<PAGE>
EXHIBIT 10.2
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
dated as of September 29, 2000
Among
EXIDE U.S. FUNDING CORPORATION,
as Seller
and
THREE RIVERS FUNDING CORPORATION,
as Buyer
and
EXIDE CORPORATION,
as Servicer
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
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THIS AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of
September 29, 2000 among EXIDE U.S. FUNDING CORPORATION, a Delaware corporation
(the "Seller"), THREE RIVERS FUNDING CORPORATION, a Delaware corporation (the
"Buyer"), and EXIDE CORPORATION, a Delaware corporation (the "Company").
WITNESSETH THAT:
WHEREAS, the Seller, the Buyer and the Company are parties to an
existing Receivables Purchase Agreement dated as of March 31, 1997 (the
"Existing RPA"), which is being amended and restated in its entirety by the
terms of this Agreement;
WHEREAS, the Company in the ordinary course of its business generates
trade receivables resulting from the sale of merchandise and the rendering of
services to its customers; and
WHEREAS, the Company may from time to time transfer to the Seller such
receivables pursuant to the Amended and Restated Sale Agreement dated as of
September 29, 2000 between the Company and the Seller, as the same may from time
to time be amended, supplemented or otherwise modified (the "Sale Agreement");
WHEREAS, the Seller may from time to time create pools of such
receivables;
WHEREAS, the Buyer may from time to time purchase from the Seller
undivided percentage ownership interests in such pools of receivables pursuant
to and in accordance with the terms hereof; and
WHEREAS, the Net Investment as of the Effective Date under the
Existing RPA is $58,361,395.59;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants hereinafter set forth and intending to be legally bound hereby, agree
as follows:
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ARTICLE I
DEFINITIONS; CONSTRUCTION
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1.01 Certain Definitions. In addition to other words and terms defined
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in the recitals hereof and elsewhere in this Agreement, as used herein, the
following words and terms shall have the following meanings respectively, unless
otherwise required by context:
"Account Balance" shall mean, in respect of each Receivable which is
included in the Receivables Pool, all amounts shown as owing by the related
Obligor on the accounting records of the Company and the Seller, and all other
amounts which are shown on the most recent Settlement Statement and in respect
of which the related Obligor is obligated, excluding each Defaulted Receivable.
"Accounting Period" shall mean each "Accounting Period" under the
Existing RPA completed prior to the Effective Date and, after the Effective
Date, (i) with respect to the Company Fiscal Year ending on March 31, 2001, each
period described in Exhibit H, and (ii) with respect to each Seller Fiscal Year
ending thereafter, such periods as shall be designated by the Seller to the
Buyer in accordance with the provisions of Section 9.01(i)(4).
"Affected Party" shall mean each of the Buyer, any permitted assignee
of the Buyer, and each Person providing liquidity or credit support to the Buyer
pursuant to a Liquidity Agreement or a Program Support Agreement and each of
their respective Affiliates and assigns.
"Affiliate" shall mean, with respect to a Person, any other Person
which directly or indirectly controls, is controlled by or is under common
control with such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" shall mean this Amended and Restated Receivables Purchase
Agreement, as the same may from time to time be amended, supplemented or
otherwise modified.
"Business Day" shall mean any day other than a Saturday, Sunday,
public holiday under the Laws of the Commonwealth of Pennsylvania or the State
of New York or other
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day on which banking institutions are authorized or obligated to close in the
Commonwealth of Pennsylvania or the State of New York.
"Buyer" shall have the meaning ascribed to such term in the recitals
hereto.
"Buyer's Allocation" shall have the meaning ascribed to such term in
Section 3.01 hereof.
"Certificate of Participation" shall mean, with respect to the
Participation Interest, the written evidence of the Buyer's interest in the
Receivables Pool related to such Participation Interest, in substantially the
form attached as Exhibit A hereto, delivered by the Seller to the Buyer in
substitution for the certificate of participation issued on the Closing Date
under the Existing RPA.
"Chief Executive Office" shall mean, with respect to the Seller or the
Company, the place where the Seller or the Company, as the case may be, is
located, within the meaning of Section 9-103(c)(2) of the Uniform Commercial
Code, as the same may from time to time be amended, supplemented or otherwise
modified, or any analogous provision of any successor statute or any analogous
provision of the Uniform Commercial Code in effect in the jurisdiction whose Law
governs the perfection of the Seller's ownership interest in any Receivable or
the Buyer's ownership interest in any Purchased Receivable.
"Closing Date" shall mean the closing date under the Existing RPA.
"Collections" shall mean, for any Purchased Receivable as of any date,
(i) the sum of all amounts, whether in the form of cash, checks, drafts, or
other instruments (excluding promissory notes), received by the Company, the
Seller or the Servicer or in a Permitted Lockbox in payment of, or applied to,
any amount owed by an Obligor on account of such Purchased Receivable (including
but not limited to all amounts received on account of any Defaulted Receivable),
including, without limitation, all amounts received on account of such Purchased
Receivable and other fees and charges, and (ii) all amounts deemed to have been
received by the Company, the Seller or the Servicer as a Collection pursuant to
Sections 5.03(c) or 6.04 hereof.
"Company" shall have the meaning ascribed to such term in the recitals
hereto; provided that, for purposes of
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calculations utilizing data from any period prior to the Effective Date, GNB
shall be treated as if it were part of the Company during such period.
"Company Fiscal Year" shall mean the fiscal year of the Company and
the Seller for accounting purposes.
"Company Credit Agreement" shall have the meaning assigned to such
term in Section 4.02(h) hereof.
"Company Entity" shall have the meaning assigned to such term in
Section 9.01(s) hereof.
"Complete Servicing Transfer" shall have the meaning ascribed to such
term in Section 6.07 hereof.
"Contract" shall mean a written or oral contract, which shall be
legally binding, between the Company (or GNB) and an Obligor which gives rise to
a receivable arising from the sale by the Company (or GNB) of goods or services
in the ordinary course of the business of the Company (or GNB).
"Cost of Funds" shall mean, with respect to any Settlement Period, an
amount, as notified in writing by the Buyer to the Seller on or prior to the
related Settlement Date, equal to the interest or discount cost for funds
borrowed or obtained during such Settlement Period, either from the issuance of
commercial paper notes, the taking of loans or otherwise, by the Buyer for the
purpose of maintaining or acquiring the Participation Interest, including in the
computation of such cost any dealer's discount or fees and any and all other
fees which are attributable to such borrowing and are specified from time to
time in writing by the Buyer to the Seller, but excluding from such computation
general overhead charges or administrative expenses, such as rating agency fees,
issuing and paying agency fees and commitment fees.
"Credit and Collection Policy" shall mean the objective receivable
credit and collection policies utilized by the Company (or GNB, as applicable),
the Seller and the Servicer as of the date hereof and approved by the Buyer, as
the same may be modified in strict compliance with this Agreement.
"Credit Enhancement Floor" shall mean, with respect to any Settlement
Date and the Effective Date, the sum of (a) fifteen percent (15%), plus (b) the
aggregate of the products for each type of Dilution Factor of (i) the Expected
Dilution with respect to such type of Dilution Factor as of such
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date and (ii) the Dilution Horizon Ratio with respect to such type of Dilution
Factor as of such date.
"Credit Enhancement Reserve" shall mean, with respect to any
Settlement Date and the Effective Date, the positive result of (i) the product
of (A) the greater of (1) the sum of (x) the aggregate of the Dilution Reserves
with respect to each type of Dilution Factor as of such date, plus (y) the
Credit Loss Reserve as of such date and (2) the Credit Enhancement Floor as of
such date, and (B) the positive result, if any, of (1) the aggregate outstanding
balance of Eligible Receivables in the Receivables Pool as of the last day of
the full Accounting Period immediately preceding such date, minus (2) the sum of
(x) the Settlement Period Amount with respect to the related Settlement Period
times 6, plus (y) the Servicer's Compensation Reserve as of such date, plus (z)
the Overbill Reserve as of such date, minus (3) the aggregate amount by which
the Account Balance of Eligible Receivables of each Obligor as of the last day
of the full Accounting Period immediately preceding such date exceeds the
Standard Concentration Limit or the Special Concentration Limit for such
Obligor, minus (ii) the lesser of (x) $3,000,000 and (y) 50% of the product of
the Dilution Reserve with respect to warranty claims and the aggregate
outstanding Account Balance of Eligible Receivables as of the last day of the
full Accounting Period immediately preceding such date.
"Credit Loss Reserve" shall mean, with respect to any Settlement Date
and the Effective Date, the product, expressed as a percentage, of (i) 1.5, (ii)
the Loss Ratio as of such date and (iii) the Loss Horizon Ratio as of such date.
"Days Sales Outstanding" shall mean, (i) on the Effective Date, the
number of days in the period ending on the Effective Date and commencing on such
earlier date such that the aggregate amount of net sales of the Company and GNB
during such period is equal to the aggregate Account Balances of all Eligible
Receivables outstanding on the Effective Date (after giving effect to the
Purchase occurring on the Effective Date) and (ii) at any time of determination
after the Effective Date, the number of days in the period ending on the last
day of the most recently ended Accounting Period and commencing on such earlier
date such that the aggregate amount of net sales of the Company and GNB during
such period is equal to the aggregate Account Balances of all Eligible
Receivables outstanding on such last day.
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"Default Ratio" shall mean, with respect to any Settlement Date and
the Effective Date, a fraction, expressed as a percentage, the numerator of
which is the aggregate outstanding balance of Eligible Receivables which were in
the Receivables Pool as of the first day of the full Accounting Period
immediately preceding such date and which became Defaulted Receivables during
such Accounting Period and the denominator of which is the aggregate amount of
net sales of the Company during the fifth full Accounting Period immediately
preceding such date.
"Defaulted Receivable" shall mean a Purchased Receivable (a) the
Obligor of which is not entitled to purchase additional merchandise or services
from the Company, by reason of any default or nonperformance by such Obligor,
under the terms of the Credit and Collection Policy, (b) which has become
uncollectible or has been written off the books of the Company or the Seller by
reason of such Obligor's inability to pay, as determined by the Buyer or the
Servicer, in either case in accordance with the Credit and Collection Policy,
(c) in respect of which an Event of Bankruptcy has occurred with respect to the
related Obligor or (d) in respect of which the Obligor is more than 90 days past
due.
"Deferred Purchase Price" shall mean the amount calculated pursuant to
Section 5.06 hereof.
"Depositary" shall mean Bankers Trust Company.
"Dilution" shall mean a reduction of the Account Balance of an
Eligible Receivable given to an Obligor in accordance with the Credit and
Collection Policy as a result of a Dilution Factor.
"Dilution Factor" shall mean each type of factor set forth on Exhibit
L resulting in, or which may result in, a Dilution; provided that "warranties"
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shall not be deemed a Dilution Factor in respect of Receivables originated by
GNB or the division of the Company which is the successor of GNB.
"Dilution Horizon" shall mean, with respect to any type of Dilution
Factor, the number indicated opposite such type of Dilution Factor on Exhibit L;
provided, that the Buyer may at any time, in its reasonable discretion, change
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the Dilution Horizon for any type of Dilution Factor through the delivery by the
Buyer to the Seller of an amended Exhibit L.
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"Dilution Horizon Ratio" shall mean, as of any Settlement Date and the
Effective Date with respect to any type of Dilution Factor, a fraction,
expressed as a percentage, the numerator of which is the aggregate amount of net
sales of the Company during the number of full Accounting Periods immediately
preceding such date equal to the Dilution Horizon with respect to such type of
Dilution Factor and the denominator of which is the aggregate outstanding
balance of Eligible Receivables in the Receivables Pool as of the last day of
the full Accounting Period immediately preceding such date. The Buyer and the
Seller hereby agree that the Dilution Horizon Ratio with respect to a Dilution
Factor which has a Dilution Horizon equal to zero shall be zero.
"Dilution Ratio" shall mean, as of any Settlement Date and the
Effective Date with respect to any type of Dilution Factor, a fraction,
expressed as a percentage, the numerator of which is the aggregate dollar amount
of Dilutions attributable to such type of Dilution Factor recognized by the
Company or the Seller during the full Accounting Period immediately preceding
such date and the denominator of which is the aggregate amount of net sales of
the Company during the "N"th full Accounting Period immediately preceding such
date, where "N" is equal to the Dilution Horizon with respect to such type of
Dilution Factor. The Buyer and the Seller hereby agree that the Dilution Ratio
with respect to a Dilution Factor which has a Dilution Horizon equal to zero
shall be zero.
"Dilution Reserve" shall mean, as of any Settlement Date and the
Effective Date with respect to any type of Dilution Factor, the product of (a)
the sum of (i) 1.5 times the Expected Dilution with respect to such type of
Dilution Factor as of such date, plus (ii) the product of (x) the positive
result, if any, of the Dilution Spike Ratio with respect to such type of
Dilution Factor as of such date, minus such Expected Dilution, and (y) a
fraction, the numerator of which is such Dilution Spike Ratio and the
denominator of which is such Expected Dilution, and (b) the Dilution Horizon
Ratio with respect to such type of Dilution Factor as of such date.
"Dilution Spike Ratio" shall mean, as of any Settlement Date and the
Effective Date with respect to any type of Dilution Factor, the highest Dilution
Ratio with respect to such type of Dilution Factor for any full Accounting
Period during the period of twelve (12) consecutive full Accounting Periods
immediately preceding such date.
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"Dispute" shall mean any dispute, deduction, claim, offset, defense,
counterclaim, set-off or obligation of any kind, contingent or otherwise,
relating to a Receivable, including, without limitation, any dispute relating to
goods or services already paid for.
"Dollar", "Dollars" and the symbol "$" shall mean lawful money of the
United States of America.
"Effective Date" shall mean the date on which the amendment and
restatement of the Existing RPA becomes effective pursuant to the terms of this
Agreement.
"Eligible Receivable" shall mean any Receivable which:
(a) duly complies with all applicable Laws and other legal
requirements, whether Federal, state or local;
(b) constitutes an "account" or a "general intangible" as defined in
the Uniform Commercial Code as in effect in the State of New York
and the jurisdiction whose Law governs the perfection of the
Buyer's Participation Interest in such Receivable;
(c) (i) was originated by the Company in the ordinary course of the
Company's business in a transaction which complied with the
Credit and Collection Policy, or (ii) was originated by a
business subsequently acquired by or merged into the Company in a
transaction which complied with the policies and procedures of
such business in effect at the time such Receivable was
originated, provided that, if originated by any Person other than
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GNB, the eligibility of such Receivable is approved in advance in
writing by the Referral Agent;
(d) arises from a Contract and has been billed, or will be billed to
the related Obligor, or in respect of which the related Obligor
is otherwise liable, in accordance with the terms of such
Contract;
(e) constitutes a legal, valid, binding and irrevocable payment
obligation of the related
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Obligor, enforceable in accordance with its terms;
(f) provides for payment in Dollars by the related Obligor;
(g) is payable into a Permitted Lockbox or directly to the Servicer
or the Seller;
(h) has not been repurchased by the Seller pursuant to the repurchase
provisions of this Agreement;
(i) if it were a Purchased Receivable, would not be a Defaulted
Receivable;
(j) has an Obligor who is entitled to purchase additional merchandise
or receive additional services from the Company under the terms
of the Credit and Collection Policy; provided, that a Receivable
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which has an Obligor who is not entitled to purchase additional
merchandise or receive additional services from the Company
because such Obligor has reached the credit limit established by
the Company shall be deemed to satisfy this paragraph (j);
(k) was not originated in or subject to the Laws of a jurisdiction
whose Laws would make such Receivable, the related Contract, the
transfer of such Receivable by the Company to the Seller pursuant
to the Sale Agreement or the sale of the Participation Interest
in such Receivable to the Buyer hereunder unlawful, invalid or
unenforceable;
(l) is owned solely by the Seller free and clear of all Liens, except
for the Lien arising in connection with this Agreement and any
Program Support Agreement;
(m) other than with respect to warranty claims being handled in
accordance with the Credit and Collection Policy, no rejection or
return of the goods or services which give rise to such
Receivable has occurred and all goods and services in connection
therewith have been finally performed or delivered to and
accepted by the Obligor without Dispute;
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(n) is not an obligation of any state of the United States or any
municipality, agency, instrumentality or political subdivision
thereof, unless otherwise agreed to in writing by the Buyer, the
Seller and the Affected Parties;
(o) is not subject to any contractual right of set-off other than
with respect to Overbill Reserves;
(p) is an obligation representing part or all of the sales price of
merchandise or services;
(q) such Receivable must, by its terms, require full payment in
respect thereof to be paid no later than 180 days after the date
the original invoice with respect thereto was sent to the related
Obligor;
(r) has an Obligor who is located in the United States, Puerto Rico
or Canada;
(s) (i) has an Obligor who is not an Affiliate of the Company or the
Seller or (ii) which is generated in an arms-length transaction
between the Company and Yuasa and which satisfies the Credit and
Collection Policy;
(t) was acquired by the Seller from the Company pursuant to and in
accordance with the terms of the Sale Agreement; and
(u) the Obligor of which has not been deemed to be ineligible by the
Buyer, in its sole discretion.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Event of Bankruptcy" shall mean, for any Person:
(a) if such Person shall fail generally to, or admit in writing its
inability to, pay its debts as they become due; or
(b) a proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief
in respect of such Person in an involuntary case under any
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applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator,
conservator (under the Bank Conservation Act, as amended, or
otherwise) or other similar official of such Person or for any
substantial part of its property, or for the winding-up or
liquidation of its affairs; or
(c) the commencement by such Person of a voluntary case under any
applicable bankruptcy, insolvency or other similar Law now or
hereafter in effect, or such Person's consent to the entry of an
order for relief in an involuntary case under any such Law, or
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator,
conservator (under the Bank Conservation Act, as amended, or
otherwise) or other similar official of such Person or for any
substantial part of its property, or any general assignment for
the benefit of creditors, or, if a corporation or similar entity,
any corporate action in furtherance of any of the foregoing; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator,
or conservator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings,
shall have been entered against such Person.
"Expected Default Ratio" shall mean, with respect to any Settlement
Date and the Effective Date, the average of the Default Ratios for the three
consecutive full Accounting Periods immediately preceding such date.
"Expected Dilution" shall mean, as of any Settlement Date and the
Effective Date with respect to any type of Dilution Factor, a fraction,
expressed as a percentage, the numerator of which is the sum of the Dilution
Ratios with respect to such type of Dilution Factor for each of the twelve full
Accounting Periods immediately preceding such date and the denominator of which
is 12.
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"Expiration Date" means the earliest of (i) September 24, 2001, which
may be extended from time to time for an additional period or periods for up to
360 days commencing on the then scheduled Expiration Date, by written notice of
request given by the Seller to the Buyer, specifying the duration of the period
of extension requested, at least 120 days before such scheduled Expiration Date,
and by written notice of acceptance (which notice may be given or withheld by
the Buyer in its sole discretion) by the Buyer to the Seller not later than
ninety (90) days prior to such scheduled Expiration Date, provided, that the new
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scheduled Expiration Date shall in no event result in a remaining term of this
Agreement from any date of determination thereof that exceeds 360 days, (ii) the
date that the Buyer shall give notice of the termination of the Buyer's
obligation to purchase the Participation Interest or make Reinvestments
hereunder pursuant to Section 10.02, and (iii) the first date on which there
shall no longer be any Liquidity Agreement or Program Support Agreement in
effect (as to which the Buyer shall promptly notify the Seller after obtaining
notice of such termination); provided, further, that if any Expiration Date is
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not a Business Day it shall occur on the next preceding Business Day.
"Fitch" shall mean Fitch.
"Forecast Dilution" shall mean, as of any Settlement Date and the
Effective Date, the sum of (1) the aggregate amount by which the Account
Balances of the Purchased Receivables were reduced by the Company or the Seller
during the six Accounting Periods most recently ended as a result of billing
errors, (2) the amount of the Overbill Reserve in the Accounting Period most
recently ended, an (3) the amount of the GNB Warranty Dilution Reserve in the
Accounting Period most recently ended.
"GAAP" shall mean generally accepted accounting principles in the
United States of America, applied on a consistent basis and applied to both
classification of items and amounts, and shall include, without limitation, the
official interpretations thereof by the Financial Accounting Standards Board,
its predecessors and successors.
"GNB" shall mean GNB Technologies, Inc., which is expected to be
merged into the Company on September 29, 2000.
"GNB Warranty Dilution Reserve" shall mean, with respect to any
Accounting Period, the amount indicated on the books of the Company as the
aggregate amount reserved in respect of warranty claims in connection with
Receivables originated by
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GNB or the division of the Company which is the successor of GNB.
"Income Taxes" shall mean any federal, state, local or foreign taxes
based upon, measured by, or imposed upon gross or net income, gross or net
receipts, capital or net worth, in each case, attributable solely to cash
received by the Affected Party that is not remitted or deemed remitted to the
Company or the Seller (regardless of the name of the tax imposed), including any
penalties, interest or additions to tax imposed with respect thereto.
"Investment" shall mean, on each date of determination, the sum of (i)
the Net Investment and (ii) the Deferred Purchase Price, if any, as determined
on the Effective Date or as set forth on the most recently delivered Settlement
Statement.
"Law" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Official Body (including any law, rule, regulation or governmental
order relating to the protection of the environment or to public or employee
health or safety).
"Lien", in respect of the property of any Person, shall mean any
ownership interest of any other Person, any mortgage, deed of trust,
hypothecation, pledge, lien, security interest, grant of a power to confess
judgment, preference, right to priority payment, filing of any financing
statement, charge or other encumbrance or security arrangement of any nature
whatsoever, including, without limitation, any conditional sale or title
retention arrangement, any assignment, deposit arrangement, consignment or lease
intended as, or having the effect of, security, or the filing of a financing
statement in connection with any of the foregoing.
"Liquidation Day" shall mean each day which occurs on or after (i) the
date designated in a notice given by the Buyer to the Seller stating that the
conditions contained in Section 4.03 hereof are not satisfied, (ii) the
Expiration Date, (iii) the date on which a Termination Event occurs and is
continuing, or (iv) the date on which the Seller gives written notice to the
Buyer that it no longer wishes to sell interests in the Receivables Pool to the
Buyer or permit Reinvestments to be made; provided, however, there shall be no
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Liquidation Day after the Net Investment shall equal zero.
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"Liquidation Period" shall mean one or more consecutive Liquidation
Days.
"Liquidity Agreement" shall mean the Funding Agreement dated as of
September 29, 2000 among the Buyer, Mellon Bank, as funding institution, and as
agent and Referral Agent, as the same may from time to time be amended,
supplemented, modified, replaced or superseded.
"Lockbox Account" shall mean an account owned and maintained by the
Seller with a Permitted Lockbox Bank for the purpose of depositing payments made
by Obligors.
"Lockbox Servicing Agreement" shall mean an agreement relating to
lockbox services in connection with a Permitted Lockbox which is in form and
substance satisfactory to the Buyer and which has been executed and delivered to
the Buyer by a Permitted Lockbox Bank.
"Loss Horizon Ratio" shall mean, with respect to any Settlement Date
and the Effective Date, a fraction, expressed as a percentage, the numerator of
which is the aggregate amount of net sales of the Company during the four full
Accounting Periods immediately preceding such date and the denominator of which
is the aggregate outstanding balance of Eligible Receivables in the Receivables
Pool as of the last day of the full Accounting Period immediately preceding such
date.
"Loss Ratio" shall mean, with respect to any Settlement Date and the
Effective Date, the highest Expected Default Ratio for any full Accounting
Period during the period of twelve consecutive full Accounting Periods
immediately preceding such date.
"Maximum Net Investment" shall mean $200,000,000 or such greater
amount as shall be established with the consent of the Buyer or such lesser
amount as shall be established in accordance with Section 2.03 hereof.
"Mellon Bank" shall mean Mellon Bank, N.A., a national banking
association.
"Moody's" shall mean Moody's Investors Service, Inc.
"Net Investment" shall mean (a) for the Effective Date, an amount
equal to the sum of (i) the "Net Investment" as of such date under the Existing
RPA and (ii) the Purchase Price (not including the Deferred Purchase Price, if
any) paid for the
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Participation Interest on the Effective Date, and (b) for any other day, an
amount equal to the sum of (i) (after giving effect to the purchase to be made
on the Effective Date) the Net Investment on the Effective Date, plus (ii)
amounts paid to the Seller pursuant to Section 5.01 hereof since the Effective
Date as an increase in the Net Investment, less (iii) all Collections and other
amounts paid to the Buyer and not reinvested (which shall not include any
amounts paid to the Buyer as Settlement Period Amount or fees) pursuant to
Sections 2.03(b), 5.01, 5.03(d) and 5.04 hereof since the Effective Date. In the
event that any amount received by the Buyer constituting any portion of
Collections is rescinded or must otherwise be returned or restored for any
reason to any Person, the Net Investment shall be increased by the amount of
Collections so rescinded, returned or restored.
"Obligor" shall mean, with respect to any Receivable, the Person who
purchased goods or services under a Contract giving rise to such Receivable and
who is obligated to make payments to the Company (or GNB, as applicable) or the
Seller on such Contract in respect of such Receivable.
"Office" shall mean, when used in connection with the Buyer, its
office located at 114 West 47th Street, Suite 1715, New York, New York 10036, or
when used in connection with the Company or the Seller, its respective office
located at 645 Penn Street, Reading, Pennsylvania, or at such other office or
offices of the Buyer, the Company or the Seller or branch, subsidiary or
Affiliate of any thereof as may be designated in writing from time to time by
any party hereto to the other parties hereto.
"Official Body" shall mean any government or political subdivision or
any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"Overbill Reserve" shall mean, with respect to any Accounting Period,
the amount indicated on the records of the Company as the aggregate amount due
to Obligors in connection with cooperative advertising arrangements between
Obligors and the Company (or GNB, as applicable).
"Participation Interest" shall mean, at any time, an undivided
percentage ownership interest equal to the Buyer's Allocation at such time in
all then outstanding Receivables included in the Receivables Pool, including,
without limitation,
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all Collections, and all collateral security, insurance policies, letters of
credit and surety bonds given on behalf of Obligors to secure or support payment
of such Receivables, and any proceeds of any of the foregoing. For the avoidance
of doubt, upon the Effective Date the Participation Interest shall consist of
the continuation of the interest of the Buyer under the Existing RPA and the
interest purchased by the Buyer on the Effective Date, which shall thereafter be
treated as a single Participation Interest hereunder.
"Permitted Lockbox" shall mean a post office box owned and maintained
by the Seller for the purpose of receiving payments made by Obligors.
"Permitted Lockbox Bank" shall mean any bank at which a Lockbox
Account is maintained, the short-term unsecured debt obligations of which are
rated at least A-1 by S&P, at least P-1 by Moody's and, if rated by Fitch, at
least F-1 by Fitch (except that Harris Trust & Savings Bank may continue until
November 30, 2000 to be a Permitted Lockbox Bank notwithstanding that it fails
to have the required ratings), appointed from time to time by the Seller and
approved by the Buyer.
"Person" shall mean an individual, corporation, partnership (general
or limited), trust, business trust, unincorporated association, joint venture,
joint-stock company, Official Body, or any other entity of whatever nature.
"Potential Servicer Event" shall mean any event or condition which,
with the giving of notice, the passage of time or both, would constitute a
Servicer Event.
"Potential Termination Event" shall mean any event or condition which,
with the giving of notice, the passage of time or both, would constitute a
Termination Event.
"Program Fee" shall mean, for any Settlement Period, the rate per
annum set forth in a separate letter agreement between the Seller and the Buyer.
"Program Support Agreement" means, collectively, all liquidity
agreements, funding agreements (other than the Liquidity Agreement), credit
agreements, letter of credit agreements, surety agreements, security agreements,
letters of credit and all other agreements which may be in effect from time to
time and which provide liquidity or credit support in respect of the commercial
paper issued by the Buyer.
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"Purchase Availability Amount" shall mean, as of any date, an amount
equal to the excess, if any, of (i) the Maximum Net Investment as of such date
over (ii) the Net Investment as of such date.
"Purchase Availability Fee" shall mean the fee set forth in a separate
letter agreement dated the date hereof between the Seller and the Buyer.
"Purchase Documents" shall mean this Agreement, the Certificate of
Participation, the Sale Agreement and such other agreements, documents and
instruments entered into and delivered by the Seller or the Company in
connection with the transactions contemplated by this Agreement.
"Purchase Notice" shall mean each notice delivered pursuant to Section
4.02(e) hereof, in such form and with such detail as the Buyer may require from
time to time.
"Purchase Obligation" shall have the meaning ascribed to such term in
Section 2.01 hereof.
"Purchase Price" shall mean, with respect to the purchase of the
Participation Interest, the amount of cash consideration set forth on the
Purchase Notice or otherwise paid by the Buyer for such Participation Interest
on the Effective Date, which amount (for the avoidance of doubt) shall not be
deemed to include the Net Investment as of the Effective Date under the Existing
RPA and shall be calculated on the basis of information as of August 31, 2000,
in respect of all Purchased Receivables originated by GNB, and as of August 27,
2000 (the last day of the most recently completed Accounting Period) in respect
of all other Purchased Receivables.
"Purchased Receivable" shall mean a Receivable included in the
Receivables Pool in which the Buyer is maintaining the Participation Interest
pursuant to the terms of this Agreement.
"Rate of Collections" shall mean, for any Accounting Period, a
fraction, expressed as a percentage, the numerator of which is equal to the
total Collections in respect of all Receivables (including deemed Collections to
the extent actually received by the Servicer pursuant to Section 5.07) during
such Accounting Period and the denominator of which is equal to the aggregate
Account Balances of all Receivables as of the close of business on the last day
of the immediately preceding Accounting Period.
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"Receivable" shall mean, with respect to any Contract, all
receivables, contract rights, general intangibles, accounts, chattel paper,
instruments (including, without limitation, promissory notes), amounts due and
to become due to the Company or the Seller arising under such Contract
(including but not limited to finance charges accrued with respect to such
amounts and fees), and all other rights, powers and privileges of the Company or
the Seller arising thereunder or related thereto and in the merchandise
(including returned goods) and contracts relating thereto, assertable against
any Person whatsoever, all security interests, guaranties and property securing
or supporting payment of such Receivable, all Records relating to such
Receivable and all proceeds and products of any of the foregoing; provided, that
--------
the term shall not include any Receivable the Obligor of which is listed on
Exhibit M hereto, as such exhibit may be amended, supplemented or modified from
time to time.
"Receivables Pool" shall mean, at any time, the group of Purchased
Receivables then outstanding which have, on the Effective Date, been identified
by the Seller as constituting a pool and each additional Receivable thereafter
added to such pool.
"Records" shall mean correspondence, memoranda, computer programs,
tapes, discs, papers, books or other documents or transcribed information of any
type whether expressed in ordinary or machine readable language.
"Reference Rate" shall mean the rate of interest established by the
Referral Agent from time to time as its reference rate; any change in the
reference rate shall become effective as of the opening of business when such
change occurs. The "Reference Rate" is not intended to be the lowest rate of
interest charged by the Referral Agent in connection with extensions of credit
to debtors.
"Referral Agent" shall mean Mellon Bank, together with its successors
or assigns, in its capacity as referral agent for the Buyer.
"Reinvestment" shall mean the purchase by the Buyer and the sale by
the Seller of additional undivided percentage ownership interests in each and
every Purchased Receivable utilizing the proceeds of Collections that were
allocated to the Buyer for such purpose pursuant to Section 5.03(a).
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"Remainder" shall have the meaning assigned to such term in Section
5.03(a) hereof.
"Responsible Officer" shall mean the Chief Executive Officer,
President and Chief Operating Officer, Executive Vice President and Chief
Financial Officer, Vice President - Treasurer, Vice President-Controller- or
Assistant Treasurer of the Company or the President or Secretary of the Seller,
as the case may be.
"Sale Agreement" shall have the meaning ascribed to such term in the
recitals hereto.
"Seller" shall have the meaning ascribed to such term in the recitals
hereto.
"Servicer" shall mean the Company, or any Person other than the
Company or its Affiliates which, upon the termination of the Company as
Servicer, succeeds to the functions performed by the Company as the servicer of
the Purchased Receivables pursuant to a Complete Servicing Transfer and a
Successor Servicing Agreement.
"Servicer Event" shall mean a Termination Event (other than the
Termination Event under Section 10.01(l) relating to the Buyer).
"Servicer's Compensation" shall have the meaning ascribed to such term
in Section 6.06(e) hereof.
"Servicer's Compensation Reserve" shall mean, as of any Settlement
Date and the Effective Date, an amount equal to the product of (i) .50%, (ii)
the aggregate outstanding balance of Eligible Receivables in the Receivables
Pool as of the last day of the full Accounting Period immediately preceding such
date, and (iii) a fraction, the numerator of which is the product of (a) the
Days Sales Outstanding at the close of business as of the last day of such
Accounting Period and (b) three and the denominator of which is 360.
"Settlement Date" shall mean, as to each Settlement Period, the
twentieth calendar day (or, if such twentieth calendar day is not a Business
Day, the next succeeding Business Day) after the last day of the Accounting
Period most recently completed, commencing with the Accounting Period completed
on October 1, 2000.
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"Settlement Period" shall mean (a) the period from and including the
Settlement Date under the Existing RPA immediately preceding the Effective Date
and ending on the day immediately preceding the first Settlement Date, and (b)
thereafter, the period from and including the Settlement Date of the immediately
preceding Settlement Period and ending on the day immediately preceding the next
Settlement Date.
"Settlement Period Amount" shall mean, with respect to any Settlement
Period, an amount equal to the sum of (i) the Cost of Funds for such Settlement
Period and (ii) the product of (a) the Program Fee, (b) the Net Investment at
the close of business on the first day of such Settlement Period, and (c) a
fraction, the numerator of which is the actual number of days in such Settlement
Period and the denominator of which is 360.
"Settlement Statement" shall mean a statement substantially in the
form of Exhibit B hereto, which, among other things, will identify any and all
Receivables included in the Receivables Pool as of the last day of the
Accounting Period most recently completed, duly completed and executed by a
Responsible Officer of the Company or, if the Company is no longer the Servicer,
of the Seller and delivered to the Buyer pursuant to Section 5.01 hereof.
"S&P" shall mean Standard & Poor's Ratings Services.
"Special Concentration Limit" shall mean, with respect to any Obligor
listed on Exhibit I (together with its Affiliates and subsidiaries), an amount
equal to the product of the aggregate of the Account Balances of the Eligible
Receivables in the Receivables Pool outstanding as of the last day of the most
recently completed Accounting Period and the percentage indicated opposite the
name of such Obligor; provided, that the Buyer may (i) at any time any such
--------
Obligor is placed on a "credit watch list" by, or the long-term or short-term
unsecured debt rating of such Obligor is downgraded by, S&P, Moody's or Fitch,
in its discretion, reduce the Special Concentration Limit for such Obligor, (ii)
on any Settlement Date, in its discretion, reduce or increase the Special
Concentration Limit for any such Obligor listed under the heading "Discretionary
Special Concentration Limit" in Exhibit I, or (iii) at any time, in its
discretion, add the name of any other Obligor to Exhibit I, in each case,
through the delivery by the Buyer to the Seller of an amended Exhibit I.
"Standard Concentration Limit" shall mean, as of any date of
determination, with respect to all of the Receivables
20
<PAGE>
owing from a single Obligor (except for an Obligor listed on Exhibit I),
together with Receivables owing from its Affiliates or subsidiaries, an amount
equal to five percent (5.00%) of the aggregate of the Account Balances of the
Eligible Receivables in the Receivables Pool outstanding as of the last day of
the most recently completed Accounting Period.
"Successor Servicing Agreement" shall mean any agreement between the
Buyer and any Person, other than the Company or its Affiliate, which contains
provisions concerning the servicing of the Purchased Receivables substantially
similar to the provisions contained herein, including Sections 5.03, 5.04, 5.06,
6.01, 6.02, 6.04, 6.06 and 6.07 hereof, pursuant to which such Person performs
servicing functions in respect of the Purchased Receivables, and all agreements,
instruments and documents attached thereto or delivered in connection therewith,
as any of the same may from time to time be amended, supplemented or otherwise
modified and in effect.
"Termination Event" shall have the meaning ascribed to such term in
Section 10.01 hereof.
"Transaction Costs" shall have the meaning ascribed to such term in
Section 11.01 hereof.
"UCC" shall have the meaning ascribed to such term in Section 1.02
hereof.
"Yuasa" shall mean Yuasa, Inc.
1.02 Interpretation and Construction. Unless the context of this
--------------------------------
Agreement otherwise clearly requires, references to the plural include the
singular, the singular the plural and the part the whole. References in this
Agreement to "determination" by the Buyer shall be conclusive absent manifest
error and include good faith estimates by the Buyer (in the case of quantitative
determinations) and good faith beliefs by the Buyer (in the case of qualitative
determinations). The words "hereof", "herein", "hereunder" and similar terms in
this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement. The section and other headings contained in this
Agreement are for reference purposes only and shall not control or affect the
construction of this Agreement or the interpretation hereof in any respect.
Section, subsection and appendix references are to this Agreement unless
otherwise specified. As used in this Agreement, the masculine, feminine or
neuter gender shall each be deemed to include the others whenever the context so
indicates. Terms not otherwise
21
<PAGE>
defined herein which are defined in the Uniform Commercial Code as in effect in
the State of New York (the "UCC") on the date hereof shall have the respective
meanings ascribed to such terms therein unless the context otherwise clearly
requires. This Agreement shall be construed as a whole and in accordance with
its fair meaning.
ARTICLE II
AGREEMENT TO PURCHASE AND SELL
------------------------------
2.01 Purchase Limits. Subject to the terms and conditions hereof, the
---------------
Seller may at its option sell to the Buyer, and the Buyer agrees to purchase
from the Seller (such agreement being referred to herein as the "Purchase
Obligation"), at any time and from time to time on and after the date hereof and
to but excluding the Expiration Date, undivided percentage ownership interests
in the Receivables Pool by purchasing the Participation Interest in such
Receivables Pool. Subject to the terms and conditions hereof, the Buyer shall
also (i) make Reinvestments by permitting the Servicer to cause Collections
allocated to the Buyer to be applied to the purchase of additional undivided
percentage ownership interests in the Receivables Pool, and (ii) increase its
Net Investment in the Participation Interest on any Settlement Date at the
request of the Seller (without regard to a minimum amount). The Buyer shall not
purchase the Participation Interest on the Effective Date, or permit a
Reinvestment to be made on any day, or increase its Net Investment on any
Settlement Date, to the extent that the amount of such purchase or Reinvestment
shall exceed the Purchase Availability Amount, or shall cause the Buyer's
Allocation (after giving effect to such purchase or Reinvestment) to exceed
100%. The Buyer shall not be obligated to increase the Maximum Net Investment.
The Buyer shall not purchase the Participation Interest if the Buyer cannot
issue its commercial paper notes or short-term promissory notes or otherwise
borrow in order to fund the Purchase Price of such Participation Interest, or to
make any such purchase or any Reinvestment or increase its Net Investment on any
Settlement Date at or after the earlier to occur of (i) the Expiration Date, and
(ii) the reduction of the Maximum Net Investment to zero pursuant to Section
2.03 hereof.
2.02 Amount of Purchases. The sale of the Participation Interest on
-------------------
the Effective Date by the Seller to the Buyer shall be for a minimum Purchase
Price of $25,000,000.
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<PAGE>
2.03 Reduction of the Maximum Net Investment and Net Investment;
-----------------------------------------------------------
Termination of the Agreement.
----------------------------
(a) Reduction of Maximum Net Investment. The Maximum Net Investment shall
-----------------------------------
be reduced to zero (i) on the Expiration Date, or (ii) in accordance with
Section 10.02 hereof. In addition, upon written notice from the Seller to the
Buyer, the Seller may reduce in whole or in part the Maximum Net Investment,
effective as of the next Settlement Date on or after the thirtieth (30th) day
following the date on which such notice is given; provided, however, that (i)
-------- -------
any partial reduction must be in an amount equal to $5,000,000 or any greater
amount which is an integral multiple of $5,000,000, and (ii) if the Maximum Net
Investment at the time of such notice is less than or equal to $20,000,000, the
Seller may only elect to reduce the amount of the Maximum Net Investment to
zero. Notwithstanding any other provision of this Agreement, the Maximum Net
Investment may not at any time be reduced below the amount of the aggregate Net
Investment in effect at such time.
(b) Reduction of the Net Investment. If at any time the Seller shall
-------------------------------
wish to cause the reduction of the Net Investment (but not to commence the
permanent liquidation of the Participation Interest), the Seller may do so upon
ten (10) days prior written notice thereof to the Buyer (such notice to include
the amount of such proposed reduction and the proposed date on which such
reduction will commence, which date shall be agreed to by the Buyer). On the
proposed date of commencement of such reduction and on each day thereafter, the
Servicer shall refrain from making Reinvestments of Collections until the amount
of such Collections not so reinvested shall equal the desired amount of
reduction. The Servicer shall pay to the Buyer all Collections received on each
day during the period in which Reinvestment of Collections has been suspended
pursuant to this Section 2.03(b) on the date which is the earlier of (i) two (2)
Business Days or (ii) the number of days specified in Section 9-306(4)(d) of the
Uniform Commercial Code as in effect in the jurisdiction whose Laws govern the
rights of the Buyer in and to any such Collections after the day on which such
Collections are received by the Servicer. The Net Investment shall be deemed
reduced in the amount to be paid to the Buyer only when in fact so paid. The
Seller shall use reasonable efforts to attempt to choose a reduction amount, and
the date of the commencement thereof, so that such reduction shall commence and
conclude in the same Settlement Period. The Seller shall pay to the Buyer an
amount equal any loss, cost or expense incurred by the Buyer as the result of
the repayment of the Net
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<PAGE>
Investment prior to the maturity date of any (x) loans made to the Buyer by
third parties or (y) commercial paper notes or short-term promissory notes
issued by the Buyer, in each case for the purpose of maintaining the
Participation Interest.
(c) Termination of the Agreement. This Agreement shall terminate at the
----------------------------
latest to occur of (i) the Expiration Date, (ii) the first day on which the Net
Investment equals zero, all other amounts accrued and owing to the Buyer under
this Agreement have been paid in full and the Maximum Net Investment has been
reduced to zero, or (iii) the first day on which all Eligible Receivables in the
Receivables Pool have been collected or written off by the Seller and the
Maximum Net Investment has been reduced to zero; provided, however, that the
-------- -------
covenants, representations, warranties and indemnities of the Company and the
Seller to the Buyer contained herein or made pursuant hereto shall survive such
termination. Upon such termination, the Buyer shall convey to the Seller,
without recourse, its Participation Interest in all Purchased Receivables and
shall deliver to the Seller all instruments and documents relating thereto. Upon
such reconveyance, the Deferred Purchase Price shall be deemed to have been paid
in full.
2.04 Fees Payable to the Buyer.
-------------------------
(a) Purchase Availability Fee. The Seller agrees to pay to the Buyer, in
-------------------------
consideration for the Purchase Obligation hereunder, from and including the date
of execution of this Agreement to but excluding the Expiration Date, the
Purchase Availability Fee in the amount set forth in a separate letter agreement
between the Seller and the Buyer. The accrued Purchase Availability Fee shall be
due and payable in accordance with Sections 5.03 and 5.04 hereof until the
earlier of the Expiration Date or the date on which the Maximum Net Investment
is reduced to zero pursuant to Section 2.03(a) hereof. To the extent the
Purchase Availability Fee is not paid from Collections in accordance with
Section 5.03 or 5.04 hereof, the Purchase Availability Fee shall be an absolute
and unconditional obligation of the Seller.
(b) Fees Non-Refundable. The fees to be paid to the Buyer pursuant to
-------------------
this Section 2.04 are non-refundable and shall not be refunded for any reason
whatsoever, including, without limitation, the later reduction or termination of
the Maximum Net Investment in whole or in part in accordance with the provisions
of this Agreement.
24
<PAGE>
ARTICLE III
BUYER'S ALLOCATION
------------------
3.01 Buyer's Allocation. The Buyer's Allocation on any day of
------------------
determination shall be a percentage, not in excess of 100%, equal to the
quotient of (i) the Investment, divided by (ii) the positive result of (A) the
aggregate Account Balances of all Eligible Receivables included in the
Receivables Pool on the date of determination before giving effect to
Collections on such date, less (B) without duplication, the sum of (1) the
aggregate amount by which the Account Balances of Eligible Receivables of each
Obligor exceeds the Standard Concentration Limit or the Special Concentration
Limit for such Obligor, (2) the lesser of (a) the aggregate amount of accounts
payable to Yuasa by the Company, as indicated on the records of the Company, and
(b) the aggregate Account Balances of all Eligible Receivables included in the
Receivables Pool the Obligor of which is Yuasa, (3) the amount by which the
aggregate Account Balances of Eligible Receivables which constitute United
States government obligations exceeds four percent (4%) of the aggregate Account
Balances of the Eligible Receivables in the Receivables Pool, and (4) the amount
by which the aggregate Account Balances of Eligible Receivables with respect to
which the Obligor is a resident of or located in Canada exceeds four percent
(4%) of the aggregate Account Balances of the Eligible Receivables in the
Receivables Pool.
3.02 Frequency of Computation of the Buyer's Allocation. The Buyer's
--------------------------------------------------
Allocation shall be initially computed as of the opening of business of the
Servicer on the Effective Date. Thereafter, until the Net Investment shall be
reduced to zero, the Buyer's Allocation shall be automatically recomputed as of
the close of business of the Servicer on each Business Day, and the Buyer's
Allocation shall constitute the percentage ownership interest of the Buyer in
the Receivables Pool on such date; provided, however, that on and after a
-------- -------
Liquidation Day and during the continuance of a Liquidation Period, the Buyer's
Allocation shall be equal to the Buyer's Allocation as computed on the first
Business Day preceding the occurrence of such Liquidation Day. The Buyer's
Allocation shall be reduced to zero at such time as the related Net Investment
shall be reduced to zero, the Buyer shall have received all amounts in respect
of accrued and unpaid Settlement Period Amounts and all other amounts payable to
it pursuant to this Agreement, and the Servicer, provided the Seller is not the
Servicer, shall have received the accrued Servicer's Compensation.
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<PAGE>
ARTICLE IV
CLOSING PROCEDURES
------------------
4.01 Purchase and Sale Procedures.
----------------------------
(a) General. The sale of the Participation Interest hereunder shall, with
-------
respect to the Receivables Pool, transfer ownership to the Buyer of an undivided
percentage ownership interest in each Receivable in such Receivables Pool,
effective upon the creation of such Receivable.
(b) Indemnity for Failure to Close. If a sale of the Participation
------------------------------
Interest fails to occur on the Effective Date as specified in the Purchase
Notice delivered pursuant to Section 4.02(e) hereof and agreed to by the Buyer
pursuant to Section 4.04 hereof, the Seller shall reimburse the Buyer on demand
for any loss, cost or expense (including loss of margin) incurred by the Buyer
with respect to this Agreement, its obligations hereunder or its funding of the
proposed Purchase Price (including, without limitation, any loss, cost or
expense in obtaining, liquidating or employing deposits as loans from third
parties or the loss, cost or expense of issuing its commercial paper notes or
short-term promissory notes in order to fund such Purchase Price) until the
earlier of (A) the Effective Date as specified in a subsequent Purchase Notice
delivered pursuant to Section 4.02(e) hereof and agreed to by the Buyer pursuant
to Section 4.04 hereof or (B) the date on which (i) the Buyer redeploys any
funds committed to fund such Purchase Price at a rate of return greater than or
equal to the Cost of Funds, or (ii) such commercial paper notes or short-term
promissory notes become due and payable, as the case may be. The Buyer shall
notify the Seller of the amount determined by the Buyer (which determination
shall be conclusive and binding absent manifest error) to be necessary to
compensate the Buyer for such loss, cost or expense. Such amount shall be due
and payable by the Seller to the Buyer ten (10) Business Days after such notice
is given.
4.02 Conditions Precedent to the First Purchase. The obligation of the
------------------------------------------
Buyer to purchase the Participation Interest from the Seller on the Effective
Date shall be subject to the satisfaction on or before September 29, 2000 of the
conditions set forth in Section 4.03 hereof and the following further
conditions:
(a) Corporate Standing. The Buyer shall have received (i) from each of
------------------
the Seller and the Company, a certificate,
26
<PAGE>
dated a recent date relative to the Effective Date as determined by the Buyer,
of the Secretary of State or other similar official as to its good standing
under the Laws of its jurisdiction of incorporation, and (ii) from the Company,
certificates, dated a recent date relative to the Effective Date as determined
by the Buyer, of the Secretary of State or other similar official of each of the
State of Michigan and the Commonwealth of Pennsylvania as to its good standing
under the Laws of such jurisdictions.
(b) Opinions of Counsel. The Buyer shall have received favorable written
-------------------
opinions of John Van Zile, Esq., General Counsel of the Company, and Kirkland &
Ellis, counsel for the Company and the Seller, each dated the Effective Date,
each in form and substance acceptable to the Buyer.
(c) Financing Statements, etc. The Buyer shall have received evidence
--------------------------
satisfactory to it of the completion of all recordings, registrations and
filings as may be necessary or, in the opinion of the Buyer, desirable, to
evidence or perfect the ownership interests to be acquired by the Buyer
hereunder, including, without limitation:
(i) acknowledgment copies of proper financing statements on Form UCC-
1, and/or amendments thereto, filed on or prior to the Effective Date,
naming the Company as debtor and/or assignor and the Seller as secured
party and/or assignee (in respect of the transfer of Receivables
contemplated by the Sale Agreement) and naming the Seller as debtor
and/or assignor and the Buyer as secured party and/or assignee (in
respect of the transfer of the Participation Interest contemplated by
this Agreement), or such other similar instruments or documents as may be
necessary or, in the opinion of the Buyer, advisable, under the Uniform
Commercial Code or any comparable law of all appropriate jurisdictions to
evidence or perfect the Buyer's Participation Interest, including without
limitation in the Receivables originated by GNB; and
(ii) evidence of searches satisfactory to the Buyer listing all
effective financing statements which name the Company (or GNB or any
other predecessor entity of the Company) or the Seller as debtor and/or
assignor in the jurisdictions in which filings are made pursuant to
subsection (i) above, together with copies of such financing statements,
none of which (other
27
<PAGE>
than the filings made pursuant to subsection (i) above) shall cover any
Receivables or the related Contracts.
(d) Lockbox Agreements. The Buyer shall have received duly executed copies
------------------
of Lockbox Servicing Agreements with each of one or more Permitted Lockbox
Banks.
(e) Purchase Notice. The Buyer shall have received from the Seller, no
---------------
less than two (2) Business Days prior to the Effective Date, a notice (the
"Purchase Notice") in substantially the form of Exhibit J hereto, utilizing
information as of the last day of the most recently completed Accounting Period,
including with respect to Receivables originated by GNB, together with such
written documentation of the procedures utilized and calculations made in
connection with the preparation of such Purchase Notice as the Buyer may
request.
(f) Responsible Officer Certificate. The Buyer shall have received a
-------------------------------
certificate of a Responsible Officer, dated the Effective Date, from each of the
Seller and the Company, in substantially the form attached hereto as Exhibit C,
and as to such other matters incident to the transactions contemplated by the
Purchase Documents as the Buyer may reasonably request, in form and substance
satisfactory to the Buyer. The Buyer may conclusively rely on any such
certificate unless and until a later certificate revising the prior certificate
is received by the Buyer.
(g) Certificate of Participation. The Buyer shall have received on the
----------------------------
Effective Date, in substitution for the certificate of participation issued on
the Closing Date to the Buyer under the Existing RPA, a Certificate of
Participation executed on behalf of the Seller by a Responsible Officer.
(h) Creditors' Consent. The Buyer shall have received the written consent
------------------
of the Banks party to the Amended and Restated Credit Agreement dated as of
September 28, 2000, as amended, among the Company, the banks and agents party
thereto and Credit Suisse First Boston, as Administrative Agent (the "Company
Credit Agreement"), to the execution and delivery of the Purchase Documents and
the consummation of the transactions contemplated hereby and thereby in form and
substance satisfactory to the Buyer, if any such consent is required in order to
avoid a breach of or a default under the Company Credit Agreement by reason of
such execution, delivery or consummation.
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(i) Merger. The Buyer shall have received evidence satisfactory to it of
------
the merger of GNB into the Company.
4.03 Conditions Precedent to Each Purchase and Reinvestment. The
------------------------------------------------------
obligation of the Buyer to purchase the Participation Interest from the Seller
on the Effective Date, to make a Reinvestment on any date, or to increase the
Net Investment in the Receivables Pool on any Settlement Date, is subject to the
performance by each of the Company and the Seller of its respective obligations
hereunder on or before the Effective Date, such date on which a Reinvestment
will be made or such Settlement Date, and to the satisfaction of the following
further conditions:
(a) Details, Proceedings and Documents. All legal details and proceedings
----------------------------------
in connection with the transactions contemplated by the Purchase Documents or
the Receivables to be included in the Receivables Pool on the Effective Date,
such Settlement Date or such date of such Reinvestment shall be in form and
substance satisfactory to the Buyer, and the Buyer shall have received all such
originals or certified copies or other copies of such documents and proceedings
in connection with such transactions, in form and substance satisfactory to the
Buyer.
(b) Representations and Warranties. On and as of such date (i) the
------------------------------
representations and warranties of the Seller contained in Article VIII hereof
and of the Company contained in the Sale Agreement shall be true and correct
with the same force and effect as though made on and as of the Effective Date,
such Settlement Date or such date of Reinvestment (except to the extent that
such representations and warranties relate solely to an earlier date), (ii) the
Company and the Seller shall be in compliance with the respective covenants
contained in Article IX hereof and in the Sale Agreement, and (iii) no
Termination Event or Potential Termination Event shall occur as a result of the
purchase and sale of the Participation Interest in the Receivables Pool on the
Effective Date, such Settlement Date or such date of Reinvestment, or shall have
occurred and be continuing or shall exist on the Effective Date, such Settlement
Date or such date of Reinvestment.
(c) Sale Agreement. The Sale Agreement shall be in full force and effect.
--------------
4.04 Purchase Price. Subject to the terms and conditions hereof, and
--------------
relying upon the representations and warranties set forth herein, on the
Effective Date, the Buyer
29
<PAGE>
shall purchase the Participation Interest in the Receivables Pool described in
the Purchase Notice delivered by the Seller to the Buyer and agreed upon by the
Buyer. On the date of purchase of the Participation Interest, the Buyer shall
make available to the Seller at its Office, or such other place as the Seller
has notified the Buyer, the Purchase Price therefor.
4.05 Sale Without Recourse.
---------------------
(a) The sale of the Participation Interest hereunder shall, except to
the extent specified in Section 5.06 hereof, be made without recourse to the
Seller with respect to any loss arising from Defaulted Receivables, provided,
--------
that nothing contained herein shall limit the rights of the Buyer provided in
Section 2.04, Article V, Section 6.04 and Articles VII and XI hereof.
(b) This Agreement also constitutes a security agreement under the
UCC. The Seller hereby grants to the Buyer on the terms and conditions of this
Agreement a first priority security interest in and against all of the Seller's
right, title and interest in and to the Purchased Receivables and the proceeds
thereof for the purposes of securing the obligations of the Seller and the
rights of the Buyer under this Agreement.
4.06 Non-Assumption by the Buyer of Obligations. No obligation or
------------------------------------------
liability of the Seller to any Obligor under any Purchased Receivable or
Contract shall be assumed by the Buyer hereunder or under the Certificate of
Participation, and any such assumption is hereby expressly disclaimed. The Buyer
shall be indemnified by the Seller in accordance with Section 11.04 hereof in
respect of any losses, claims, damages, liabilities, costs or expenses arising
out of or incurred in connection with any Obligor's assertion of such obligation
or liability against the Buyer.
4.07 Character of Receivables Added to Receivables Pools. All
---------------------------------------------------
Receivables acquired by the Seller pursuant to the Sale Agreement shall be
included in the Receivables Pool immediately upon the Seller's acquisition
thereof. All such Receivables will comprise only one Receivables Pool.
4.08 Effect of Amendment and Restatement It is the intent of the
-----------------------------------
parties hereto that this Receivables Purchase Agreement, as amended and restated
as of September 29, 2000, shall as of such date replace in its entirety the
Existing RPA; provided that, with respect to the period of time from March 31,
1997 through September 29, 2000, the rights and obligations of
30
<PAGE>
the parties shall be governed by the Existing RPA; provided further, that the
amendment and restatement of the Existing RPA shall not affect any of the
grants, transfers, conveyances or other transactions contemplated by the
Existing RPA to have occurred prior to September 29, 2000.
ARTICLE V
SETTLEMENTS; ADJUSTMENTS
------------------------
5.01 Settlement Statements. The Seller shall, or shall cause the
---------------------
Servicer to, submit to the Buyer not less than two (2) Business Days prior to
each Settlement Date, a Settlement Statement signed by a Responsible Officer
dated as of such Settlement Date and including information in respect of the
Receivables Pool as of the last day of the Accounting Period most recently
completed. The execution and delivery of any Settlement Statement shall
constitute a representation and warranty by the Seller and the Servicer that the
information contained therein is true and correct as of the date thereof. Such
Settlement Statement shall be accompanied by such other information as the Buyer
may reasonably request. Subject to the terms and conditions of this Agreement,
if the Seller requests on a Settlement Statement that the Net Investment be
increased to an amount in excess of the Net Investment as of the immediately
preceding Settlement Date, the Buyer shall make available to the Seller at its
Office, or such other place as the Seller has notified to the Buyer, on the next
succeeding Settlement Date, the amount of such increase in the Net Investment;
provided, that such increase in the Net Investment shall not cause the Net
--------
Investment to exceed the Maximum Net Investment then in effect. The Seller may
request a reduction in the Net Investment in accordance with Section 2.03(b).
5.02 Receivables Status. Upon ten (10) Business Days' notice from the
------------------
Buyer, the Seller or the Servicer will furnish or cause to be furnished to the
Buyer a written report, signed by a Responsible Officer, containing such
information as the Buyer may reasonably request (in such form as the Buyer may
reasonably request), which shall include, without limitation, with respect to
the Participation Interest (a) the Account Balances of the Contracts for all
Purchased Receivables, together with all Collections, Dilutions, and other
adjustments to such Receivables since the date of the last written report
furnished to the Buyer, and an aging of all Contracts as of a date no later than
the date of such notice; and (b) an analysis and explanation of significant
variances, if any, between actual
31
<PAGE>
Collections of Purchased Receivables during such Settlement Period and
historical collections experience.
5.03 Non-Liquidation Settlements.
---------------------------
(a) Daily Settlements. On each day (other than a Liquidation Day) with
-----------------
regard to each Settlement Period, the Buyer shall be allocated an amount of
Collections equal to the product of (i) the Buyer's Allocation, expressed as a
decimal, and (ii) Collections, if any, with respect to the Purchased Receivables
on such day. The Servicer shall hold in trust for the benefit of the Buyer out
of such amount in respect of such Buyer's Allocation an amount equal to the
Settlement Period Amount accrued through such day and not previously so held
(whether or not accrued during the current Settlement Period), and (following
such allocation) shall hold in trust for its own account an amount, if
available, equal to the Servicer's Compensation accrued through such day for the
Participation Interest and not previously so held and (following such
allocation) shall hold in trust for the account of the Buyer an amount, if
available, equal to the Purchase Availability Fee accrued through such day and
not previously so held. The remainder of such amount (the "Remainder") in
respect of the Buyer's Allocation shall, subject to the terms and conditions of
this Agreement, be utilized by the Servicer to make a Reinvestment in the
Receivables Pool in the amount of the Remainder, subject to Sections 2.01 and
4.03 hereof, and after giving effect to any allocation of new Receivables to the
Receivables Pool. Any portion of the Remainder not applied to a Reinvestment
shall be held by the Servicer in accordance with subsection (d) below. The
Remainder, or any portion thereof, which is applied to a Reinvestment, and any
amount of Collections which were not allocated to the Buyer pursuant to the
first sentence of this Section 5.03(a), shall be remitted by the Servicer to the
Seller. Notwithstanding the foregoing, in the event that at the end of any
Settlement Period the amounts held in trust for the benefit of the Buyer
pursuant to the second sentence of this Section 5.03(a) and not previously paid
to the Buyer are less than the accrued and unpaid Settlement Period Amount for
such Settlement Period, then any amount which had been deemed to be a Remainder
during such Settlement Period (up to the amount of such deficit in the amount
available to pay the Settlement Period Amount) shall be deemed to have been held
in trust for the benefit of the Buyer pursuant to the second sentence of this
Section 5.03(a).
(b) Settlement Period. On each Settlement Date (other than a
-----------------
Settlement Date with respect to a Settlement
32
<PAGE>
Period during which a Liquidation Day occurs), the Servicer shall pay to the
Buyer and the Servicer the amounts held in trust for the benefit of the Buyer
and the Servicer, respectively, pursuant to subsection (a) above and not
previously paid to the Buyer and the Servicer, respectively.
(c) Deemed Collections. If on any day the Account Balance of a
------------------
Purchased Receivable is reduced as a result of a Dilution with respect to such
Purchased Receivable, the Servicer shall be deemed to have received on such day
a Collection of Purchased Receivables in the amount of such reduction. If on any
day any of the representations and warranties of the Seller set forth in Section
8.02(b) and (c) is no longer true or was not true when made with respect to such
Purchased Receivable, or if any of the representations and warranties of the
Seller set forth in Section 8.02(a) was not true when made, the Seller shall be
deemed to have received on such day a Collection of such Purchased Receivable in
full .
(d) Unreinvested Collections. Any portion of the Remainder which may
------------------------
not be immediately applied to Reinvestments in the Participation Interest in
accordance with Section 5.03(a) for any reason, shall be so reinvested as soon
as practicable without violating any provisions of this Agreement; provided,
--------
however, that if any portion of the Remainder may not be applied to
------
Reinvestments in the Participation Interest for any reason on the date which is
the earlier of (i) two (2) Business Days or (ii) the number of days specified in
Section 9-306(4)(d) of the Uniform Commercial Code as in effect in the
jurisdiction whose Laws govern the rights of the Buyer in and to any such
portion of the Remainder after the Servicer receives such portion of the
Remainder, the Servicer shall pay such portion of the Remainder to the Buyer on
such earlier date. The Net Investment shall be deemed reduced in the amount to
be paid to the Buyer only when in fact so paid.
(e) Notwithstanding anything to the contrary contained herein, if, on
any Settlement Date prior to the occurrence of a Liquidation Day (after giving
effect to all payments required to be made by the Seller or the Servicer to or
for the account of the Buyer pursuant to this Section 5.03 and any increase in
the Net Investment effected on such day), the Buyer's Allocation shall exceed
one hundred percent (100%), the Seller shall make a payment of an amount in
immediately available funds to the Buyer as a reduction of the Net Investment
such that, after giving effect to such payment, the Buyer's Allocation is equal
to one hundred percent (100%).
33
<PAGE>
5.04 Liquidation Settlements.
-----------------------
(a) Notwithstanding the provisions of Sections 5.03(a) and (b)
hereof, on each Liquidation Day with regard to each Settlement Period, the
Servicer shall allocate to, and hold in trust for the benefit of, the Buyer for
payment in accordance with Section 5.04(b), an amount of Collections equal to
the product of (i) the Buyer's Allocation, and (ii) Collections in respect of
the Purchased Receivables for such Liquidation Day. The Collections allocated to
the Buyer pursuant to this section shall be allocated on a daily basis (i)
first, to the payment of any Settlement Period Amount accrued and owing to the
Buyer, (ii) second, subject to Section 6.06(e), to the payment of any Servicer's
Compensation accrued and owing to the Servicer, (iii) third, to make payment in
respect of any Purchase Availability Fee accrued and owing to the Buyer, (iv)
fourth, to make payment in respect of the Net Investment, and (v) fifth, to the
payment of any other amount accrued and owing to the Buyer under this Agreement.
Any amount of such Collections which were not allocated to the Buyer pursuant to
the first sentence of this Section 5.04 on such Liquidation Day, shall be
remitted by the Servicer to the Seller.
(b) Collections held by the Servicer on behalf of the Buyer pursuant
to this Section 5.04 shall be remitted to the Buyer on the date which is the
earlier of (i) two (2) Business Days or (ii) the number of days specified in
Section 9-306(4)(d) of the Uniform Commercial Code as in effect in the
jurisdiction whose Laws govern the rights of the Buyer in and to any such
Collections after the Servicer receives such Collections.
5.05 Allocation of Collections.
-------------------------
(a) Except as required by Law or the underlying Contract, if any
Obligor is obligated under one or more Purchased Receivables and also under one
or more Contracts not constituting Purchased Receivables, then any payment
received from or on behalf of such Obligor shall be applied (i) to a specific
Contract if the Obligor designates such payment to be so applied, or (ii) to the
Purchased Receivables in the order in which payments are due thereunder if the
application of such payment is not so designated.
(b) Notwithstanding any other provision of this Agreement, the Buyer is
not entitled to receive any portion of Collections once the Net Investment is
reduced to zero and the Seller has no remaining payment obligations to the Buyer
under this Agreement.
34
<PAGE>
5.06 Deferred Purchase Price. On the Effective Date, and, thereafter,
-----------------------
in each Settlement Statement, the Servicer shall calculate the Deferred Purchase
Price as of the last day of the full Accounting Period most recently completed,
which shall be an amount equal to the sum of (1) the Credit Enhancement Reserve,
plus (2) the Forecast Dilution as calculated in such Settlement Statement, plus
(3) the Settlement Period Amount times 6, plus (4) the Servicer's Compensation
Reserve; provided, that if a Liquidation Day occurs, the Deferred Purchase Price
--------
will thereafter be the amount of the Deferred Purchase Price at the close of
business on the day immediately preceding such Liquidation Day.
5.07 Treatment of Collections and Deemed Collections. Any Collections
-----------------------------------------------
deemed to be received pursuant to this Agreement shall be paid by the Seller to
the Servicer in same day funds on the date of such deemed receipt. The Servicer
shall hold or distribute all Collections deemed received pursuant to Sections
5.03 and 6.04 hereof to the same extent as if such Collections had actually been
received. So long as the Servicer shall hold any Collections or deemed
Collections required to be paid to the Buyer, it shall hold such Collections in
trust and separate and apart from its own funds and shall clearly mark its
records to reflect such trust.
ARTICLE VI
PROTECTION OF THE BUYER;
ADMINISTRATION AND COLLECTIONS
------------------------------
6.01 Maintenance of Information and Computer Records. The Seller will,
-----------------------------------------------
or will cause the Servicer to, hold in trust and keep safely for the Buyer all
evidence of the Buyer's right, title and interest in the Receivables Pool. The
Seller will, or will cause the Servicer to, on or prior to the Effective Date,
and with respect to all Receivables that are added to the Receivables Pool after
the Effective Date, on each respective date such Receivables are added, place an
appropriate code or notation in its Records to indicate those Receivables which
are or which will be included in the Receivables Pool.
6.02 Protection of the Interests of the Buyer.
----------------------------------------
(a) The Seller will, or will cause the Servicer to, from time to time do
and perform any and all acts and execute any and all documents (including,
without limitation, the execution, amendment or supplementation of any financing
statements, continuation statements, the Certificate of
35
<PAGE>
Participation and notices of Certificate of Participation relating to the
Participation Interest for filing under the provisions of the Uniform Commercial
Code of any applicable jurisdiction, the execution, amendment or supplementation
of any instrument of transfer, and the making of notations on the Records of the
Seller) as may be requested by the Buyer in order to effect the purposes of this
Agreement and the sale of the Participation Interest hereunder and to perfect
the Buyer's right, title and interest in the Receivables Pool and all
Collections with respect thereto against all Persons whomsoever.
(b) To the fullest extent permitted by applicable Law, the Seller hereby
irrevocably grants to the Buyer and the Referral Agent an irrevocable power of
attorney, with full power of substitution, coupled with an interest, to sign and
file in the name of the Seller, or in its own name, financing statements and
continuation statements and amendments thereto with respect to the Buyer's
Participation Interest in the Purchased Receivables.
(c) At any reasonable time and from time to time at the Buyer's reasonable
request upon notice to the Seller, the Company or the Servicer, the Seller, the
Company or the Servicer, as the case may be, shall permit such Person as the
Buyer may designate to conduct audits or visit and inspect any of the properties
of the Seller, the Company or the Servicer, as the case may be, to examine the
Records, internal controls and procedures maintained by the Seller, the Company
or the Servicer, as the case may be, and take copies and extracts therefrom, and
to discuss the Seller's, the Company's or the Servicer's, as the case may be,
affairs with its officers, employees and independent accountants. Each of the
Seller, the Company and the Servicer hereby authorizes such officers, employees
and independent accountants to discuss with the Buyer the affairs of the Seller,
the Company or the Servicer, as the case may be. The Seller shall reimburse the
Buyer for all reasonable fees, costs and expenses incurred by or on behalf of
the Buyer in connection with the foregoing actions promptly upon receipt of a
written invoice therefor.
(d) The Buyer shall have the right to do all such acts and things as it
may deem necessary to protect its interests, including, without limitation,
confirmation and verification of Purchased Receivables.
6.03 Maintenance of the Location of Writings and Records. The Seller
---------------------------------------------------
will at all times until completion of a Complete Servicing Transfer keep or
cause to be kept at its
36
<PAGE>
Chief Executive Office or at an office of the Servicer designated in advance to
the Buyer, separate and apart from all other Records, each writing or Record
which evidences, and which is necessary or desirable to establish or protect,
including such books of account and other Records as will enable the Buyer or
its designee to determine at any time the status of, the Participation Interest
of the Buyer in each Purchased Receivable; provided, that any Records may be
stored at other locations to the extent temporary location elsewhere is
necessary in connection with litigation, repossession, other collection
activities or other usual business purposes. The Seller shall at its own expense
prepare and maintain machine-readable magnetic tapes in such format as the
Buyer, in its sole discretion, may require pertaining to the Purchased
Receivables.
6.04 Information. The Seller will, or will cause the Servicer to,
-----------
furnish to the Buyer such additional information with respect to the Purchased
Receivables (including but not limited to the Credit and Collection Policy) as
the Buyer may reasonably request. The Seller will also furnish to the Buyer all
modifications, adjustments or supplements to the Credit and Collection Policy as
in effect on the date hereof; provided, however, that neither the Seller nor the
-------- -------
Company shall, without the Buyer's prior written consent, alter its credit,
enforcement and other policies as in effect from time to time if the effect of
any alteration thereof would be to materially adversely affect the
collectibility of the Purchased Receivables. If any such alteration made without
the Buyer's consent is later determined by the Buyer to have had a material
adverse effect on the collectibility of Purchased Receivables, then the Seller
or the Company, as the case may be, shall promptly revise such policies in order
to prevent any such material adverse effect from occurring thereafter, and the
Purchased Receivables that, in the sole judgment of the Buyer, became
uncollectible due to such change shall be deemed collected and shall be treated
as deemed Collections pursuant to Section 5.07 hereof. Promptly upon becoming
aware of any Termination Event or Potential Termination Event, the Servicer
shall give the Buyer notice thereof.
6.05 Performance of Undertakings Under the Purchased Receivables;
------------------------------------------------------------
Indemnification. The Company will at all times observe and perform, or cause to
---------------
be observed and performed, all obligations and undertakings to the Obligors
arising in connection with each Purchased Receivable or related Contract and
neither the Company nor the Seller will take any action or
37
<PAGE>
cause any action to be taken to impair the rights of the Seller to the
Receivables or the rights of the Buyer to its Participation Interest in the
Purchased Receivables. In such connection, the Buyer shall be indemnified by the
Seller in accordance with Section 11.04 hereof and by the Company in accordance
with the Sale Agreement in respect of any losses, claims, damages, liabilities,
costs or expenses incurred or arising out of any action taken or caused to be
taken by the Company or the Seller which impairs the Seller's rights to the
Receivables or the Buyer's rights to its Participation Interest in the Purchased
Receivables.
6.06 Administration and Collections; Indemnification.
-----------------------------------------------
(a) General. Until a Complete Servicing Transfer shall have occurred,
-------
the Company will be responsible for the administration, servicing and collection
of the Purchased Receivables; provided, however, that upon written approval by
-------- -------
the Buyer such duties may be delegated by the Company to any of its Affiliates
or a third party (without impairment of the Company's Obligations as Servicer).
If and to the extent that the Company or any of its Affiliates or any such third
party is performing such functions, the Company agrees to exercise or cause such
Affiliate or third party to exercise the same degree of skill and care and apply
the same standards, policies, procedures and diligence that it applies to the
performance of the same functions with respect to accounts owned by the Company.
(b) Administration. The Servicer shall, to the maximum extent
--------------
permitted by Law, have the power and authority, on behalf of the Buyer as part
of the Servicer's administrative and servicing obligations hereunder, to take
such action in respect of any such Purchased Receivable as the Servicer may deem
advisable, including the resale of any repossessed, returned or rejected goods;
provided, however, that the Servicer may not under any circumstances compromise,
-------- -------
rescind, cancel, adjust or modify (including by extension of time for payment or
granting any discounts, allowances or credits) the Account Balance of the
related Contract for any Purchased Receivable, except in accordance with the
Credit and Collection Policy or otherwise with the Buyer's prior written
consent. The Servicer undertakes to comply with each of the covenants of the
Seller included herein in respect of which the Seller undertakes to cause the
Servicer to take or avoid taking actions specified therein, and further agrees
to perform the Servicer's obligations under Article II of the Sale Agreement.
38
<PAGE>
(c) Enforcement Proceedings. In the event of a default under any
-----------------------
Purchased Receivable before a Servicer Event, the Servicer shall, at the
Seller's expense, to the maximum extent permitted by Law, have the power and
authority, on behalf of the Buyer as part of the Servicer's administrative and
servicing obligations hereunder, to take any action in respect of any such
Purchased Receivable as the Servicer may deem advisable; provided, however, that
-------- -------
the Servicer or the Seller, as the case may be, shall take no enforcement action
(judicial or otherwise) with respect to such Purchased Receivable, except in
accordance with the Credit and Collection Policy or otherwise with the written
consent of the Buyer. The Servicer or the Seller, as the case may be, will apply
or will cause to be applied at all times before a Servicer Event the same
standards and follow the same procedures with respect to deciding to commence,
and in prosecuting, litigation on such Purchased Receivables as is applied and
followed with respect to like accounts not owned by the Buyer. In no event shall
the Servicer or the Seller, as the case may be, be entitled to make or authorize
any Person to make the Buyer a party to any litigation without the Buyer's
express prior written consent.
(d) Obligations of the Buyer. The Buyer may, but shall have no
------------------------
obligation to, take any action or commence any proceeding to realize upon any
Purchased Receivable. At such time as the Servicer or the Seller, as the case
may be, has any obligation to pursue the collection of Purchased Receivables and
the Buyer possesses any documents necessary therefor, the Buyer agrees to
furnish such documents to the Servicer or the Seller, as the case may be, to the
extent and for the period necessary for the Servicer or the Seller, as the case
may be, to comply with its obligations hereunder.
(e) Servicer's Compensation. The Servicer's Compensation for
-----------------------
performing its responsibilities as the servicer with respect to any Purchased
Receivables on any day shall be equal to the quotient of (A) the product of (1)
one-half of one percent (0.50%), and (2) the Account Balances of Purchased
Receivables on such day, divided by (B) 360. Subject to Section 6.07(a), the
Servicer's Compensation shall be retained by the Servicer in accordance with
Section 5.03 hereof or paid to the Servicer by the Buyer in the event
Collections are applied in accordance with Section 5.04 hereof; provided,
--------
however, that if the Company is the Servicer, the Servicer's Compensation shall
-------
not be paid on or after any day on which a Termination Event shall have occurred
and be continuing.
39
<PAGE>
(f) Indemnity. The Servicer shall indemnify the Buyer in respect of any
---------
losses, claims, damages, liabilities, costs or expenses incurred or arising out
of any action taken or caused to be taken by the Servicer under this Section
6.06.
6.07 Complete Servicing Transfer.
---------------------------
(a) General. If at any time a Servicer Event shall have occurred and be
-------
continuing, the Buyer may, by notice in writing to the Seller and the Company,
terminate the Company's capacity as Servicer in respect of the Purchased
Receivables (such termination referred to herein as a "Complete Servicing
Transfer"), notify Obligors of its interest in the Purchased Receivables, take
control of the Lockbox Accounts and exercise all other incidences of ownership
in the Purchased Receivables. After a Complete Servicing Transfer, the Buyer may
administer, service and collect the Purchased Receivables itself, and in such
event may retain the Servicer's Compensation for its own account, in any manner
it sees fit, including, without limitation, by compromise, extension or
settlement of such Purchased Receivables. Alternatively, the Buyer may engage
Mellon Bank to perform all or any part of the administration, servicing and
collection of the Purchased Receivables and pay to Mellon Bank all or a portion
of the Servicer's Compensation in consideration thereof.
(b) Transition. The Company, within ten (10) Business Days after receiving
----------
a notice pursuant to Section 6.07(a) hereof, shall, at its own cost and expense,
deliver or cause to be delivered to the Buyer or its designated agent (i) a
schedule of the Purchased Receivables indicating as to each such Purchased
Receivable information as to the related Obligor, the Account Balance as of such
date of the related Contract and the location of the evidences of such Purchased
Receivable and related Contract, together with such other information as the
Buyer may reasonably request and (ii) all evidence of such Purchased Receivables
and related Contracts and such other Records related thereto (including, without
limitation, true copies of any computer tapes and data in computer memories) as
the Buyer may reasonably deem necessary to enable it to protect and enforce its
rights to, or its position as owner of, a Participation Interest therein. After
any such delivery, neither the Seller nor the Company will hold or retain any
executed counterpart or any document evidencing such Purchased Receivables or
related Contracts without clearly marking the same to indicate conspicuously
that the same is not the original and that transfer thereof does not transfer
any rights against the related Obligor or any other Person.
40
<PAGE>
(c) Collections. From and after the occurrence of a Complete Servicing
-----------
Transfer, the Seller and the Servicer will cause to be transmitted and delivered
directly to the Buyer or its designated agent, for the Buyer's own account,
forthwith upon receipt and in the exact form received, all Collections (properly
endorsed, where required, so that such items may be collected by the Buyer) on
account of its Participation Interest in the Purchased Receivables. All such
Collections consisting of cash shall not be commingled with other items or
monies of the Seller or the Company for a period longer than the lesser of (i)
two (2) Business Days or (ii) the number of days specified in Section 9-
306(4)(d) of the Uniform Commercial Code as in effect in the jurisdiction whose
Laws govern the rights of the Buyer in and to any such Collections. If the Buyer
or its designated agent receives items or monies that are not payments on
account of its Participation Interest in the Purchased Receivables, such items
or monies shall be delivered promptly to the Seller after being so identified by
the Buyer or its designated agent. The Seller hereby irrevocably grants the
Buyer or its designated agent, if any, an irrevocable power of attorney, with
full power of substitution, coupled with an interest, to take in the name of the
Seller all steps with respect to the Purchased Receivable which the Buyer, in
its sole discretion, may deem necessary or advisable to negotiate or otherwise
realize on any right of any kind held or owned by the Seller or transmitted to
or received by the Buyer or its designated agent (whether or not from the Seller
or any Obligor) in connection with its Participation Interest in such Purchased
Receivable; provided, however, that the Buyer hereby agrees not to exercise, and
-------- -------
not to permit its designated agents to exercise, such power of attorney unless a
Servicer Event shall have occurred and be continuing. The Buyer will provide
such periodic accountings and other information related to disposition of funds
so collected as the Seller may reasonably request.
(d) Collection and Administration at Expense of Company. The Company
---------------------------------------------------
agrees that, in the event of a Complete Servicing Transfer, it will reimburse
the Buyer for all out-of-pocket expenses (including, without limitation,
attorneys' and accountants' and other third parties' fees and expenses, expenses
incurred by the Referral Agent's credit recovery group (or any successor),
expenses of litigation or preparation therefor, and expenses of audits and
visits to the offices of the Company) incurred by the Buyer or the Referral
Agent in connection with and following the transfer of functions
41
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following a Complete Servicing Transfer (excluding, however, the fees of any
successor Servicer).
(e) Payments by Obligors. At any time, and from time to time following a
--------------------
Complete Servicing Transfer, or if a Servicer Event or Potential Servicer Event
shall have occurred and be continuing, the Seller, the Company and the Servicer
shall permit such Persons as the Buyer may designate to open and inspect all
mail received by the Seller or the Servicer at any of its offices, and to remove
therefrom any and all Collections or other correspondence from Obligors or the
Company in respect of Purchased Receivables. All Collections received by the
Buyer shall be applied in accordance with Section 5.05 hereof. The Buyer shall
be entitled to notify the Obligors of Purchased Receivables to make payments
directly to the Buyer of amounts due thereunder at any time and from time to
time following the occurrence of (i) a Servicer Event, (ii) a Complete Servicing
Transfer, or (iii) a violation by the Seller of the provisions of Section 6.08
hereof.
6.08 Lockboxes. The Seller and the Company hereby agree (i) to cause all
---------
Collections which may be sent by mail as payment on account of Purchased
Receivables to be mailed by Obligors to Permitted Lockboxes; (ii) to make or
cause the Servicer to make the necessary bookkeeping entries to reflect such
Collections on the Records pertaining to such Purchased Receivables; (iii) to
apply or cause the Servicer to apply all such Collections as provided in this
Agreement; and (iv) not to amend or modify any term, with respect to the
disposition of such Collections or any other amounts received by the Seller, the
Company or the Servicer or any Permitted Lockbox Bank, of this Agreement or any
other agreement (including instructions with respect thereto) without the prior
written consent of the Buyer to such amendment or modification.
ARTICLE VII
REPURCHASES BY SELLER
---------------------
7.01 Repurchases. If on the last day of a Settlement Period the Net
-----------
Investment shall be equal to or less than ten percent (10%) of the Net
Investment on the Effective Date (after giving effect to the transactions
occurring on such date), the Seller shall be entitled on such last day to
repurchase the Participation Interest from the Buyer upon at least ten (10)
Business Days' prior written notice to the Buyer.
42
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7.02 Repurchase Price. In the case of a repurchase by the Seller
----------------
pursuant to Section 7.01 hereof, the Seller shall, on the date of such
repurchase, pay to the Buyer, as the repurchase price thereof, an amount equal
to the sum of (i) the Net Investment as of such date, plus (ii) the Settlement
Period Amount accrued and owing as of such date, plus (iii) if the Servicer is
not the Seller, the accrued Servicer's Compensation as of such date, plus (iv)
all other amounts due to the Buyer hereunder, plus (v) any loss, cost or expense
incurred by the Buyer as the result of the repayment of the Net Investment prior
to the maturity date of any (a) loans made to the Buyer by third parties or (b)
commercial paper notes or short-term promissory notes issued by the Buyer, in
each case for the purpose of maintaining the Participation Interest.
7.03 Reassignment of Repurchased Receivables. Upon receipt of the
---------------------------------------
purchase price of the Participation Interest pursuant to Section 7.02 hereof,
the Buyer shall reassign to the Seller the Buyer's Participation Interest in the
Purchased Receivables, without recourse, representation or warranty (except for
the warranty that upon the reassignment to the Seller of the Buyer's
Participation Interest in such Purchased Receivables, no Lien created by the
Buyer will affect the Purchased Receivables).
7.04 Obligations Not Affected. The obligations of the Seller to the
------------------------
Buyer under this Article VII shall not be affected by any invalidity, illegality
or irregularity of any Purchased Receivable, the related Contract or the sale
thereof, except and to the extent that any such invalidity, illegality or
irregularity is caused solely by the gross negligence or willful misconduct of
the Buyer.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
------------------------------
8.01 General Representations and Warranties of the Seller. The
----------------------------------------------------
Seller, in addition to its other representations and warranties contained herein
or made pursuant hereto, hereby represents and warrants to the Buyer, on and as
of the date hereof, the Closing Date, the Effective Date, each Settlement Date
on which the Net Investment is increased, and each date on which a Reinvestment
is made, that:
(a) Organization and Qualification. The Seller is a corporation duly
------------------------------
organized, validly existing and in good standing under the Laws of its
jurisdiction of incorporation.
43
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The Seller is duly qualified to do business as a foreign corporation in good
standing in each jurisdiction in which the ownership of its properties or the
nature of its activities, or both, requires it to be so qualified or, if not so
qualified, the failure to so qualify would not have a material adverse effect on
its business, operations, properties or financial condition. All of the issued
and outstanding capital stock of the Seller is owned by the Company, free of any
Liens except for the pledge of such capital stock by the Company to secure its
obligations under the Company Credit Agreement, and has been fully paid and is
nonassessable.
(b) Authorization. The Seller has the corporate power and authority
-------------
to execute and deliver the Purchase Documents, to convey the Participation
Interest to the Buyer, and to perform its obligations hereunder and thereunder.
(c) Execution and Binding Effect. Each of the Purchase Documents
----------------------------
(except the Certificate of Participation) has been duly and validly executed and
delivered by the Seller and constitutes a legal, valid and binding obligation of
the Seller enforceable in accordance with its terms. When duly executed and
delivered by the Seller under the provisions hereof, the Certificate of
Participation will constitute a legal, valid and binding assignment by the
Seller enforceable in accordance with the terms thereof and hereof, which will
vest absolutely and unconditionally in the Buyer a valid Participation Interest
in the Purchased Receivables purported to be assigned thereby, subject to no
Liens whatsoever. Upon the filing of the financing statements required under
Section 4.02(c) hereof, the Buyer's Participation Interest will be perfected
under Article Nine of such Uniform Commercial Code, prior to and enforceable
against all creditors of and purchasers from the Seller and all other Persons
whatsoever.
(d) Authorizations and Filings. No authorization, consent, approval,
--------------------------
license, exemption or other action by, and no registration, qualification,
designation, declaration or filing with, any Official Body is or will be
necessary or, in the opinion of the Seller, advisable in connection with the
execution and delivery of the Purchase Documents, the consummation of the
transactions herein or therein contemplated or the performance of or the
compliance with the terms and conditions hereof or thereof, to ensure the
legality, validity or enforceability hereof or thereof, or to ensure that the
Buyer will have its Participation Interest in and to the Purchased Receivables
perfected and prior to all other Liens (including competing ownership
interests), other than the filing of
44
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financing statements under the Uniform Commercial Code in the jurisdictions
required under Section 4.02(c) hereof.
(e) Absence of Conflicts. Neither the execution and delivery of the
--------------------
Purchase Documents, nor the consummation of the transactions herein or therein
contemplated, nor the performance of or the compliance with the terms and
conditions hereof or thereof, will (i) violate any Law or (ii) conflict with or
result in a breach of or a default under (A) the articles or certificate of
incorporation or by-laws of the Seller or (B) any agreement or instrument,
including, without limitation, any and all indentures, debentures, loans or
other agreements to which the Seller is a party or by which it or any of its
properties (now owned or hereafter acquired) may be subject or bound.
(f) Location of Chief Executive Office, etc. As of the date hereof
---------------------------------------
the Seller's Chief Executive Office is located at 802 West Street, Suite 209,
Wilmington, Delaware 19801. The Seller has only the Affiliates identified in
Exhibit D hereto, and has not changed its name, merged or consolidated with any
other corporation or been the subject of any proceeding under Title 11, United
States Code (Bankruptcy) within the past ten (10) years.
(g) No Termination Event. No event has occurred and is continuing and
--------------------
no condition exists which constitutes a Termination Event or a Potential
Termination Event.
(h) Accurate and Complete Disclosure. No information, whether written
--------------------------------
or oral, furnished by the Seller to the Buyer pursuant to or in connection with
this Agreement or any transaction contemplated hereby is false or misleading in
any material respect (and with respect to the Certificate of Participation,
Purchase Notice or Settlement Statement, when furnished, in any respect, whether
or not material) as of the date as of which such information was furnished
(including by omission of material information necessary to make such
information not misleading).
(i) No Proceedings. There are no proceedings or investigations
--------------
pending or threatened before any court, official body, regulatory body,
administrative agency, or other tribunal or governmental instrumentality (A)
asserting the invalidity of the Purchase Documents, (B) seeking to prevent the
consummation of any of the transactions contemplated by the Purchase Documents,
or (C) seeking any determination or ruling that could materially and adversely
affect (i) the performance by the Seller or the Servicer of its obligations
under this Agreement,
45
<PAGE>
or (ii) the validity or enforceability of the Purchase Documents, the Contracts
or any material amount of the Receivables.
(j) Bulk Sales Act. No transaction contemplated hereby requires
--------------
compliance with any bulk sales act or similar law.
(k) Litigation. No injunction, decree or other decision has been
----------
issued or made by any court, government or agency or instrumentality thereof
with respect to or affecting the Seller and no litigation, investigation or
proceeding of the type referred to in Section 9.01(j) exists.
(l) Margin Regulations. The use of all funds acquired by the Seller
------------------
under this Agreement will not conflict with or contravene any of Regulations T,
U and X of the Board of Governors of the Federal Reserve System, as the same may
from time to time be amended, supplemented or otherwise modified.
8.02 Representations and Warranties of the Seller With Respect to
------------------------------------------------------------
Each Sale of Receivables. By selling the Participation Interest in the
------------------------
Receivables Pool to the Buyer (including by Reinvestment), the Seller represents
and warrants to the Buyer as of the date of such sale or Reinvestment and as of
each Settlement Date on which the Net Investment is increased (in addition to
its other representations and warranties contained herein or made pursuant
hereto) that:
(a) Account Balances; Purchase Notice. If such sale is on the
---------------------------------
Effective Date, the Account Balances of the related Contracts for the Purchased
Receivables are the respective amounts therefor set forth in the Purchase
Notice, and all information set forth on such Purchase Notice is true and
correct as of such Effective Date.
(b) Assignment. The Certificate of Participation vests in the Buyer
----------
all the right, title and interest of the Seller in and to the Purchased
Receivables (to the extent of the Participation Interest), and constitutes a
valid sale thereof, enforceable against all creditors of and purchasers from the
Seller.
(c) No Liens. Each Purchased Receivable, together with the related
--------
Contract and all purchase orders and other agreements related to such Purchased
Receivable, is owned by the Seller free and clear of any Lien, except as
provided herein, and when the Buyer purchases the Participation Interest in such
46
<PAGE>
Purchased Receivables it shall have acquired and shall continue to have
maintained an undivided percentage ownership interest to the extent of its
Participation Interest in such Purchased Receivables and in the Collections with
respect thereto free and clear of any Lien, except as provided herein.
8.03 Representations and Warranties of the Servicer. The Servicer
----------------------------------------------
represents and warrants (in the case of the initial Servicer, as of the date
hereof, and in the case of any Servicer appointed thereafter pursuant to Article
VI, as of the date of its acceptance of its appointment, and in each case as of
the date of each Settlement Statement) as follows:
(a) Organization and Qualification. The Servicer is a corporation
------------------------------
duly organized, validly existing and in good standing under the Laws of its
jurisdiction of incorporation. The Servicer is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction in
which the ownership of its properties or the nature of its activities or
both, requires it to be so qualified or, if not so qualified, the failure
to so qualify would not have a material adverse effect on its business,
operations, properties or financial condition.
(b) Authorization. The Servicer has the corporate power and
-------------
authority to execute and deliver this Agreement and to perform its
obligations hereunder.
(c) Execution and Binding Effect. This Agreement has been duly and
----------------------------
validly executed and delivered by the Servicer and constitutes a legal,
valid and binding obligation of the Servicer enforceable in accordance with
its terms.
(d) Authorizations and Filings. No authorization, consent, approval,
--------------------------
license, exemption or other action by, and no registration, qualification,
designation, declaration or filing with, any Official Body is or will be
necessary or, in the opinion of the Servicer, advisable in connection with
the execution and delivery of this Agreement, the consummation of the
transactions herein contemplated or the performance of or the compliance
with the terms and conditions hereof by the Servicer, to ensure the
legality, validity or enforceability hereof.
47
<PAGE>
(e) Absence of Conflicts. Neither the execution and delivery of this
--------------------
Agreement, nor the consummation of the transactions herein contemplated,
nor the performance of or the compliance with the terms and conditions
hereof by the Servicer, will (i) violate any Law or (ii) conflict with or
result in a breach of or a default under (A) the articles or certificate of
incorporation or by-laws of the Servicer or (B) any agreement or
instrument, including, without limitation, any and all indentures,
debentures, loans or other agreements to which the Servicer is a party or
by which it or any of its properties (now owned or hereafter acquired) may
be subject or bound.
(f) No Termination Event. No event has occurred and is continuing
--------------------
and no condition exists which constitutes a Termination Event or a
Potential Termination Event.
(g) Accurate and Complete Disclosure. No information, whether
--------------------------------
written or oral, furnished by the Servicer to the Buyer pursuant to or in
connection with this Agreement or any transaction contemplated hereby,
including without limitation information regarding the Permitted Lockboxes
and Permitted Lockbox Accounts, is false or misleading in any material
respect (and with respect to any Settlement Statement, when furnished, in
any respect, whether or not material) as of the date as of which such
information was furnished (including by omission of material information
necessary to make such information not misleading).
(h) No Proceedings. There are no proceedings or investigations
--------------
pending or threatened before any court, official body, regulatory body,
administrative agency, or other tribunal or governmental instrumentality
(A) asserting the invalidity of any of this Agreement (B) seeking to
prevent the consummation of any of the transactions contemplated by any of
this Agreement, or (C) seeking any determination or ruling that could
materially and adversely affect (i) the performance by the Servicer of its
obligations under this Agreement or (ii) the validity or enforceability of
the Contracts or any material amount of the Receivables.
48
<PAGE>
ARTICLE IX
COVENANTS
---------
9.01 Affirmative Covenants of the Seller. In addition to its other
-----------------------------------
covenants contained herein or made pursuant hereto, the Seller covenants to the
Buyer as follows:
(a) Notice of Termination Event. Promptly upon becoming aware of any
---------------------------
Termination Event or Potential Termination Event, the Seller shall give the
Buyer notice thereof, together with a written statement of a Responsible Officer
setting forth the details thereof and any action with respect thereto taken or
contemplated to be taken by the Seller.
(b) Notice of Material Adverse Change. Promptly upon becoming aware
---------------------------------
thereof, the Seller shall give the Buyer notice of any material adverse change
in the business, operations or financial condition of the Seller which could
affect adversely the collectibility of the Purchased Receivables or the ability
to service the Purchased Receivables. In order to verify compliance with this
Section 9.01(b), the Seller shall furnish the following to the Buyer:
(i) as soon as practicable and in any event within 50 days
following the close of each fiscal quarter, excluding the last fiscal
quarter, of each fiscal year of the Seller during the term of this
Agreement, an unaudited consolidated balance sheet of the Seller as at
the end of such quarter and unaudited consolidated statements of income
and statement of cash flows of the Seller for such quarter and for the
fiscal year through such quarter, setting forth in comparative form the
corresponding figures for the corresponding quarter of the preceding
fiscal year, together with appropriate explanatory notes thereto, all
in reasonable detail and certified by the principal financial officer
of the Seller, subject to adjustments of the type which would occur as
a result of a year-end audit, as having been prepared in accordance
with GAAP; and
(ii) as soon as practicable and in any event within 100 days after
the close of each fiscal year of the Seller during the term of this
Agreement, a consolidated balance sheet of the Seller as at the close
of such fiscal year and consolidated statements of income and statement
of cash flows of the Seller
49
<PAGE>
for such fiscal year, setting forth in comparative form the
corresponding figures for the preceding fiscal year, together with
appropriate explanatory notes thereto, all in reasonable detail and
certified (with respect to the consolidated financial statements) by
the principal financial officer of the Seller as having been prepared
in accordance with GAAP.
(c) Preservation of Corporate Existence. The Seller shall preserve
-----------------------------------
and maintain its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualification could materially adversely affect (i) the interests of the Buyer
hereunder or (ii) the ability of the Seller to perform its obligations
hereunder.
(d) Compliance with Laws. The Seller shall comply in all material
--------------------
respects with all Laws applicable to the Seller, its business and properties,
and the Receivables.
(e) Enforceability of Obligations. The Seller shall ensure that,
-----------------------------
with respect to each Purchased Receivable, the obligation of any related Obligor
to pay the unpaid balance of such Purchased Receivable in accordance with the
terms of the related Contract remains legal, valid, binding and enforceable
against such Obligor, except (i) as otherwise permitted by Section 6.06(b)
hereof, (ii) as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws which may be
applied in the event of the bankruptcy or insolvency of such Obligor, and (iii)
as such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(f) Books and Records. The Seller shall maintain and implement
-----------------
administrative and operating procedures (including, without limitation, the
ability to recreate Records evidencing the Purchased Receivables in the event of
the destruction of the originals thereof), and keep and maintain all documents,
books, Records and other information reasonably necessary or advisable for the
collection of all Purchased Receivables (including, without limitation, Records
adequate to permit the identification of all Collections and adjustments to each
existing Purchased Receivable) at its Chief Executive Office, except as provided
in Section 6.03 hereof.
50
<PAGE>
(g) Fulfillment of Obligations. The Seller will duly observe and
--------------------------
perform, or cause to be observed or performed, all obligations and undertakings
on its part to be observed and performed under or in connection with the
Purchased Receivables, and will do nothing to impair the rights, title and
interest of the Buyer in and to its Participation Interest in the Purchased
Receivables.
(h) Customer List. The Company shall at all times maintain (or cause
-------------
the Servicer to maintain) a current list (which may be stored on magnetic tapes
or disks) of all Obligors under Contracts related to Purchased Receivables,
including the name, address, telephone number and account number of each such
Obligor. The Company shall deliver or cause to be delivered a copy of such list
to the Buyer as soon as practicable following the Buyer's request.
(i) Copies of Reports, Filings, Opinions, etc.
------------------------------------------
(1) Together with each Settlement Statement required to be
delivered pursuant to Section 5.01, the Seller shall cause the
Servicer to prepare and forward to the Buyer (i) a report in
substantially the form of Exhibit G hereto, relating to the
Receivables Pool, as of the close of business on the last day of the
Accounting Period most recently completed, and (ii) a listing by
Obligor of all Purchased Receivables together with an aging of such
Purchased Receivables as of the last day of the most recently
completed Accounting Period.
(2) Upon written request of the Buyer delivered to the Seller
at least 30 days in advance, the Seller shall furnish to the Buyer on
or before June 30 of each year an opinion of counsel who shall be
satisfactory to the Buyer with respect to the perfection of the
Buyer's right, title and interest in the Receivables Pool and all
Collections with respect thereto against all Persons whomsoever.
(3) On or before July 31, 2001, the Buyer shall cause a firm of
nationally recognized independent certified public accountants (who
may render other services to the Servicer or the Seller) to furnish a
report (which report shall cover the twelve months ending on March 31,
2001, and annually thereafter on or before June 30 of each year) to
the Buyer and the Referral Agent to the effect that they
51
<PAGE>
have applied certain procedures agreed upon with the Servicer and
Buyer and examined certain documents and records relating to the
servicing of the Receivables under this Agreement and the predecessor
Receivables Purchase Agreement between the Company and the Buyer dated
as of March 31, 1997 and that, based upon such agreed-upon procedures,
nothing has come to the attention of such accountants that caused them
to believe that the servicing (including, without limitation, the
allocation of the Collections) has not been conducted in compliance
with the terms and conditions of Article V and Section 6.08 of this
Agreement and such predecessor agreement, except for such exceptions
as they believe to be immaterial and such other exceptions as shall be
set forth in such statement; and in addition, each report shall set
forth the agreed upon procedures performed.
(4) As soon as available and in any event no later than 45
days prior to the commencement of each Company Fiscal Year, commencing
with the Company Fiscal Year ending March 31, 2002, a schedule of the
Accounting Periods for such Company Fiscal Year.
(j) Litigation. As soon as possible, and in any event within
-----------
three (3) Business Days of the Seller's knowledge thereof, the Seller shall give
the Buyer notice of (i) any litigation, investigation or proceeding to which the
Seller is a party or which could have an adverse effect on the business,
operations, property or financial condition of the Seller or impair the ability
of the Seller to perform its obligations under this Agreement and (ii) any
material adverse development in previously disclosed litigation.
(k) Total Systems Failure. The Seller shall cause the Servicer
----------------------
to promptly notify the Buyer of any total systems failure and to advise the
Buyer of the estimated time required to remedy such total systems failure and of
the estimated date on which a Settlement Statement can be delivered. Until a
total systems failure is remedied, the Seller shall cause the Servicer (i) to
furnish to the Buyer such periodic status reports and other information relating
to such total systems failure as the Buyer may reasonably request and (ii) to
promptly notify the Buyer if the Servicer believes that such total systems
failure cannot be remedied by the estimated date, which notice shall include a
description of the circumstances which gave rise to such delay, the action
proposed to be taken in response thereto, and a revised estimate of the date on
which a Settlement
52
<PAGE>
Statement can be delivered. The Seller shall cause the Servicer to promptly
notify the Buyer when a total systems failure has been remedied.
(l) Notice of Relocation. The Seller shall give the Buyer sixty (60)
--------------------
days' prior written notice of any relocation of its Chief Executive Office if,
as a result of such relocation, the applicable provisions of the Uniform
Commercial Code of any applicable jurisdiction or other applicable Laws would
require the filing of any amendment of any previously filed financing statement
or continuation statement or of any new financing statement. The Seller will at
all times maintain its Chief Executive Office within a jurisdiction in the
United States in which Article Nine of the Uniform Commercial Code (1972 or
later revision) is in effect.
(m) Further Information. The Seller will furnish or cause to be
-------------------
furnished to the Buyer such other information, as promptly as practicable, and
in such form and detail, as the Buyer may reasonably request.
(n) Treatment of Purchase. For accounting purposes, the Seller shall
---------------------
treat the Purchase and each Reinvestment made hereunder as a sale of an
undivided participation interest in the Purchased Receivables. The Seller shall
also maintain its records and books of account in a manner which clearly
reflects the sale of the Participation Interest to the Buyer and the Buyer's
Investment therein.
(o) Administrative and Operating Procedures. The Seller shall
---------------------------------------
maintain and implement administrative and operating procedures adequate to
permit the identification of the Receivables Pool and all collections and
adjustments attributable to each Receivables Pool.
(p) Certificates of Title.
---------------------
(1) If any amount payable under or in connection with any
Purchased Receivable shall be or become evidenced by any promissory
note, chattel paper or other instrument, such note, chattel paper or
instrument shall be duly endorsed in a manner satisfactory to the
Buyer and delivered to the Buyer or its agent.
(2) The Seller shall deliver to the Buyer any certificate of
title or other evidence of ownership issued by the United States or
any state or any
53
<PAGE>
political subdivision thereof relating to any chattel held as security
for any amount payable under or in connection with any Purchased
Receivable, with evidence of perfection of the security interest in
such property noted thereon, if such notation is required under the
laws of the jurisdiction in which such property is located in order to
perfect a security interest in such property.
(3) If the Contract relating to any Purchased Receivable
requires the related Obligor to maintain insurance upon the chattel
security relating to such Contract, the Seller shall deliver to the
Buyer all documents or certificates relating to such insurance.
(4) The Seller shall deliver to the Buyer any other document
required by the terms of the related Contracts.
(q) Acknowledgment of Servicer. If there is a Servicer other than
--------------------------
the Seller, the Company or the Buyer, the Seller shall deliver to the Buyer a
copy of the Successor Servicing Agreement together with an acknowledgment from
the Servicer affirming that the Successor Servicing Agreement is in full force
and effect.
(r) Transfer of Receivables from the Company. Any Receivable
----------------------------------------
transferred by the Company to the Seller shall be transferred in accordance with
the terms and conditions of the Sale Agreement.
(s) Separate Corporate Existence. The Seller hereby acknowledges
----------------------------
that the Buyer is entering into the transactions contemplated by this Agreement
in reliance upon the Seller's identity as a separate legal entity from the
Company or any Company Entity (as defined below). Therefore, from and after the
date of execution and delivery of this Agreement, the Seller shall take all
reasonable steps including, without limitation, all steps that the Buyer may
from time to time reasonably request, to maintain the Seller's identity as a
separate legal entity and to make it manifest to third parties that the Seller
is an entity with assets and liabilities distinct from those of the Company and
any Affiliates (other than the Seller) thereof (each of the Company and its
Affiliates (other than the Seller) shall be referred to herein as a "Company
Entity"), and not just a division of any Company Entity. Without limiting the
generality of the foregoing and in addition to and consistent with the covenants
set forth above, the Seller shall:
54
<PAGE>
(i) require that all full-time employees of the Seller
identify themselves as such and not as employees of any Company Entity
(including, without limitation, by means of providing appropriate
employees with business or identification cards identifying such
employees as the Seller's employees);
(ii) to the extent any employee, consultant or agent of the
Seller is also an employee, consultant or agent of any Company Entity,
allocate the compensation of such employee, consultant or agent
between the Seller and such Company Entity on a basis which reflects
the services rendered to the Seller and such Company Entity;
(iii) allocate all overhead expenses (including, without
limitation, telephone and other utility charges) for items shared
between the Seller and any Company Entity on a reasonable basis
consistent with GAAP;
(iv) at all times on and after the Effective Date have at
least one member of its Board of Directors (an "Independent Director")
who is not (A) a director, officer or employee of any Company Entity,
(B) a person related to any officer or director of any Company Entity,
(C) a holder (directly or indirectly) of more than 5% of any voting
securities of any Company Entity, or (D) a person related to a holder
(directly or indirectly) of more than 5% of any voting securities of
any Company Entity;
(v) ensure that all corporate actions are duly authorized by
vote of its Board of Directors in accordance with its charter and by-
laws;
(vi) maintain the Seller's books and records separate from
those of any Company Entity and in a location which is clearly
identified (by signage or otherwise) as allocated solely to the
Seller;
(vii) prepare its financial statements separately from those
of other Company Entities and insure that any consolidated financial
statements of the Company that include the Seller have a footnote
clearly stating that the Seller is a separate corporate entity and
that its assets will be available first to satisfy the claims of its
creditors;
55
<PAGE>
(viii) except as herein specifically otherwise provided, not
commingle funds or other assets of Seller with those of any other
Company Entity and not maintain bank accounts or other depository
accounts to which any Company Entity is an account party, into which
any Company Entity makes deposits or from which any Company Entity has
the power to make withdrawals;
(ix) be obligated to reimburse any Company Entity which
pays any of the Seller's operating expenses; and
(x) not permit the Seller to be named as an insured on the
insurance policy covering the property of any Company Entity, except
and only to the extent that such policy also covers property of the
Seller, or enter into an agreement with the holder of such policy
whereby in the event of a loss in connection with the property of any
Company Entity, proceeds are paid to the Seller.
(t) Enforcement of Sale Agreement. The Seller shall enforce the
-----------------------------
obligations of the Company under the Sale Agreement for the benefit of the
Buyer.
9.02 Negative Covenants of the Seller. The Seller covenants that it
--------------------------------
will not, without the prior written consent of the Buyer:
(a) Statementing for and Treatment of the Sales. Prepare any
-------------------------------------------
financial statements for financial accounting or reporting purposes which shall
account for the transactions contemplated hereby in any manner other than as a
sale of the Participation Interest in the Purchased Receivables to the Buyer.
(b) No Rescissions or Modifications. Rescind or cancel any Purchased
-------------------------------
Receivable or related Contract or modify any terms or provisions thereof, except
in accordance with the Credit and Collection Policy or otherwise with the prior
written consent of the Buyer.
(c) No Liens. Cause any of the Purchased Receivables to be sold,
--------
pledged, assigned or transferred or to be subject to a Lien, other than the sale
and assignment of the Participation Interest therein to the Buyer and the Liens
created in connection with the transactions contemplated by this Agreement.
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(d) Mergers, Acquisitions. Be a party to any merger or consolidation,
---------------------
or purchase or otherwise acquire all or substantially all of the assets or any
stock of any class of, or any partnership or joint venture interest in, any
other Person
(e) No Changes. Change its name, identity or corporate structure in
----------
any manner which would, could or might make any financing statement or
continuation statement filed in connection with this Agreement or the
transactions contemplated hereby seriously misleading within the meaning of
Section 9-402(7) of the Uniform Commercial Code of any applicable jurisdiction
or other applicable Laws unless it shall have given the Buyer at least sixty
(60) days' prior written notice thereof, or amend its Certificate of
Incorporation or By-Laws.
(f) Payment Instructions. Add any bank as a Permitted Lockbox Bank,
--------------------
terminate any bank listed on Exhibit K hereto as a Permitted Lockbox Bank,
change any Lockbox Account listed on Exhibit K hereto, or make any change in its
instructions to Obligors regarding payments to be made to the Seller or payments
to be made to any Permitted Lockbox Bank, unless the Buyer shall have received
ten (10) Business Days' prior notice of such addition, termination or change
and, with respect to the addition of any Permitted Lockbox Bank, a Lockbox
Servicing Agreement executed by such Permitted Lockbox Bank shall have been
delivered to the Buyer.
(g) Sales, etc. Sell, transfer, convey, assign or lease all or any
-----------
substantial part of its assets, or sell or assign with or without recourse any
Receivables (other than pursuant hereto), or permit any subsidiary to do any of
the foregoing.
(h) Permitted Debt. Incur any debt or other liability except for (a)
--------------
debt of the Seller in favor of the Company which is evidenced by a promissory
note of the Seller containing the following terms: (i) a fixed date for the
payment of principal and interest which date shall be no earlier than one year
and one day after the date specified in Section 8.2(a) of the Sale Agreement;
(ii) the obligations under such promissory note shall be subordinated to all
obligations of the Seller to the Buyer and no payments shall be made under such
promissory note until all obligations to the Buyer have been satisfied in full,
provided that payments (including prepayments) of principal and interest may be
made if, after giving effect to such payment, no Termination Event or Potential
Termination Event would occur or be continuing; and (iii) the obligations of the
Seller under such promissory note shall not
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constitute a claim against the Seller in the event the Seller has insufficient
funds to satisfy the obligation unless all obligations of the Seller to the
Buyer have been paid in full and any period during which a trustee or receiver
of the Seller or the Seller's assets could recover any payments made to the
Buyer hereunder has expired, (b) obligations in connection with operating
expenses arising in the ordinary course of its business and (c) any liability
arising under this Agreement.
(i) Other Agreements. Not enter into or be a party to any agreement
----------------
or instrument other than agreements with the Company covering the lease of its
offices, the allocation of its overhead and the provision for management
expenses, agreements covering insurance, this Agreement, the Sale Agreement, or
any other agreement referred to herein or contemplated hereby, amend, modify or
waive any provision in any thereof, or give any approval or consent or
permission provided for in any thereof without the prior written consent of the
Buyer (which consent will not be unreasonably withheld); provided, however, that
-------- -------
each such agreement shall contain an undertaking from each Person who enters
into any such agreement with the Seller that such Person will not institute, or
join with any other Person in instituting, against the Seller any proceeding of
the type referred to in Section 11.19.
(j) Other Business. Without the prior written consent of the Buyer,
--------------
not engage in any business or enterprise or enter into any transaction other
than as contemplated by this Agreement and the Sale Agreement.
(k) Amendment of Sale Agreement. Seller shall not permit any
---------------------------
amendment, modification or waiver of the Sale Agreement without the consent of
the Buyer.
ARTICLE X
TERMINATION
-----------
10.01 Termination Events. A "Termination Event" shall mean the
------------------
occurrence and continuance of one or more of the following events or conditions:
(a) either the Seller or Servicer, as the case may be, shall fail to
remit or fail to cause to be remitted to the Buyer on any
Settlement Date any Collections or other amounts required to be
remitted to the Buyer, on such Settlement Date; or
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(b) the Seller or the Company shall fail to deposit or pay, or fail to cause
to be deposited or paid, when due any other amount due hereunder or under
the Sale Agreement; or
(c) any representation, warranty, certification or statement made by the
Seller or the Company under this Agreement or in any agreement,
certificate, report, appendix, schedule or document furnished by or on
behalf of the Seller or the Company to the Buyer pursuant to or in
connection with this Agreement (including, without limitation, the Sale
Agreement) shall prove to have been false or misleading in any respect
material to this Agreement or the transactions contemplated hereby as of
the time made or deemed made (including by omission of material
information necessary to make such representation, warranty, certification
or statement not misleading); or
(d) the Seller or the Company shall fail to obtain the prior consent of the
Buyer to any action or provision as to which such consent is required by
the terms of this Agreement or the Sale Agreement; or
(e) the Seller or the Company shall default or fail in the performance or
observance of any other covenant, agreement or duty applicable to it
contained herein or in the Sale Agreement and such default or failure
shall continue for thirty (30) days after either (i) any Responsible
Officer of the Seller or the Company becomes aware thereof or (ii) written
notice thereof to the Seller by the Buyer; or
(f) a default shall have occurred and be continuing under any instrument or
agreement evidencing, securing or providing for the issuance of
indebtedness for borrowed money of, or guaranteed by, the Seller, the
Company or any Affiliate thereof, and in an amount equal to or in excess
of $5,000,000 in the case of the Company or any Affiliate thereof other
than the Seller, which default if unremedied, uncured, or unwaived (with
or without the passage of time or the giving of notice) would permit
acceleration of the maturity of such indebtedness; or
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(g) the fraction, expressed as a percentage, the numerator of which is the
aggregate of the Account Balance of each Eligible Receivable which (i) was
outstanding and became unpaid (in whole or in part) during any of the last
three full Accounting Periods most recently completed for a period from 91
days to 120 days, inclusive, after the due date for such Eligible
Receivable as shown on the invoice which was sent to the related Obligor
with respect to such Eligible Receivable, (ii) became uncollectible in
accordance with the Credit and Collection Policy during one of such
Accounting Periods or (iii) was written off the books of the Seller by
reason of the related Obligor's inability to pay, as determined by the
Buyer or the Servicer, in accordance with the Credit and Collection
Policy, during one of such Accounting Periods, and the denominator of
which is the sum of the aggregate outstanding amount of the Account
Balances of the Eligible Receivables as of the last day of each such
Accounting Period, shall, as of any date of determination, exceed 2.16%;
or
(h) a Permitted Lockbox Bank shall default or fail in the performance or
observance of any agreement or duty applicable to it under the Lockbox
Servicing Agreement executed by it and such default or failure shall
continue for two (2) Business Days after notice thereof to such Permitted
Lockbox Bank and within such period another Permitted Lockbox with another
Permitted Lockbox Bank is not established by the Seller, if so requested
by the Buyer; or
(i) litigation (including, without limitation, derivative actions),
arbitration, governmental proceedings or actions pursuant to or brought to
enforce any Law is pending against the Seller, the Company or any
Affiliate thereof which in the opinion of the Buyer is likely to (i)
adversely affect the financial position or business of the Seller or
impair the ability of the Seller to perform its obligations under this
Agreement or the Sale Agreement, or (ii) materially adversely affect the
financial position or business of the Company or impair the ability of the
Company to
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perform its obligations under this Agreement, the Sale Agreement or the
Company's Consent; or
(j) there shall have occurred any event which materially adversely affects the
collectibility of a material amount of the Purchased Receivables or there
shall have occurred any other event which materially adversely affects the
ability of the Servicer to collect the Purchased Receivables or the
ability of the Servicer to perform hereunder; or
(k) an Event of Bankruptcy shall occur with respect to (i) the Seller or the
Company, or (ii) one or more Affiliates of the Seller or the Company which
could have a material adverse effect on the business, financial condition
or operations of the Seller or the Company; or
(l) the Buyer or the Receivables Pool shall be deemed to have become an
"investment company" within the meaning of the Investment Company Act of
1940, as amended; or
(m) the Rate of Collections for any Accounting Period shall be
less than 25%; or
(n) the Sale Agreement ceases to be in full force and effect, or
ceases to evidence the transfer by the Company to the Seller
of all Receivables; or
(o) any action is taken by a secured party in respect of the capital stock of
the Seller pledged by the Company to secure its obligations under the
Company Credit Agreement to (i) sell, transfer or assign such capital
stock or any interest therein or to otherwise realize upon or register in
its own name such capital stock, or (ii) exercise any rights as a
stockholder in respect of such capital stock, including, without
limitation, voting rights; or
(p) (1) this Agreement or the Certificate of Participation shall for any
reason cease to evidence the transfer to the Buyer (or its assignees or
transferees) of legal and equitable right, title and interest to, and
ownership of, an undivided percentage ownership interest in the
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Purchased Receivables and Collections with respect thereto
to the extent of the Participation Interest, or (2) if this
Agreement or the Certificate of Participation shall not
evidence the transfer of an undivided percentage ownership
interest as described in clause (1) above, this Agreement or
such Certificate of Participation shall for any reason not
create a valid and perfected first priority security
interest (as defined in the UCC) in favor of the Buyer in
the Purchased Receivables and Collections with respect
thereto; or
(q) (i) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of 30% or more of
the outstanding shares of the voting capital stock of the
Company having the power (without the occurrence of a
contingency) to elect the Board of Directors of the Company;
or (ii) as of any date, a majority of the Board of Directors
of the Company consists of individuals who were not either
(A) directors of the Company as of the corresponding date of
the previous year, (B) selected or nominated to become
directors by the Board of Directors of the Company of which
a majority consisted of individuals described in clause (A),
or (C) selected or nominated to become directors by the
Board of Directors of the Company of which a majority
consisted of individuals described in clause (A) and
individuals described in clause (B).
10.02 Consequences of a Termination Event.
-----------------------------------
(a) If a Termination Event specified in Section 10.01 hereof
shall occur and be continuing, the Buyer may, by notice to the Seller, terminate
its obligation to purchase the Participation Interest or make Reinvestments
hereunder; provided, that in the case of a Termination Event under Section
--------
10.01(k), such obligation of the Buyer hereunder shall be automatically
terminated without any action on the part of the Buyer. Any such termination
shall reduce the Maximum Net Investment in effect from time to time thereafter
to the amount of the aggregate Net Investment at such time.
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(b) Upon any termination of the Buyer's obligation to purchase the
Participation Interest and to make Reinvestments pursuant to this Section 10.02,
the Buyer shall have, in addition to all rights and remedies under this
Agreement or otherwise, all other rights and remedies provided under the Uniform
Commercial Code of the applicable jurisdiction and under other applicable Laws,
which rights shall be cumulative.
(c) The parties hereto acknowledge that this Agreement is, and is intended
to be, a contract to extend financial accommodations to the Seller within the
meaning of Section 365(e)(2)(B) of the Federal Bankruptcy Code (11 U.S.C.
(S)365(e)(2)(B)) (or any amended or successor provision thereof or any amended
or successor code).
ARTICLE XI
MISCELLANEOUS
-------------
11.01 Expenses. The Company agrees, upon receipt of a written invoice, to
--------
pay or cause to be paid, and to save the Buyer and the Referral Agent harmless
against liability for the payment of, all out-of-pocket expenses (including,
without limitation, attorneys', accountant's and other third parties' fees and
expenses, any filing fees, stamp taxes, expenses of litigation or preparation
therefor, audit expenses and expenses incurred by officers or employees of the
Buyer, but excluding salaries and similar overhead costs of the Buyer and the
Referral Agent which are incurred notwithstanding the execution and performance
of this Agreement) incurred by or on behalf of the Buyer and the Referral Agent
from time to time (a) arising in connection with the development, audit,
delivery, collection, preparation, printing, execution, performance,
administration and interpretation of the Purchase Documents, or transactions
undertaken, pursuant to or in connection herewith or therewith (including,
without limitation, the perfection or protection of the Buyer's Participation
Interest in the Purchased Receivables), (b) relating to any amendments, waivers
or consents to the Purchase Documents requested by the Seller or the Company,
(c) arising in connection with the Buyer's or its agent's enforcement or
preservation of rights under the Purchase Documents, or (d) arising in
connection with any litigation or preparation for litigation involving the
Purchase Documents, which, including all amounts payable under Section 11.03,
shall be referred to in this Agreement as "Transaction Costs".
11.02 Payments. All payments to be made to the Buyer hereunder shall be
--------
payable at 11:00 a.m., Pittsburgh time,
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<PAGE>
on the day when due, at the Buyer's Office in Dollars in immediately available
funds. To the extent permitted by Law, any amounts due from the Seller hereunder
which are not paid when due shall bear interest for each day from the day due
until paid, payable on demand, at a rate per annum equal to two percent (2.00%)
above the Reference Rate.
11.03 Indemnity for Taxes, Reserves and Expenses. If after the date
------------------------------------------
hereof, the adoption of any Law or guideline or any amendment or change in the
administration, interpretation or application of any existing or future Law or
guideline by any Official Body charged with the administration, interpretation
or application thereof, or the compliance with any request or directive of any
Official Body (whether or not having the force of Law):
(a) subjects an Affected Party to any tax or changes the basis of
taxation with respect to the Purchase Documents, the Participation
Interest, the Purchased Receivables or payments of amounts due hereunder or
under the Purchased Receivables (including, without limitation, any sales,
gross receipts, general corporate, personal property, privilege or license
taxes (unless such tax results solely from the failure to file or keep
current any certification or documentation required to qualify for any
exemption from or reduction of any such tax to which such Affected Party
would otherwise be entitled), and including claims, losses and liabilities
arising from any failure to pay or delay in paying any such tax (unless
such failure or delay results solely from such Affected Party's gross
negligence or willful misconduct), but excluding Income Taxes incurred by
such Affected Party arising out of or as a result of this Agreement or the
ownership of the Participation Interest or in respect of any Receivable),
or
(b) imposes, modifies or deems applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System), special deposit or similar requirement against
assets held by, credit extended by, deposits with or for the account of, or
other acquisition of funds by, an Affected Party, or
(c) shall change the amount of capital maintained or requested or
directed to be maintained by an Affected Party, or
(d) imposes upon an Affected Party any other condition or expense
(including, without limitation,
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(i) loss of margin and (ii) attorneys' fees and expenses, expenses incurred
by officers or employees of the Referral Agent's credit recovery group (or
any successor thereto) and expenses of litigation or preparation therefor
in contesting any of the foregoing) with respect to the Purchase Documents,
the Participation Interest, the Purchased Receivables or the purchase,
maintenance or funding of the purchase of the Participation Interest in any
Receivables by an Affected Party,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, reduce the rate of return on capital, or impose any
expense (including loss of margin) upon, an Affected Party with respect to this
Agreement, the obligations hereunder or the funding of purchases hereunder, the
Buyer may notify the Seller of the amount of such increase, reduction, or
imposition, and the Seller shall pay to the Buyer the amount so notified to the
Seller by the Buyer (which determination shall be conclusive) necessary to
compensate the Buyer for such increase, reduction or imposition; provided, that
--------
the Seller and any other persons who from time to time sell receivables or
interests therein to the Buyer ("Other Sellers") each shall be liable for such
amount ratably in accordance with the usage under their respective facilities;
provided, further, that (i) if any portion of such amount is attributable to the
-------- -------
Seller and not attributable to any Other Seller, the Seller shall be solely
liable for such portion, and (ii) if any portion of such amount is attributable
to any Other Seller and not attributable to the Seller in any way, the Seller
shall not be liable for any of such portion. The Buyer's determination with
respect to the allocation of such amounts among the Seller and Other Sellers
shall be binding on the Seller. Such amounts shall be due and payable by the
Seller to such Affected Party ten (10) Business Days after such notice is given.
11.04 Indemnity.
----------
(a) The Seller agrees to indemnify, defend and save harmless the
Buyer, the Referral Agent, their respective directors, officers, shareholders,
employees, agents and each legal entity, if any, who controls the Buyer or the
Referral Agent (each, an "Indemnified Party"), forthwith on demand, from and
against any and all losses, claims, damages, liabilities, costs and expenses
(including, without limitation, all attorneys' fees and expenses, expenses
incurred by their respective credit recovery groups (or any successors thereto)
and expenses of settlement, litigation or preparation therefor) which the Buyer
may incur or which may be asserted against the
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Buyer by any Person (including, without limitation, the Company or any Obligor
or any other Person whether on its own behalf or derivatively on behalf of the
Seller) (all of the foregoing being collectively referred to as "Losses"),
excluding, however, (a) Losses to the extent resulting from the gross negligence
or willful misconduct on the part of such Indemnified Party, (b) recourse
(except as otherwise provided in this Agreement) for Defaulted Receivables, (c)
any Losses with respect to any tax, reserve, capital charge or expense related
thereto (indemnification with respect to such Losses being provided as and to
the extent provided in Section 11.03), or (d) Losses to the extent that such
Losses resulted from an act or omission of the Servicer, if the Servicer is not
the Company or an Affiliate of the Company arising from or incurred in
connection with (i) any breach of a representation, warranty or covenant by the
Seller or the Company made or deemed made hereunder or in connection herewith or
the transactions contemplated herewith, or (ii) any suit, action, claim,
proceeding or governmental investigation, pending or threatened, whether based
on statute, regulation or order, on tort, on contract or otherwise, before any
local, state or federal court, arbitrator or administrative, governmental or
regulatory body, which arises out of or relates to the Purchase Documents, the
Participation Interest in the Purchased Receivables or related Contracts, or the
use of the proceeds of the sale of the Participation Interest in the Receivables
pursuant hereto or the transactions contemplated hereby (all Losses, after
giving effect to the limitations set forth in clauses (a) through (d) above,
being hereinafter referred to as "Indemnified Amounts").
(b) Without limitation of the generality of Section 11.04(a), the Seller
shall pay on demand to each Indemnified Party any and all amounts necessary to
indemnify such Indemnified Party from and against any and all Indemnified
Amounts relating to or resulting from any of the following:
(i) the creation of the Participation Interest in any Purchased
Receivable which is not at the date of the creation of such Participation
Interest an Eligible Receivable;
(ii) reliance on any representation or warranty made or deemed made by
the Seller or the Company (or any of its respective Responsible Officers)
or any statement made by any Responsible Officer of the Seller or the
Company under or in connection with this Agreement which shall have been
incorrect in any material respect when made;
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(iii) the failure by the Seller or the Company to comply with
any applicable law, rule or regulation;
(iv) the failure to vest in the Buyer an undivided percentage
interest, to the extent of the Participation Interest, in the
Purchased Receivables and Collections in respect thereof, free and
clear of any Lien; (v) the failure to have filed, or any delay in
filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or under any other
applicable law with respect to the assignment of the Participation
Interest;
(vi) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment
of any Purchased Receivable (including, without limitation, a defense
based on such Purchased Receivable or the related Contract not being a
legal, valid and binding obligation of such Obligor enforceable
against it in accordance with its terms), or any other claim resulting
from the sale of the merchandise or service related to such Purchased
Receivable or the furnishing or failure to furnish such merchandise or
services;
(vii) any failure of the Seller or the Company to perform its
duties or obligations in accordance with the provisions of this
Agreement; or
(viii) any products liability claim arising out of or in
connection with merchandise, insurance or services which are the
subject of any Contract.
(c) Promptly upon receipt by any Indemnified Party hereunder of notice
of the commencement of any suit, action, claim, proceeding or governmental
investigation (an "Action"), such Indemnified Party shall, if a claim in respect
thereof is to be made against the Seller hereunder, notify the Seller in writing
of the commencement thereof. The Seller may participate in the defense of any
such Action at its expense, and no settlement thereof shall be made without the
approval of the Seller and the Indemnified Party. The approval of the Seller
will not be unreasonably withheld or delayed. In case any Action shall be
brought against any Indemnified Party, the Seller hall be entitled to
participate in and, to the extent
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that it shall wish, to assume the defense thereof, with counsel satisfactory to
the Indemnified Party, and after notice from the Seller to such Indemnified
Party of its election so to assume the defense thereof, the Seller shall not be
liable to such Indemnified Party for any legal or other expenses subsequently
incurred by such Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation. In any such Action, any Indemnified
Party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless (i) the
Seller and such Indemnified Party shall have mutually agreed in writing to the
retention of such counsel or (ii) the named parties to any such Action
(including any impleaded parties) include both the Seller and such Indemnified
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Seller shall not, in conjunction with any Action or related
Actions in the same jurisdiction, be liable for the fees and expenses of more
that one separate firm in addition to any local counsel for all such Indemnified
Parties, unless (i) the Seller and such Indemnified Parties shall have mutually
agreed in writing to the retention of separate counsel or (ii) the named parties
to any such Action (including any impleaded parties) include such Indemnified
Parties and representation of such Indemnified Parties by the same counsel would
be inappropriate due to actual or potential differing interests between them,
and that all such fees and expenses shall be reimbursed as they are incurred.
(d) The indemnity contained in this Section 11.04 shall survive the
termination of this Agreement.
11.05 Holidays. Except as may be provided in this Agreement to the
--------
contrary, if any payment due hereunder shall be due on a day which is not a
Business Day, such payment shall instead be due the next following Business Day.
11.06 Records. All amounts calculated or due hereunder shall be
-------
determined from the records of the Buyer, which determinations shall be
conclusive absent manifest error.
11.07 Amendments and Waivers. The Buyer, the Company and the
----------------------
Seller may from time to time enter into agreements amending, modifying or
supplementing this Agreement, and the Buyer, in its sole discretion, may from
time to time grant waivers of the provisions of this Agreement or consents to a
departure from the due performance of the obligations of the Seller or the
Company under this Agreement. Any such agreement,
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waiver or consent must be in writing and shall be effective only to the extent
specifically set forth in such writing. Any waiver of any provision hereof, and
any consent to a departure by the Seller from any of the terms of this
Agreement, shall be effective only in the specific instance and for the specific
purpose for which given and if such amendment, waiver or departure would have a
material adverse effect on the rights or obligations the Referral Agent or any
Affected Party, such amendment, departure or waiver shall not be effective until
consented to by the affected party.
11.08 No Implied Waiver; Cumulative Remedies. No course of dealing
--------------------------------------
and no delay or failure of the Buyer in exercising any right, power or privilege
under the Purchase Documents shall affect any other or future exercise thereof
or the exercise of any other right, power or privilege; nor shall any single or
partial exercise of any such right, power or privilege or any abandonment or
discontinuance of steps to enforce such a right, power or privilege preclude any
further exercise thereof or of any other right, power or privilege. The rights
and remedies of the Buyer under the Purchase Documents are cumulative and not
exclusive of any rights or remedies which the Buyer would otherwise have.
11.09 No Discharge. Documents shall be absolute and unconditional
------------
and shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected by (a) any exercise or nonexercise
of any right, remedy, power or privilege under or in respect of the Purchase
Documents or applicable Law, including, without limitation, any failure to set-
off or release in whole or in part by the Buyer of any balance of any deposit
account or credit on its books in favor of the Seller or the Company or any
waiver, consent, extension, indulgence or other action or inaction in respect of
any thereof, or (b) any other act or thing or omission or delay to do any other
act or thing which would operate as a discharge of the Seller or the Company as
a matter of Law.
11.10 Notices. All notices under Section 10.02 hereof shall be given
-------
to the Seller by telephone (confirmed by first-class mail) or facsimile, (which
shall be effective when given by telephone or sent by facsimile) or by first-
class mail, express mail or courier (which shall be effective when deposited in
the mail or delivered to the courier), in all cases with charges prepaid. All
other notices, requests, demands, directions and other communications
(collectively "notices")
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under the provisions of this Agreement shall be in writing (including telexed or
facsimile communication) unless otherwise expressly permitted hereunder and
shall be sent by first-class mail, express mail, or by facsimile, in all cases
with charges prepaid, and any such properly given notice shall be effective when
received. All notices shall be sent to the applicable party at the address
stated on the signature page hereof or in accordance with the last unrevoked
written direction from such party to the other parties hereto.
11.11 Severability. The provisions of this Agreement are intended to be
------------
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
of such provision in any other jurisdiction or the remaining provisions hereof
in any jurisdiction.
11.12 Governing Law. THIS AGREEMENT AND THE CERTIFICATES OF PARTICIPATION
-------------
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK INCLUDING ITS CONFLICT OF LAWS RULES. The Seller hereby consents to the
jurisdiction of the courts of the State of New York and the courts of the United
States located in the State of New York for the purpose of adjudicating any
claim or controversy arising in connection with this Agreement, and for such
purpose, to the extent it may lawfully do so, waives any objection to such
jurisdiction or to venue therein.
11.13 Prior Understandings. This Agreement sets forth the entire
--------------------
understanding of the parties relating to the subject matter hereof, and
supersedes all prior understandings and agreements, whether written or oral.
11.14 Survival. All representations and warranties of the Seller and the
--------
Company contained herein or made in connection herewith or in connection with
the Certificate of Participation shall survive the making thereof, and shall not
be waived by the execution and delivery of this Agreement or the Certificate of
Participation, any investigation by the Buyer, the purchase, repurchase or
payment of the Participation Interest in any Purchased Receivable, or any other
event or condition whatsoever (other than a written waiver complying with
Section 11.07 hereof). All obligations of the Seller to make payments to, or to
indemnify, the Buyer or to repurchase the Participation Interest in the
Purchased Receivables from the Buyer shall survive the payment of all Purchased
Receivables,
70
<PAGE>
the termination of the Purchase Obligation and the termination of all other
obligations of the Seller hereunder and shall not be affected by reason of an
invalidity, illegality or irregularity of any Purchased Receivable. The
covenants and agreements contained in or given pursuant to this Agreement
(including, without limitation, those contained in Article IX) shall continue in
full force and effect until the termination of the Purchase Obligation,
liquidation of the Participation Interest in the Purchased Receivables and
discharge of all other obligations of the Seller and the Company hereunder.
11.15 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
11.16 Set-Off. In case a Termination Event shall occur and be continuing,
-------
the Buyer and, to the fullest extent permitted by Law, the holder of any
assignment of the Buyer's rights hereunder (including without limitation each
Affected Party), shall each have the right, in addition to all other rights and
remedies available to it, without notice to the Seller, to set-off against and
to appropriate and apply to any amount owing by the Seller hereunder which has
become due and payable, any debt owing to, and any other funds held in any
manner for the account of, the Seller by the Buyer or by any holder of any
assignment, including, without limitation, all funds in all deposit accounts
(whether time or demand, general or special, provisionally credited or finally
credited, or otherwise) now or hereafter maintained by the Seller with the Buyer
or any holder of any assignment. Such right shall exist whether or not such debt
owing to, or funds held for the account of, the Seller is or are matured other
than by operation of this Section 11.16 and regardless of the existence or
adequacy of any collateral, guaranty or any other security, right or remedy
available to the Buyer or any holder. Nothing in this Agreement shall be deemed
a waiver or prohibition or restriction of the Buyer's or any holder's rights of
set-off or other rights under applicable Law.
11.17 Time of Essence. Time is of the essence in this Agreement.
---------------
11.18 Payments Set Aside. To the extent that the Seller, the Company or
------------------
any Obligor makes a payment to the Buyer or the Buyer exercises its rights of
set-off and such payment or set-off or any part thereof is subsequently
invalidated,
71
<PAGE>
declared to be fraudulent or preferential, set aside, recovered from, disgorged
by, or is required to be refunded, rescinded, returned, repaid or otherwise
restored to the Seller, the Company, such Obligor, a trustee, a receiver or any
other Person under any Law, including, without limitation, any bankruptcy law,
any state or federal law, common law or equitable cause, the obligation or part
thereof originally intended to be satisfied shall, to the extent of any such
restoration, be reinstated, revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred. The provisions
of this Section 11.18 shall survive the termination of this Agreement.
11.19 No Petition. Each of the Seller and the Company agrees that it will
-----------
not institute against, or join any other Person in instituting against, the
Buyer any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other similar proceeding under the laws of the United States or
any state of the United States. The provisions of this Section 11.19 shall
survive the termination of this Agreement.
11.20 No Recourse. The obligations of the Buyer under this Agreement are
-----------
solely the corporate obligations of the Buyer. No recourse shall be had for the
payment of any amount owing in respect to this Agreement or for the payment of
any fee hereunder or for any other obligation or claim arising out of or based
upon this Agreement against GSS or any stockholder, employee, officer, director
or incorporator of the Buyer or against the Referral Agent or any stockholder,
employee, officer, director, incorporator or affiliate thereof. For purposes of
this paragraph, the term "GSS" shall mean and include Global Securitization
Services, LLC and all Affiliates thereof and any employee, officer, director,
incorporator, shareholder or beneficial owner of any of them; provided, however,
that the Buyer shall not be considered to be an affiliate of GSS or the Referral
Agent.
11.21 Tax Treatment. 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 Buyer to the Seller secured by the Receivables (the "Intended
Characterization"). Each party hereby agrees that will report such transactions
for the purposes of all taxes, and otherwise will act for the purposes of all
taxes, in a manner consistent with the Intended Characterization.
72
<PAGE>
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
signatories, have executed and delivered this Agreement as of the date first
above written.
THREE RIVERS FUNDING CORPORATION
By:/s/ Andrew L. Stidd
-------------------------------------------
Title:/s/ President
----------------------------------------
Address:
c/o Global Securitization Services, LLC
114 West 47/th/ Street, Suite 1715
New York, New York 10036
Attention: Mr. Bernard J. Angelo
Telephone: (212) 302-5151
Facsimile: (212) 302-8767
with a copy of all notices to:
Mellon Bank, N.A., as Referral Agent
One Mellon Bank Center - Room 0410
Pittsburgh, Pennsylvania 15258-0001
Attention: Mr. Jonathan F. Widich
Telephone: (412) 234-0711
Facsimile: (412) 234-5434
EXIDE U.S. FUNDING CORPORATION
By:/s/ Thomas L. O'Neill
-------------------------------------------
Title:/s/ Treasurer
----------------------------------------
Address:
645 Penn Street
Reading, Pennsylvania 19612-4205
Attention: Mr. Thomas L. O'Neill
Telephone: (610) 378-0640
Facsimile: (610) 378-0315
EXIDE CORPORATION
By:/s/ Thomas L. O'Neill
--------------------------------------------
73
<PAGE>
Title:/s/ Assistant Treasurer
---------------------------------------
Address:
645 Penn Street
Reading, Pennsylvania 19612-4205
Attention: Mr. Thomas L. O'Neill
Telephone: (610) 378-0640
Facsimile: (610) 378-0315
74
<PAGE>
EXHIBIT A
TO RECEIVABLES
PURCHASE AGREEMENT
CERTIFICATE OF PARTICIPATION
EXIDE U.S. FUNDING CORPORATION (the "Seller"), having offices located
at 645 Penn Street, Reading, Pennsylvania 19612-4205, hereby sells, assigns,
transfers and conveys to THREE RIVERS FUNDING CORPORATION (the "Buyer") having
offices located at 114 West 47/th/ Street, Suite 1715, New York, New York 10036,
a Participation Interest with a Net Investment as of the date hereof of
$58,361,395.59 in each and every Receivable described on the attached Schedule I
constituting a Receivables Pool and all proceeds thereof and each and every
Receivable hereafter from time to time arising and all proceeds thereof pursuant
to and in accordance with the Amended and Restated Receivables Purchase
Agreement dated as of September 29, 2000, as the same may be amended,
supplemented or otherwise modified and in effect from time to time (the
"Receivables Purchase Agreement"), entered into between the Buyer, Exide
Corporation and the Seller.
The Buyer's undivided percentage ownership interest at any time shall
be calculated in accordance with Article III of the Receivables Purchase
Agreement.
<PAGE>
This Certificate of Participation is issued by the Seller to the Buyer
in substitution for the certificate of participation issued on the Closing Date
pursuant to the Existing RPA.
Capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Receivables Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Certificate on
the 29th day of September, 2000.
EXIDE U.S. FUNDING CORPORATION
By:_____________________________
Authorized Signatory
THREE RIVERS FUNDING CORPORATION
By:_____________________________
Authorized Signatory
2
<PAGE>
EXHIBIT B
TO RECEIVABLES
PURCHASE AGREEMENT
SETTLEMENT STATEMENT
<PAGE>
EXHIBIT C
TO RECEIVABLES
PURCHASE AGREEMENT
RESPONSIBLE OFFICER'S CERTIFICATE
I, ______________, the undersigned ___________ of [EXIDE U.S. FUNDING
CORPORATION] [EXIDE CORPORATION] (the "Company"), a Delaware corporation, DO
HEREBY CERTIFY that:
1. Attached hereto as Exhibit A is a true and complete copy of the
Certificate of Incorporation of the Company as in effect on the date hereof.
2. Attached hereto as Exhibit B is a true and complete copy of the
By-laws of the Company as in effect on the date hereof.
3. Attached hereto as Exhibit C is a true and complete copy of the
resolutions duly adopted by the Board of Directors of the Company on
___________, 2000, authorizing the execution, delivery and performance of each
of the documents mentioned therein, which resolutions have not been revoked,
modified, amended or rescinded and are still in full force and effect.
4. The below-named persons have been duly qualified as and at all
times since ___________, 2000, to and including the date hereof as officers or
representatives of the Company holding the respective offices or positions below
set opposite their names and the signatures below set opposite their names are
their genuine signatures:
Name Office Signatures
---- ------ ----------
President ___________________
Vice President ___________________
Vice President and ___________________
Treasurer
Secretary ___________________
<PAGE>
5. The representations and warranties of the Company contained in
Article VIII of the Amended and Restated Receivables Purchase Agreement dated as
of September 29, 2000 among Exide U.S. Funding Corporation, Exide Corporation
and Three Rivers Funding Corporation are true and correct as if made on the date
hereof.
WITNESS my hand and seal of the Company as of this 27th day of
September, 2000.
_______________________________
Secretary
I, the undersigned, Vice President of the Company, DO HEREBY CERTIFY
that ___________________ is the duly elected and qualified _____________ of the
Company and the signature above is his/her genuine signature.
WITNESS my hand as of this 29th day of September, 2000.
_______________________________
Vice President
2
<PAGE>
EXHIBIT D
TO RECEIVABLES
PURCHASE AGREEMENT
Information Regarding Affiliates
Affiliate Name Ownership Jurisdiction of Incorporation
-------------- --------- -----------------------------
Exide Canada, Inc. 100.00% Canada
Sociedad Espanola del 95.77% Spain
Acumulador Tudor, SA
Sociedad Portugesa do 94.51% Portugal
Acumulador Tudor, SA
(SPAT)
Deutsche Exide GmbH 100.00% Germany
Hagen Batterie, AG 98.50% Germany
Exide Automotive 100.00% Germany
Batterie, GmbH
Exide Batteriewerke, GmbH 100.00% Austria
Mercolec Tudor, BV 100.00% Netherlands
Tudor Hellenic SA 100.00% Greece
Tudor India 75.00% India
Exide Holding Europe SA 100.00% France
Compagnie Europeene d' 100.00% France
Accumulateurs
Batterie Hagen SA 100.00% France
CPM Batterijen NV 99.81% Belgium
<PAGE>
Affiliate Name Ownership Jurisdiction of Incorporation
-------------- --------- -----------------------------
Hagen Batterijen BV 100.00% Netherlands
CMP Batterijen BV 100.00% Netherlands
ATSA Batterijen BV 100.00% Netherlands
Exide Automotive BV 100.00% Netherlands
Industria Composizione 100.00% Italy
Stampate SpA (ICS)
Societa Industriale 100.00% Italy
Accumulatori Srl (SINAC)
Compagnie Generale 100.00% Italy
Accumulatori SpA (CGA)
Accumulatorenfabrik 100.00% Germany
Sonnencshein GmbH
Sonnenschein Lithium GmbH 50.00% Germany
CENTRA Spolka Akcyjna 96.05% Poland
(CENTRA)
INCI CEAc Aku Sanayi; 50.00% Turkey
Anoi Sirketi
Fulmen Iberica S.A. 96.12% Spain
Tudor AB 100.00% Sweden
Exide Sonnak A/S 100.00% Norway
Exide Oy 100.00% Finland
CMP Batteries Limited 100.00% England
TS Batteries Limited 100.00% England
Euro Exide Corporation 100.00% United Kingdom
Limited
Exide Batteries Limited 81.50% United Kingdom
2
<PAGE>
Affiliate Name Ownership Jurisdiction of Incorporation
-------------- --------- -----------------------------
BIG Batteries Limited 81.50% United Kingdom
BIG France SARL 81.50% France
Exide (Holdings) Limited 81.50% United Kingdom
Exide (Dagenham) Limited 81.50% United Kingdom
Exide Batterier AB 81.50% Sweden
Exide France S.A. 100.00% France
Deta Akkumulatorenwerk 100.00% Germany
GmbH
Mareg Accumulatoren GmbH 100.00% Germany
Friemann & Wolff 100.00% Germany
Batterietechnik GmbH
Germala Sweden AB 100.00% Sweden
Fulman UK Limited 100.00% England
Electro Mercantil 95.55% Spain
Industrial S.A.
Exide Holding Asia Pte 100.00% Singapore
Limited
Exide Australia Pty 100.00% Australia
Limited
Exide New Zealand Limited 100.00% New Zealand
Exide Singapore Pte 100.00% Singapore
Limited
GNB Technologies (India) 100.00% India
Private Limited
3
<PAGE>
Affiliate Name Ownership Jurisdiction of Incorporation
-------------- --------- -----------------------------
GNB Technologies China 100.00% China PRC
Limited
Exide Denmark A/S 100.00% Denmark
Exide Italia S.P.A. 100.00% Italy
Exide Lending Limited 100.00% Jersey
Exide Europe Funding Ltd 100.00% Jersey
4
<PAGE>
EXHIBIT E
TO RECEIVABLES
PURCHASE AGREEMENT
Intentionally Omitted
---------------------
<PAGE>
EXHIBIT F
TO RECEIVABLES
PURCHASE AGREEMENT
Intentionally Omitted
---------------------
<PAGE>
EXHIBIT G
TO RECEIVABLES
PURCHASE AGREEMENT
Accounting Period Report
Corporate Accounts
------------------
Roll Forward Analysis (Summary and Detail)
Age Analysis (Summary and Detail)
Accounts Receivable List, including customers' names and
addresses
Branch Accounts
---------------
Summary Age Analysis by Branch
Detailed Age Analysis for each Branch
Summary Roll Forward Analysis by Branch
Detailed Roll Forward for each Branch
Customer Name and Address Listing for each Branch, including
Account Balances
Corporate and Branch Combined
-----------------------------
Defective Analysis
Detailed List of Overbill Balances by Customer
<PAGE>
EXHIBIT H
TO RECEIVABLES
PURCHASE AGREEMENT
Schedule of Accounting Periods
------------------------------
Month Completion Date
---- ---------------
September, 2000 10/1/00
October, 2000 10/29/00
November, 2000 11/26/00
December, 2000 12/31/00
January, 2001 1/28/01
February, 2001 2/25/01
March, 2001 3/31/01
<PAGE>
EXHIBIT I
TO RECEIVABLES
PURCHASE AGREEMENT
Special Concentration Limits
Obligor Percentage
------- ----------
DaimlerChrysler 12%
Ford 15%
Walmart/Sam's Club 15%
Discretionary Special Concentration Limits
Obligor Percentage
------- ----------
Genuine Parts 10%
Corporation
<PAGE>
EXHIBIT J
TO RECEIVABLES
PURCHASE AGREEMENT
EXIDE U.S. FUNDING CORPORATION
PURCHASE NOTICE
Three Rivers Funding Corporation
c/o Global Securitization Services, LLC
114 West 47/th/ Street, Suite 1715
New York, New York 10036
Mellon Bank, N.A.,
as Referral Agent
One Mellon Bank Center - Room 0410
Pittsburgh, Pennsylvania 15258
September __, 2000
Gentlemen:
Reference is hereby made to the Amended and Restated Receivables
Purchase Agreement dated as of September 29, 2000 (the "Agreement") among Exide
U.S. Funding Corporation (the "Seller"), Exide Corporation and Three Rivers
Funding Corporation (the "Buyer"). This Notice is delivered to you pursuant to
Section 4.02(e) of the Agreement. Capitalized terms used herein and not defined
shall have the meanings assigned to them in the Agreement.
The Seller hereby requests that the initial Purchase be made by the
Buyer on September 29, 2000, at a Purchase Price equal to $__________, such
Purchase Price determined as set forth in Schedule A attached hereto and made a
part hereof, utilizing information as of August 31, 2000, in respect of all
Purchased Receivables originated by GNB, and as of August 27, 2000 (the last day
of the most recently completed Accounting Period), in respect of all other
Purchased Receivables.
The Seller hereby certifies and warrants that on the date on which the
Purchase requested hereby is made (and the Seller, by accepting the payment of
the Purchase Price relating to such Purchase, will be deemed to have certified
on such date that) (i) the representations and warranties of the Seller
<PAGE>
contained in Article VIII of the Agreement are true and correct on and as of the
date of such Purchase as though made on and as of such date, (ii) the Seller is
in compliance with the covenants set forth in Article IX of the Agreement and
(iii) no Termination Event or Potential Termination Event shall occur as a
result of, or shall exist on the date of, such Purchase.
The Seller agrees that if, prior to the time that the Purchase
requested hereby is made, any matter certified to herein will not be true and
correct at such time as if then made, it will immediately so notify the Buyer
and the Referral Agent.
The Seller has caused this notice to be executed and delivered, and
the certifications and warranties contained herein to be made, by its duly
authorized officer as of this 27th day of September, 2000.
EXIDE U.S. FUNDING CORPORATION
By:___________________________
Authorized Signatory
2
<PAGE>
EXHIBIT K
TO RECEIVABLES
PURCHASE AGREEMENT
List of Permitted Lockbox Banks
-------------------------------
Lockbox Permitted
Name of Bank Address Account # Lockbox #
------------ ------- --------- ---------
Harris Trust & Chicago, Illinois 4266375 Attention:
Savings Bank Check
Processing
311/5
First Union Philadelphia, 200081- 9535
National Bank Pennsylvania 2947715
Citibank, N.A. Carol Stream, Illinois 40803027 2602
40803035 2610
40803043 2616
The Toronto- Fort Erie, Ontario 73152551
Dominion Bank
<PAGE>
EXHIBIT L
TO RECEIVABLES
PURCHASE AGREEMENT
Dilution Horizons
-----------------
Dilution Factor Dilution Horizon
--------------- ----------------
Credits 1
Cancellations 1
Cash discounts 1
Warranties 3
Allowances 1
Disputes 1
Rebates 1
Charge backs 1
Returned or repossessed goods 0
Other allowances, adjustments and deductions (including, without limitation, any
special or other discounts or any reconciliations) that are given to an Obligor
in accordance with the Credit and Collection Policy 0
<PAGE>
EXHIBIT M
TO RECEIVABLES
PURCHASE AGREEMENT
Excluded Obligors
-----------------
None
