) All legal matters related to the
Purchase are satisfactory to the Purchasers.
Section 7.2
.
Conditions
to Each Purchase
. The obligation of each Committed Purchaser
to make any Purchase, and the right of the Seller to request or accept any
Purchase, are subject to the conditions (and each Purchase shall evidence the
Seller’s representation and warranty that clauses (a)-(d) of this
Section 7.2 have been satisfied) that on the date of such Purchase before
and after giving effect to the Purchase:
(a) no representation or warranty set
forth in Article IV hereof (other than, in the case of any Reinvestment
Purchase, a representation or warranty set forth in Section 4.1(g) or (h)
hereof) shall be incorrect in any material respect;
(b) in the case of an Incremental
Purchase, no Potential Termination Event shall then exist or shall occur as a
result of the Purchase;
(c) the Liquidity Termination Date has
not occurred; and
(d) after giving effect to the
application of the proceeds of such Purchase, (x) the outstanding Matured
Aggregate Investment would not exceed the Aggregate Commitment and (y) the
outstanding Aggregate Investment would not exceed the Purchase Limit.
Nothing in this Section 7.2 limits the
obligations of each Committed Purchaser to Amsterdam (including the Transfer
Agreement).
Article VIII
The Agent
Section 8.1
.
Appointment
and Authorization
.
Each Purchaser hereby irrevocably designates and appoints ABN AMRO Bank N.V. as
the
“Agent”
under the Transaction Documents and authorizes the Agent to take such actions
and to exercise such powers as are delegated to the Agent thereby and to
exercise such other powers as are reasonably incidental thereto. The Agent shall hold, in its name, for the
benefit of each Purchaser, the Purchase Interest of the Purchaser. The Agent shall not have any duties other
than those expressly set forth in the Transaction Documents or any fiduciary
relationship with any Purchaser, and no implied obligations or liabilities
shall be read into any Transaction Document, or otherwise exist, against the
Agent. The Agent does not assume, nor
shall it be deemed to have assumed, any obligation to, or relationship of trust
or agency with, the Seller.
Notwithstanding any provision of this Agreement or any other Transaction
Document, in no event shall the Agent ever be required to take any action which
exposes the Agent to personal liability or which is contrary to the provision
of any Transaction Document or applicable law.
Section 8.2
.
Delegation
of Duties
. The Agent may execute any of its duties
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be responsible to any Purchaser for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
Section 8.3
.
Exculpatory
Provisions
. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to any Purchaser for any action
taken or omitted (i) with the consent or at the direction of the Instructing
Group or (ii) in the absence of such Person’s gross negligence or willful
misconduct. The Agent shall not be
responsible to any Purchaser or other Person for (i) any recitals,
representations, warranties or other statements made by the Seller, any Seller
Entity or any of their Affiliates, (ii) the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Transaction
Document, (iii) any failure of the Seller, any Seller Entity or any of
their Affiliates to perform any obligation or (iv) the satisfaction of any
condition specified in Article VII.
The Agent shall not have any obligation to any Purchaser to ascertain or
inquire about the observance or performance of any agreement contained in any
Transaction Document or to inspect the properties, books or records of the
Seller, any Seller Entity or any of their Affiliates.
Section 8.4
.
Reliance by
Agent
.
As between the Agent and Purchasers, the Agent shall in all cases be entitled
to rely, and shall be fully protected in relying, upon any document, other
writing or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person and upon advice and statements of
legal counsel (including counsel to the Seller), independent accountants and
other experts selected by the Agent. As
between the Agent and Purchasers, the Agent shall in all cases be fully
justified in failing or refusing to take any action under any Transaction
Document unless it shall first receive such advice or concurrence of the
Purchasers, and assurance of its indemnification, as it deems appropriate.
Section 8.5
.
Assumed
Payments
. Unless the Agent shall have received notice
from the applicable Purchaser before the date of any Incremental Purchase that
such Purchaser will not make available to the Agent the amount it is scheduled
to remit as part of such Incremental Purchase, the Agent may assume such
Purchaser has made such amount available to the Agent when due (an
“Assumed
Payment”
) and, in reliance upon such assumption, the Agent may (but
shall have no obligation to) make available such amount to the appropriate
Person. If and to the extent that any
Purchaser shall not have made its Assumed Payment available to the Agent, such
Purchaser and the Seller hereby agrees to pay the Agent forthwith on demand
such unpaid portion of such Assumed Payment up to the amount of funds actually
paid by the Agent, together with interest thereon for each day from the date of
such payment by the Agent until the date the requisite amount is repaid to the
Agent, at a rate per annum equal to the Federal Funds Rate plus 2%.
Section 8.6
.
Notice
of Termination Events
. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Potential Termination Event unless
the Agent has received notice from any Purchaser or the Seller stating that a
Potential Termination Event has occurred hereunder and describing such
Potential Termination Event. The Agent
shall take such action concerning a Potential Termination Event as may be
directed by the Instructing Group (or, if required for such action, all of the
Purchasers), but until the Agent receives such directions, as between the Agent
and Purchasers, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, as the Agent deems advisable and in the
best interests of the Purchasers.
Section 8.7
.
Non-Reliance on Agent and Other
Purchasers
. Each Purchaser expressly acknowledges that
neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to
it and that no act by the Agent hereafter taken, including any review of the
affairs of the Seller or any Seller Entity, shall be deemed to constitute any
representation or warranty by the Agent.
Each Purchaser represents and warrants to the Agent that, independently and
without reliance upon the Agent or any other Purchaser and based on such
documents and information as it has deemed appropriate, it has made and will
continue to make its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of the Seller, the Seller Entities, and the Receivables and
its own decision to enter into this Agreement and to take, or omit, action
under any Transaction Document. The
Agent shall deliver each month to any Purchaser that so requests a copy of the
Periodic Report(s) received covering the preceding Settlement Period. Except for items specifically required to be
delivered hereunder, the Agent shall not have any duty or responsibility to
provide any Purchaser with any information concerning the Seller, any Seller
Entity or any of their Affiliates that comes into the possession of the Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
Section 8.8
.
Agent and
Affiliates
. The Agent and its Affiliates may extend
credit to, accept deposits from and generally engage in any kind of business
with the Seller, any Seller Entity or any of their Affiliates and, in its role
as a Committed Purchaser, ABN AMRO may exercise or refrain from exercising its
rights and powers as if it were not the Agent.
The parties acknowledge that ABN AMRO acts as agent for Amsterdam and
subagent for Amsterdam’s management company in various capacities, as well as
providing credit facilities and other support for Amsterdam not contained in
the Transaction Documents.
Section 8.9
.
Indemnification
.
Each Committed Purchaser shall indemnify and
hold harmless the Agent and its officers, directors, employees, representatives
and agents (to the extent not reimbursed by the Seller or any Seller Entity and
without limiting the obligation of the Seller or any Seller Entity to do so),
ratably in accordance with its Ratable Share from and against any and all
liabilities, obligations, losses, damages, penalties, judgments, settlements,
costs, expenses and disbursements of any kind whatsoever (including in
connection with any investigative or threatened proceeding, whether or not the
Agent or such Person shall be designated a party thereto) that may at any time
be imposed on, incurred by or asserted against the Agent or such Person as a
result of, or related to, any of the transactions contemplated by the
Transaction Documents or the execution, delivery or performance of the
Transaction Documents or any other document furnished in connection therewith
(but excluding any such liabilities, obligations, losses, damages, penalties,
judgments, settlements, costs, expenses or disbursements resulting solely from
the gross negligence or willful misconduct of the Agent or such Person as
finally determined by a court of competent jurisdiction).
Section 8.10
.
Successor Agent
. The Agent may, upon at least five (5) days
notice to the Seller and each Purchaser, resign as Agent. Such resignation shall not become effective
until a successor agent is appointed by an Instructing Group and has accepted
such appointment. Upon such acceptance
of its appointment as Agent hereunder by a successor Agent, such successor
Agent shall succeed to and become vested with all the rights and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under the Transaction Documents.
After any retiring Agent’s resignation hereunder, the provisions of
Article VI and this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent. Prior to the occurrence of a Termination
Event, any successor Agent shall be subject to Seller’s reasonable approval.
Article IX
Miscellaneous
Section 9.1
.
Termination
. Amsterdam shall cease to be a party hereto
when the Amsterdam Termination Date has occurred, Amsterdam holds no Investment
and all amounts payable to it hereunder have been indefeasibly paid in full. This Agreement shall terminate following the
Liquidity Termination Date when no Investment is held by a Purchaser and all
other amounts payable hereunder have been indefeasibly paid in full, but the
rights and remedies of the Agent and each Purchaser under Article VI and
Section 8.9 shall survive such termination.
Section 9.2
.
Notices
. Unless otherwise specified, all notices and
other communications hereunder shall be in writing (including by telecopier or
other facsimile communication), given to the appropriate Person at its address
or telecopy number set forth on the signature pages hereof or at such other
address or telecopy number as such Person may specify, and effective when
received at the address specified by such Person. Each party hereto, however, authorizes the Agent to act on
telephone notices of Purchases and Discount Rate and Tranche Period selections
from any person the Agent in good faith believes to be acting on behalf of the
relevant party and, at the Agent’s option, to tape record any such telephone
conversation. Each party hereto agrees
to deliver promptly a confirmation of each telephone notice given or received
by such party (signed by an authorized officer of such party), butthe
absence of such confirmation shall not affect the validity of the telephone
notice. The number of days for any
advance notice required hereunder may be waived (orally or in writing) by the
Person receiving such notice.
Section 9.3
.
Payments
and Computations
. Notwithstanding anything herein to the
contrary, any amounts to be paid or transferred by the Seller or the Collection
Agent to, or for the benefit of, any Purchaser or any other Person shall be
paid or transferred to the Agent (for the benefit of such Purchaser or other
Person). The Agent shall promptly (and,
if reasonably practicable, on the day it receives such amounts) forward each
such amount to the Person entitled thereto and such Person shall apply the
amount in accordance herewith. All
amounts to be paid or deposited hereunder shall be paid or transferred on the
day when due in immediately available Dollars (and, if due from the Seller or
Collection Agent, by 11:00 a.m. (Chicago time), with amounts received
after such time being deemed paid on the Business Day following such
receipt). The Seller hereby authorizes
the Agent to debit the Seller Account for application to any amounts owed by
the Seller hereunder. The Seller shall,
to the extent permitted by law, pay to the Agent upon demand, for the account
of the applicable Person, interest on all amounts not paid or transferred by
the Seller or the Collection Agent when due hereunder at a rate equal to the
Prime Rate plus 2%, calculated from the date any such amount became due until
the date paid in full. Any payment or
other transfer of funds scheduled to be made on a day that is not a Business
Day shall be made on the next Business Day, and any Discount Rate or interest
rate accruing on such amount to be paid or transferred shall continue to accrue
to such next Business Day. All
computations of interest, fees, Discount and Funding Charges shall be
calculated for the actual days elapsed based on a 360 day year.
Section 9.4
.
Sharing
of Recoveries
. Each Purchaser agrees that if it receives
any recovery, through set-off, judicial action or otherwise, on any amount
payable or recoverable hereunder in a greater proportion than should have been
received hereunder or otherwise inconsistent with the provisions hereof, then
the recipient of such recovery shall purchase for cash an interest in amounts
owing to the other Purchasers (as return of Investment or otherwise), without
representation or warranty except for the representation and warranty that such
interest is being sold by each such other Purchaser free and clear of any
Adverse Claim created or granted by such other Purchaser, in the amount necessary
to create proportional participation by the Purchasers in such recovery (as if
such recovery were distributed pursuant to Section 2.3). If all or any portion of such amount is
thereafter recovered from the recipient, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without
interest.
Section 9.5
.
Right of Setoff
. During a Termination Event, each Purchaser
is hereby authorized (in addition to any other rights it may have) to setoff,
appropriate and apply (without presentment, demand, protest or other notice
which are hereby expressly waived) any deposits and any other indebtedness held
or owing by such Purchaser (including by any branches or agencies of such
Purchaser) to, or for the account of, the Seller against amounts owing by the
Seller hereunder (even if contingent or unmatured).
Section 9.6
.
Amendments
. Except as otherwise expressly provided
herein, no amendment or waiver hereof shall be effective unless signed by the
Seller and the Instructing Group. In
addition, no amendment of any Transaction Document shall, without the consent
of (a) all the Committed Purchasers, (i) extend the Liquidity
Termination Date or the date of any payment or transfer of Collections by the
Seller to the Collection Agent or by the Collection Agent to the Agent,
(ii) reduce the rate or extend the time of payment of Discount for any
Eurodollar Tranche or Prime Tranche, (iii) reduce or extend the time of
payment of any fee payable to the Committed Purchasers, (iv) except as
provided herein, release, transfer or modify any Committed Purchaser’s Purchase
Interest or change any Commitment, (v) amend the definition of Required
Committed Purchasers, Instructing Group, Termination Event or Section 1.1,
1.2, 1.5, 2.1, 2.2, 2.3, 7.2 or 9.6, Article VI, or any provision ofthe
Limited Guaranty, (vi) consent to the assignment or transfer by the Seller
or the Originators of any interest in the Receivables other than transfers
under the Transaction Documents or permit any Seller Entity to transfer any of
its obligations under any Transaction Document except as expressly contemplated
by the terms of the Transaction Documents, or (vii) amend any defined term
relevant to the restrictions in clauses (i) through (vi) in a manner which
would circumvent the intention of such restrictions or (b) the Agent,
amend any provision hereof if the effect thereof is to affect the indemnities
to, or the rights or duties of, the Agent or to reduce any fee payable for the
Agent’s own account. Notwithstanding
the foregoing, the amount of any fee or other payment due and payable from the
Seller to the Agent (for its own account) or Amsterdam may be changed or
otherwise adjusted solely with the consent of the Seller and the party to which
such payment is payable. Any amendment
hereof shall apply to each Purchaser equally and shall be binding upon the
Seller, the Purchasers and the Agent.
Section 9.7
.
Waivers
. No failure or delay of the Agent or any
Purchaser in exercising any power, right, privilege or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right, privilege or remedy preclude any other or further exercise
thereof or the exercise of any other power, right, privilege or remedy. Any waiver hereof shall be effective only in
the specific instance and for the specific purpose for which such waiver was
given. After any waiver, the Seller,
the Purchasers and the Agent shall be restored to their former position and
rights and any Potential Termination Event waived shall be deemed to be cured
and not continuing, but no such waiver shall extend to (or impair any right
consequent upon) any subsequent or other Potential Termination Event. Any additional Discount that has accrued
after a Termination Event before the execution of a waiver thereof, solely as a
result of the occurrence of such Termination Event, may be waived by the Agent
at the direction of the Purchaser entitled thereto or, in the case of Discount
owing to the Committed Purchasers, of the Required Committed Purchasers.
Section 9.8
.
Successors
and Assigns
; Participations; Assignments
.
(a)
Successors
and Assigns
. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
Except as otherwise provided herein, the Seller may not assign or
transfer any of its rights or delegate any of its duties without the prior
consent of the Agent and the Purchasers.
(b)
Participations.
Any Purchaser may sell to
one or more Persons (each a
“Participant”
) participating interests in
the interests of such Purchaser hereunder and under the Transfer
Agreement. Such Purchaser shall remain
solely responsible for performing its obligations hereunder, and the Seller and
the Agent shall continue to deal solely and directly with such Purchaser in
connection with such Purchaser’s rights and obligations hereunder and under the
Transfer Agreement. Each Participant
shall be entitled to the benefits of Article VI and shall have the right of
setoff through its participation in amounts owing hereunder and under the
Transfer Agreement to the same extent as if it were a Purchaser hereunder and
under the Transfer Agreement, which right of setoff is subject to such
Participant’s obligation to share with the Purchasers as provided in
Section 9.4. A Purchaser shall not
agree with a Participant to restrict such Purchaser’s right to agree to any
amendment hereto or to the Transfer Agreement, except amendments described in
clause (a) of Section 9.6. Any
Participant may not be a direct or indirect competitor of any Seller Entity and
shall agree to be bound by a confidentiality agreement substantively identical
to that set forth in Section 9.10.
(c)
Assignments
by Committed Purchasers.
Any
Committed Purchaser may assign to one or more financial institutions (
“Purchasing
Committed Purchasers”
), acceptable to the Agent in its sole
discretion, any portion of its Commitment as a Committed Purchaser hereunder
and under the Transfer Agreement and Purchase Interest pursuant to a supplement
hereto and to the Transfer Agreement (a
“Transfer Supplement”
) in form
satisfactory to the Agent executed by each such Purchasing Committed Purchaser,
such selling Committed Purchaser and the Agent. Prior to the occurrence of a Termination Event, any such
assignment shall require the prior written consent of the Seller which shall
not be unreasonably withheld. Any such
assignment by a Committed Purchaser must be for an amount of at least Five
Million Dollars. Each Purchasing
Committed Purchaser shall pay a fee of Three Thousand Dollars to the
Agent. Any partial assignment shall be
an assignment of an identical percentage of such selling Committed Purchaser’s
Investment and its Commitment as a Committed Purchaser hereunder and under the
Transfer Agreement. Upon the execution
and delivery to the Agent of the Transfer Supplement and payment by the
Purchasing Committed Purchaser to the selling Committed Purchaser of the agreed
purchase price, such selling Committed Purchaser shall be released from its
obligations hereunder and under the Transfer Agreement to the extent of such
assignment and such Purchasing Committed Purchaser shall for all purposes be a
Committed Purchaser party hereto and shall have all the rights and obligations
of a Committed Purchaser hereunder to the same extent as if it were an original
party hereto and to the Transfer Agreement with a Commitment as a Committed
Purchaser, any Investment and any related Assigned Amsterdam Settlement
described in the Transfer Supplement.
(d)
Replaceable
Committed Purchasers.
If any
Committed Purchaser other than ABN AMRO (a
“Replaceable Committed Purchaser”
) shall
(i) petition the Seller for any amounts under Section 6.2 or (ii)
have a short-term debt rating lower than the
“A-1”
by S&P and
“P-1”
by Moody’s, the Seller or Amsterdam may designate a replacement financial
institution (a
“Replacement Committed Purchaser”
) reasonably acceptable to
the Agent and, prior to the occurrence of a Termination Event, consented to by
the Seller (which consent shall not be unreasonably withheld, it being deemed
reasonable, without limitation, for the Seller not to consent to a proposed
Replacement Committed Purchaser that is a direct or indirect competitor of any
Seller Entity or that has not agreed to be bound by a confidentiality agreement
substantively identical to that set forth in Section 9.10), to which such
Replaceable Committed Purchaser shall, subject to its receipt of an amount
equal to its Investment, any related Assigned Amsterdam Settlement, and accrued
Discount and fees thereon (plus, from the Seller, any Early Payment Fee that
would have been payable if such transferred Investment had been paid on such
date) and all amounts payable under Section 6.2, promptly assign all of
its rights, obligations and Commitment hereunder and under the Transfer
Agreement, together with all of its Purchase Interest, and any related Assigned
Amsterdam Settlement, to the Replacement Committed Purchaser in accordance with
Section 9.8(c).
(e)
Assignment
by Amsterdam.
Each party
hereto agrees and consents (i) to Amsterdam’s assignment, participation,
grant of security interests in or other transfers of any portion of, or any of
its beneficial interest in, the Amsterdam Purchase Interest and the Amsterdam
Settlement and (ii) to the complete assignment by Amsterdam of all of its
rights and obligations hereunder to ABN AMRO or any other Person, and upon such
assignment Amsterdam shall be released from all obligations and duties
hereunder to the extent accruing thereafter;
provided, however,
that
Amsterdam may not, without the prior consent of the Required Committed
Purchasers and, prior to the occurrence of a Termination Event, the Seller,
which consent of the Seller shall not be unreasonably withheld, transfer any of
its rights hereunder or under the Transfer Agreement unless the assignee
(i) is a corporation whose principal business is the purchase of assets
similar to the Receivables, (ii) has ABN AMRO as its administrative agent
and (iii) issues commercial paper with credit ratings substantially
identical to the Ratings. Amsterdam
shall promptly notify each party hereto of any such assignment. Upon such an assignment of any portion of
Amsterdam’s Purchase Interest and the Amsterdam Settlement, the assignee shall
have all of the rights of Amsterdam hereunder relate to such Amsterdam Purchase
Interest and Amsterdam Settlement. Any
such assignee may not be a direct or indirect competitor of any Seller Entity
and shall agree to be bound by a confidentiality agreement substantively
identical to that set forth in Section 9.10.
(f)
Opinions of
Counsel.
If required by the
Agent or to maintain the Ratings, each Transfer Supplement must be accompanied
by an opinion of counsel of the assignee as to such matters as the Agent may
reasonably request. The Seller shall
not be responsible for the cost of any such opinion.
Section 9.9
.
Intended
Tax Characterization
.
It is the intention of the parties hereto
that, for the purposes of all Taxes, the transactions contemplated hereby shall
be treated as a loan by the Purchasers (through the Agent) to the Seller that
is secured by the Receivables (the
“Intended Tax Characterization”
)
.
The parties hereto agree to report and
otherwise to act for the purposes of all Taxes in a manner consistent with the
Intended Tax Characterization.
Section 9.10
.
Confidentiality
.
The parties hereto agree to hold the Transaction Documents or
any other confidential or proprietary information received in connection
therewith in confidence and agree not to provide any Person with copies of any
Transaction Document or such other confidential or proprietary information
other than to (i) any officers, directors, members, managers, employees or
outside accountants, auditors or attorneys thereof, (ii) any prospective or
actual assignee or participant which is not a direct or indirect competitor of
any Seller Entity and which (in each case) has signed a confidentiality
agreement containing provisions substantively identical to this Section, (iii)
any rating agency, (iv) any surety, guarantor or credit or liquidity enhancer
to the Agent or any Purchaser which (in each case) has signed a confidentiality
agreement substantially in the form of the confidentiality agreement signed by
the Agent prior to the date hereof, (v) any entity organized to loan, or make
loans secured by, financial assets for which ABN AMRO provides managerial
services or acts as an administrative agent which (in each case) has signed a
confidentiality agreement substantially in the form of the confidentiality
agreement signed by the Agent prior to the date hereof, (vi) Amsterdam’s
administrator, management company, referral agents, issuing agents or
depositaries or CP Dealers and (vii) Governmental Authorities with appropriate
jurisdiction. Notwithstanding the above
stated obligations,
provided
that the other parties hereto are
given notice of the intended disclosure or use, the parties hereto will not be
liable for disclosure or use of such information which such Person can
establish by tangible evidence: (i) was required by law, including pursuant to
a valid subpoena or other legal process, (ii) was rightfully in such Person’s
possession or known to such Person prior to receipt or (iii) is or becomes
known to the public through disclosure in a printed publication (without breach
of any of such Person’s obligations hereunder).
Section 9.11
.
Agreement
Not to Petition
. Each party hereto agrees, for the benefit of
the holders of the privately or publicly placed indebtedness for borrowed money
for Amsterdam, not, prior to the date which is one (1) year and one (1) day
after the payment in full of all such indebtedness, to acquiesce, petition or
otherwise, directly or indirectly, invoke, or cause Amsterdam to invoke, the
process of any Governmental Authority for the purpose of (a) commencing or
sustaining a case against Amsterdam under any federal or state bankruptcy,
insolvency or similar law (including the Federal Bankruptcy Code), (b)
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official for Amsterdam, or any substantial part of its
property, or (c) ordering the winding up or liquidation of the affairs of
Amsterdam.
Section 9.12
.
Excess Funds
. Other than amounts payable under
Section 9.4, Amsterdam shall be required to make payment of the amounts
required to be paid pursuant hereto only if Amsterdam has Excess Funds (as
defined below). If Amsterdam does not
have Excess Funds, the excess of the amount due hereunder (other than pursuant
to Section 9.4) over the amount paid shall not constitute a
“claim”
(as defined in Section 101(5) of the Federal Bankruptcy Code) against
Amsterdam until such time as Amsterdam has Excess Funds. If Amsterdam does not have sufficient Excess
Funds to make any payment due hereunder (other than pursuant to
Section 9.4), then Amsterdam may pay a lesser amount and make additional
payments that in the aggregate equal the amount of deficiency as soon as
possible thereafter. The term
“Excess
Funds”
means the excess of (a) the aggregate projected value of
Amsterdam’s assets and other property (including cash and cash equivalents),
over (b) the sum of (i) the sum of all scheduled payments of principal,
interest and other amounts payable on publicly or privately placed indebtedness
of Amsterdam for borrowed money, plus (ii) the sum of all other liabilities,
indebtedness and other obligations of Amsterdam for borrowed money or owed to
any credit or liquidity provider, together with all unpaid interest then
accrued thereon, plus (iii) all taxes payable by Amsterdam to the Internal
Revenue Service, plus (iv) all other indebtedness, liabilities and obligations
of Amsterdam then due and payable, but the amount of any liability,
indebtedness or obligation of Amsterdam shall not exceed the projected value of
the assets to which recourse for such liability, indebtedness or obligation is
limited. Excess Funds shall be
calculated once each Business Day.
Section 9.13.
No Recourse
.
The obligations of Amsterdam, its management
company, its administrator and its referral agents (each a
“Program Administrator”
)
under any Transaction Document or other document (each, a
“Program Document”
) to which
a Program Administrator is a party are solely the corporate obligations of such
Program Administrator and no recourse shall be had for such obligations against
any Affiliate, director, officer, member, manager, employee, attorney or agent
of any Program Administrator.
Section 9.14
.
Headings;
Counterparts
. Article and Section Headings in this Agreement
are for reference only and shall not affect the construction of this
Agreement. This Agreement may be
executed by different parties on any number of counterparts, each of which
shall constitute an original and all of which, taken together, shall constitute
one and the same agreement.
Section 9.15
.
Cumulative
Rights and Severability
. All rights and remedies of the Purchasers
and Agent hereunder shall be cumulative and non-exclusive of any rights or
remedies such Persons have under law or otherwise. Any provision hereof that is prohibited or unenforceable in any
jurisdiction shall, in such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and without affecting such provision in any other jurisdiction.
Section 9.16
.
Governing
Law; Submission to Jurisdiction
.
This Agreement shall be
governed by, and construed in accordance with, the internal laws (and not the
law of conflicts) of the State of New York.
The Seller hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
state court sitting in Manhattan for purposes of all legal proceedings arising
out of, or relating to, the Transaction Documents or the transactions
contemplated thereby.
The Seller
hereby irrevocably waives, to the fullest extent permitted by law, any
objection it may now or hereafter have to the venue of any such proceeding and
any claim that any such proceeding has been brought in an inconvenient
forum. Nothing in this
Section 9.16 shall affect the right of the Agent or any Purchaser to bring
any action or proceeding against the Seller or its property in the courts of
other jurisdictions.
Section
9.17
.
Waiver of
Trial by Jury
.
To the extent permitted by applicable law, each party hereto irrevocably
waives all right of trial by jury in any action, proceeding or counterclaim
arising out of, or in connection with, any transaction document or any matter
arising thereunder.
Section 9.18
.
Entire Agreement
. The Transaction Documents constitute the
entire understanding of the parties thereto concerning the subject matter
thereof. Any previous or
contemporaneous agreements, whether written or oral, concerning such matters
are superseded thereby.
Section 9.19
.
Appointment
for Service of Process
. (a) The Seller has (or will within 30 days
of the date hereof) irrevocably appointed CT Corporation System, with an office
on the date hereof at 111 Eighth Avenue, New York, New York 10011 as its agent to receive, accept and
acknowledge for and on its behalf, service of any and all legal process,
summons, notices and documents which may be served in any such proceeding
brought in any such court which may be made on such agent and will pay such
agent’s fees when due. If for any
reason such agent shall cease to be available to act as such, the Seller agrees
to designate a new agent in the State of New York on the terms satisfactory to
the Agent and will pay such agent’s fees when due.
(b) To
the fullest extent it may legally and effectively do so, each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 9.2 hereof.
Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
Section 9.20
.
Payments
in Relevant Currency
. All payments to be made by the Seller
hereunder shall be made in Dollars (the
“relevant currency”
). To the fullest extent permitted by law, the
obligation of the Seller in respect of any amount due in the relevant currency
under this Agreement shall, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the relevant currency that each Purchaser or the Agent may, in
accordance with normal banking procedures, purchase with the sum paid in such
other currency (after any premium and costs of exchange) on the Business Day
immediately following the day on which the Purchaser or Agent, as applicable,
receives such payment. If the amount in
the relevant currency that may be so purchased for any reason falls short of
the amount originally due, the Seller shall pay such additional amounts, in the
relevant currency, as may be necessary to compensate for the shortfall. Any obligations of the undersigned not
discharged by such payment shall, to the fullest extent permitted by applicable
law, be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
In
Witness Whereof
, the parties hereto
have caused this Agreement to be executed and delivered by their duly
authorized officers as of the date hereof.
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ABN AMRO Bank
N.V.,
as the Agent
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ABN AMRO Bank
N.V.,
as the Committed
Purchaser
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By
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By
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Title
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Title
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By
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By
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Title
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Title
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Address:
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Structured Finance,
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Address:
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Structured Finance,
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Asset Securitization
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Asset Securitization
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135 South LaSalle Street
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135 South LaSalle Street
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Chicago, Illinois 60674-9135
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Chicago, Illinois 60674-9135
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Attention:
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Purchaser Agent–
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Attention:
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Administrator-
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Amsterdam
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Amsterdam
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Telephone:
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(312) 904-6263
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Telephone:
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(312) 904-6263
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Telecopy:
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(312) 904-6376
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Telecopy:
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(312) 904-6376
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Amsterdam
Funding Corporation
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By
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Title
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Address:
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c/o Global Securitization Services, LLC
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114 West 47
th
Street, Suite
1715
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New York, New York 10036
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Attention:
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Andrew Stidd
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Telephone:
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(212) 302-5151
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Telecopy:
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(212) 302-8767
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Albany
International Receivables Corporation
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as Seller
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Title
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Address:
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Attention:
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Telephone:
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Telecopy:
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Albany
International Corp.,
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as Initial Collection
Agent
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By
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Title
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Address:
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Attention:
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Telephone:
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Schedule I
Definitions
The following terms have the meanings set
forth, or referred to, below:
“ABN AMRO”
means ABN AMRO Bank N.V. in its individual capacity and not in its capacity as
the Agent.
“Adjusted Dilution Ratio”
at any time means the 12-month rolling average of the Dilution Ratio for the 12
Settlement Periods then most recently ended.
“Adverse Claim”
means, for any asset or property of a Person, a lien, security interest,
charge, mortgage, pledge, hypothecation, assignment or encumbrance, or any
other right or similar claim, in, of or on such asset or property in favor of
any other Person, except those created by the Transaction Documents.
“Affiliate”
means, for any Person, any other Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with such Person. For purposes of this definition,
“control”
means the power, directly or indirectly, to either (i) vote ten percent
(10%) or more of the securities having ordinary voting power for the election
of directors of a Person or (ii) cause the direction of the management and
policies of a Person.
“Agent”
is defined in the first
paragraph hereof.
“Agent’s Account”
means the account designated to the Seller and the Purchasers by the Agent.
“Aggregate Commitment”
means $51,000,000, as such amount
may be reduced pursuant to Section 1.6.
“Aggregate Investment”
means the sum of the Investments of all Purchasers.
“Aggregate Reserve”
means, at any time at which such amount is calculated, the sum of the Loss
Reserve, Dilution Reserve, Discount Reserve and Canadian Currency Reserve.
“Amsterdam”
is
defined in the first paragraph hereof.
“Amsterdam Funding Source”
means any Committed Purchaser and any provider or program credit enhancement
for Amsterdam.
“Amsterdam Settlement”
means the sum of all claims and rights to payment pursuant to Section 1.5
or 1.7 or any other provision owed to Amsterdam (or owed to the Agent or the
Collection Agent for the benefit of Amsterdam) by the Seller that, if paid,
would be applied to reduce Amsterdam’s Investment.
“Amsterdam Termination Date”
means the earlier of (a) the Business Day designated by Amsterdam at any time
to the Seller and (b) the Liquidity Termination Date.
“Assigned Amsterdam Settlement”
is defined in the Transfer Agreement.
“Bankrupt Obligor”
means any of the Obligors listed on Exhibit J.
“Bankruptcy Event”
means, for any Person, that (a) such Person makes a general assignment for
the benefit of creditors or any proceeding is instituted by or against such
Person seeking to adjudicate it bankrupt or insolvent, or seeking the
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 and, if instituted against
such Person, such proceeding remains undismissed and unstayed for a period of
30 days, or seeking the entry of an order for relief or the appointment of
a receiver, trustee or other similar official for it or any substantial part of
its property or such Person generally does not pay its debts as such debts
become due or admits in writing its inability to pay its debts generally or
(b) such Person takes any corporate action to authorize any such action.
“Business Day”
means any day other than (a) a Saturday, Sunday or other day on which banks in
New York City, New York or Chicago, Illinois are authorized or required to
close, (b) a holiday on the Federal Reserve calendar and, (c) solely for
matters relating to a Eurodollar Tranche, a day on which dealings in Dollars
are not carried on in the London interbank market.
“Canadian Currency Reserve”
means an amount equal to the Canadian Currency Reserve Percentage multiplied by
the Outstanding Balance of Eligible Receivables payable in Canadian dollars as
shown on the most recent Periodic Report.
“Canadian Currency Reserve Percentage”
means, at any time, the quotient obtained by dividing (i) the difference
between the highest and lowest Exchange Rates for the most recent 12 calendar
months, by (ii) the Exchange Rate currently in effect.
“Canadian Obligor”
means an Obligor that is a resident of, or organized under the laws of, Canada
or any province or territory thereof.
“Canadian Originators”
means M & I Door Systems Ltd. and Albany International Canada
Inc.
“Change in Control”
means (a) the ownership, directly or indirectly, beneficially or of
record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof) other than Permitted Shareholders, of shares
representing more than 30% of the aggregate ordinary voting power represented
by the issued and outstanding capital stock of the Parent at a time when
Permitted Shareholders together do not have the unrestricted power directly or
indirectly to vote or direct the vote of shares representing more than 50% of
such aggregate ordinary voting power, (b) occupation of the majority of
the seats (other than vacant seats) on the board of directors of the Parent by
Persons who were neither (i) nominated by the board of directors of the
Parent nor (ii) appointed by directors so nominated, or (c) the
occurrence of any “change of control” or similar event, however denominated,
resulting in an obligation on the part of the Parent or any Subsidiary of the
Parent to repay, redeem or repurchase, or to offer to repay, redeem or
repurchase any indebtedness for borrowed money of the Parent or any Subsidiary
of the Parent in an aggregate principal amount in excess of $10,000,000. Notwithstanding the foregoing, a Change of
Control shall be deemed not to occur solely as a result of a restructuring
which installs a newly formed holding company as the sole shareholder of Parent
(which holding company must also hold, directly or indirectly, 100% of the
ownership interests in the Seller Entities),
provided
that, in the course
of such restructuring, the shareholders of Parent (a) receive in exchange for
their Parent shares corresponding shares of such new holding company having
relative rights and preferences identical to those of the Parent’s shares
immediately before the restructuring, and (b) receive respective percentage
ownership interests in such new holding company which are identical to their
respective percentage ownership interests in Parent immediately before the
restructuring. After any such
restructuring, the name of such new holding company shall be substituted for
the name of Parent where it appears in this definition of Change of Control.
“Charge-Off”
means any Receivable that has or should have been (in accordance with the
Credit and Collection Policy) charged off or written off by the Seller.
“Collection”
means any amount paid, or deemed paid, on a Receivable or by the Seller as a
Deemed Collection under Section 1.5(b).
“Collection Agent”
is
defined in Section 3.1(a).
“Collection Agent Fee”
is defined in Section 3.6.
“Collection
Agent Replacement Event”
shall occur upon the
giving of written notice by Agent to Seller after any one or more of the
following has occurred (except that such event is automatic if attributable to
(e) below):
(a) the Collection Agent fails to turn
over Collections or make any payment or transfer of funds in each case for
purposes of reducing Aggregate Net Investment when required to do so pursuant
to the terms of this Agreement and such failure continues unremedied for two
Business Days after notice from the Agent of such failure;
(b) the Collection Agent fails to turn
over Collections for a purpose not described in clause (a) above or make
any other payment or transfer of funds it is required to make hereunder when
due and such failure continues unremedied for a period of five Business Days
after notice from the Agent of such failure;
(c) the Collection Agent (or any
sub-collection agent) fails to observe or perform (i) any covenant set forth in
Section 3.2(d) or 3.3 or (ii) any other material term, covenant or
agreement under any Transaction Document and in the case of clause (ii)
any, such failure continues for five Business Days after notice from the Agent;
(d) any written representation, warranty,
certification or statement made by the Collection Agent in, or pursuant to, any
Transaction Document proves to have been incorrect in any material adverse
respect when made;
(e) the Collection Agent suffers a
Bankruptcy Event; or
(f) for so long as the Collection Agent
is an Affiliate of the Seller, a Termination Event.
“Commitment”
means, for each Committed Purchaser, the amount set forth on Schedule II,
as adjusted in accordance with Sections 1.6 and 9.8.
“Committed Purchasers”
is defined in Section 1.1(b).
“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.
“Controlling”
and
“Controlled”
have meanings
correlative thereto.
“CP Dealer”
means, at any time, each Person Amsterdam then engages as a placement agent or
commercial paper dealer.
“CP Discount”
means, for any Discount Period, the amount of interest or discount accrued,
during such Discount Period on all the outstanding commercial paper, or portion
thereof, issued by Amsterdam to fund its Investment, including all dealer
commissions and other costs of issuing commercial paper, whether any such
commercial paper was issued specifically to fund such Investment or is
allocated, in whole or in part, to such funding.
“CP Rate”
means, for any CP Tranche Period, a rate per annum equal to the weighted
average of the rates at which commercial paper notes having a term equal to
such CP Tranche Period may be sold by any CP Dealer selected by Amsterdam, as
agreed between each such CP Dealer and Amsterdam. If such rate is a discount rate, the CP Rate shall be the rate
resulting from Amsterdam’s converting such discount rate to an interest-bearing
equivalent rate. If Amsterdam
determines that it is not able, or that it is impractical, to issue commercial
paper notes for any period of time, then the CP Rate shall be the Prime
Rate. The CP Rate shall include all
costs and expenses to Amsterdam of issuing the related commercial paper notes,
including all dealer commissions and note issuance costs in connection
therewith.
“Credit Agreement”
means the Credit Agreement dated as of August 11, 1999, among the Parent,
the borrowing subsidiaries and lenders party thereto, The Chase Manhattan Bank,
as administrative agent, Chase Manhattan International Limited, as London
agent, Citibank, N.A., as syndication agent, Banc One Capital Markets, Inc., as
documentation agent, and Chase Securities Inc., as arranger, as amended and
supplemented through the date hereof, but without regard to any further
amendment, supplement, waiver or termination of any provision thereof unless
consented to by ABN AMRO as a lender under the Credit Agreement or consented to
by the Instructing Group hereunder.
“Credit and Collection Policy”
means the Seller’s credit and collection policy and practices relating to
Receivables attached hereto as Exhibit H.
“CSP Receivable”
means a Receivable for which no invoice has been issued but revenues from which
would be recognized under GAAP and that is required to be payable in full
within 365 days after the date of the delivery of the goods which give rise to
such Receivable.
“Deemed Collections”
is
defined in Section 1.5(c).
“Default Ratio”
means, a fraction (expressed as a percentage), for the Settlement Period, the
numerator of which is the aggregate outstanding balance as of the end of such
Settlement Period of all Defaulted Receivables less than 121 days past the due
date plus the aggregate outstanding balance as of the end of such Settlement
Period of all Charge–Offs and the denominator of which is the amount of
sales generated during the month that ended four months prior to the last day
of such Settlement Period.
“Defaulted Receivable”
means any Receivable (a) on which any amount is unpaid more than 90 days past
its original due date or (b) the Obligor on which has suffered a Bankruptcy
Event.
“Delinquency Ratio”
means, the ratio (expressed as a percentage), for any Settlement Period of (a)
the aggregate outstanding balance of all Delinquent Receivables as of the end
of such Settlement Period to (b) the sum of the aggregate outstanding balance
of all Receivables (other than Receivables for which no invoice has been
issued) as of the end of such Settlement Period.
“Delinquent Receivable”
means any Receivable (other than a Charge-Off or Defaulted Receivable) on which
any amount is unpaid more than 60 days after the invoice therefor.
“Designated Financial Officer”
means the Controller, the Assistant Controller, Treasurer, Assistant Treasurer,
any Vice President or the President of the Seller or the relevant Seller
Entity, as applicable.
“Dilution”
means,
for any Settlement Period, the amount Deemed Collections deemed to be received
during such Settlement Period pursuant to Section 1.5(b).
“Dilution Horizon Ratio”
means, on any Settlement Date, an amount calculated by dividing (a) cumulative
sales generated during the two most recent Settlement Periods by (b) the
Eligible Receivables Balance as of the end of the most recent Settlement
Period.
“Dilution Ratio”
means, as of any Settlement Date, a percentage equal to a fraction, the
numerator of which is the total amount of decreases in Outstanding Balances due
to Dilutions during the most recent Settlement Period, and the denominator of
which is the amount of sales generated during the Settlement Period one month
prior to the most recent Settlement Period.
“Dilution Reserve”
means, as of any Settlement Date, the amount obtained by multiplying (A) a
percentage equal to the product of (x) the sum of (i) 2.0 times the Adjusted Dilution Ratio, plus (ii) the Dilution
Volatility Component, multiplied by (y) the Dilution Horizon Ratio by (B) the
Eligible Receivables Balance as of the end of the most recent Settlement
Period.
“Dilution Volatility Component”
means, as of any Settlement Date, an amount (expressed as a percentage) equal
to the product of (i) the difference between (a) the highest three month
average Dilution Ratio for any three consecutive calendar months ending during
the preceding 12 Settlement Periods and (b) the Adjusted Dilution Ratio, and
(ii) a fraction, the numerator of which is equal to the amount calculated in
(i)(a) of this definition and the denominator of which is equal to the amount
calculated in (i)(b) of this definition.
“Discount”
means,
for any Tranche Period, (a) the product of (i) the Discount Rate for such
Tranche Period, (ii) the total amount of Investment allocated to the Tranche
Period, and (iii) the number of days elapsed during such Tranche Period divided
by (b) 360 (for Tranches other than Prime Tranches) or 365 or 366 days, as
applicable (for Prime Tranches).
“Discount Period”
means, with respect to any Settlement Date or the Liquidity Termination Date,
the period from and including the preceding Settlement Date (or if none, the
date that the first Incremental Purchase is made hereunder) to but not
including such Settlement Date or Liquidity Termination Date, as applicable.
“Discount Rate”
means, (i) for any Tranche Period relating to a CP Tranche, the CP Rate
applicable thereto, (ii) for any Tranche Period relating to a Eurodollar
Tranche, the Eurodollar Rate applicable thereto and (iii) for any Tranche
Period relating to a Prime Tranche, the Prime Rate applicable thereto.
“Discount Reserve”
means, at any time, the product of (a) 1.5, (b) the rate announced by ABN AMRO
as its
“Prime
Rate”
(which may not be its
best or lowest rate) plus 2.00%, (c) Aggregate Investment, (d) a fraction, the
numerator of which is the average Turnover Ratio for the most recent three
Settlement Periods and the denominator of which is 365.
“Dollar”
and
“$”
means lawful currency of the United States of America.
“Early Payment Fee”
means, if any Investment of a Purchaser allocated (or, in the case of a
requested Purchase not made by the Committed Purchasers for any reason other
than their improper acts or omissions, scheduled to be allocated) to a Tranche
Period for a CP Tranche or Eurodollar Tranche is reduced or terminated before
the last day of such Tranche Period with the effect that Discount then ceases
to accrue on the amount reduced or terminated (the amount of Investment so
reduced or terminated being referred to as the
“Prepaid Amount”),
the cost
to the relevant Purchaser of terminating or reducing such Tranche, which (a)
for a CP Tranche means any compensation payable in prepaying the related
commercial paper or, if not prepaid, any shortfall between the amount that will
be available to Amsterdam on the maturity date of the related commercial paper
from reinvesting the Prepaid Amount in Permitted Investments and the Face
Amount of such commercial paper and (b) for a Eurodollar Tranche will be
determined based on the difference between the LIBOR applicable to such Tranche
and the LIBOR applicable for a period equal (or as close as possible) to the
remaining maturity of the Tranche on the date the Prepaid Amount is received.
“Eligible
Receivable”
means, at any time, any
Receivable:
(i) the Obligor of which (a) is a resident
of, or organized under the laws of, or with its chief executive office in, the
USA or Canada; (b) is not an Affiliate of any of the parties hereto or any
other Seller Entity; (c) is not a government or a governmental subdivision or
agency; (d) has not suffered a Bankruptcy Event; (e) is a customer of the
applicable Originator in good standing; and (f) is not the Obligor of Defaulted
Receivables with an Outstanding Balance in excess of 20% of the Outstanding
Balance of all Receivables for which it is the Obligor;
(ii) for which an invoice has been issued
and which is stated to be due and payable within 90 days after the invoice
therefor, except, that up to 35% of the Outstanding Balance of Eligible
Receivables may either (a) be due and payable within 365 days after the
invoice therefor or (b) be CSP Receivables;
(iii) which is not a Delinquent Receivable,
Defaulted Receivable or a Charge-Off;
(iv) which is an
“account”
or
“chattel
paper”
within the meaning of Section 9–105 and
Section 9–106, respectively of the UCC of all applicable
jurisdictions;
(v) which is denominated and payable only in
Dollars in the USA, or in Canadian dollars in Canada;
(vi) which arises under a contract, that is in
full force and effect and constitutes the legal, valid and binding obligation
of the related Obligor enforceable against such Obligor in accordance with its
terms subject to no offset, counterclaim, defense or other Adverse Claim, and
is not an executory contract or unexpired lease within the meaning of
Section 365 of the Bankruptcy Code;
(vii) which arises under a contract that (a)
contains an obligation to pay a specified sum of money and is subject to no
contingencies, (b) does not require the Obligor under such contract to consent
to the transfer, sale or assignment of the rights and duties of the applicable
Originator under such contract after delivery of the goods in question, (c)
does not contain a confidentiality provision that purports to restrict any
Purchaser’s exercise of rights under this Agreement, including, without
limitation, the right to review such contract and (d) directs that payment be made
to a Lock-Box or other collection account (except that such direction need not
be made with respect to the Receivables originated by the Canadian Originators
until the 61
st
day following the date of this Agreement);
(viii) which does not, in whole or in part,
contravene any law, rule or regulation applicable thereto (including, without
limitation, those relating to usury, truth in lending, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt collection practices
and privacy); and
(ix) which satisfies all applicable
requirements of the Credit and Collection Policy and was generated in the
ordinary course of the applicable Originator’s business from the sale of goods
or provision of services to a related Obligor solely by such Originator.
“Eligible Receivables Balance”
means, at any time, the aggregate Outstanding Balance of all Eligible
Receivables minus the sum of (i) the amount by which the Outstanding Balance of
all Eligible Receivables of such Obligor and its Affiliates exceeds the Obligor
Concentration Limit for such Obligor, and (ii) to the extent not already
included in the amounts described in clause (i) hereof, the amount by
which the aggregate Outstanding Balance of all Eligible Receivables owed by
Canadian Obligors exceeds 50% of Outstanding Balance of all Eligible
Receivables).
“Eurodollar Rate”
means, for any Tranche Period for a Eurodollar Tranche, the sum of (a) LIBOR
for such Tranche Period divided by 1 minus the
“Reserve Requirement”
plus
(b) for Investment of a Committed Purchaser, the amount specified in the Fee
Letter plus (c) during the pendency of a Termination Event, 2.00% for
Investment of a Committed Purchaser; where
“Reserve Requirement”
means, for any
Tranche Period for a Eurodollar Tranche, the maximum reserve requirement
imposed during such Tranche Period on
“eurocurrency liabilities”
as currently
defined in Regulation D of the Board of Governors of the Federal Reserve
System.
“Exchange Rate”
means, as of any date of determination with respect to any foreign currency in
which a Receivable is payable, (a) prior to the Liquidity Termination
Date, the amount of such currency specified by the Collection Agent in good
faith in the most recent periodic Report delivered hereunder as the amount of
such currency that would be required to purchase a US Dollar based on the
foreign exchange market for such currency, and (b) on and after the
Liquidity Termination Date, the “Exchange Rate” described in clause (a) above
as specified in the most recent Monthly Report delivered prior to the Liquidity
Termination Date that demonstrated that the Eligible Receivables Balance
exceeded the sum of the Aggregate Net Investment plus the Aggregate
Reserve. For purposes of calculating
the Canadian Currency Reserve Percentage, the Exchange Rate for months prior to
September, 2001 shall be as set forth on Exhibit I hereto.
“Face Amount”
means the face amount of any Amsterdam commercial paper issued on a discount
basis or, if not issued on a discount basis, the principal amount of such note
and interest scheduled to accrue thereon to its stated maturity.
“Federal Funds Rate”
means for any day the greater of (i) the highest rate per annum as
determined by ABN AMRO at which overnight Federal funds are offered to ABN AMRO
for such day by major banks in the interbank market, and (ii) if ABN AMRO
is borrowing overnight funds from a Federal Reserve Bank that day, the highest
rate per annum at which such overnight borrowings are made on that day. Each determination of the Federal Funds Rate
by ABN AMRO shall be conclusive and binding on the Seller except in the case of
manifest error.
“Fee Letter”
means the letter agreement dated as of the date hereof among the Seller, the
Agent, Amsterdam and the Committed Purchasers.
“Funding Charges”
means, for any day, the product of (i) the per annum rate (inclusive of dealer
fees and commissions) paid or payable by Amsterdam in respect of commercial
paper notes on such day that are allocated, in whole or in part, to fund or
maintain its Investment for such day, as determined by the Agent and other
costs reasonably allocated by the
Purchaser to fund or maintain its Investment associated with the funding by
Amsterdam of small or odd lot amounts that are not funded with commercial paper
notes and (ii) Amsterdam’s Investment as of the end of such day and (iii)
1
/
360.
“GAAP”
means generally
accepted accounting principles in the USA, applied on a consistent basis.
“Governmental Authority”
means any (a) Federal, state, municipal or other governmental entity,
board, bureau, agency or instrumentality, (b) administrative or regulatory
authority (including any central bank or similar authority) or (c) court,
judicial authority or arbitrator, in each case, whether foreign or domestic.
“Homer Receivable”
means an obligation of an Obligor that would otherwise be a Receivable except
that it is generated from the Parent’s plant in Homer, New York.
“Incremental Purchase”
is defined in Section 1.1(b).
“Initial Collection Agent”
is defined in the first paragraph hereof.
“Instructing Group”
means the Required Committed Purchasers and, unless the Amsterdam Termination
Date has occurred and Amsterdam has no Investment, Amsterdam.
“Intended Tax Characterization”
is
defined in Section 9.9.
“Interim Liquidation”
means any time before the Liquidity Termination Date during which no
Reinvestment Purchases are made by any Purchaser, as established pursuant to
Section 1.2.
“Investment”
means,
for each Purchaser, (a) the sum of (i) all Incremental Purchases by
such Purchaser and (ii) the aggregate amount of any payments or exchanges
made by, or on behalf of, such Purchaser to any other Purchaser to acquire
Investment from such other Purchaser minus (b) all Collections, amounts
received from other Purchasers and other amounts received or exchanged and, in
each case, applied by the Agent or such Purchaser to reduce such Purchaser’s
Investment. A Purchaser’s Investment
shall be restored to the extent any amounts so received or exchanged and
applied are rescinded or must be returned for any reason.
“LIBOR”
means, for any Tranche
Period for a Eurodollar Tranche or other time period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in Dollars for a period equal to such Tranche
Period or other period, which appears on Page 3750 of the Telerate Service (or
any successor page or successor service that displays the British Bankers’
Association Interest Settlement Rates for Dollar deposits) as of 11:00 a.m. (London,
England time) two Business Days before the commencement of such Tranche Period
or other period. If for any Tranche
Period for a Eurodollar Tranche no such displayed rate is available (or, for
any other period, if such displayed rate is not available), the Agent shall
calculate such rate to be the average of the rates ABN AMRO is offered deposits
of such duration in the London interbank market at approximately 11:00 a.m.
(London, England time) two Business Days prior to the date such rate is determined.
“Limited Guaranty”
means the Limited Guaranty, dated the date hereof, by the Parent in favor of
the Seller.
“Liquidation Period”
means, for Amsterdam only, all times when Amsterdam is not making Reinvestment
Purchases pursuant to Section 1.1(d) and, for all Purchasers, all times
(x) during an Interim Liquidation and (y) on and after the Liquidity
Termination Date.
“Liquidity Termination Date”
means the earliest of (a) the date of the occurrence of a Termination
Event described in clause (f) of the definition of Termination Event,
(b) the date designated by the Agent to the Seller at any time after the
occurrence and during the continuation of any other Termination Event,
(c) the Business Day designated by the Seller with no less than five (5)
Business Days prior notice to the Agent and (d) September 27, 2002.
“Lock-Box”
means each post office box or bank box listed on Exhibit E, as revised
pursuant to Section 5.1(i).
“Lock-Box Account”
means each account maintained by the Collection Agent at a Lock-Box Bank for
the purpose of receiving or concentrating Collections (whether or not there is
a Lock-Box associated with such account).
“Lock-Box Agreement”
means each agreement between the Collection Agent and a Lock-Box Bank
concerning a Lock-Box Account.
“Lock-Box Bank”
means each bank listed on Exhibit E, as revised pursuant to
Section 5.1(i).
“Lock-Box Letter”
means a letter in substantially the form of Exhibit F (or otherwise
acceptable to the Agent) from the Seller and the Collection Agent to each Lock-Box
Bank, acknowledged and accepted by such Lock-Box Bank and the Agent.
“Loss Horizon Ratio”
means, at any time, a fraction (expressed as a ratio) the numerator of which is
the aggregate Outstanding Balance of Receivables generated by the Originators
during the most recent four month period and the denominator of which is the
Eligible Receivables Balance as of the last day of such period.
“Loss Reserve”
means, at any time, the product of (i) the greater of (a) 20.0% and (b)
two times the product of the highest average Default Ratio for any consecutive
three month period ended during the previous 12 months multiplied by the Loss
Horizon Ratio calculated at the end of such period multiplied by (ii) the
Eligible Receivables Balance at such time.
“Loss-to-Liquidation Ratio”
means, for any Settlement Period, the ratio (expressed as a percentage) of the
outstanding balance of Charge-Offs made during such Settlement Period to the
aggregate amount of Collections during such Settlement Period.
“Matured Aggregate Investment”
means, at any time, the Matured Value of Amsterdam’s Investment plus the total
Investments of all other Purchasers then outstanding.
“Matured Value”
means, of any Investment, the sum of such Investment and all unpaid Discount
scheduled to become due (whether or not then due) on such Investment during all
Tranche Periods to which any portion of such Investment has been allocated.
“Maximum Incremental Purchase Amount”
means, at any time, the lesser of (a) the difference between the Purchase
Limit and the Aggregate Investment then outstanding and (b) the difference
between the Aggregate Commitment and the Matured Aggregate Investment then
outstanding.
“Moody’s”
means
Moody’s Investors Service, Inc.
“Note”
means each revolving
promissory note issued by the Seller to an Originator under the Purchase
Agreement.
“Obligor”
means, for any Receivable, each Person obligated to pay such Receivable and
each guarantor of such obligation.
“Obligor Concentration Limit”
means,
at any time, in relation to the aggregate Outstanding Balance of Receivables
owed by any single Obligor and its Affiliates (if any), the applicable
concentration limit shall be determined as follows for Obligors who have long
term unsecured debt ratings currently assigned to them by S&P and Moody’s,
the applicable concentration limit shall be determined according to the
following table:
|
S&P
Rating
|
|
Moody’s
Rating
|
|
Allowable
% of Eligible Receivables
|
|
A-
or higher
|
|
A3
or higher
|
|
20.0%
|
|
BBB
|
|
Baa2
|
|
12.0%
|
|
BBB-
|
|
Baa3
|
|
10.0%
|
|
Below
BBB- or Not Rated by
either S&P or Moody’s
|
|
Below
Baa3 or Not Rated
by either S&P or Moody’s
|
|
5.0%
|
;
provided,
however,
that (a) if any Obligor has a split rating, the applicable
rating will be the lower of the two, (b) if any Obligor is not rated by either
S&P or Moody’s, the applicable Obligor Concentration Limit shall be the one
set forth in the last line of the table above.
“Originators”
means the Parent, M & I Door Systems Ltd., Albany International Canada
Inc., Albany International Techniweave, Inc., Albany International Research Co.
and Geschmay Corp.,
“Outstanding Balance”
of
any Receivable at any time means the then outstanding principal balance
thereof. For purposes of calculating
the Outstanding Balance of any Receivable that is payable in Canadian dollars,
such amount shall be converted into U.S. Dollars using the Exchange Rate in
effect at the time of calculation.
“Parent”
means Albany
International Corp., a Delaware corporation.
“Periodic Report”
is defined in Section 3.3.
“Permitted Investments”
shall mean (a) evidences of indebtedness, maturing not more than thirty
(30) days after the date of purchase thereof, issued by, or the full and
timely payment of which is guaranteed by, the full faith and credit of, the
federal government of the United States of America, (b) repurchase
agreements with banking institutions or broker-dealers that are registered
under the Securities Exchange Act of 1934 fully secured by obligations of the
kind specified in clause (a) above, (c) money market funds denominated
in Dollars rated not lower than A-1 (and without the “r” symbol attached to any
such rating) by S&P and P-1 by Moody’s or otherwise acceptable to the
Rating Agencies or (d) commercial paper denominated in Dollars issued by
any corporation incorporated under the laws of the United States or any
political subdivision thereof, provided that such commercial paper is rated at
least A-1 (and without any “r” symbol attached to any such rating) thereof by
S&P and at least Prime-1 thereof by Moody’s.
“Permitted Shareholders”
means (a) J. Spencer Standish, (b) any of J. Spencer
Standish’s descendants or legatees, (c) any executor, personal
representative or spouse of J. Spencer Standish or any of his descendants,
(d) any corporation, trust or other entity holding voting stock of the
Parent as to which one or more of the Persons identified in the foregoing
clauses (a) through (c) have Control, (e) any trust as to which
Persons so identified in clauses (a) through (c) above hold at least 85%
of the beneficial interest in the income and principal of the trust
disregarding the interests of the contingent remaindermen and (f) any
Employee Stock Ownership Plan for the benefit of employees of the Parent.
“Person”
means an individual,
partnership, corporation, limited liability company, association, joint
venture, Governmental Authority or other entity of any kind.
“Potential Termination Event”
means any Termination Event or any event or condition that with the lapse of
time or giving of notice, or both, would constitute a Termination Event.
“Prime Rate”
means, for any period, the daily average during such period of (a) the greater
of (i) the floating commercial loan rate per annum of ABN AMRO (which rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer by ABN AMRO) announced from time to time as
its prime rate or equivalent for Dollar loans in the USA, changing as and when
said rate changes and (ii) the Federal Funds Rate plus 0.75% plus (b) during
the pendency of a Termination Event, 2.00%.
“Purchase”
is defined in Section 1.1(a).
“Purchase Agreement”
means the Purchase and Sale Agreement dated as of the date hereof between the
Seller and the Originators.
“Purchase Amount”
is defined in Section 1.1(c).
“Purchase Date”
is defined in Section 1.1(c).
“Purchase Interest”
means, for a Purchaser, the percentage ownership interest in the Receivables
and Collections held by such Purchaser, calculated when and as described in
Section 1.1(a);
provided, however,
that (except for
purposes of computing a Purchase Interest or the Sold Interest in
Section 1.5, 1.7 and in the last sentence of both Section 2.3(a) and
Section 2.3(b)) at any time the Sold Interest would otherwise exceed 100%
each Purchaser then holding any Investment shall have its Purchase Interest
reduced by multiplying such Purchase Interest by a fraction equal to 100%
divided by the Sold Interest otherwise then in effect, so that the Sold
Interest is thereby reduced to 100%.
“Purchase Limit”
means $50,000,000.
“Purchaser Reserve Percentage”
means, for each Purchaser, the Reserve Percentage multiplied by a fraction, the
numerator of which is such Purchaser’s outstanding Investment and the
denominator of which it the Aggregate Investment.
“Purchasers”
means the Committed Purchasers and Amsterdam.
“Put”
is defined in
Section 2.1(a).
“Ratable Share”
is defined in the Transfer Agreement.
“Rating Agency”
means Moody’s, S&P and any other rating agency Amsterdam chooses to rate
its commercial paper notes.
“Ratings”
means the ratings by the Rating Agencies of the indebtedness for borrowed money
of Amsterdam.
“Receivable”
means each obligation of an Obligor (other than a Bankrupt Obligor) to pay for
merchandise sold or services rendered by an Originator (other than a Homer
Receivable) and includes such Originator’s rights to payment of any interest or
finance charges and all proceeds of the foregoing. During any Interim Liquidation and on and after the Liquidity Termination
Date, the term
“Receivable”
shall only include receivables existing on the
date such Interim Liquidation commenced or Liquidity Termination Date occurred,
as applicable. Deemed Collections shall
reduce the outstanding balance of Receivables hereunder, so that any Receivable
that has its outstanding balance deemed collected shall cease to be a
Receivable hereunder after (x) the Collection Agent receives payment of such
Deemed Collections under Section 1.5(b) or (y) if such Deemed Collection
is received before the Liquidity Termination Date, an adjustment to the Sold
Interest permitted by Section 1.5(c) is made.
“Records”
means,
for any Receivable, all contracts, books, records and other documents or
information (including computer programs, tapes, disks, software and related
property and rights) relating to such Receivable or the related Obligor.
“Reinvestment Purchase”
is defined in Section 1.1(b).
“Related Security”
means all of the applicable Originator’s rights in the merchandise (including
returned goods) and under any contracts relating to the Receivables (but only
to the extent so relating), all security interests, guaranties and property
securing or supporting payment of the Receivables, all Records and all proceeds
of the foregoing.
“Required Committed Purchasers”
is defined in the Transfer Agreement.
“Reserve Percentage”
means,
at any time, the quotient obtained by dividing (a) the Aggregate Reserve by (b)
the Eligible Receivables Balance.
“Seller”
is defined in the first
paragraph hereof.
“Seller Account”
means the Seller’s account designated by the Seller to the Agent in writing.
“Seller Entity”
means the Parent and the Originators.
“Settlement Date”
means the 20th day of each calendar month.
“Settlement Period”
means
for each Settlement Date, the calendar month preceding such Settlement Date.
“Sold Interest”
is defined in Section 1.1(a).
“Special Transaction Subaccount”
means the special transaction subaccount established for this Agreement
pursuant to Amsterdam’s depositary agreement.
“S&P”
means Standard & Poor’s Ratings Services.
“Subsidiary”
means any Person of which at least a majority of the voting stock (or
equivalent equity interests) is owned or controlled by the Seller or any Seller
Entity or by one or more other Subsidiaries of the Seller or such Seller Entity. The Subsidiaries of the Parent on the date
hereof are listed on Exhibit E.
“Taxes”
means all taxes,
charges, fees, levies or other assessments (including income, gross receipts,
profits, withholding, excise, property, sales, use, license, occupation and
franchise taxes and including any related interest, penalties or other
additions) imposed by any jurisdiction or taxing authority (whether foreign or
domestic).
“Termination Date”
means (a) for Amsterdam, the Amsterdam Termination Date and (b) for
the Committed Purchasers, the Liquidity Termination Date.
“Termination
Event”
means the occurrence of
any one or more of the following:
(a) any representation, warranty,
certification or statement made by the Seller or any Seller Entity in, or
pursuant to, any Transaction Document proves to have been incorrect in any
material respect as of the date when made or deemed made (including pursuant to
Section 7.2); or
(b) any Seller Entity or the Seller fails to
make any payment or other transfer of funds hereunder or under any other
Transaction Document to be applied to reduce Aggregate Net Investment when due
(including any payments under Section 1.5(a)) and such failure continues
unremedied for a period of two Business Days after notice from the Agent of
such failure; or
(c) any Seller Entity or the Seller fails
to make any other payment or other transfer of funds hereunder when due and
such failure continues unremedied for a period of five Business Days after
notice from the Agent of such failure; or
(d) the Seller fails to observe or perform
any covenant or agreement contained in Sections 5.1(b), 5.1(g), 5.1(i),
5.1(j), 5.1(k) or 5.1(p) of this Agreement, any Originator fails to perform any
covenant or agreement in Sections 5.1(h), (i) or (j) of the Purchase
Agreement or the Parent fails to perform any covenant or agreement in the
Limited Guaranty; or
(e) the Seller or any Seller Entity fails
to observe or perform any other term, covenant or agreement under any
Transaction Document, and such failure remains unremedied for thirty days or
more after notice from the Agent of such failure; or
(f) the Seller, any Seller Entity or any
Subsidiary suffers a Bankruptcy Event; or
(g) the average Delinquency Ratio for the
three most recent Settlement Periods exceeds 15.0%, the average Default Ratio
for the three most recent Settlement Periods exceeds 8.0%, the average Dilution
Ratio for the three most recent Settlement Periods exceeds 5.0%, the Loss-to
Liquidation Ratio for the most recent Settlement Period exceeds 1.0% or the
average Turnover Ratio for the three most recent Settlement Periods exceeds 90
days; or
(h) (i) the Seller, any Seller Entity
or any Affiliate, directly or indirectly, disaffirms or contests the validity
or enforceability of any Transaction Document or (ii) any Transaction
Document fails to be the enforceable obligation of the Seller or any Affiliate
party thereto in any material respect; or
(i) any Seller Entity or any Subsidiary
fails to pay any of its indebtedness (except in aggregate principal amount of
less than $10,000,000) or defaults in the performance of any provision of any
agreement under which such indebtedness was created or is governed and such
default permits such indebtedness to be declared due and payable or to be
required to be prepaid before the scheduled maturity thereof;
(j) a Change in Control shall occur or the
Parent shall fail to own and control, directly or indirectly, 100% of the
outstanding voting stock of the Seller and each Originator;
(k) a Collection Agent Replacement Event
has occurred and is continuing with respect to the Initial Collection Agent; or
(l) the occurrence of an “Event of
Default” under and as defined in the Credit Agreement.
Notwithstanding the foregoing, a failure
of a representation or warranty or breach of any covenant described in clause
(a), (d) or (e) above related to a Receivable shall not constitute a
Termination Event if the Seller has been deemed to have collected such
Receivable pursuant to Section 1.5(b) or, before the Liquidity Termination
Date, has adjusted the Sold Interest as provided in Section 1.5(c) so that
such Receivable is no longer considered to be outstanding.
“Tranche”
means a portion of the Investment allocated to a Tranche Period pursuant to
Section 1.3. A Tranche is a (i) CP
Tranche, (ii) Eurodollar Tranche or (iii) Prime Tranche depending whether
Discount accrues during its Tranche Period based on a (i) CP Rate, (ii)
Eurodollar Rate, or (iii) Prime Rate.
“Tranche Period”
means a period of days ending on a Business Day selected pursuant to
Section 1.3, which (i) for a CP Tranche shall not exceed 270 days, (ii)
for a Eurodollar Tranche shall not exceed 180 days, and (iii) for a Prime
Tranche shall not exceed 30 days.
“Transaction Documents”
means this Agreement, the Fee Letter, the Limited Guaranty, the Purchase
Agreement, the Note(s), the Transfer Agreement, and all other documents,
instruments and agreements executed or furnished in connection herewith and
therewith.
“Transfer Agreement”
means the Amsterdam Transfer Agreement dated the date hereof between Amsterdam,
ABN AMRO Bank N.V., in its capacity as the Amsterdam Agent, Amsterdam’s Letter
of Credit Provider and a Committed Purchaser and the Other Persons who become
Committed Purchasers thereunder.
“Transfer Supplement”
is
defined in Section 9.8.
“Turnover Ratio”
means, with respect to any Settlement Period, an amount, expressed in days,
obtained by multiplying (a) a fraction, (i) the numerator of which is equal to
the aggregate Outstanding Balance of the Receivables on the first day of such
Settlement Period and (ii) the denominator of which is equal to Collections on
the Receivables during such Settlement Period multiplied by (b) 30.
“UCC”
means, for any state,
the Uniform Commercial Code as in effect in such state.
“USA”
means the United States
of America (including all states and political subdivisions thereof).
“Unused Aggregate Commitment”
means, at any time, the difference between the Aggregate Commitment then in
effect and the outstanding Matured Aggregate Investment.
“Unused Commitment”
means, for any Committed Purchaser at any time, the difference between its
Commitment and its Investment then outstanding.
The foregoing definitions shall be
equally applicable to both the singular and plural forms of the defined
terms. Unless otherwise inconsistent
with the terms of this Agreement, all accounting terms used herein shall be
interpreted, and all accounting determinations hereunder shall be made, in
accordance with GAAP. Amounts to be
calculated hereunder shall be continuously recalculated at the time any
information relevant to such calculation changes.
Schedule II
Committed
Purchasers and Commitments of Committed Purchasers
|
Name
of Committed Purchaser
|
Commitment
|
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|
ABN AMRO Bank N.V.
|
$51,000,000
|
Exhibit A
to
Receivables
Sale Agreement
Form
of Incremental Purchase Request
____________, 200_
ABN
AMRO Bank N.V., as Agent
Asset
Securitization, Structured Finance
135
South LaSalle Street, Suite 725
Chicago,
Illinois 60674-9135
Attn: Purchaser Agent-Amsterdam
Re: Receivables Sale Agreement dated as of
September 28, 2001 (the
“Sale Agreement”
)
among
Albany International Receivables Corporation, as Seller,
Albany International
Corp., as Initial Collection Agent,
ABN AMRO Bank N.V., as
Agent,
and the Purchasers
thereunder
Ladies
and Gentlemen:
The undersigned Seller under the
above-referenced Sale Agreement hereby confirms its has requested an
Incremental Purchase of $___________ by Amsterdam under the Sale Agreement.
[In the
event Amsterdam is unable or unwilling to make the requested Incremental
Purchase, the Seller hereby requests an Incremental Purchase of $____________
by the Committed Purchasers under the Sale Agreement at the [Eurodollar Rate
with a Tranche Period of _______ months.] [Prime Rate]].
Attached hereto as Schedule I is
information relating to the proposed Incremental Purchase required by the Sale
Agreement. If on the date of this
Incremental Purchase Request (
“Notice”
), an Interim Liquidation is in
effect, this Notice revokes our request for such Interim Liquidation so that
Reinvestment Purchases shall immediately commence in accordance with
Section 1.1(d) of the Sale Agreement.
The Seller hereby certifies that both
before and after giving effect to
[each of]
the proposed Incremental Purchase
[s]
contemplated hereby and the use of the proceeds therefrom, all of the
requirements of Section 7.2 of the Sale Agreement have been satisfied.
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Very truly yours,
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Albany
International Receivables Corporation
|
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By
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Title
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Schedule I
to
Incremental
Purchase Requests
Summary of Information Relating to Proposed Sale(s)
1.
Dates, Amounts, Purchaser(s), Proposed Tranche
Periods
A1 Date of Notice _________
A2 Measurement Date (the last
Business Day of the month
immediately preceding the
month in which the Date of
Notice occurs) _________
A3 Proposed Purchase Dates _________ _________ _________ _________
(each of which is a
Business Day)
A4 Respective Proposed
Incremental Purchase on
each such Purchase Date $_________ $_________ $_________ $_________
(each Incremental (A4A) (A4B) (A4C) (A4D)
Purchase must be in a
minimum amount of
$1,000,000 and multiples
thereof, or, if less, an
amount equal to the
Maximum Incremental
Purchase Amount)
A5 Proposed Allocation
among Purchasers
Amsterdam $_________ $_________ $_________ $_________
Committed
Purchasers $_________ $_________ $_________ $_________
A6 For Committed
Purchases, Tranche
Period(s) and Tranche Rate(s)
Starting
Date _________ _________ _________ _________
Ending
Date _________ _________ _________ _________
Number
of Days _________ _________ _________ _________
Prime
or Eurodollar _________ _________ _________ _________
Each proposed Purchase Date must be a
Business Day. The choice of Measurement
Date is a risk undertaken by the Seller.
If a selected Measurement Date is not the applicable Purchase Date, the
Seller’s choice and disclosure of such date shall not in any manner diminish or
waive the obligation of the Seller to assure the Purchasers that, after giving
effect to the proposed Purchase, the actual Sold Interest as of the date of
such proposed Purchase does not exceed 100%.
Exhibit B
to
Receivables
Sale Agreement
Form
of Notification of Assignment to Amsterdam
From the Committed Purchasers
______________, 200_
Albany
International Receivables Corporation
1373
Broadway
Menands,
New York 12204
ABN
AMRO Bank N.V., as Agent
Asset
Securitization, Structured Finance
Suite
725
135
South LaSalle Street
Chicago, Illinois 60674-9135
Attn: Administrator-Amsterdam
[Insert Name and Address of
each
other Committed Purchaser]
Re: Receivables Sale Agreement dated as of
September 28, 2001 (the
“Sale Agreement”
)
among
Albany International Receivables Corporation, as Seller,
Albany International
Corp., as Initial Collection Agent,
ABN AMRO Bank N.V., as
Agent,
and the Purchasers
thereunder
Ladies and Gentlemen:
The Agent under the above referenced Sale
Agreement hereby notifies each of you that Amsterdam has notified the Agent
pursuant to Section 2.2 of the Sale Agreement that it will purchase from
the Committed Purchasers on ________________ (the
“Purchase Date”
) that
portion of the Committed Purchasers’ Investments identified on Schedule I
hereto (the
“Assigned
Interest”
). As further
provided in Section 2.2 of the Sale Agreement, upon payment by Amsterdam
to the Agent of the purchase price of such Investments described on
Schedule I hereto, effective as of the Purchase Date the assignment by the
Committed Purchasers to Amsterdam of the Assigned Interest shall be complete
and all payments thereon under the Sale Agreement shall be made to Amsterdam.
In accordance with the Sale Agreement,
each Committed Purchaser’s acceptance of the portion of the purchase price
payable to it described on Schedule I hereto constitutes its
representation and warranty that it is the legal and beneficial owner of the
portion of the Assigned Interest related to its Purchase Interest identified on
Schedule I free and clear of any Adverse Claim created or granted by it
and that on the Purchase Date it is not subject to a Bankruptcy Event.
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Very truly yours,
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ABN
AMRO Bank N.V.
, as Agent
|
Schedule I
to
Notification
of Assignment
Dated ______________, 200_
I. Amount
of Committed Purchaser Investment Assigned:
$________
II. Information
for each Committed Purchaser:
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Purchaser
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Purchase
Interest
|
Purchase
Price*
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III. Information
for Seller:
Aggregate amount of
purchase price in excess of amount of Investment assigned: $___________.
*
Calculated
in accordance with Section 2.2.
Exhibit C
Form of Periodic Report
Exhibit D
Addresses
and Names of Seller and Originators
1.
Locations
. (a) The chief executive office of the Seller and the Originators
are located at the following addresses:
Albany
International Receivables Corporation
1373
Broadway
Menands,
New York 12204
Albany
International Corp.
1373
Broadway
Menands,
New York 12204
Taxpayer
ID # 14-0462060
Geschmay
Corp.
525
Old Piedmont Highway
Greenville,
SC 29605-4691
Taxpayer
ID # 57-0655559
Albany
International Techniweave, Inc.
112
Airport Drive
Rochester,
NH 03867
Taxpayer
ID # 02-0370219
Albany
International Research Co.
777
West Street
Mansfield,
MA 02048-9114
Taxpayer
ID # 14-1767946
Albany
International Canada Inc.
300
Westmount Street
Cowansville,
Quebec J2K 1S9 Canada
Business
Number: 100109461
M
& I Door Systems Ltd.
230
Bay View Drive - U1-7
Barrie,
Ontario L4N 5E9 Canada
Business
Number: 897599841
No such address was different at any time since
September 29, 2000.
(b) The following are all the locations where
the Seller and the Originators directly or through its agents maintain any
Records:
Same as (a) above
2.
Names
.
The following is a list of all names (other than the legal names set
forth above) (including trade names or similar appellations) used by the Seller
and the Originators or any of its divisions or other business units that
generate Receivables:
Albany
International Corp. (“AIC”)
Nomafa,
Nomafa Door Systems
Primaloft
Appleton
Wire Works
Mount
Vernon Dryer Fabrics
Albany
Mount Vernon
Albany
Felt
Geschmay
Corp.
Wangner
Systems Corporation
Wangner
Forming Fabrics, Inc.
Geschmay
Forming Fabrics, Inc.
Brandon
Drying Fabrics, Inc.
Geschmay
Wet Felts, Inc.
Exhibit E
Lock Boxes and Lock-Box Banks
|
Bank
|
Lock-Box
Numbers
|
Collection
Account
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Wachovia Bank, N.A.
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752020,
751538 and 75158
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1868-085316
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Fleet National Bank
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3241
and 414034
|
502-59058
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Nova Scotia Bank
|
Not
Established
|
Not Established
|
Exhibit F
to Receivables Sale Agreement
Form of Lock Box Letter
[Name of Lock Box Bank]
Ladies and Gentlemen:
Reference is made to the lock-box numbers
_______________ in __________ and the associated lock-box demand deposit account
number ____________ maintained with you (such lock-boxes and associated
lock-box demand deposit account, collectively, the
“Accounts”
), each in the
name of
[Name
of Originator]
(
“
[
___]
”
).
[
___
]
hereby confirms it has sold all
Receivables (as defined below) to Albany International Receivables Corporation
(the
“Seller”
).
In connection with the Receivables Sale
Agreement, dated as of September 28, 2001 (as amended, supplemented or
otherwise modified from time to time, the
“Receivables Sale Agreement”
), among the
Seller, the Initial Collection Agent, Amsterdam Funding Corporation (
“Amsterdam”
),
the financial institutions from time to time party thereto (collectively, the
“Committed
Purchasers”
), ABN AMRO Bank N.V., as provider of the program letter
of credit (the
“Enhancer”
), and ABN AMRO Bank N.V., as agent (the
“Agent”
)
for Amsterdam, the Committed Purchasers (collectively, the
“Purchasers”
), the Seller
has assigned to the Agent for the benefit of the Purchasers an undivided
percentage interest in the accounts, chattel paper, instruments or general
intangibles (collectively, the
“Receivables”
) under which payments are or
may hereafter be made to the Accounts, and has granted to the Agent for the
benefit of the Purchasers a security interest in its retained interest in such
Receivables. As is the customary
practice in this type of transaction, we hereby request that you execute this
letter agreement. All references herein
to
“we”
and
“us”
refer to
[_____]
and the Seller, jointly and severally.
Your execution hereof is a condition precedent to our continued
maintenance of the Accounts with you.
We hereby transfer exclusive dominion and
control of the Accounts to the Agent, subject only to the condition subsequent
that the Agent shall have given you notice that a Collection Agent Replacement
Event has occurred and is continuing under the Receivables Sale Agreement and
of its election to assume such dominion and control, which notice shall be in
substantially the form attached hereto as Annex A (the
“Agent’s Notice”
).
At all times prior to the receipt of the
Agent’s Notice described above, all payments to be made by you out of, or in
connection with the Accounts, are to be made in accordance with the
instructions of the Seller or its agent.
We hereby irrevocably instruct you, at
all times from and after the date of your receipt of the Agent’s Notice as
described above, to make all payments to be made by you out of, or in
connection with, the Accounts directly to the Agent, at its address set forth
below its signature hereto or as the Agent otherwise notifies you, or otherwise
in accordance with the instructions of the Agent.
We also hereby notify you that, at all
times from and after the date of your receipt of the Agent’s Notice as
described above, the Agent shall be irrevocably entitled to exercise in our
place and stead any and all rights in connection with the Accounts, including,
without limitation, (a) the right to specify when payments are to be made out
of, or in connection with, the Accounts and (b) the right to require
preparation of duplicate monthly bank statements on the Accounts for the
Agent’s audit purposes and mailing of such statements directly to an address
specified by the Agent. At all times
from and after the date of your receipt of the Agent’s Notice, neither we nor
any of our affiliates shall be given any access to the Accounts.
The Agent’s Notice may be personally
served or sent by telex, facsimile or U.S. mail, certified return receipt
requested, to the address, telex or facsimile number set forth under your
signature to this letter agreement (or to such other address, telex or
facsimile number as to which you shall notify the Agent in writing). If the Agent’s Notice is given by telex or
facsimile, it will be deemed to have been received when the Agent’s Notice is
sent and the answerback is received (in the case of telex) or receipt is
confirmed by telephone or other electronic means (in the case of
facsimile). All other notices will be
deemed to have been received when actually received or, in the case of personal
delivery, delivered.
By executing this letter agreement, you
acknowledge the existence of the Agent’s right to dominion and control of the
Accounts and its ownership of and security interest in the amounts from time to
time on deposit therein and agree that from the date hereof the Accounts shall
be maintained by you for the benefit of, and amounts from time to time therein
held by you as agent for, the Agent on the terms provided herein. The Accounts are to be entitled “Albany
International Receivables Corporationand ABN AMRO Bank N.V., as Agent for the
Purchasers” with the subline “
[Name of Originator]
”. Except as otherwise provided in this letter
agreement, payments to the Accounts are to be processed in accordance with the
standard procedures currently in effect.
All service charges and fees in connection with the Accounts shall
continue to be payable by us under the arrangements currently in effect.
By executing this letter agreement, you
(a) irrevocably waive and agree not to assert, claim or endeavor to exercise,
(b) irrevocably bar and estop yourself from asserting, claiming or exercising
and (c) acknowledge that you have not heretofore received a notice, writ, order
or other form of legal process from any other party asserting, claiming or
exercising, any right of set-off, banker’s lien or other purported form of
claim with respect to the accounts or any funds from time to time therein. Except for your right to payment of your
service charge and fees and to make deductions for returned items, you shall
have no rights in the Accounts or funds therein, except deductions for service
charges, fees and returned or misplaced items.
To the extent you may ever have any additional rights, you hereby
expressly subordinate all such rights to all rights of the Agent.
You may terminate this letter agreement
by canceling the Accounts maintained with you, which cancellation and
termination shall become effective only upon thirty (30) days prior written
notice thereof from you to the Agent in the absence of fraud or abuse. Incoming mail addressed to the Accounts
(including, without limitation, any direct funds transfer to the Accounts)
received after such cancellation shall be forwarded in accordance with the
Agent’s instructions. This letter
agreement may also be terminated upon written notice to you by the Agent
stating that the Receivables Sale Agreement is no longer in effect. Except as otherwise provided in this
paragraph, this letter agreement may not be terminated without the prior
written consent of the Agent.
This letter agreement contains the entire
agreement between the parties with respect to the subject matter hereof, and
may not be altered, modified or amended in any respect, nor may any right,
power or privilege of any party hereunder be waived or released or discharged,
except upon execution by you, us and the Agent of a written instrument so
providing. The terms and conditions of
any agreement between us and you (a
“Lock-Box Service Agreement”
) (whether now
existing or executed hereafter) with respect to the lock-box arrangements, to
the extent not inconsistent with this letter agreement, will remain in effect
between you and us. In the event that
any provision in this letter agreement is in conflict with, or inconsistent
with, any provision of any such Lock-Box Service Agreement, this letter
agreement will exclusively govern and control.
Each party agrees to take all actions reasonably requested by any other
party to carry out the purposes of this letter agreement or to preserve and
protect the rights of each party hereunder.
In the event
[
___
]
becomes subject to a
voluntary or involuntary proceeding under the United States Bankruptcy Code, or
if you are otherwise served with legal process which you in good faith believe
affects funds in the Account you may suspend disbursements from the Account
otherwise required by the terms hereof until such time as you receive an
appropriate court order or other assurances satisfactory to you establishing
that the funds may continue to be disbursed according to the instructions
contained in this Lock-Box Letter.
This letter
agreement and the rights and obligations of the parties hereunder will be
governed by and construed and interpreted in accordance with the laws of the
state of __________.
This
letter agreement may be executed in any number of counterparts and all of such
counterparts taken together will be deemed to constitute one and the same
instrument.
Please indicate your agreement to the
terms of this letter agreement by signing in the space provided below. This letter agreement will become effective
immediately upon execution of a counterpart of this letter agreement by all
parties hereto.
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Very truly yours,
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[Name of Originator]
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Accepted and confirmed as of
the date first written above:
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ABN AMRO Bank
N.V.,
as Agent
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By
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Title
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By
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Title
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Address of notice:
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ABN AMRO Bank N.V.
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Structured Finance, Asset Securitization
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135 South LaSalle Street
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Chicago, Illinois 60674
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Attention: Purchaser Agent-Amsterdam
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Telephone Number: (312) 904-6263
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Telecopy Number: (312) 904-6376
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Acknowledged and agreed to as of the
date first written above:
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[
Name
of Bank]
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By
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Title
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Address of notice:
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Annex A to
Lock-Box Letter
[Name of Bank]
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Re:
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Albany International Receivables
Corporation
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Lock Box
Numbers_____________
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Lock-Box Account
Number________
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Ladies and Gentlemen:
Reference is made to the letter agreement
dated _________________ (the
“Letter Agreement”
) among
[Name of
Originator]
, Albany International Receivables Corporation, the
undersigned, as Agent, and you concerning the above-described lock-boxes and
lock-box account (collectively, the
“Accounts”
). We hereby give you notice that aCollection Agent Replacement
Event has occurred and is continuing under the Receivables Sale Agreement (as
defined in the Letter Agreement) and of our assumption of dominion and control
of the Accounts as provided in the Letter Agreement.
We hereby instruct you not to permit any
other party to have access to the Accounts and to make all payments to be made
by you out of or in connection with the Accounts directly to the undersigned
upon our instructions, at our address set forth above.
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Very truly yours,
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ABN
AMRO Bank N.V.
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By
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Title
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By
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Title
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cc: Albany
International Receivables Corporation
Exhibit G
To Receivables Sale Agreement
Compliance Certificate
To: ABN AMRO Bank N.V., as Agent, and
each Purchaser
This Compliance Certificate is furnished
pursuant to Section 5.1(a)(iii) of the Receivables Sale Agreement, dated as of
September 28, 2001 (as amended, supplemented or otherwise modified through
the date hereof, the
“Sale Agreement”
), among Albany
International Receivables Corporation(the
“Seller”
),
[Name of Initial Collection Agent]
(the
“Initial
Collection Agent”
), the committed purchasers from time to time party
thereto (collectively, the
“Committed Purchasers”
) and Amsterdam
Funding Corporation (
“Amsterdam”
and, together with the
Committed Purchasers, the
“Purchasers”
) and ABN AMRO Bank N.V. as
agent for the Purchasers (in such capacity, the
“Agent”
). Terms used in this Compliance Certificate
and not otherwise defined herein shall have the respective meanings ascribed
thereto in the Sale Agreement.
The undersigned
hereby represents, warrants, certifies and confirms that:
1. The undersigned is a duly elected
Designated Financial Officer of the undersigned.
2. Attached hereto is a copy of the
financial statements described in Section 5.1(a)(i) or 5.1(a)(ii) of the
Sale Agreement.
3. The undersigned has reviewed the terms
of the Transaction Documents and has made, or caused to be made under his/her
supervision, a detailed review of the transactions and the conditions of the
Seller and the Originators during and at the end of the accounting period
covered by the attached financial statements.
4. The examinations described in paragraph 3
hereof did not disclose, and the undersigned has no knowledge of, the existence
of any condition or event which constitutes a Potential Termination Event,
during or at the end of the accounting period covered by the attached financial
statements or as of the date of this Compliance Certificate, except as set
forth below.
5. Based on the examinations described in
paragraph 3 hereof, the undersigned confirms that the representations and
warranties contained in Article IV of the Sale Agreement (except that in
the case of Reinvestment Purchase no certification of the representation, set
forth in Section 4.1(g) or (h) of the Sale Agreement) are true and correct
as though made on the date hereof, except as set forth below.
Described below are the exceptions, if
any, to paragraphs 4 and 5 listing, in detail, the nature of the condition or
event, the period during which it has existed and the action the undersigned
has taken, is taking or proposes to take with respect to each such condition or
event:
The foregoing certifications, together
with the computations set forth in Schedule I hereto and the financial
statements delivered with this Compliance Certificate in support hereof, are
made and delivered this ____ day of ___________, 200__.
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Albany International
Corp.
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By
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Designated Financial Officer
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Exhibit H
Credit and Collection Policy
Exhibit I
Exchange Rates
(Canadian Dollars/US Dollars)
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September
2000
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0.66860
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October
2000
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0.65400
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November
2000
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0.65080
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December
2000
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0.66140
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January
2001
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0.66600
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February
2001
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0.65400
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March
2001
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0.63940
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April
2001
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0.64570
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May
2001
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0.65010
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June
2001
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0.65920
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July
2001
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0.65230
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August
2001
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0.64960
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Exhibit J
Bankrupt
Obligors
