UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): August 15, 2014
Commercial Metals Company
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
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| 1-4304 |
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75-0725338 |
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(IRS Employer Identification No.) |
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| 6565 N. MacArthur Blvd.
Irving, Texas |
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75039 |
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(Zip Code) |
(214) 689-4300
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
Commercial Metals Company (the “Company”) has entered into Omnibus Amendment No. 2, dated as of August 15,
2014 (the “Amendment”), to the Receivables Sales Agreement, Receivables Purchase Agreement and Performance Undertaking (collectively, the “Agreements”), by and among the Company, as servicer and
provider of the Performance Undertaking, certain subsidiaries of the Company parties thereto, as originators, CMC Receivables, Inc., a Delaware corporation and wholly-owned subsidiary of the Company (“CMCR”), the conduit
purchasers party thereto, the committed purchasers party thereto, Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch (“Rabobank”) in its capacity as administrator of the
Nieuw Amsterdam Funding Group, BMO Capital Markets Corp. (“BMO”) in its capacity as administrator of the Fairway Funding Group and Wells Fargo Bank, N.A., as a committed purchaser and as administrative agent.
The Amendment extends the termination date of the Receivables Purchase Agreement, dated as of April 5, 2011, by and among the Company,
CMCR, certain purchasers and Wells Fargo Bank, N.A., as administrative agent for the purchasers, as amended (the “RPA”), as described below, and updates and modifies certain provisions of all three of the Agreements to
reflect the assignment by The Bank of Nova Scotia and Liberty Street Funding LLC to Rabobank, BMO and the members of their respective Funding Groups, as applicable, and to make the changes described below, in each case as more fully described in the
Amendment.
The Amendment modifies the RPA in order to (i) modify the definition of “Facility Termination Date” to mean the
earlier of (a) August 15, 2017 and (b) the Amortization Date, (ii) update certain financial covenants, amortization events, reporting requirements and related definitions to be consistent with corresponding provisions in the
Senior Credit Agreement, (iii) allow for the replacement of a Defaulting Purchaser by the Administrative Agent and the Company, (iv) modify the definition of “Eligible Receivable” to permit up to (and including) 2% of the
aggregate Outstanding Balance of all Receivables to be Foreign Receivables, (v) modify the definition of “Purchase Limit” to provide for an increase of the Purchase Limit from $200,000,000 to $300,000,000 upon the satisfaction of
certain conditions specified therein and (vi) modify certain other provisions related to taxes, indemnities, increased costs, yield, funding costs and broken funding costs in connection with the RPA, in each case as more fully described in the
Amendment.
Capitalized terms used but not defined in this Current Report on Form 8-K have the meanings assigned to such terms in the RPA,
a copy of which was filed as Exhibit 10.4 to the Company’s Form 10-Q for the quarterly period ended February 28, 2011, as amended by Amendment No. 1 to the Receivables Purchase Agreement, dated December 28, 2011, by and among the
Company, CMCR, Wells Fargo Bank, N.A., The Bank of Nova Scotia and Liberty Street Funding LLC, a copy of which was filed as Exhibit 10.2 to the Company’s Form 8-K filed January 3, 2012, Omnibus Amendment No. 1 (Amendment No. 2 to
Receivables Sale Agreement, Amendment No. 2 to Receivables Purchase Agreement, and Amendment No. 2 to Performance Undertaking), dated May 3, 2013, by and among the Company, individually and as provider of the Performance Undertaking,
CMC Cometals Processing, Inc., Howell Metal Company, Structural Metals, Inc., CMC Steel Fabricators, Inc., SMI Steel LLC, SMI-Owen Steel Company, Inc., Owen Electric Steel Company of South Carolina, AHT, Inc., CMCR, Liberty Street Funding LLC, The
Bank of Nova Scotia, individually and in its capacity as administrator of the Liberty Street Funding Group, and Wells Fargo Bank, N.A., individually and as administrative agent, a copy of which was filed as Exhibit 10.3 to the Company’s Form
10-Q for the quarter ended May 31, 2013, and the Amendment, which is filed as Exhibit 10.1 to this Current Report on Form 8-K.
The
foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is incorporated herein by reference.
| Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(d) On August 20, 2014, the board of directors (the “Board”) of the Company, pursuant to applicable provisions of
the Company’s Restated Certificate of Incorporation, as amended, and Second Amended and Restated Bylaws, voted to increase the size of the Board from ten persons to 11 persons. In addition, the Board appointed Vicki L. Avril to fill the newly
created vacancy on the Board and to serve as a Class I director of the Company, effective as of August 20, 2014. As such, Ms. Avril will stand for re-election at the Company’s 2017 annual meeting of stockholders. The Board appointed
Ms. Avril to serve on the Audit Committee of the Board.
From 2008 to 2013, Ms. Avril served as President and Chief Executive Officer of IPSCO
Tubulars, Inc. Ms. Avril served in various capacities at IPSCO Inc. from 2004 to 2007, including Senior Vice President, IPSCO Tubular Operations, Senior Vice President and Chief Financial Officer, and she served as Senior Vice President and
Chief Financial Officer of Wallace Computer Services, Inc. from 2001 to 2003. Prior thereto, Ms. Avril served in a variety of roles at Inland Steel Industries Inc. from 1976 to 1998 before being named Vice President Finance and Chief Financial
Officer in 1998. Ms. Avril currently serves as director of Greif, Inc. and Global Brass and Copper Holdings, Inc.
As compensation
for her service on the Board, Ms. Avril will receive the Company’s standard compensation for non-employee directors. There are no arrangements or understandings between Ms. Avril and any other persons pursuant to which Ms. Avril
was named a director of the Company. Ms. Avril does not have any family relationship with any of the Company’s directors or executive officers or any persons nominated or chosen by the Company to be a director or executive officer.
Ms. Avril does not have any direct or indirect material interest in any transaction or proposed transaction required to be reported under Item 404(a) of Regulation S-K or Item 5.02(d) of Form 8-K.
Item 9.01 Financial Statements and Exhibits.
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| Exhibit No. |
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Description of Exhibit |
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| 10.1 |
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Omnibus Amendment No. 2, dated as of August 15, 2014, to the Receivables Sales Agreement, Receivables Purchase Agreement and Performance Undertaking, by and among the Company, as servicer and provider of the Performance Undertaking,
certain subsidiaries of the Company parties thereto, as originators, CMC Receivables, Inc., the conduit purchasers party thereto, the committed purchasers party thereto, Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank
Nederland”, New York Branch in its capacity as administrator of the Nieuw Amsterdam Funding Group, BMO Capital Markets Corp. in its capacity as administrator of the Fairway Funding Group and Wells Fargo Bank, N.A., as a committed purchaser and
as administrative agent. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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COMMERCIAL METALS COMPANY |
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| Date: August 21, 2014 |
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By: |
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/s/ Paul K. Kirkpatrick |
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Name: |
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Paul K. Kirkpatrick |
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Title: |
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Vice President, General Counsel and Corporate Secretary |
EXHIBIT INDEX
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| Exhibit No. |
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Description of Exhibit |
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| 10.1 |
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Omnibus Amendment No. 2, dated as of August 15, 2014, to the Receivables Sales Agreement, Receivables Purchase Agreement and Performance Undertaking, by and among the Company, as servicer and provider of the Performance Undertaking,
certain subsidiaries of the Company parties thereto , as originators, CMC Receivables, Inc., the conduit purchasers party thereto, the committed purchasers party thereto, Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank
Nederland”, New York Branch in its capacity as administrator of the Nieuw Amsterdam Funding Group, BMO Capital Markets Corp. in its capacity as administrator of the Fairway Funding Group and Wells Fargo Bank, N.A., as a committed purchaser and
as administrative agent. |
Exhibit 10.1
OMNIBUS AMENDMENT NO. 2
Amendment
No. 3 to Receivables Sale Agreement,
Amendment No. 3 to Receivables Purchase Agreement,
and
Amendment No. 3 to
Performance Undertaking
THIS OMNIBUS AMENDMENT NO. 2 (this “Amendment”) is entered into as of August 15, 2014 (the
“Effective Date”), by and among Commercial Metals Company, a Delaware corporation (“CMC”), as servicer (the “Servicer”) and as provider of the Performance Undertaking (the
“Performance Guarantor”), CMC Cometals Processing, Inc., a Texas corporation (“Cometals Processing”), Structural Metals, Inc., a Texas corporation (“SMI”), CMC Steel
Fabricators, Inc., a Texas corporation (“CMC Steel”), SMI Steel LLC, an Alabama limited liability company (previously known as SMI Steel Inc., an Alabama corporation) (“SMI Steel”), Owen Electric Steel
Company of South Carolina, a South Carolina corporation (“Owen Electric”), AHT, Inc., a Pennsylvania corporation (“AHT”, together with CMC, Cometals Processing, SMI, CMC Steel, SMI Steel, and Owen
Electric, the “Originators”), CMC Receivables, Inc., a Delaware corporation (the “SPE”), Wells Fargo Bank, N.A. (“WFB” or a “Committed Purchaser”),
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch (“Rabobank” or a “Committed Purchaser”), Bank of Montreal (“BMO” or a
“Committed Purchaser”), Nieuw Amsterdam Receivables Corporation, a Delaware corporation (“Nieuw Amsterdam” or a “Conduit Purchaser”), Fairway Finance Company, LLC, a Delaware
limited liability company (“Fairway” or a “Conduit Purchaser”; the Conduit Purchasers and the Committed Purchasers, the “Purchasers”), Coöperatieve Centrale
Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch in its capacity as administrator of the Nieuw Amsterdam Funding Group (in such capacity, together with its successor and assigns in such capacity, the “Nieuw
Amsterdam Administrator”), BMO Capital Markets Corp. in its capacity as administrator of the Fairway Funding Group (in such capacity, together with its successor and assigns in such capacity, the “Fairway
Administrator” and together with the Nieuw Amsterdam Administrator, the “Administrators”), and Wells Fargo Bank, N.A., individually (a “Purchaser”), and as administrative agent for the
Purchasers (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”).
Preliminary Statements
A. The Originators and the SPE are parties to that certain Receivables Sale Agreement dated as of April 5, 2011 (as
amended, restated, or modified from time to time, the “Sale Agreement”).
B. The SPE, CMC, the
Purchasers and the Administrative Agent, are parties to that certain Receivables Purchase Agreement dated as of April 5, 2011 (as amended, restated, or modified from time to time, the “Purchase Agreement”), and the
Administrators desire to become parties thereto.
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C. The Performance Guarantor and the SPE are parties to that certain Performance
Undertaking dated as of April 5, 2011 (as amended, restated, or modified from time to time, the “Performance Undertaking,” and together with the Sale Agreement and the Purchase Agreement, the
“Agreements” ).
D. The parties hereto desire to amend the Agreements on the terms and subject to
the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein are used with the meanings attributed thereto in the
Agreements.
2. Joinder. On the terms and subject to the conditions set forth herein, (a) BMO Capital Markets Corp.
hereby joins the Purchase Agreement as the Fairway Administrator, and (b) Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch hereby joins the Purchase Agreement as the Nieuw Amsterdam
Administrator.
3. Amendments. On the terms and subject to the conditions set forth herein, the Sale Agreement is amended in
accordance with Exhibit A hereto, the Purchase Agreement is amended in accordance with Exhibit B hereto, and the Performance Undertaking is hereby amended in accordance with Exhibit C hereto, in each of the foregoing cases:
(a) by deleting each term thereof which is lined out and (b) by inserting each term thereof which is double-underlined, in each case in the place where such term appears therein. For the avoidance of doubt, notwithstanding anything to the
contrary contained in any prior amendment or amendments to any of the Agreements, (i) the Sale Agreement set forth in Exhibit A hereto reflects the current agreement of the parties hereto as to all of the terms and provisions of the Sale
Agreement as of the date hereof, (ii) the Purchase Agreement set forth in Exhibit B hereto reflects the current agreement of the parties hereto as to all of the terms and provisions of the Purchase Agreement as of the date hereof, and
(iii) the Performance Undertaking set forth in Exhibit C hereto reflects the current agreement of the parties hereto as to all of the terms and provisions of the Performance Undertaking as of the date hereof.
4. Effect of Amendment. Except as specifically amended hereby, each of the Agreements shall remain in full force and
effect. This Amendment shall not constitute a novation of any of the Agreements but shall constitute an amendment to each of the Agreements to the extent set forth herein. Upon effectiveness of this Amendment and the issuance of the new Subordinated
Notes referenced in Section 6.1f below, the existing Subordinated Notes shall be deemed to be immediately cancelled.
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5. Representations and Warranties. In order to induce the Administrative Agent, the
Administrators and the Purchasers to enter into this Amendment:
5.1. Each of the Originators hereby represents and warrants that
(i) its execution and delivery of this Amendment is within its corporate or limited liability company powers and authority and has been duly authorized by all necessary corporate or limited liability company action on its part, (ii) this
Amendment has been duly executed and delivered by it, (iii) each of its representations and warranties set forth in Article II of the Sale Agreement is true and correct on and as of the Effective Date as though made on and as of each such date,
except to the extent such representations and warranties expressly relate to an earlier date, in which case each of such representations and warranties remains true and correct in all material respects as of such earlier date, and (iv) no event
has occurred and is continuing that will constitute a Termination Event or an Unmatured Termination Event on and as of the Effective Date.
5.2. Each of the SPE and CMC, hereby represents and warrants that (i) its execution and delivery of this Amendment is within its
corporate powers and authority and has been duly authorized by all necessary corporate action on its part, (ii) this Amendment has been duly executed and delivered by it, (iii) each of its representations and warranties set forth in
Article III of the Purchase Agreement is true and correct on and as of the Effective Date as though made on and as of each such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case each of
such representations and warranties remains true and correct in all material respects as of such earlier date, (iv) in the case of CMC, each of its representations and warranties set forth in Section 6 of the Performance Undertaking is
true and correct on and as of the Effective Date as though made on and as of each such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case each of such representations and warranties
remains true and correct in all material respects as of such earlier date (v) no event has occurred and is continuing that will constitute a Termination Event or an Unmatured Termination Event on and as of the Effective Date, and (vi) no
Investment Excess exists on and as of the Effective Date.
6. Conditions Precedent. Effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions precedent on or prior to the Effective Date:
6.1. Documents and
Fees. The Administrative Agent’s counsel shall have received:
a. counterparts hereof, duly executed by each
of the parties hereto,
b. counterparts of a new Fee Letter dated as of the date hereof, duly executed by each of the
parties thereto;
c. a fully executed copy of that certain Assignment Agreement, entered into as of the date hereof and
effective prior to this Amendment, by and among Liberty Street Funding LLC (“Liberty Street Funding”), as assigning conduit purchaser, The Bank of Nova Scotia (“Scotiabank”), as assigning committed
purchaser, Rabobank, as assignee committed purchaser, Nieuw Amsterdam Receivables Corporation, as assignee conduit purchaser, and the SPE;
d. a fully executed copy of that certain Assignment Agreement, entered into as of the date hereof and effective prior to this
Amendment, by and
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among Liberty Street Funding, as assigning conduit purchaser, Scotiabank, as assigning committed purchaser and as Liberty Street Administrator, BMO, as assignee committed purchaser, the Fairway
Administrator, Fairway, as assignee conduit purchaser, and the SPE;
e. opinions of counsel to the Originators, the SPE,
the Servicer and the Performance Guarantor in form and substance reasonably satisfactory to the Administrative Agent and the Administrators covering customary corporate, limited liability company, enforceability and Uniform Commercial Code matters,
as well as the existence of a true sale under the Sale Agreement and substantive non-consolidation of the SPE with the Originators, the Servicer and the Performance Guarantor;
f. new Subordinated Notes executed by the SPE in favor of each of the Originators;
g. payment of the Administrative Agent’s legal fees in connection with the preparation and closing of this Amendment; and
6.2. Payment of Upfront Fees. Each of the Administrators or Purchasers to which any upfront fee is due under the Fee Letter
referenced in Section 6.1b above shall have received payment of such fee in immediately available funds; and
6.3.
Representations and Warranties. Each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct as of the Effective Date.
7. Miscellaneous.
7.1. GOVERNING LAW. AS TO ITS IMPACT ON EACH OF THE AGREEMENTS AMENDED HEREBY, THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE SAME LAWS THAT GOVERN SUCH AGREEMENT.
7.2. CONSENT TO JURISDICTION. EACH PARTY HERETO HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE AGREEMENTS AS AMENDED
HEREBY, OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AMENDMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY PARTY HERTO TO BRING PROCEEDINGS
AGAINST ANY OTHER PARTY HERETO IN
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THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY PARTY HERETO INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS
AMENDMENT OR ANY DOCUMENT EXECUTED BY SUCH PARTY PURSUANT TO THIS AMENDMENT SHALL BE BROUGHT ONLY IN A COURT IN THE BOROUGH OF MANHATTAN, NEW YORK.
7.3. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT, THE AGREEMENTS AS AMENDED BY THIS AMENDMENT, ANY DOCUMENT EXECUTED BY ANY PARTY HERETO PURSUANT TO THE
AGREEMENTS OR THIS AMENDMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
7.4. Integration; Binding Effect.
THIS AMENDMENT AND EACH OTHER TRANSACTION DOCUMENT CONTAIN THE FINAL AND COMPLETE INTEGRATION OF ALL PRIOR EXPRESSIONS BY THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SHALL CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO
WITH RESPECT TO THE SUBJECT MATTER HEREOF SUPERSEDING ALL PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN UNDERSTANDINGS. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES HERETO WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND
THE OTHER TRANSACTION DOCUMENTS. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including any trustee in bankruptcy).
7.5. Counterparts; Severability. This Amendment may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Amendment. To the fullest extent permitted by applicable law, delivery of an executed
counterpart of a signature page of this Amendment by telefacsimile or electronic image scan transmission (such as a “pdf” file) will be effective to the same extent as delivery of a manually executed original counterpart of this Amendment.
Any provisions of this Amendment which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
7.6. Reaffirmation. Except as expressly modified herby, each of the Agreements is hereby ratified and remains unaltered and in
full force and effect.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered by their duly authorized officers as of the date hereof.
CMC RECEIVABLES, INC., AS SELLER
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| Name: |
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Carey J. Dubois |
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Treasurer |
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COMMERCIAL METALS COMPANY, AS AN ORIGINATOR,
THE SERVICER AND THE PERFORMANCE GUARANTOR
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| Name: |
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Carey J. Dubois |
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Vice President & Treasurer |
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CMC COMETALS PROCESSING, INC., AS AN ORIGINATOR
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/s/ Paul K. Kirkpatrick |
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| Name: |
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Paul K. Kirkpatrick |
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Secretary |
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STRUCTURAL METALS, INC., AS AN ORIGINATOR
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| Name: |
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Carey J. Dubois |
| Title: |
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Treasurer |
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CMC STEEL FABRICATORS, INC., AS AN ORIGINATOR
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| Name: |
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Carey J. Dubois |
| Title: |
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Treasurer |
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SMI STEEL LLC, AS AN ORIGINATOR
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| Name: |
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Carey J. Dubois |
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Treasurer |
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OWEN ELECTRIC STEEL COMPANY OF SOUTH CAROLINA, AS AN
ORIGINATOR
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| Name: |
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Carey J. Dubois |
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Treasurer |
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AHT, INC., AS AN ORIGINATOR
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| Name: |
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Carey J. Dubois |
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Treasurer |
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WELLS FARGO BANK, N.A., AS A COMMITTED
PURCHASER AND AS ADMINISTRATIVE AGENT
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/s/ William P. Rutkowski |
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| Name: |
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William P. Rutkowski |
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Vice President |
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
“RABOBANK NEDERLAND”, NEW YORK BRANCH, AS A COMMITTED PURCHASER AND
AS NIEUW AMSTERDAM ADMINISTRATOR
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Raymond Dizon |
| Title: |
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Executive Director |
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Christopher Lew |
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Vice President |
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BMO CAPITAL MARKETS CORP., AS FAIRWAY ADMINISTRATOR
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| Name: |
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Bart Steenbergen |
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Managing Director |
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BANK OF MONTREAL, AS A COMMITTED PURCHASER
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Ann Kozak |
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Vice President |
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NIEUW AMSTERDAM RECEIVABLES CORPORATION, AS A CONDUIT
PURCHASER
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Damian Perez |
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Vice President |
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FAIRWAY FINANCE COMPANY, LLC, AS A CONDUIT
PURCHASER
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| By: |
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/s/ Michael R. Newell |
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| Name: |
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Michael R. Newell |
| Title: |
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Vice President |
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EXECUTION VERSION
EXHIBIT A TO OMNIBUS
AMENDMENT NO. 2
RECEIVABLES SALE AGREEMENT
DATED AS OF APRIL 5, 2011
AS AMENDED BY OMNIBUS
AMENDMENT NO. 2 DATED AS OF AUGUST 15, 2014
by and between
COMMERCIAL METALS COMPANY
CMC COMETALS PROCESSING, INC.
HOWELL METAL COMPANY
STRUCTURAL METALS, INC.
CMC STEEL FABRICATORS, INC.
SMI STEEL INC.LLC
SMI OWEN ELECTRIC STEEL COMPANY
OF SOUTH CAROLINA, INC.
AND
AHT, INC.,
as the
Originators,
and
CMC RECEIVABLES, INC.,
as the Buyer
Receivables
Sale Agreement
TABLE OF CONTENTS
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PAGE |
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| Article I Amounts and Terms |
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2 |
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| Section 1.1. |
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Purchase and Contribution of Receivables |
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2 |
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| Section 1.2. |
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Payment for the Purchase. |
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3 |
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| Section 1.3. |
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Purchase Price Credit Adjustments |
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5 |
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| Section 1.4. |
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Payments and Computations, Etc. |
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6 |
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| Section 1.5. |
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Transfer of Records |
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| Section 1.6. |
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Characterization |
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| Article II Representations and Warranties |
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8 |
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| Section 2.1. |
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Representations and Warranties of Each of the Originators |
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| Article III Conditions of Purchase |
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13 |
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| Section 3.1. |
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Conditions Precedent to Closing |
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| Section 3.2. |
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Conditions Precedent to Subsequent Payments |
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| Article IV Covenants |
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14 |
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| Section 4.1. |
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Affirmative Covenants of Each of the Originators |
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| Section 4.2. |
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Negative Covenants of the Each of the Originators |
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17 |
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| Article V Termination Events |
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19 |
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| Section 5.1. |
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Termination Events |
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19 |
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| Section 5.2. |
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Remedies |
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20 |
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| Article VI Indemnification |
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20 |
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| Section 6.1. |
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Indemnities by the Each of the Originators |
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20 |
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| Section 6.2. |
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Other Costs and Expenses |
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23 |
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| Article VII Miscellaneous |
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23 |
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| Section 7.1. |
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Waivers and Amendments |
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23 |
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| Section 7.2. |
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Notices |
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23 |
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| Section 7.3. |
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Protection of Ownership Interests of the Buyer |
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24 |
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| Section 7.4. |
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Confidentiality |
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25 |
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| Section 7.5. |
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Bankruptcy Petition |
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26 |
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| Section 7.6. |
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Amounts to be paid by Buyer |
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26 |
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| Section 7.7. |
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Setoff |
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26 |
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| Section 7.8. |
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CHOICE OF LAW |
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26 |
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| Section 7.9. |
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CONSENT TO JURISDICTION |
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26 |
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| Section 7.10. |
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WAIVER OF JURY TRIAL |
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27 |
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| Section 7.11. |
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Integration; Binding Effect; Survival of Terms |
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27 |
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| Section 7.12. |
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Counterparts; Severability; Section References |
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28 |
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| Section 7.13. |
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PATRIOT Act |
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28 |
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Receivables Sale Agreement |
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i |
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Exhibits
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| Exhibit I |
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Definitions |
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| Exhibit II |
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Jurisdiction of IncorporationOrganization; Organizational Identification Number; Principal Places of Business; Chief Executive Office; Locations of
Records; Federal Employer Identification Number; Other Names |
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| Exhibit III |
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Lock-Boxes; Collection Accounts; CollectionLock-Box Banks |
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| Exhibit IV |
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Form of Compliance Certificate |
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| Exhibit V |
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Form of Subordinated Note |
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| Exhibit VI |
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Form of Purchase Report |
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| Schedules |
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| Schedule A |
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Documents to be Delivered to Buyer on or Prior to the Closing Date |
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| Schedule B |
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Provisions to be included in any pledge |
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Receivables Sale Agreement |
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ii |
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RECEIVABLES SALE AGREEMENT
THIS RECEIVABLES SALE AGREEMENT, dated as of April 5, 2011 (as amended, restated, supplemented or otherwise modified from
time to time, this “Agreement”), is by and among COMMERCIAL METALS COMPANY, a Delaware corporation (“CMC”), CMC COMETALS PROCESSING, INC., a Texas corporation (“Cometals
Processing”), HOWELL METAL COMPANY, a Virginia corporation (“Howell”), STRUCTURAL METALS, INC., a Texas corporation (“SMI”), CMC STEEL FABRICATORS,
INC., a Texas corporation (“CMC Steel”), SMI STEEL INC.LLC, an Alabama
corporationlimited liability company (“SMI Steel”), SMI-OWEN
ELECTRIC STEEL COMPANY, INC. OF SOUTH CAROLINA, a South Carolina corporation (“SMI
Owen Electric”), and AHT, INC., a Pennsylvania corporation (“AHT”, together with CMC, Cometals Processing, Howell,
SMI, CMC Steel, SMI Steel, and SMI Owen Electric, the “Originators” and each of the Originators other than CMC, a
“Subsidiary Originator”), and CMC RECEIVABLES, INC., a Delaware corporation (the “Buyer”). Unless defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings
assigned to such terms in Exhibit I attached hereto (or, if not defined in Exhibit I attached hereto, the meanings assigned to such terms in Exhibit I to the Purchase Agreement).
PRELIMINARY STATEMENTS
The Originators now own, and from time to time hereafter will own, certain Receivables. Upon the terms and conditions
hereinafter set forth, (a) CMC wishes (i) to sell and assign to the Buyer, and the Buyer wishes to purchase from CMC, all of CMC’s right, title and interest in and to all of
CMC’s existing and future Receivables (other than Contributed Receivables), together with the Related Security and Collections with respect thereto and all proceeds of the foregoing and (ii) to contribute to the Buyer’s capital
all of CMC’s right, title and interest in and to all of CMC’s existing and future Contributed Receivables, together with the Related Security and Collections with respect thereto
and all proceeds of the foregoing, and the Buyer wishes to accept such capital contributions, and (b) each Subsidiary Originator wishes to sell and assign to the Buyer, and the Buyer wishes to purchase from such Subsidiary Originator, all of
each such Subsidiary Originator’s right, title and interest in and to all existing and future Receivables, together with the Related Security and Collections with respect thereto and all proceeds of the foregoing.
Each Originator and the Buyer intend the transactions contemplated hereby to be true sales (and, solely in the case of
CMCany contribution by CMC pursuant to clause (a)(ii) of the immediately preceding paragraph, true contributions) of the Receivables Assets from the Originators to the
Buyer, providing the Buyer with the full benefits of ownership of the Receivables Assets, and none of the Originators and the Buyer intend these transactions to be, or for any purpose to be characterized as, loans from the Buyer to any Originator
secured by the Receivables Assets.
Receivables Sale
Agreement
Immediately following its acquisition of the Receivables Assets from the
Originators, the Buyer will sell the Receivables to certain purchasers pursuant to that certain Receivables Purchase Agreement dated as of April 5, 2011 (as the same may from time to time hereafter be amended, supplemented, restated or
otherwise modified, the “Purchase Agreement”) among the Buyer, the Servicer, the Purchasers and Administrative Agent from time to time party thereto and Wells Fargo
Bank, N.A., as administrative agent for the Purchasers (together with its successors and permitted assigns in such capacity, the “Administrative Agent”).
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Article
I
Amounts and Terms
Section 1.1. Purchase and Contribution of Receivables.
(a) Effective onas of the Closing Date: (i) CMC hereby
contributes, assigns, transfers, sets-over and otherwise conveys to the Buyer’s capital, without recourse to CMC (except to the extent expressly provided herein), and the Buyer hereby accepts, all of CMC’s right, title and
interest in and to all of CMC’s Receivables existing as of the close of business on the Initial Cutoff Date and thereafter arising through and including the Termination Date
(August 14, 2014; and (ii) CMC hereby contributes, assigns, transfers and otherwise conveys to the Buyer’s capital, without recourse to CMC (except to the extent expressly
provided herein), and the Buyer hereby accepts, all of CMC’s right, title and interest in and to all of CMC’s Receivables existing as of the close of business on the August 15, 2014 and thereafter arising through and including the
Termination Date to the extent necessary to cause the Outstanding Balance of the contributed Receivables to be equal to the Required Contributed Amount (the Receivables described in clauses (i) and
(ii), collectively, the “Contributed Receivables”), together with all Related Security and Collections associated therewith (collectively, the
“Contributed Receivables Assets”); and (ii). Effective as of August 15, 2014 (in the case of CMC) and effective as of the Closing Date (in the case
of each Subsidiary Originator), in consideration for the Purchase Price and upon the terms and subject to the conditions set forth herein, each of the Subsidiary Originators hereby sells, assigns, transfers,
sets-over and otherwise conveys to the Buyer, without recourse (except to the extent expressly provided herein), and the Buyer hereby purchases from each Subsidiary Originator, all of such Subsidiary
Originators’ right, title and interest in and to all Receivables (other than Contributed Receivables) existing as of the close of business on the Initial Cutoff Date and all
Receivables (other than Contributed Receivables) thereafter arising through and including the Termination Date (collectively, the “Purchased Receivables”), together,
in each case, with all Related Security relating thereto and all Collections thereof (collectively, the “Purchased Receivables Assets”, together with the Contributed Receivables Assets, the “Receivables
Assets”). In accordance with the preceding sentence, on the Closing Date the Buyer shall acquire all of the Originators’ right, title and interest in and to the Contributed Receivables Assets and the Purchased Receivables Assets.
The Buyer shall be obligated to pay the Purchase Price for each Receivable purchased from a Subsidiaryeach Originator hereunder in accordance with Section 1.2.
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(b) On the Monthly Reporting Date the Originators shall (or shall require the
Servicer to) deliver to the Buyer a report in substantially the form of Exhibit VI hereto (each such report, a “Purchase Report”) with respect to the Receivables sold and/or contributed by the Originators to the Buyer
during such Calculation Period.
(c) It is the intention of the parties hereto that each transfer of Receivables hereunder
shall constitute a true sale and/or contribution, which sale and/or contribution, as the case may be, is absolute and irrevocable and provides the Buyer with the full benefits of ownership of the Receivables and the associated Related Security and
Collections. Except for the Purchase Price Credits owed pursuant to Section 1.3, each transfer of Receivables Assets hereunder is made without recourse to any of the Originators; provided, however, that
(i) each Originator shall be liable to the Buyer for all representations, warranties, covenants and indemnities made by it pursuant to the terms of the Transaction Documents to which it is a party, and (ii) such transfer does not
constitute and is not intended to result in an assumption by the Buyer or any assignee thereof of any obligation of the Originators or any other Person arising in connection with the Receivables Assets or any other obligations of the Originators. In
view of the intention of the parties hereto that each purchase and contribution shall constitute a true sale and/or true contribution of Receivables and the associated Related Security and Collections, rather than a loan secured thereby, each
Originator agrees that it will, on or prior to the Closing Date and in accordance with Section 4.1(e)(ii), mark its master data processing records relating to the Receivables with a legend acceptable to the Buyer and to the
Administrative Agent (as the Buyer’s assignee), evidencing that the Buyer has acquired such Receivables as provided in this Agreement and to note in its financial statements that its Receivables have been absolutely sold or contributed to the
Buyer. Upon the request of the Buyer or the Administrative Agent (as the Buyer’s assignee), each Originator will execute (if required) and file or authorize the filing of such financing statements, continuation statements, and amendments
thereto or assignments thereof, and such other instruments or notices, as may be necessary or appropriate to perfect and maintain the perfection of the Buyer’s ownership interest in the Receivables Assets, or as the Buyer or the Administrative
Agent (as the Buyer’s assignee) may reasonably request.
Section 1.2. Payment for the Purchase.
(a) On the Closing Date, immediately after the Buyer’s acceptance of the contribution of the Contributed Receivables Assets from
CMC, the Purchase Price for all other Receivables Assets in existence as of the close of business on the Initial Cutoff Date shall be payable in full by the Buyer to the applicable Subsidiary Originator by delivery
of a Subordinated Note by Buyer to the applicable Subsidiary Originator in an aggregate principal amount not to exceed the lesser of (i) the Purchase Price therefor and (ii) the maximum
loan (each such loan, a “Subordinated Loan”) that could be borrowed by the Buyer from the applicable Subsidiary Originator without rendering the Buyer’s Net Worth less than the Required
Capital Amount. Prior to August 15, 2014, all Receivables were paid for in accordance with the terms of this Agreement as in effect without giving effect to Omnibus Amendment
No. 2.
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(b) TheOn each Payment
Date on and after August 15, 2014, the Purchase Price for each Purchased Receivable coming into existence after the Initial Cutoff Date shall become owing in full
by the Buyer to the applicable Subsidiary Originator or its designee on the date each such Receivable comes into existence and shall be paid to the applicable Subsidiary Originator on the next succeeding
Monthly Settlement Date in the following manneras follows:
(i) by delivery ofon the terms and subject to the
conditions set forth in this Agreement and the Purchase Agreement, the Buyer shall pay to CMC, for the ratable account of the applicable Originators, in immediately available funds, to the extent of Available Cash; and/or
on such date, in the following order:
first, the Purchase Price for the Receivables sold by each Originator hereunder
on such Payment Date; and
second, to reduce the principal amount
outstanding under each Originator’s Subordinated Note to zero;
(ii) by an increase in
theto the extent that any portion of the Purchase Price owing to an Originator remains unpaid, the principal amount then outstanding under the
applicablesuch Originator’s Subordinated Note shall be automatically increased by an amount equal to the remaining
unpaid portion of such Purchase Price, but subject to the limitations set forth in Section 1.2(ac).; and
(iii) to the extent that the Buyer is entitled to any Purchase Price
Credit pursuant to Section 1.3 in respect of Receivables sold by an Originator and the amount of such Purchase Price Credit exceeds the Purchase Price that would have been owed by such Buyer to such Originator under clause (i) above
without taking such Purchase Price Credit into the calculation of such price, the principal amount outstanding under such Originator’s Subordinated Note shall be automatically decreased (to a balance not less than zero).
(c) Subject to the limitations set forth in Section 1.2(a), each
SubsidiaryTo the extent that the Buyer does not have sufficient Available Cash to pay in full the Purchase Price for all Receivables purchased on any Payment Date, each Originator
agrees to advance a Subordinated Loan in an aggregate principal amount not to exceed the lesser of (A) the unpaid portion of the Purchase Price of all Purchased Receivables sold by such Originator remaining following the payments specified in
clause (b) (i) above and (B) the maximum loan (each such loan, a “Subordinated Loan”) that could be borrowed by the Buyer from the applicable Originator without rendering the Buyer’s Net Worth less than
the Required Capital Amount. Each Originator irrevocably agrees to advance each Subordinated Loan requested by the Buyer prior to the Termination Date. Each Subordinated Loan shall be evidenced by, and shall be payable in accordance with the
terms and provisions of a Subordinated Note and shall be payable solely from Available Cash. Each Subsidiary Originator is hereby authorized by the Buyer to endorse on the schedule attached to its Subordinated Note an appropriate
notation evidencing the date and amount of each advance thereunder, as well as the date of each payment with respect thereto, provided that the failure to make such notation shall not affect any obligation of the Buyer thereunder.
The Servicer shall make all appropriate record keeping entries with respect to each
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Subordinated Note to reflect the increases, payments and reductions made in respect of such Subordinated Note pursuant to Sections 1.2(b)
and 1.3, and the Servicer’s books and records shall constitute rebuttable presumptive evidence of the principal amount of, and accrued interest on, each Subordinated Note at any time. Each Originator hereby irrevocably authorizes the Servicer
to mark its Subordinated Note “CANCELED” and to return such Subordinated Note to the Buyer upon the final payment thereof after the occurrence of the Termination Date.
(d) Although the Purchase Price for each Receivable purchased after the date hereof
shall be due and payable by the Buyer to the applicable Originator on the Payment Date therefor, a precise reconciliation of the Purchase Prices between Buyer and each Originator shall be effected on a Monthly Settlement Date with respect to all
Receivables sold or contributed during the Calculation Period most recently ended prior to such Monthly Settlement Date and based on the information contained in the Purchase Report delivered pursuant to Section 1.1(b) above. Although such
reconciliation shall be effected on Monthly Settlement Dates, increases or decreases in the principal balance of each Subordinated Note and any contribution of capital by CMC to the Buyer made pursuant to this Agreement shall be deemed to have
occurred and shall be effective as of the date that the Purchase Price is due and payable; provided, that the interest due and owing on each Subordinated Note on any Monthly Settlement Date shall continue to be calculated based on the principal
amount outstanding as of the prior Monthly Settlement Date. On each Monthly Settlement Date, each Originator shall determine the net increase or the net reduction in the outstanding principal amount of its Subordinated Note and, in the case of CMC,
the amount of any capital contributions occurring during the immediately preceding calendar month and shall account for such net increase or net reduction in its books and records.
Section 1.3. Purchase Price Credit Adjustments.
If on any day:
(a) the
Outstanding Balance of a Receivable originated by any Originator is:
(i) reduced as a result of any defective or rejected
or returned goods or services, any cash discount or any adjustment or otherwise by such Originator or any Affiliate thereof, or
(ii) reduced or canceled as a result of a setoff in respect of any claim by any Person (whether such claim arises out of the
same or a related transaction or an unrelated transaction), or
(iii) reduced on account of the obligation of such
Originator or any Affiliate thereof to pay the related Obligor any rebate or refund, or
(iv) less than the amount included
in the calculations in any Purchase Report, or
(b) any of the representations and warranties set forth in Section 2.1(h),
Section 2.1(i), Section 2.1(j), Section 2.1(q), Section 2.1(r), Section 2.1(s) or Section 2.1(t) is not true when made or deemed made with respect to any Receivable,
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then, in such event, the Buyer shall be entitled to a credit (each, a “Purchase Price Credit”) against the Purchase Price otherwise payable hereunder equal to (A) in
the case of clauses (a)(i)-(iv) above, the amount of such reduction or cancellation or the difference between the actual Outstanding Balance and the amount included in calculating the Net Pool Balance, as applicable; and (B) in the
case of clause (b) above, in the amount of the Outstanding Balance of such Receivable (calculated before giving effect to the applicable reduction or cancellation). If, on any
day, such Purchase Price Credit exceeds the Original Balance of the Receivables originated by outstanding principal balance of the Subordinated Note of the applicable
Subsidiary Originator in any Calculation Period, then the applicable Subsidiary Originator shall pay the remaining amount of such Purchase Price Credit in cash on the next succeeding Monthly Settlement Date, provided that if
the Facility Termination Date has not occurred, any such Subsidiary Originator shall be allowed to deduct the remainingOriginator on such day, then CMC shall be deemed to have
contributed additional Contributed Receivables to the Buyer having a value equal to the otherwise unpaid amount of such Purchase Price Credit from any indebtedness owed to it under its Subordinated
Noteowed by such Originator on such day; provided, further, that no Purchase Price Credit shall include any amount to the extent the same represents losses in respect
of Receivables that are uncollectible on account of the insolvency, bankruptcy or, lack of creditworthiness or other
financial or credit condition of the related Obligor resulting in the inability to pay in respect of an Obligor. Purchase Price Credits owing from CMC
relating to Contributed Receivables shall be reflected solely as reductions of CMC’s equity in Buyer.
Section 1.4. Payments and Computations, Etc.
All amounts to be paid or deposited by the Buyer hereunder shall be paid or deposited in accordance with the terms hereof on the day when due
in immediately available funds to the account of CMC, on behalf of the applicable OriginatorOriginators, designated from time to time by each OriginatorCMC or as otherwise directed by
the applicable OriginatorCMC. CMC shall retain the ratable portion of funds due to CMC, as an Originator, pursuant to Section 1.2(b)(i), and CMC shall pay to each
applicable Subsidiary Originator, in cash or by way of credit to such Subsidiary Originator in the appropriate intercompany account, the ratable portion of the funds received from the Buyer due to such Subsidiary Originator pursuant to
Section 1.2(b)(i); it being further agreed that (a) each purchase of each Receivable and Related Security with respect thereto shall be deemed to be made on the date such Receivable is created, and (b) CMC shall settle from time to
time each such credit to the account of such Subsidiary Originator, by way of payments in cash or by way of credits in amounts equal to cash expended, obligations incurred or the value of services or property provided by or on behalf of CMC, in each
case for the benefit of such Subsidiary Originator in accordance with CMC’s and such Subsidiary Originator’s cash management and accounting policies. In the event that any payment owed by any Person hereunder becomes due on a day that
is not a Business Day, then such payment shall be made on the next succeeding Business Day. If any Person fails to pay any amount hereunder when due, such Person agrees to pay, on demand, the Default Fee in respect thereof until paid in full;
provided, however, that such Default Fee shall not at any time exceed the maximum rate permitted by applicable law. All computations of interest payable hereunder shall be made on the basis of a year of 360 days (or, in the case of any
calculation thereof based upon the Prime Rate, 365 or 366 days, as applicable) for the actual number of days (including the first but excluding the last day) elapsed.
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Section 1.5. Transfer of Records.
(a) In connection with any sale or contribution of Receivables hereunder, each Originator hereby contributes, sells, transfers,
assigns and otherwise conveys to the Buyer all of its right and title to and interest in the Records relating to all Receivables sold or contributed hereunder, without the need for any further documentation in connection with such sale or
contribution. In connection with such transfer, each Originator hereby grants to each of the Buyer, the Administrative Agent and the Servicer an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software used by
such Originator to account for the Receivables, to the extent necessary to administer the Receivables, whether such software is owned by the applicable Originator or is owned by others and used by any Originator under license agreements with respect
thereto, provided that should the consent of any licensor of such software be required for the grant of the license described herein, to be effective, each Originator hereby agrees that upon the request of the Buyer (or the
Buyer’s assignee), such Originator will use its reasonable efforts to obtain the consent of such third-party licensor. The license granted hereby shall be irrevocable until the indefeasible payment in full of the Aggregate Unpaids, and shall
terminate on the date this Agreement terminates in accordance with its terms.
(b) Each Originator (i) shall take such
action requested by the Buyer and/or the Administrative Agent (as Buyer’s assignee), from time to time hereafter, that may be necessary or appropriate to ensure that the Buyer and its assigns under the Purchase Agreement have an enforceable
ownership interest in the Records relating to the Receivables purchased from any Originator hereunder, and (ii) shall use its reasonable efforts to ensure that each of the Buyer, the Administrative Agent and the Servicer has an enforceable
right (whether by license or sublicense or otherwise) to use all of the computer software used to account for the Receivables and/or to re-create such Records.
Section 1.6. Characterization.
If, notwithstanding the intention of the parties expressed in Section 1.1(c), any transfer by any Originator to the
Buyer of Receivables hereunder shall be characterized in any manner other than a true sale or true contribution or such transfer for any reason shall be ineffective or unenforceable, then this Agreement shall be deemed to constitute a security
agreement under the applicable UCC and other applicable law. For this purpose and without being in derogation of the parties’ intention that each transfer shall constitute a true sale or true contribution and absolute assignment thereof, each
of the Originators hereby grants to the Buyer a security interest in all of such Originator’s right, title and interest in, to and under (i) all Receivables existing as of the close of business on the Initial Cutoff Date or thereafter
arising from time to time prior to the Termination Date, and all rights and payments relating thereto, (ii) all Related Security relating thereto, whether existing on the Initial Cutoff Date or thereafter arising, (iii) all Collections
thereof, whether existing on the Initial Cutoff Date or thereafter arising, (iv) each Lock-Box and each Lock-Box Account, whether existing on the Initial Cutoff Date or thereafter arising, and (v) all proceeds of any of the foregoing,
whether existing on the Initial Cutoff Date or thereafter arising (collectively, the “Originator Collateral”), to secure the prompt and complete payment of a loan deemed to have been made by the Buyer to each Originator in an
amount equal to the aggregate Purchase Price for the Purchased Receivables originated by such Subsidiary Originator (orand, in the case of CMC, the
Purchase Price that would have been
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payable for its Contributed Receivables had they not been contributed to the Buyer’s capital), together with all other obligations of such Originator hereunder, which security interest, each
of the Originators hereby represents and warrants, is valid, duly perfected and prior to all Adverse Claims. The Buyer and its assigns shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and
remedies provided to a secured creditor under the UCC and other applicable law, which rights and remedies shall be cumulative.
Article
II
Representations and Warranties
Section 2.1. Representations and Warranties of Each of the Originators.
Each of the Originators hereby represents and warrants to the Buyer on the Closing Date and on each date on which a Receivable comes into
existence prior to the Termination Date:
(a) Existence and Power. (i) Each of the Originators is duly
incorporatedorganized, validly existing and in good standing under the laws of its jurisdiction of
incorporationorganization, and is a “registered organization” as defined in the UCC as in effect in such jurisdiction; (ii) each of the Originators has all
requisite corporate or limited liability company power and authority to own its property and assets and to carry on its business as now conducted; (iii) each of the Originators is qualified to do business in, and is in good standing (where
relevant) in every jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except where the failure to so qualify could not reasonably be expected to have a Material Adverse
Effect, and (iv) each of the Originators has the requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations under each of the Transaction Documents to which it is a party. Each
Originator’s jurisdiction of incorporationorganization, organizational identification number and federal employer identification number are correctly set forth in
Exhibit II attached hereto.
(b) Due Authorization. The execution, delivery and performance of the Transaction Documents to
which it is a party (i) have been duly authorized by all requisite corporate and, if required, stockholder action, (ii) will not violate any provision of (A) any applicable law, statute, rule or regulation or order of any Governmental
Authority, where such violation would result in a Material Adverse Effect, (B) its Organic Documents, (C) the Senior Credit Agreement, or (D) any other indenture, agreement or other instrument by which any Originator is a party or by
which any of them or any of their property is bound, (iii) will not be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under or give rise to any right to require the prepayment,
repurchase or redemption of any obligation under (A) the Senior Credit Agreement, or (B) any such other indenture, agreement or other instrument, or (iv) result in the creation or imposition of any Adverse Claim upon or with respect
to the Originator Collateral.
(c) Enforceability. This Agreement and each other Transaction Document to which any Originator is a
party have been duly executed and delivered by such Originator. This Agreement and each other Transaction Document to which any Originator is a party delivered on
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the Closing Date constitutes, and each other such Transaction Document when executed and delivered by such Originator will constitute, a legal, valid and binding obligation of each Originator
enforceable against it in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium or similar laws of general applicability relating to or limiting creditors’
rights generally or by general equity principles. No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(d) Governmental Approvals. No action, consent or approval of, registration or filing with or any other action by any Governmental
Authority is necessary or will be required in connection with the Transaction Documents, except for (a) filings and registrations necessary to perfect the Buyer’s ownership interest in the Originator Collateral and the Administrative
Agent’s security interests therein, and (b) such as have been made or obtained and are in full force and effect.
(e)
Litigation; Compliance with Laws.
(i) Except as disclosed in Performance Guarantor’s November 30, 2010
financial statements, there are no actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to the knowledge of any Originator, threatened in writing against any such Originator or any business,
property or rights of any such Person that is reasonably likely to be adversely determined, and which determination would have a Material Adverse Effect.
(ii) Neither any of the Originators or any of their respective material properties is in violation of any applicable law, rule
or regulation, or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, a breach of which, individually or in the aggregate, would have a Material Adverse Effect.
(f) Taxes. Each of the Originators (or the Performance Guarantor on their behalf) has filed or caused to be filed all Federal, state
and other Tax returns required to have been filed by it and has paid, caused to be paid, or made provisions for the payment of all Taxes due and payable by it and all assessments received by it, except for the filing of such returns or the payment
of such Taxes and assessments, in each case, that are not overdue by more than 30 days, or if more than 30 days overdue, the amount or validity of which are being contested in good faith by appropriate proceedings and for which the applicable
Originator or the Performance Guarantor, as applicable, shall have set aside on its books adequate reserves in accordance with GAAP.
(g)
Accuracy of Information. To the knowledge of each of the Originators, the information, reports, financial statements, exhibits and schedules furnished (as modified or supplemented by other information so furnished) by or on behalf of the
Performance Guarantor or any Originator to the Buyer, the Administrative Agent or the Purchasers (other than projections and other forward looking information and information of a general economic or industry specific nature) on or prior to the
Closing Date in connection with the transactions contemplated hereby (taken as a whole) did not and, as of the Closing Date, does not contain any material misstatement of fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not materially misleading.
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(h) Use of Proceeds. None of the Originators is engaged principally, or as one of its
important activities, in the business of purchasing or carrying Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds of any purchase will be used (i) to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or (ii) for a purpose in violation of Regulation U or Regulation X issued by the Board of Governors of the Federal Reserve System.
(i) Good Title. Each Receivable constitutes an “account” or a “payment intangible” within the meaning of the UCC.
Immediately prior to its transfer hereunder and upon the creation of each Receivable coming into existence after the Initial Cutoff Date, each of the Originators owns and has good and marketable title thereto, free and clear of any Adverse Claim,
except as created by the Transaction Documents.
(j) Perfection.
(i) If any transfer by any Originator to the Buyer of Receivables hereunder shall be characterized in any manner other than a
true sale or true contribution or such transfer for any reason shall be ineffective or unenforceable, this Agreement creates a valid and continuing security interest (as defined in the UCC) in all right, title and interest of each of the Originators
in the Originator Collateral in favor of the Buyer, which security interest is prior to all other Adverse Claims and is enforceable as such as against creditors and purchasers from any of the Originators.
(ii) If any transfer by any Originator to the Buyer of Receivables hereunder shall be characterized in any manner other than a
true sale or true contribution or such transfer for any reason shall be ineffective or unenforceable, there have been duly filed all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of
all appropriate jurisdictions to perfect the Buyer’s ownership interest and security interest in the Originator Collateral.
(k)
Liens. Other than the security interest granted to the Buyer pursuant to this Agreement, none of the Originators has pledged, assigned, sold, granted a security interest in, or otherwise conveyed, any of the Originator Collateral.
(l) Places of Business and Locations of Records. The Originators’ principal places of business, chief executive offices and the
offices where each of the Originators keeps all of its Records are located at the address(es) listed on Exhibit II attached hereto or such other locations of which the Buyer has been notified in accordance with Section 4.2(a) in
jurisdictions where all action required by Section 4.2(a) has been taken and completed.
(m) Collections. The
conditions and requirements set forth in Section 4.1(i) have at all times been satisfied and duly performed. The names and addresses of all CollectionLock-Box
Banks, together with the account numbers of its Collection Accounts at each CollectionLock-Box Bank and the post office box number of each Lock-Box, are listed on
Exhibit III attached
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hereto. None of the Originators has granted any Person, other than the Buyer (and its assigns), as contemplated by this Agreement, dominion and control of any Lock-Box or Collection Account, or
the right to take dominion and control of any such Lock-Box or Collection Account at a future time or upon the occurrence of a future event. Each of the Originators has complied with the terms of each, and not made changes (without the prior written
consent of the Administrative Agent) to any Collection AccountLock-Box Agreement. All Obligors have been directed by it to make payments on their Receivables to a Lock-Box
listed on Exhibit III attached hereto.
(n) Names. The name in which each of the Originators has executed this Agreement is
identical to its name as indicated on the public record of its jurisdiction of incorporation (as contemplated by § 9-503(a)(1) of the UCC) and in the past five (5) years, it has not used any corporate names, trade names or assumed names
other than the name in which it has executed this Agreement and as listed on Exhibit II attached hereto.
(o) Ownership of the
Buyer. CMC owns, directly or indirectly, 100% of the issued and outstanding Equity Interests of the Buyer, free and clear of any Adverse Claim (subject to Section 4.2(i), other than Adverse Claims granted in connection with any
amendment of refinancing of the Senior Credit Agreement). Such Equity Interests are validly issued, fully paid and nonassessable, and there are no options, warrants or other rights to acquire securities of the Buyer.
(p) Not an Investment Company. None of the Originators is an “investment company” as defined in the Investment Company Act of
1940, as amended, or any successor statute.
(q) Compliance with Credit and Collection Policy. Each of the Originators has complied
with the Credit and Collection Policy in all material respects with regard to each Receivable and the related Contract, and has not made any change to such Credit and Collection Policy, except such change as to which the Buyer (or its assigns) has
been notified in accordance with Section 4.1(a)(iv).
(r) Fair Value. With respect to each Receivable purchased
hereunder by the Buyer, (i) the consideration received by the applicable Subsidiary Originator represents adequate consideration and fair and reasonably equivalent value for such Purchased Receivable as of the date of its
acquisition hereunder and (ii) such consideration is not less than the fair market value of such Purchased Receivable as of the date of its acquisition hereunder. With respect to each Receivable contributed hereunder by CMC to the Buyer,
(i) the consideration received by CMC represents adequate consideration and fair and reasonably equivalent value for such Contributed Receivable as of the date of its contribution hereunder and (ii) such consideration is not less than the
fair market value of such Contributed Receivable as of the date of its contribution hereunder.
(s) Enforceability of Contracts.
Each Contract with respect to each Receivable is effective to create, and has created, a valid and binding obligation of the related Obligor to pay the Outstanding Balance of such Receivable created thereunder and any accrued interest thereon,
enforceable against such Obligor in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by
general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
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(t) Eligible Receivables. Each Receivable identified as an Eligible Receivable on any
Purchase Report was an Eligible Receivable on the date it was acquired from the applicable Originator hereunder.
(u) Accounting.
In its stand-alone financial statements and unconsolidated worksheets, each Originator accounts for the transactions contemplated by this Agreement as true sales of the Receivables to the Buyer and/or as contributions of the Receivables to the
Buyer’s equity capital and not as loans secured thereby.
(v) No Material Adverse Effect. Since November 30, 2010, no
event, change or condition has occurred that (individually or in the aggregate) has had, or could reasonably be expected to have, an Material Adverse Effect.
(w) No Termination Event. No event has occurred and is continuing and no condition exists, or could result from any sale or
contribution hereunder or from the application of the proceeds therefrom, that constitutes a Termination Event.
(x) OFAC. Neither
the Performance Guarantor nor any Originator or any of their Subsidiaries (i) is a Person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or
is otherwise associated with any such person in any manner violative of Section 2, or (iii) is a Person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other OFAC
regulation or executive order.
(y) Originator Compliance. Each Originator is in compliance with: (i) the Trading with the
Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto; and (ii) the
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001), as amended.
(z) Risk Retention. The Originators, individually or through related entities, have
collectively retained a material net economic interest in the Receivables in an amount at least equal to the percentage required under, and in a manner permitted by, Paragraph 1 of Article 405 of the European Union Capital Requirements Regulation by
reference to the proportion of Receivables for which they are each an Originator, and have not entered into any credit risk mitigation or any short positions or any other hedge in a manner with respect to such net economic interest, except to the
extent permitted by the European Union Risk Retention Requirements.
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Article III
Conditions of Purchase
Section 3.1. Conditions Precedent to Closing.
The occurrence of the Closing Date under this Agreement is subject to the conditions precedent that (a) the Buyer shall have received on
or before the Closing Date those documents listed on Schedule A attached hereto and (b) all of the conditions to the effectiveness of the Purchase Agreement shall have been satisfied or waived in accordance with the terms thereof.
Section 3.2. Conditions Precedent to Subsequent Payments.
The Buyer’s obligation to pay for any Purchased Receivable or accept the contribution of any Contributed Receivable coming into existence
after the Initial Cutoff Date shall be subject to the conditions precedent that: (a) the Facility Termination Date shall not have occurred under the Purchase Agreement; and (b) on the date such Receivable came into existence, the following
statements shall be true (and acceptance of the proceeds of any payment for such Receivable shall be deemed a representation and warranty by each of the Originators that such statements are then true):
(i) the representations and warranties set forth in Article II are true and correct in all material respects on and as of the
date such Receivable came into existence as though made on and as of such date (except to the extent such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects as of such
earlier date); and
(ii) no Termination Event is continuing.
Notwithstanding the foregoing conditions precedent, upon payment of the Purchase Price for any Receivable (whether by payment of cash, through an increase in
the amounts outstanding under a Subordinated Note, by offset of amounts owed to the Buyer and/or by offset of capital contributions), title to such Receivable and the other related Receivables Assets shall vest in the Buyer, whether or not the
conditions precedent to the Buyer’s obligation to pay for such Receivable were in fact satisfied. The failure of any of the Originators to satisfy any of the foregoing conditions precedent, however, shall give rise to a right of the Buyer to
rescind the related purchase and direct the applicable Originator to pay to the Buyer an amount equal to the Purchase Price payment that shall have been made with respect to any Receivables related thereto.
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Article IV
Covenants
Section 4.1.
Affirmative Covenants of Each of the Originators.
Until the date on which this Agreement terminates in accordance with its
terms, each of the Originators hereby covenants as set forth below:
(a) Financial Reporting. Each of the Originators will maintain,
for itself and each of its Subsidiaries, a system of accounting established and administered in accordance with GAAP, and will furnish or cause to be furnished to the Buyer (or its assigns):
(i) Originators’ Compliance Certificates. A compliance certificate in the form of Exhibit IV hereto, duly
executed by an Authorized Officer of each of the Originators.
(ii) Performance Guarantor Statements and Reports.
Copies of all financial statements, reports, registration statements and certificates furnished by the Performance Guarantor pursuant to the Purchase Agreement.
(iii) Copies of Notices. Promptly upon its receipt of any notice, request for consent, financial statements,
certification, report or other communication under or in connection with any Collection AccountLock-Box Agreement or other Transaction Document from any Person other than
the Buyer, the Purchasers, any Administrator or the Administrative Agent, copies of the same.
(iv) Change in Credit and Collection Policy. At least thirty (30) days prior to the effectiveness of any change in
or amendment to the Credit and Collection Policy, a copy of the Credit and Collection Policy then in effect and a notice (A) indicating such proposed change or amendment, and (B) if such proposed change or amendment could be reasonably
likely to adversely affect the collectability of the Receivables or decrease the credit quality of any newly created Receivables, requesting the Buyer’s (and the Administrative Agent’s, as the Buyer’s assignee) consent thereto.
(v) Other Information. Promptly, from time to time, such other information, documents, records or reports relating to
the Receivables or the condition or operations, financial or otherwise, of each of the Originators as the Buyer (or its assigns) may from time to time reasonably request in order to protect the interests of the Buyer (and its assigns) under or as
contemplated by this Agreement.
(b) Notices. Each of the Originators will notify the Buyer in writing of any of the following
promptly upon learning of the occurrence thereof, describing the same and, if applicable, the steps being taken with respect thereto:
(i) Termination Events or Unmatured Termination Events. The occurrence of each Termination Event and each Unmatured
Termination Event, by a statement of its Authorized Officer.
(ii) Defaults Under Other Agreements. The occurrence
of a default or an event of default under any other financing arrangement pursuant to which it is a debtor or an obligor; provided that no notice shall be required under this clause (ii) with respect to any default involving less
than $50,000,000.
(c) Compliance with Laws and Preservation of Existence. Each of the Originators will comply in all respects with
all applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject, except where the failure to comply is
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not reasonably likely to result in an Material Adverse Effect. Each of the Originators will do or cause to be done all things reasonably necessary to preserve, renew and maintain its legal
existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified in good standing as a foreign entity in each jurisdiction where its business is conducted, except where the failure to do so
would not result in a Material Adverse Effect.
(d) Audits. Each of the Originators will furnish to the Buyer (or the Administrative
Agent) from time to time such information with respect to it and the Receivables as the Buyer (or the Administrative Agent) may reasonably request. Each of the Originators will, from time to time during regular business hours as reasonably requested
by the Buyer (or the Administrative Agent), upon at least 5 (five) Business Days’ notice and at its sole cost, permit the Buyer (and the Administrative Agent) or their respective agents or representatives (i) to examine and make
copies of and abstracts from all Records in its possession or under its control relating to the Receivables and the Related Security, including, without limitation, the related Invoices and Contracts, and (ii) to visit its offices and
properties for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to its financial condition or the Receivables and the Related Security or its performance under any of the Transaction
Documents or its performance under the Contracts and, in each case, with any of its officers or employees having knowledge of such matters (each such visit, a “Review”); provided that, so long as no Termination Event
has occurred and is continuing, the Originators shall only be responsible for the costs and expenses of two (2) such Reviews in any one Contract Year.
(e) Keeping and Marking of Records and Books.
(i) Each of the Originators will maintain and implement administrative and operating procedures (including, without limitation,
an ability to recreate records evidencing Receivables in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all
Receivables (including, without limitation, records adequate to permit the immediate identification of each new Receivable and all Collections of and adjustments to each existing Receivable). Each of the Originators will give the Buyer (or its
assigns) notice of any change in the administrative and operating procedures referred to in the previous sentence.
(ii)
Each of the Originators will (A) on or prior to the date hereof, mark its master data processing records and other books and records relating to the Receivables with a legend, acceptable to the Buyer (and the Administrative Agent), describing
the Buyer’s ownership interests in the Receivables and further describing ownership interests in the Receivable of the Administrative Agent (on behalf of the Purchasers) under the Purchase Agreement and (B) upon the reasonable request of
the Buyer (or its assigns) following the occurrence of a Termination Event hereunder: (1) mark each Contract with a legend describing the Buyer’s ownership interests in the Receivables and further describing ownership interests in the
Receivable of the Administrative Agent (on behalf of the Purchasers), and (2) deliver to the Buyer (or its assigns) all Contracts (including, without limitation, all multiple originals of any such Contract) relating to the Receivables that are
in any of the Originators’ possession.
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(f) Compliance with Contracts and Credit and Collection Policy. Each of the Originators
will timely and fully (i) perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the Contracts related to the Receivables, and (ii) comply in all material respects
with the Credit and Collection Policy in regard to each Receivable and the related Contract.
(g) Ownership. Each of the
Originators will take all necessary action to establish and maintain, irrevocably in the Buyer, (i) legal and equitable title to the Receivables and the Collections and (ii) all of its right, title and interest in the Related Security
associated with the Receivables, in each case, free and clear of any Adverse Claims other than Adverse Claims in favor of the Buyer (and its assigns) (including, without limitation, the filing of all financing statements or other similar instruments
or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Buyer’s security interest in the Receivables Assets and such other action to perfect, protect or more fully evidence the security
interest of Buyer as Buyer (or its assigns) may reasonably request).
(h) Separateness. Each of the Originators acknowledges that
the Administrative Agent and the Purchasers are entering into the transactions contemplated by the Purchase Agreement in reliance upon the Buyer’s identity as a legal entity that is separate from the Performance Guarantor, any of the
Originators and any of their Affiliates. Therefore, from and after the date of execution and delivery of this Agreement, each of the Originators will take all reasonable steps including, without limitation, all steps that the Buyer or any assignee
of the Buyer may from time to time reasonably request to maintain the Buyer’s identity as a separate legal entity and to make it manifest to third parties that the Buyer is an entity with assets and liabilities distinct from those of the
Performance Guarantor, any of the Originators and their Affiliates and not just a division of any of the foregoing. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, each of the Originators
(i) will not hold itself out to third parties as liable for the debts of the Buyer nor purport to own the Receivables Assets, (ii) will take all other actions necessary on its part to ensure that the Buyer is at all times in compliance
with the “separateness covenants” set forth in Section 5.1(i) of the Purchase Agreement and (iii) will cause all tax liabilities arising in connection with the transactions contemplated herein or otherwise to be allocated between
it and the Buyer on an arm’s-length basis and in a manner consistent with the procedures set forth in U.S. Treasury Regulations §§1.1502-33(d) and 1.1552-1.
(i) Collections. Each of the Originators will cause (i) all proceeds from all Lock-Boxes to be directly deposited by a
CollectionLock-Box Bank into a Collection Account and (ii) each Lock-Box and Collection Account to be subject at all times to a Collection
AccountLock-Box Agreement that is in full force and effect. In the event any payments relating to Receivables or Related Security are remitted directly to it or any of its
Affiliates, it will remit (or will cause all such payments to be remitted) directly to a CollectionLock-Box Bank and deposited into a Collection Account within one
(1) Business Day following receipt thereof and, at all times prior to such remittance, it will itself hold or, if applicable, will cause such payments to be held in trust for the exclusive benefit of the Buyer and its assigns.
Each of the Originators will transfer exclusive ownership, dominion and control of each Lock-Box and Collection Account to the Buyer and shall not grant the right to take dominion and control of any Lock-Box or Collection Account at a future time or
upon the occurrence of a future event to any Person, except to the Buyer (or its assigns) as contemplated by this Agreement and the Purchase Agreement.
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(j) Taxes. To the extent not done by the Performance Guarantor, each of the Originators
will file all Tax returns and reports required by law to be filed by it and promptly pay all Taxes and governmental charges at any time owing, except any such taxes which are not yet delinquent or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books. Each of the Originators will pay when due any Taxes payable in connection with the Receivables, exclusive of Taxes on or measured
by income or gross receipts of the Buyer and its assigns.
(k) Accuracy of Information. All information hereinafter furnished by
any of the Originators or any of its Affiliates to the Buyer or the Administrative Agent (or any Purchaser) for purposes of or in connection with this Agreement, any of the other Transaction Documents or any transaction contemplated hereby or
thereby will be true and accurate on the date such information is stated or certified and will not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not
misleading.
(l) Risk Retention. The Originators, individually or through related
entities, shall collectively (i) retain a net economic interest in the Receivables in an amount at least equal to the percentage required under, and in a manner permitted by, Paragraph 1 of Article 405 of the European Union Capital Requirements
Regulation by reference to the proportion of Receivables for which they are each an Originator , (ii) not enter into any credit risk mitigation or any short positions or any other hedge with respect to such net economic interest, except to the
extent permitted by the European Union Risk Retention Requirements, and (iii) subject to any duty of confidentiality shall promptly furnish to the Nieuw Amsterdam Funding Group Administrator such information regarding the Originators, the Buyer
and the credit quality and performance of the Receivables as any member of the Nieuw Amsterdam Funding Group may from time to time reasonably request in order to enable the members of the Nieuw Amsterdam Funding Group to comply with their
obligations under Article 406 of the European Union Capital Requirements Regulation with respect to the transactions contemplated by the Transaction Documents.
Section 4.2. Negative Covenants of the Each of the Originators.
Until the date on which this Agreement terminates in accordance with its terms, each of the Originators hereby covenants that:
(a) Change in Name, Jurisdiction of Incorporation, Offices and Records. It will not change (i) its name as it appears in the
official public record in the jurisdiction of its incorporation (as contemplated by Section 9-503(a)(1) of the UCC), (ii) its status as a “registered organization” (within the meaning of Article 9 of any applicable enactment of
the UCC), (iii) its organizational identification number, if any, issued by its jurisdiction of incorporation, or (iv) its jurisdiction of incorporation unless it shall have: (A) given the Buyer (or its assigns) at least thirty
(30) days’ prior written notice thereof; (B) at least ten (10) days prior to such change, delivered to the Buyer (or its assigns) all financing statements, instruments and other documents reasonably requested by the Buyer (or its
assigns) in connection with such change or relocation
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and (C) caused an opinion of counsel reasonably acceptable to the Buyer and its assigns to be delivered to the Buyer and its assigns that the Buyer’s security interest is perfected and
of first priority, such opinion to be in form and substance similar to the related opinion delivered on the Closing Date and otherwise reasonably acceptable to the Buyer and its assigns.
(b) Change in Payment Instructions to Obligors. It will not add or terminate any bank as a
CollectionLock-Box Bank, or make any change in the instructions to Obligors of Receivables regarding payments to be made to any Lock-Box or Collection Account, unless the
Buyer (or its assigns) shall have received, at least twenty (20) days before the proposed effective date therefor, (i) written notice of such addition, termination or change and (ii) with respect to the addition of a
CollectionLock-Box Bank or a Collection Account or Lock-Box, an executed Collection
AccountLock-Box Agreement with respect to the new Collection Account or Lock-Box; provided, however, that it may make changes in instructions to
Obligors regarding payments if such new instructions require such Obligor to make payments to another existing Collection Account and/or Lock-Box subject to a Collection
AccountLock-Box Agreement.
(c) Modifications to Contracts and
Credit and Collection Policy. It will not make any change in or amendment to the Credit and Collection Policy that could reasonably be expected to decrease the credit quality of any newly created Receivable or materially adversely affect the
collectability of the Receivables. Except as otherwise permitted in its capacity as Servicer pursuant to the Purchase Agreement, it will not extend, amend or otherwise modify the terms of any Receivable or any Contract related to such Receivable in
any material respect other than in accordance with the Credit and Collection Policy.
(d) Sales, Liens. Subject to
Section 4.2(i) and other than the ownership and security interests contemplated by the Transaction Documents, it will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, or create or
suffer to exist any Adverse Claim upon (including, without limitation, the filing of any financing statement) or with respect to, any Receivables Asset, or upon or with respect to any Contract under which any Receivable arises, or any Lock-Box or
Collection Account, or assign any right to receive income with respect thereto (other than, in each case, the creation of a security interest therein in favor of the Buyer provided for herein), and it will defend the right, title and interest of the
Buyer in, to and under any of the foregoing property, against all claims of third parties claiming through or under it. None of the Originators shall create or suffer to exist any Adverse Claim on any of its inventory, the financing or lease of
which gives rise to any Receivable.
(e) Accounting for Purchase. It will not account for or treat (whether in financial statements
or otherwise) the transactions contemplated hereby in any manner other than the sale and/or contribution and absolute assignment of the Receivables and the Related Security by it to the Buyer or in any other respect account for or treat the
transactions contemplated hereby in any manner other than as a sale and/or contribution and absolute assignment of the Receivables and the Related Security by it to the Buyer except to the extent that such transactions are not recognized on account
of consolidated financial reporting in accordance with GAAP.
(f) OFAC. It will not use and has not used the proceeds of any sale
of Receivables hereunder to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country.
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(g) Foreign Corrupt Practices Act, Trading with the Enemy Act and Patriot Act. It has not
used and will not use the proceeds of any Receivable or any sale hereunder, directly or indirectly, to make any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or
anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of (i) the United States Foreign Corrupt Practices Act of 1977, as amended, (ii) the Trading with the
Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto and/or
(iii) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001), as amended.
(h) Deposits to Blocked AccountsLock-Boxes
and the Collection AccountAccounts. It will not deposit or otherwise credit, or cause or knowingly permit to be so deposited or
credited, to any Collection Account or Lock-Box cash or cash proceeds other than Collections.
(i) Pledge and security agreements.
It will not enter into any agreement to pledge the capital stock of the Buyer or the Subordinated Notes unless the provisions of such pledge agreement are consistent with the provisions set forth in Schedule B hereto.
(j) Divisions of each Originator. Without giving the Buyer and the Administrative Agent at least fifteen (15) Business Days’
prior written notice, (i) it will not change or otherwise modify (or permit or consent to any change or other modification of) any division listed on Schedule C of the Purchase Agreement in a manner adversely affecting the security
interest of the Administrative Agent or the perfection thereof or (ii) it will not change or otherwise modify (or permit or consent to any change or other modification of) the name of any such division listed on Schedule C of the
Purchase Agreement.
Article V
Termination Events
Section 5.1.
Termination Events.
The occurrence of any one or more of the following events shall constitute a Termination Event:
(a) Any representation, warranty, certification or statement made or deemed made by any of the Originators in this Agreement, any other
Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been false or misleading in any material respect when made or deemed made; provided that the materiality threshold in this
subsection shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold.
(b) Any
of the Originators shall fail to make any payment or deposit required hereunder when due and such failure shall continue for one (1) Business Day.
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(c) Any of the Originators shall fail to perform any covenant contained in
Section 1.1(b) or 4.2 when due and, in the case of a failure to perform under Section 4.2, such failure shall continue for five (5) Business Days after discovery thereof by the applicable Originator.
(d) Any of the Originators shall fail to perform or observe any other term, covenant or agreement under any of the Transaction Documents and
continues for thirty (30) days from the date that is the earlier of (i) notice thereof to the applicable Originator by any Person and (ii) discovery thereof by the applicable Originator.
(e) An Event of Bankruptcy shall occur with respect to any of the Originators.
(f) (i) A Performance Undertaking Default shall occur, (ii) the Performance Undertaking shall cease to be effective or to be the legally
valid, binding and enforceable obligation of the Performance Guarantor, or (iii) the Performance Guarantor shall repudiate its obligations thereunder.
(g) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with respect to amounts in excess of
$100,000 with regard to any of the Receivables or Related Security and such lien shall not have been released within thirty (30) days.
Section 5.2. Remedies.
Upon the occurrence and during the continuation of a Termination Event, the Buyer may take any of the following actions:
(a) declare the Termination Date to have occurred, whereupon the Termination Date shall forthwith occur, without demand, protest or further notice of any kind, all of which are hereby expressly waived by each of the Originators;
provided, however, that upon the occurrence of an Event of Bankruptcy with respect to any of the Originators or the Performance Guarantor, or of an actual or deemed entry of an order for relief with respect to any of the
Originators or the Performance Guarantor, under the Federal Bankruptcy Code, the Termination Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by each of the Originators and
(b) to the fullest extent permitted by applicable law, declare that the Default Fee shall accrue with respect to any amounts then due and owing by any of the Originators to the Buyer. The aforementioned rights and remedies shall be without
limitation and shall be in addition to all other rights and remedies of the Buyer and its assigns otherwise available under any other provision of this Agreement, by operation of law, at equity or otherwise, all of which are hereby expressly
preserved, including, without limitation, all rights and remedies provided under the UCC, all of which rights shall be cumulative.
Article VI
Indemnification
Section 6.1.
Indemnities by the Each of the Originators.
Without limiting any other rights that the Buyer may have hereunder or under
applicable law, each of the Originators hereby agrees to indemnify (and to pay, within thirty (30) days after receipt of a reasonably detailed invoice, to) the Buyer, the Administrative Agent, the Purchasers,
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and their respective Related Parties (each of the foregoing, an “Indemnified Party”) from and against any and all damages, losses, claims, Taxes, liabilities,
costs, reasonable expenses and for all other amounts payable, including reasonable fees and disbursements of external counsel (including local counsel) to the Indemnified Parties, awarded against or incurred by any of them arising out of or as a
result of this Agreement or the acquisition, either directly or indirectly, by the Buyer of the Receivables (all of the foregoing being collectively referred to as “Indemnified Amounts”), excluding, however, in
all of the foregoing instances:
(a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction
holds that such Indemnified Amounts resulted from the gross negligence, fraud or willful misconduct on the part of such Indemnified Party or any of its Related Parties;
(b) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency,
bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a dispute giving rise to a Purchase Price Credit) of the related Obligor; or
(c) Excluded Taxes;
provided,
however, that nothing contained in this sentence shall limit the liability of any of the Originators or limit the recourse of the Buyer to any of the Originators for amounts otherwise specifically provided to be paid by the applicable
Originator under the terms of this Agreement, and provided, further, that none of the Originators shall have an obligation to reimburse any Indemnified Party for Indemnified Amounts unless such Indemnified Party, if requested, provides
the applicable Originator with an undertaking in which such Indemnified Party agrees to refund and return any and all amounts paid by the applicable Originator to such Indemnified Party in respect of any amounts described in the foregoing clauses
(a), (b) and (c). Without limiting the generality of the foregoing indemnification, but subject in each case to clauses (a), (b) and (c) above, any of the Originators shall indemnify the Buyer
for Indemnified Amounts relating to or resulting from:
(i) any representation or warranty made by any of the Originators
(or any officers of such Originators) under or in connection with any Purchase Report, this Agreement, any other Transaction Document or any other information or report delivered by the applicable Originator pursuant hereto or thereto for which the
Buyer has not received a Purchase Price Credit that shall have been false or incorrect when made or deemed made;
(ii) the
failure by any Originator to comply with any applicable law, rule or regulation with respect to any Receivable, Invoice or Contract related thereto, or the nonconformity of any Receivable, Invoice or Contract included therein with any such
applicable law, rule or regulation or any failure of any Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of any Originator to perform its duties, covenants or other obligations in accordance with the provisions of
this Agreement or any other Transaction Document (subject to applicable grace periods);
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(iv) any products liability, environmental liability, personal injury or damage,
suit or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of
any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim
resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time by any Originator or any of its Affiliates with other funds;
(vii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction
Document, the transactions contemplated hereby, the use of the proceeds of any sale hereunder, the ownership of the Receivables or any other investigation, litigation or proceeding relating to any Originator in which any Indemnified Party becomes
involved as a result of any of the transactions contemplated hereby;
(viii) any Event of Bankruptcy with respect to any
Originator or the Performance Guarantor;
(ix) any failure
ofto vest in the Buyer to obtain and maintain legal and equitable title to, and ownership of, the Receivables and the Collections, and all of any
Originators’ right, title and interest in the Related Security associated with the Receivables, in each case, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(x) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the
UCC of any applicable jurisdiction or other applicable laws with respect to any Originator Collateral with respect thereto, and the proceeds of any thereof, whether at the time of its acquisition or at any subsequent time, except to the extent such
failure or delay is caused by the Buyer or its assigns;
(xi) any action or omission by any Originator which reduces or
impairs the rights of the Buyer with respect to any Originator Collateral or the value of any Receivable;
(xii) any
attempt by any Person to void any sale or contribution hereunder under statutory provisions or common law or equitable action; and
(xiii) the failure of any Receivable reflected as an Eligible Receivable on any Purchase Report to be an Eligible Receivable at
the time acquired by the Buyer.
To the extent permitted by applicable law, none of the Originators shall assert and each Originator hereby waives any
claim against any Indemnified Party on any theory of liability for
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special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any other Transaction
Document. The provisions of this Section 6.1 shall survive termination of this Agreement and the Purchase Agreement.
Section 6.2.
Other Costs and Expenses.
Each of the Originators shall pay to the Buyer on demand all reasonable and documented
fees, costs and out-of-pocket expenses in connection with the preparation, execution, delivery and administration of this Agreement, the transactions contemplated hereby and the other documents to be delivered hereunder, and any amendments to or
waivers of the foregoing. Each of the Originators shall pay to the Buyer on demand any and all reasonable fees, costs and expenses of the Buyer, if any, and the Administrative Agent (as Buyer’s assignee), including reasonable and documented
counsel fees and expenses in connection with the enforcement of the Transaction Documents and in connection with any restructuring or workout of the Transaction Documents or the administration of the Transaction documents following a Termination
Event.
Article VII
Miscellaneous
Section 7.1.
Waivers and Amendments.
(a) No failure or delay on the part of the Buyer (or its assigns) in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The
rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law. Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which given.
(b) No provision of this Agreement may be amended, supplemented, modified or waived except in writing signed by each of the Originators, the
Buyer and the Administrative Agent and, to the extent required under the Purchase Agreement, the Purchasers or the Required Purchasers. No provision of any Subordinated Note be amended,
supplemented, modified or waived except in writing signed by the applicable Originator, the Buyer and the Administrative Agent and, to the extent required under the Purchase Agreement, the Purchasers or the Required Purchasers.
Section 7.2. Notices.
All communications and notices provided for hereunder shall be in writing (including email, bank wire, or electronic facsimile transmission or
similar writing) and shall be given to the other parties hereto at their respective addresses or facsimile numbers set forth on the signature pages hereof or at such other address or facsimile number as such Person may hereafter specify for the
purpose of notice to each of the other parties hereto. Each such notice or other communication shall be effective (a) if given by facsimile, upon the receipt thereof, (b) if given
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by mail, three (3) Business Days after the time such communication is deposited in the mail with first class postage prepaid or (c) if given by electronic mail, upon delivery thereof to
the last known valid electronic mail address of the related recipient or (d) if given by any other means, when received at the address specified in accordance with this Section 7.2.
Section 7.3. Protection of Ownership Interests of the Buyer.
(a) Each of the Originators agrees that from time to time, at its expense, it will promptly execute and deliver all instruments and documents,
and take all actions, that may be necessary or desirable, or that the Buyer (or its assigns) may reasonably request, to perfect, protect or more fully evidence the interest of the Buyer (or its assigns) hereunder, or to enable the Buyer (or its
assigns) to exercise and enforce their rights and remedies hereunder. At any time following the occurrence of a Termination Event or Potentialan Unmatured Termination Event
hereunder, the Buyer (or its assigns) may, at any Originator’s sole cost and expense, direct any Originator to notify the Obligors of Receivables of the ownership interest of the Buyer under this Agreement and may also direct that payments of
all amounts due or that become due under any or all Receivables be made directly to the Buyer or its designee.
(b) If, following the
occurrence of a Termination Event or a Potentialan Unmatured Termination Event hereunder, any of the Originators fails to perform any of its obligations hereunder, the
Buyer (or its assigns) may (but shall not be required to) perform, or cause performance of, such obligations, and the Buyer’s (or such assigns’) costs and expenses incurred in connection therewith shall be payable by the Originators as
provided in Section 6.2. Each of the Originators irrevocably authorizes the Buyer (and its assigns) at any time and from time to time in the sole discretion of the Buyer (or its assigns), and appoints the Buyer (and its assigns) as its
attorney(ies)-in-fact, to act on behalf of each of the Originators (i) to file on behalf of each of the Originators as debtors financing statements necessary or desirable in the Buyer’s (or its assigns’) sole discretion to perfect and
to maintain the perfection and priority of the interest of the Buyer in the Originator Collateral and associated Related Security and Collections and (ii) to file a carbon, photographic or other reproduction of this Agreement or any financing
statement with respect to the Receivables as a financing statement in such offices as the Buyer (or its assigns) in their sole discretion deem necessary or desirable to perfect and to maintain the perfection and priority of the Buyer’s security
interest in the Originator Collateral. This appointment is coupled with an interest and is irrevocable.
(c) (i) Each of the Originators
hereby authorizes the Buyer (or its assigns) to file financing statements and other filing or recording documents with respect to the Receivables and Related Security (including any amendments thereto, or continuation or termination statements
thereof), without the signature or other authorization of any of the Originators, in such form and in such offices as the Buyer (or any of its assigns) reasonably determines appropriate to perfect or maintain the perfection of the ownership or
security interests of the Buyer (or its assigns) hereunder, (ii) each of the Originators acknowledges and agrees that it is not authorized to, and will not, file financing statements or other filing or recording documents with respect to the
Receivables or Related Security (including any amendments thereto, or continuation or termination statements thereof), without the express prior written approval by the Administrative Agent (as the Buyer’s assignee), consenting to the form and
substance of such filing or
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recording document, and (iii) each of the Originators hereby approves, authorizes and ratifies any filings or recordings made by or on behalf of the Administrative Agent (as the Buyer’s
assign) in connection with the perfection of the ownership or security interests in favor of the Buyer or the Administrative Agent (as the Buyer’s assign).
Section 7.4. Confidentiality.
(a) Each of the Originators shall maintain and shall cause each of its employees and officers to maintain the confidentiality of this
Agreement, the Fee Letter and the other confidential or proprietary information with respect to the Administrative Agent, any Administrator and the Purchasers and their respective
businesses obtained by it or them in connection with the structuring, negotiating and execution of the transactions contemplated herein that has been identified to the Seller Parties as confidential or proprietary, except that the
any Originator and such Originators’ Affiliates, officers and employees may disclose such information to such Originator’s (or such Affiliates’) external accountants, consultants and attorneys and as required by any applicable law,
Governmental Authority or order of any judicial or administrative proceeding.
(b) Anything herein to the contrary notwithstanding, each
Originator hereby consents to the disclosure of any nonpublic information with respect to it (i) to the Buyer, the Administrative Agent or the Purchasers by each other, (ii) by the Buyer, the Administrative Agent or the Purchasers to any
prospective or actual assignee or participant of any of them and (iii) if applicable, by the Purchasers and the Administrative Agent to any rating agency, Commercial Paper dealer or provider of a surety, guaranty or credit or liquidity
enhancement to any entity organized for the purpose of purchasing, or making loans secured by, financial assets for which any Purchaser or one of its Affiliates, acts as the administrative agent and to any officers, directors, employees, outside
accountants, attorneys, financial advisors and consultants of any of the foregoing and (iv) by the Purchasers and the Administrative Agent to any judicial, administrative or regulatory authority or in connection with proceedings (whether or not
having the force or effect of law) pursuant to any law, rule, regulation, direction, request or order of any such judicial, administrative or regulatory authority or issued in proceedings.
(c) The Buyer shall maintain and shall cause each of its employees and officers to maintain the confidentiality of this Agreement and the other
confidential or proprietary information with respect to each of the Originators, the Obligors and their respective businesses obtained by it in connection with the due diligence evaluations, structuring, negotiating, execution and administration of
the Transaction Documents, and the consummation of the transactions contemplated herein and any other activities of the Buyer arising from or related to the transactions contemplated herein provided, however, that each of
the Buyer and its employees and officers shall be permitted to disclose such confidential or proprietary information: (i) to the Administrative Agent and the initial Purchasers, (ii) to any officers, directors, employees, outside
accountants and attorneys of any of the foregoing who need to know such information and who are instructed to maintain the confidentiality of such information in conformity with this Section 7.4, and (iii) to the extent required
pursuant to any applicable law, rule, regulation, direction, request or order of any judicial, administrative or regulatory authority or proceedings with competent jurisdiction (whether or not having the force or effect of law).
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Section 7.5. Bankruptcy Petition.
Each of the Originators covenants and agrees that, prior to the date that is one year and one day after the payment in full of all outstanding
obligations of the Buyer under the Purchase Agreement, it will not institute against, or join any other Person in instituting against, the Buyer or any commercial paper conduit that hereafter becomes a Purchaser under the Purchase Agreement, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States.
Section 7.6. Amounts to be paid by Buyer.
Notwithstanding anything in this Agreement to the contrary, the Buyer shall not have any obligation to pay any amount required to be paid by
it hereunder in excess of any amount available to it after paying or making provision for the payment of its obligations under the Purchase Agreement. All payment obligations of the Buyer hereunder are contingent on the availability of funds in
excess of the amounts necessary to pay its obligations under the Purchase Agreement.
Section 7.7. Setoff.
(a) None of the Originators’ obligations under this Agreement shall be affected by any right of setoff, counterclaim, recoupment, defense
or other right the applicable Originator may have against the Buyer, any of the Purchasers, the Administrative Agent or any assignee, all of which setoff rights are hereby waived by each of the Originators as against such obligations.
(b) The Buyer shall have the right to set-off against each of the Originators any amounts to which any of the Originators may be entitled and
to apply such amounts to any claims the Buyer may have against the applicable Originator from time to time under this Agreement. Upon any such set-off, the Buyer shall give notice of the amount thereof and the reasons therefor to the applicable
Originator.
Section 7.8. CHOICE OF LAW.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS.
Section 7.9. CONSENT TO JURISDICTION.
EACH OF THE ORIGINATORSPARTIES HERETO HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT
EXECUTED BY EACH ORIGINATORANY PARTY PURSUANT TO THIS AGREEMENT, AND EACH ORIGINATORPARTY
HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH
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A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE BUYERANY PARTY HERETO
(OR ITS ASSIGNS) TO BRING PROCEEDINGS AGAINST ANY ORIGINATOROTHER PARTY HERETO IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY OF THE
ORIGINATORSPARTY HERETO AGAINST THE BUYER (OR ITS ASSIGNS)ANY OTHER PARTY HERETO OR ANY AFFILIATE
THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY ANY ORIGINATORPARTY
HEETO PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.
Section 7.10. WAIVER OF JURY TRIAL.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, EACH OTHER TRANSACTION DOCUMENT, ANY DOCUMENT EXECUTED BY ANY OF THE
ORIGINATORSPARTIES HERETO PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 7.11. Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction Document contain the final and complete integration of all prior expressions by the
parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written
understandings.THIS AGREEMENT AND EACH OTHER TRANSACTION DOCUMENT CONTAIN THE FINAL AND COMPLETE INTEGRATION OF ALL PRIOR EXPRESSIONS BY THE PARTIES HERETO WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND SHALL CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF SUPERSEDING ALL PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN UNDERSTANDINGS. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES HERETO WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS.
(b) This
Agreement shall be binding upon and inure to the benefit of each Originator, the Buyer and their respective successors and permitted assigns (including any trustee in bankruptcy). No Originator may assign any of its rights and obligations hereunder
or any interest herein without the prior written consent of the Buyer. The Buyer may assign at any time its rights and obligations hereunder and interests herein to any other Person without the consent of any of the Originators. Without limiting the
foregoing, each Originator acknowledges that the Buyer, pursuant to the Purchase Agreement, may assign to the Administrative Agent, for the benefit of the Purchasers, its rights, remedies, powers and privileges hereunder and that the Administrative
Agent may further assign such rights, remedies, powers and privileges to the
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extent permitted in the Purchase Agreement. Each of the Originators agrees that the Administrative Agent, as the assignee of the Buyer, shall, subject to the terms of the Purchase Agreement, have
the right to enforce this Agreement and to exercise directly all of the Buyer’s rights and remedies under this Agreement (including, without limitation, the right to give or withhold any consents or approvals of the Buyer to be given or
withheld hereunder) and each of the Originators agrees to cooperate fully with the Administrative Agent in the exercise of such rights and remedies. This Agreement shall create and constitute the continuing obligations of the parties hereto in
accordance with its terms and shall remain in full force and effect until terminated in accordance with its terms; provided, however, that the rights and remedies with respect to (i) any breach of any representation
and warranty made by any of the Originators pursuant to Article II; (ii) the indemnification and payment provisions of Article VI; and (iii) Section 7.5 shall be continuing and shall survive any termination of
this Agreement.
Section 7.12. Counterparts; Severability; Section References.
This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. Delivery of an executed counterpart of a signature page by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Unless otherwise expressly indicated, all references herein to
“Article,” “Section,” “Schedule” or “Exhibit” shall mean articles and sections of, and schedules and exhibits to, this Agreement.
Section 7.13. PATRIOT Act.
The Administrative Agent, as the Buyer’s assignee, hereby notifies you on behalf of the Purchasers that pursuant to the requirements of
the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”), the Administrative Agent and the Purchasers may be required to obtain, verify and record information that
identifies each of the Originators and the Performance Guarantor, which information includes the name, address, tax identification number and other information regarding each of the Originators and the Performance Guarantor that will allow the
Administrative Agent and the Purchasers to identify each of the Originators and the Performance Guarantor in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act. Each of the Originators agrees
to provide the Administrative Agent, from time to time prior to and after the Closing Date, with all documentation and other information required by bank regulatory authorities under “know your customer” and anti-money laundering rules and
regulations, including, without limitation, the PATRIOT Act.
<Signature
pages follow>
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date hereof.
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| COMMERCIAL METALS COMPANY, |
| as an Originator |
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| By: |
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| Name: |
| Title: |
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| Address for Notices: |
| 6565 N. MacArthur Blvd., Suite 800 |
| Irving, TX 75039 |
| Attn: |
|
VP and Treasurer |
| Email: |
|
louis.federlecarey.dubois@cmc.com |
| Phone: |
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(214972) 689-4370308-4092 |
| Fax: |
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(214) 932-7960 |
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| CMC COMETALS PROCESSING, INC., |
| as an Originator |
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| By: |
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| Name: |
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| Title: |
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| Address for Notices: |
| 6565 N. MacArthur Blvd., Suite 800 |
| Irving, TX 75039 |
| Attn: |
|
VP and Treasurer |
| Email: |
|
louis.federlecarey.dubois@cmc.com |
| Phone: |
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(214972) 689-4370308-4092 |
| Fax: |
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(214) 932-7960 |
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HOWELL METAL COMPANY, |
as an Originator |
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By: |
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Name: |
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Title: |
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Address for Notices: |
6565 N. MacArthur Blvd., Suite 800 |
Irving, TX 75039 |
Attn: |
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VP and Treasurer |
Email: |
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louis.federle@cmc.com |
Phone: |
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(214) 689-4370 |
Fax: |
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(214) 932-7960 |
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| STRUCTURAL METALS, INC., |
| as an Originator |
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| By: |
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| Name: |
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| Title: |
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| Address for Notices: |
| 6565 N. MacArthur Blvd., Suite 800 |
| Irving, TX 75039 |
| Attn: |
|
VP and Treasurer |
| Email: |
|
louis.federlecarey.dubois@cmc.com |
| Phone: |
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(214972) 689-4370308-4092 |
| Fax: |
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(214) 932-7960 |
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CMC STEEL FABRICATORS, INC. |
as an Originator |
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By: |
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Name: |
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Title: |
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Address for Notices: |
6565 N. MacArthur Blvd., Suite 800 |
Irving, TX 75039 |
Attn: |
|
VP and Treasurer |
Email: |
|
louis.federle@cmc.com |
Phone: |
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(214) 689-4370 |
Fax: |
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(214) 932-7960 |
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SMI STEEL INC. |
as an Originator |
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By: |
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Name: |
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Title: |
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Address for Notices: |
6565 N. MacArthur Blvd., Suite 800 |
Irving, TX 75039 |
Attn: |
|
VP and Treasurer |
Email: |
|
louis.federle@cmc.com |
Phone: |
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(214) 689-4370 |
Fax: |
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(214) 932-7960 |
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SMI—OWEN STEEL COMPANY, INC., |
| as an Originator |
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| By: |
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| Name: |
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| Title: |
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| Address for Notices: |
| 6565 N. MacArthur Blvd., Suite 800 |
| Irving, TX 75039 |
| Attn: |
|
VP and Treasurer |
| Email: |
|
louis.federlecarey.dubois@cmc.com |
| Phone: |
|
(214972) 689-4370308-4092 |
| Fax: |
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(214) 932-7960 |
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| SMI STEEL LLC, |
| as an Originator |
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| By: |
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| Name: |
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| Title: |
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| Address for Notices: |
| 6565 N. MacArthur Blvd., Suite 800 |
| Irving, TX 75039 |
| Attn: |
|
VP and Treasurer |
| Email: |
|
carey.dubois@cmc.com |
| Phone: |
|
(972) 308-4092 |
| Fax: |
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(214) 932-7960 |
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| OWEN ELECTRIC STEEL COMPANY OF SOUTH CAROLINA, as an Originator |
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| By: |
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| Name: |
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| Title: |
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| Address for Notices: |
| 6565 N. MacArthur Blvd., Suite 800 |
| Irving, TX 75039 |
| Attn: |
|
VP and Treasurer |
| Email: |
|
carey.dubois@cmc.com |
| Phone: |
|
(972) 308-4092 |
| Fax: |
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(214) 932-7960 |
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| AHT, INC., |
| as an Originator |
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| By: |
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| Name: |
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| Title: |
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| Address for Notices: |
| 6565 N. MacArthur Blvd., Suite 800 |
| Irving, TX 75039 |
| Attn: |
|
VP and Treasurer |
| Email: |
|
louis.federlecarey.dubois@cmc.com |
| Phone: |
|
(214972) 689-4370308-4092 |
| Fax: |
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(214) 932-7960 |
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| CMC RECEIVABLES, INC., |
| as the Buyer |
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| By: |
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| Name: |
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| Title: |
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| Address for Notices: |
| 6565 N. MacArthur Blvd., Suite 1036 |
| Irving, TX 75039 |
| Attn: |
|
VP and Treasurer |
| Email: |
|
louis.federlecarey.dubois@cmc.com |
| Phone: |
|
(214972) 689-4370308-4092 |
| Fax: |
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(214) 932-7960 |
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Exhibit I
Definitions
This is
Exhibit I to the Agreement (as hereinafter defined). As used in the Agreement and the Exhibits and Schedules thereto, capitalized terms have the meanings set forth in this Exhibit I (such meanings to be equally applicable to the
singular and plural forms thereof). If a capitalized term is used in the Agreement, or any Exhibit or Schedule thereto, and is not otherwise defined therein or in this Exhibit I, such term shall have the meaning assigned thereto in Exhibit I
to the Purchase Agreement (hereinafter defined).
“Additional Contributed Receivables” has the meaning specified
in Section 1.2(b)(iii).
“Administrative Agent” has the meaning specified in the Preliminary
Statements.
“Agreement” has the meaning specified in the preamble.
“Available Cash” means, on any date of determination, cash available to the Buyer from any source that is not required
to be paid to or set aside for the benefit of the Administrative Agent or the Purchasers under the Purchase Agreement.
“Buyer” has the meaning specified in the preamble.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collection Account” means a Lock-Box
Account under and as defined in the Purchase Agreement in which Buyer has been granted a security interest under Section 1.6 of this Agreement.
“Collections” means, with respect to any Receivable, all cash collections and other cash proceeds of
such Receivable, including, without limitation, all Finance Charges, if any, all cash proceeds of Related Security with respect to such Receivable and all Purchase Price Credits now or hereafter owing in connection with such Receivable.
“Contract” means a written agreement, pursuant to or under which an Obligor shall be
obligated to pay for merchandise purchased or services rendered and including all items and provisions incorporated or implied by applicable law, including, without limitation, the relevant UCC.
“Contributed Value” means the [Outstanding Balance] of a
Contributed Receivable.
“Contributed Receivables” has the meaning specified in Section 1.1(a).
“Contributed Receivables Assets” has the meaning specified in Section 1.1(a)
“Default Fee” means a per annum rate of interest equal to the sum of (i) the Yield Rate plus
(ii) 2.00% per annum.
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“Discount Factor” means a percentage calculated to provide the Buyer with
a reasonable return on its investment in the Receivables after taking account of (i) the time value of money based upon the anticipated dates of collection of the Receivables and the cost to the Buyer of financing its investment in the
Receivables during such period and (ii) the risk of nonpayment by the Obligors. Each of the Originators and the Buyer may agree from time to time and at any time to change the Discount Factor based on changes in one or more of the items
affecting the calculation thereof, provided that any change to the Discount Factor shall take effect as of the commencement of a Calculation Period, shall apply only prospectively and shall not affect the Purchase Price payment made
prior to the Calculation Period during which each of the Originators and the Buyer agree to make such change. As of August 15, 2014, the Discount Factor is 2.0%.
“Equity Interests” means Capital Securities and all warrants, options or other rights to acquire Capital
Securities, but excluding any debt security that is convertible into, or exchangeable for, Capital Securities.
“European Union Capital Requirements Regulation” has the
meaning provided in the Purchase Agreement.
“European Union Risk
Retention Requirements” has the meaning provided in the Purchase Agreement.
“Event of
Bankruptcy” means, with respect to any Person, (i) that such Person (a) shall generally not pay its debts as such debts become due or (b) shall admit in writing its inability to pay its debts generally or (c) shall
make a general assignment for the benefit of creditors; (ii) any proceeding shall be instituted by or against such Person seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or any substantial part of its property, and, if instituted against such Person, shall remain undischarged for a period of 60 days; or (iii) such Person or any Subsidiary shall take any corporate or similar action to
authorize any of the actions set forth in the preceding clauses (i) or (ii).
“Governmental
Authority” means the government of the United States of America or any other nation, any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Initial Cutoff Date” means, solely as to Owen Electric
Company of South Carolina, April 30, 2013, and as to all other Originators, March 31, 2011.
“Invoice” means a written or electronic invoice, bill or statement of account evidencing a Receivable,
pursuant to or under which an Obligor shall be obligated to pay for merchandise purchased or services rendered and including all items and provisions incorporated or implied by applicable law, including, without limitation, the relevant UCC.
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“Margin Stock” has the meaning assigned to this term in
Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
“Monthly
Settlement Date” means the second Business Day after delivery of each Purchase Report hereunder.
“Net Worth” means, as of the last Business Day of each Calculation Period preceding any date of
determination, the excess, if any, of (i) the aggregate Outstanding Balance of the Receivables at such time, over (ii) the sum of (A) the Aggregate Invested Amount outstanding at such time, plus (B) the aggregate outstanding
principal balance of the Subordinated Loans (including any Subordinated Loan proposed to be made on the date of determination).
“OFAC” means The United States Department of the Treasury’s Office of Foreign Assets Control.
“Organic Documents” means, for any Person, the documents for its formation and
organization, which, for example, (i) for a corporation are its articles of incorporation, certificate of incorporation or other corporate charter document, as applicable, and its bylaws, (ii) for a partnership are its certificate of
partnership (if applicable) and partnership agreement, (iii) for a limited liability company are its certificate of formation or organization and its operating agreement, regulations or the like and (iv) for a trust is the trust agreement,
declaration of trust, indenture or bylaws under which it is created.
“Original
Balance” means, with respect to any Receivable coming into existence after the date hereof, the Outstanding Balance of such Receivable on the date it was created.
“Originators” has the meaning specified in the preamble.
“Originator Collateral” has the meaning specified in Section 1.6.
“Payment Date” means each Business Day on which an Originator
is open for business.
“Performance Guarantor” means Commercial Metals Company, a Delaware
corporation, and its successors.
“Performance Undertaking Default” has the meaning
specified in the Performance Undertaking.
“Purchase Agreement” has the meaning specified in the
Preliminary Statements.
“Purchase Price” means, with respect to any sale of Purchased
Receivables by a Subsidiaryan Originator hereunder, the aggregate price to be paid by the Buyer to the applicable Subsidiary Originator in accordance with
Section 1.2 for the Purchased Receivables Assets being sold to the Buyer, which price shall equal on any date (i) the product of (A) the Outstanding Balance of the Purchased Receivables on such date, multiplied by (B) one
minus the Discount Factor in effect on such date, minus (ii) any Purchase Price Credits to be credited against the Purchase Price otherwise payable in accordance with Section 1.2.
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“Purchase Price Credit” has the meaning specified in
Section 1.3.
“Purchase Report” has the meaning specified in Section
1.1(b).
“Purchased Receivables” has the meaning specified in Section
1.1(a).
“Purchased Receivables Assets” has the meaning specified in Section
1.1(a).
“Related Parties” means, with respect to any specified Person, such
Person’s Affiliates and the respective directors, officers, employees, trustees, agents and advisors of such Person and its Affiliates.
“Required Capital Amount” means, as of any date of determination, an amount equal to the greater of
(i) 50% of the Purchase Limit under the Purchase Agreement, and (ii) the product of (A) 1.5 times the product of the Default Ratio times the Default Horizon Ratio, each as determined from the most recent Monthly Report
received from the Servicer under the Purchase Agreement, and (B) the Outstanding Balance of all Receivables as of such date, as determined from the most recent Monthly Report or Interim Report received from the Servicer under the Purchase
Agreement.
“Required Contributed Amount”
means, as of any date of determination, the amount, if positive, by which the Required Capital Amount exceeds the Buyer’s Net Worth.
“Sanctioned Country” means a country subject to a sanctions program identified on the list maintained by OFAC and
available at: http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published from time to time.
“Sanctioned Person” means (i) a person named on the list of Specially Designated Nationals or Blocked Persons
maintained by OFAC available at: http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published from time to time or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization
controlled by a Sanctioned Country, or (C) a person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC.
“Subordinated Loan” has the meaning specified in
Section 1.2(a)Section 1.2(a).
“Subordinated Note” means any promissory note in substantially the form of Exhibit V as more
fully described in Section 1.2, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Subsidiary Originator” has the meaning specified in the preamble.
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges,
liabilities or withholdings imposed by any Governmental Authority.
“Termination Date” means the
earliest to occur of (i) the Facility Termination Date (as defined in the Purchase Agreement), (ii) the Business Day immediately prior to the occurrence of
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an Event of Bankruptcy with respect to any of the Originators or the Performance Guarantor, (iii) the Business Day specified in a written notice from the Administrative Agent as the
Buyer’s assignee to any Originator following the occurrence of any other Termination Event, and (iv) the date which is 10 Business Days after the Buyer’s receipt of written notice from the Originators that it wishes to terminate the
facility evidenced by this Agreement.
“Termination Event” has the meaning specified in Section
5.1.
“Transaction Documents” means, collectively, this Agreement, the Purchase
Agreement, the Fee Letter, the Collection AccountLock-Box Agreements, the Subordinated
NoteNotes, the Performance Undertaking and all of the other instruments, documents, certificates and other agreements executed and delivered by any Originator or the
Performance Guarantor in connection with any of the foregoing, in each case, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“UCC” mean, with respect to any jurisdiction, the Uniform Commercial Code as from time to time in effect
in such jurisdiction.
“Unmatured Termination Event” means an event which, with the
passage of time or the giving of notice, or both, could constitute a Termination Event.
All accounting terms not specifically defined
herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9.
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Exhibit II
Jurisdiction of IncorporationOrganization; Organizational
Identification Number; Principal Places of
Business; Chief Executive Office; Locations of Records; Federal Employer Identification
Number; Other
Names
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| Company |
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FEIN |
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Jurisdiction of
Organization |
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Organizational
ID Number |
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Principal Place of Business |
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Chief Executive Office and
Location of Records |
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Other
Names |
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| CMC Receivables, Inc. |
|
75-2942626 |
|
Delaware |
|
3404428 |
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6565 N. MacArthur Blvd. Suite 1036
Irving, TX 75039 |
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6565 N. MacArthur Blvd. Suite 1036
Irving, TX 75039 |
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N/A |
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| Commercial Metals Company |
|
75-0725338 |
|
Delaware |
|
406521 |
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6565 N. MacArthur Blvd. Suite 800
Irving, TX 75039 |
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6565 N. MacArthur Blvd. Suite 800
Irving, TX 75039 |
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N/A |
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| CMC Cometals Processing, Inc. |
|
76-1167683 |
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Texas |
|
20155900 |
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6565 N. MacArthur Blvd. Suite 800
Irving, TX 75039 |
|
6565 N. MacArthur Blvd. Suite 800
Irving, TX 75039 |
|
Zenith Finance and Construction Company |
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| Structural Metals, Inc. |
|
74-1070965 |
|
Texas |
|
9292700 |
|
1 Steel Mill Drive Seguin, TX 78155 |
|
6565 N. MacArthur Blvd. Suite 800
Irving, TX 75039 |
|
N/A |
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| CMC Steel Fabricators, Inc. |
|
74-2195234 |
|
Texas |
|
42590700 |
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1 Steel Mill Drive Seguin, TX 78155 |
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6565 N. MacArthur Blvd. Suite 800
Irving, TX 75039 |
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N/A |
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| SMI Steel LLC |
|
63-0860755 |
|
Alabama |
|
095-579 |
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101 S. 50th Street
Birmingham, AL 35212 |
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6565 N. MacArthur Blvd. Suite 800
Irving, TX 75039 |
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N/A |
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| Owen Electric Steel Company of South Carolina |
|
57-0409183 |
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South Carolina |
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N/A |
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310 New State Rd. Cayce, SC 29033 |
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6565 N. MacArthur Blvd. Suite 800
Irving, TX 75039 |
|
N/A |
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| AHT, Inc. |
|
23-2870775 |
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Pennsylvania |
|
2729876 |
|
108 Parkway East Pell City, AL 35125 |
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6565 N. MacArthur Blvd. Suite 800
Irving, TX 75039 |
|
N/A |
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Exhibit III
Lock-Boxes; Collection Accounts; CollectionLock-Box Banks
A. ACCOUNTS WITH BANK OF AMERICA, N.A.
Bank of America, N.A.
2000 Clayton
Road, Building D
Concord, CA 94520-2425
Attn: Blocked Account Support
Mail
Code: CA4-704-06-37
B. ACCOUNTS WITH BANK OF NEW YORK MELLON
Bank of New York Mellon
The Bank of
New York Mellon
Document Control Manager
BNY Mellon Client Service Center
500
Ross Street, Room 1380
Pittsburgh, PA 15262
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LOCK-BOX BANK NAME AND
ADDRESS |
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POST OFFICE BOX ADDRESS |
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CORRESPONDING ACCOUNT
NUMBER |
| |
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Exhibit IV
Form of Compliance Certificate
To: Wells
Fargo Bank, N.A., as Administrative Agent
This Compliance Certificate is furnished pursuant to that certain Receivables Sale
Agreement dated as of April 5, 2011, between COMMERCIAL METALS COMPANY, a Delaware corporation, CMC COMETALS PROCESSING, INC., a Texas corporation, HOWELL METAL COMPANY, a Virginia corporation,
STRUCTURAL METALS, INC., a Texas corporation, CMC STEEL FABRICATORS, INC., a Texas corporation, SMI STEEL, INC.LLC,
aan Alabama corporation, SMI
-limited liability company, OWEN ELECTRIC
STEEL COMPANY, INC. OF SOUTH CAROLINA, a South Carolina corporation, and AHT, INC., a Pennsylvania corporation, as
sellers, and CMC RECEIVABLES, INC., a Delaware corporation, as buyer (the “Agreement”). Capitalized terms used and not otherwise defined herein
are used with the meanings attributed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly
elected
of (the “Company”).
2. Attached hereto are financial statements of the Company and its consolidated Subsidiaries for the ended
, 201 , prepared in accordance with GAAP (excluding the footnotes) consistently applied throughout the period covered
thereby, except as otherwise noted therein. Such financial statements present fairly the financial condition and results of operations and cash flows of the Company and its consolidated Subsidiaries as of the dates and for the periods covered
thereby.
3. I have no knowledge of, the existence of any condition or event which constitutes a Termination Event or an Unmatured
Termination Event, as each such term is defined under the Agreement, as of the date of this Certificate[, except as set forth in paragraph 4 below].
4. Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period
during which it has existed and the action which the Company has taken, is taking, or proposes to take with respect to each such condition or event:
].
The foregoing certifications and the financial statements delivered with this Certificate in support hereof, are made and delivered this
day of , 201 .
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Exhibit V
Form of Subordinated Note
SUBORDINATED NOTE
April
, 2011
August 15, 2014
1. Note. FOR VALUE RECEIVED, the undersigned, CMC RECEIVABLES, INC., a Delaware corporation (the
“Buyer”), hereby unconditionally promises to pay to (the “Originator”), in lawful
money of the United States of America and in immediately available funds, the aggregate unpaid principal sum outstanding of all “Subordinated Loans” made from time to time by the Originator to the Buyer pursuant to and in accordance with
the terms of that certain Receivables Sale Agreement, dated as of April 5, 2011, between the Originator, the parties thereto and the Buyer (as amended, restated, supplemented or otherwise modified from time to time, the “Sale
Agreement”). Reference to Section 1.2 of the Sale Agreement is hereby made for a statement of the terms and conditions under which the loans evidenced hereby have been and will be made. All terms which are capitalized and
used herein and which are not otherwise specifically defined herein shall have the meanings ascribed to such terms in the Sale Agreement.
2. Interest. The Buyer further promises to pay interest on the outstanding unpaid principal amount hereof from the date hereof until
payment in full hereof at a rate equal to the Yield Rate (as defined in the Purchase Agreement), computed for actual days elapsed on the basis of a year consisting of 360 days, on each Monthly
SettlementPayment Date hereafter on which no Amortization Event or Potential Amortization Event (each, as defined in the Purchase Agreement) exists and is continuing, to the extent
of the Buyer’s Available Cash (it being understood and agreed that any amount of interest which the Buyer is precluded from paying due to the existence and continuance of an Amortization Event or Potential Amortization Event or the lack of
sufficient Available Cash shall become due and payable on the next Monthly Settlement Payment Date on which no such condition persists); provided,
however, that if the Buyer shall default in the payment of any principal hereof, the Buyer promises to pay, on demand, interest at the rate equal to the Yield Rate plus 2.00% per annum on any such unpaid amounts, from the date
such payment is due to the date of actual payment; and provided further, that the Buyer may elect on the date any interest payment is due hereunder to defer such payment and upon such election the amount of interest due but unpaid on
such date shall constitute principal under this Subordinated Note. The outstanding unpaid interest of any loan made under this Subordinated Note shall be due and payable on Termination Date and may be paid with the prepayment of principal at any
time without premium or penalty.
3. Principal Payments. On each Monthly
SettlementPayment Date hereafter on which no Amortization Event or Potential Amortization Event (each, as defined in the Purchase Agreement) exists and is continuing, the Buyer
shall pay to the Originator the outstanding principal balance of this Subordinated Note to the extent of the Buyer’s Available Cash (it being
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understood and agreed that any amount of principal which the Buyer is precluded from paying due to the existence and continuance of an Amortization Event or Potential Amortization Event or the
lack of sufficient Available Cash shall become due and payable on the next Monthly SettlementPayment Date on which no such condition persists). The Originator is authorized
and directed by the Buyer to enter on the grid attached hereto, or, at its option, in its books and records, the date and amount of each loan made by it which is evidenced by this Subordinated Note and the amount of each payment of principal made by
the Buyer, and absent manifest error, such entries shall constitute prima facie evidence of the accuracy of the information so entered; provided that neither the failure of the Originator to make any such entry or any error therein
shall expand, limit or affect the obligations of the Buyer hereunder. The outstanding principal of any loan made under this Subordinated Note shall be due and payable on the Termination Date and may be repaid or prepaid at any time without premium
or penalty.
4. Subordination. The Originator shall have the right to receive, and the Buyer shall make, any and all
payments and prepayments relating to the loans made under this Subordinated Note, provided that, after giving effect to any such payment or prepayment, the aggregate Outstanding Balance of Receivables (as each such term is defined in
the Purchase Agreement) owned by the Buyer at such time exceeds the sum of (i) the Aggregate Unpaids (as defined in the Purchase Agreement) outstanding at such time under the Purchase Agreement, plus (ii) the aggregate outstanding
principal balance of all loans made under this Subordinated Note. The Originator hereby agrees that at any time during which the conditions set forth in the proviso of the immediately preceding sentence shall not be satisfied, the Originator shall
be subordinate in right of payment to the prior payment of any indebtedness or obligation of the Buyer owing to the Administrative Agent or any Purchaser under that certain Receivables Purchase Agreement, dated as of April 5, 2011 by and among
the Buyer, Commercial Metals Company, as initial Servicer, the Purchasers from time to time party thereto, and Wells Fargo Bank, N.A., as the “Administrative Agent” (as amended, restated, supplemented or otherwise modified from time to
time, the “Purchase Agreement”). The subordination provisions contained herein are for the direct benefit of, and may be enforced by, the Administrative Agent and each of the Purchasers and/or any of their respective
assignees (collectively, the “Senior Claimants”) under the Purchase Agreement. Until the date on which the “Aggregate Invested Amount” outstanding under the Purchase Agreement has been repaid in full and all other
obligations of the Buyer and/or the Servicer thereunder and under the “Fee Letter” referenced therein (all such obligations, collectively, the “Senior Claim”) have been indefeasibly paid and satisfied in full, the
Originator shall not institute against the Buyer any proceeding of the type described in the definition of “Event of Bankruptcy” in the Sale Agreement unless and until the Termination Date has occurred. Should any payment, distribution or
security or proceeds thereof be received by the Originator in violation of this Section 4, the Originator agrees that such payment shall be segregated, received and held in trust for the benefit of, and deemed to be the property of, and
shall be immediately paid over and delivered to the Administrative Agent for the benefit of the Senior Claimants.
5.
Bankruptcy; Insolvency. Upon the occurrence of any Event of Bankruptcy involving the Buyer as debtor, then and in any such event the Senior Claimants shall receive payment in full of all amounts due or to become due on or in respect of the
Aggregate Invested Amount and the Senior Claim (including “Yield” as defined and as accruing under the Purchase
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Agreement after the commencement of any such proceeding, whether or not any or all of such Yield is an allowable claim in any such proceeding) before the Originator is entitled to receive payment
on account of this Subordinated Note, and to that end, any payment or distribution of assets of the Buyer of any kind or character, whether in cash, securities or other property, in any applicable insolvency proceeding, which would otherwise be
payable to or deliverable upon or with respect to any or all indebtedness under this Subordinated Note, is hereby assigned to and shall be paid or delivered by the Person making such payment or delivery (whether a trustee in bankruptcy, a receiver,
custodian or liquidating trustee or otherwise) directly to the Administrative Agent for application to, or as collateral for the payment of, the Senior Claim until such Senior Claim shall have been paid in full and satisfied.
6. Amendments. This Subordinated Note shall not be amended or modified except in accordance with Section 7.1 of the Sale
Agreement. The terms of this Subordinated Note may not be amended or otherwise modified without the prior written consent of the Administrative Agent for the benefit of the Purchasers.
7. GOVERNING LAW. THIS SUBORDINATED NOTE HAS BEEN MADE AND DELIVERED AT NEW YORK, NEW YORK, AND SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS AND DECISIONS OF THE STATE OF NEW YORK. WHEREVER POSSIBLE EACH PROVISION OF THIS SUBORDINATED NOTE SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER
APPLICABLE LAW, BUT IF ANY PROVISION OF THIS SUBORDINATED NOTE SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH
PROVISION OR THE REMAINING PROVISIONS OF THIS SUBORDINATED NOTE.
8. Waivers. All parties hereto, whether as makers, endorsers, or
otherwise, severally waive presentment for payment, demand, protest and notice of dishonor. The Originator additionally expressly waives all notice of the acceptance by any Senior Claimant of the subordination and other provisions of this
Subordinated Note and expressly waives reliance by any Senior Claimant upon the subordination and other provisions herein provided.
9.
Assignment. This Subordinated Note may not be assigned, pledged or otherwise transferred to any party other than the Originator without the prior written consent of the Administrative Agent, and any such attempted transfer shall be void.1
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| CMC RECEIVABLES, INC. |
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| By: |
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| Name: |
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| Title: |
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Exh VII Receivables Sale Agreement |
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50 |
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Schedule
to
Subordinated Note
SUBORDINATED LOANS AND PAYMENTS OF PRINCIPAL
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| DATE |
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AMOUNT OF
SUBORDINATED
LOAN |
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AMOUNT OF PRINCIPAL
PAID |
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UNPAID
PRINCIPAL
BALANCE |
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NOTATION MADE
BY
(INITIALS) |
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Exh VII Receivables Sale Agreement |
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51 |
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Exhibit VI
Form of Purchase Report
Form of Purchase Report
For the Settlement Period beginning [date] and ending [date]
TO: THE BUYER AND THE ADMINISTRATIVE AGENT (AS BUYER’S ASSIGNEE)
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| Aggregate Outstanding Balance of all Receivables sold during the period: |
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$ |
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A |
| Less: Aggregate Outstanding Balance of all Receivables sold during such period which were not Eligible Receivables on the date when sold: |
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($ ) |
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(B) |
| Equals: Aggregate Outstanding Balance of all Eligible Receivables sold during the period (A – B): |
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$ |
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=C |
| Less: Purchase Price discount during the Period: |
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($ ) |
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(D) |
| Equals: Gross Purchase Price Payable during the period (C – D) |
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$ |
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=E |
| Less: Total Purchase Price Credits arising during the Period: |
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($ ) |
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(F) |
| Equals: Net Purchase Price payable during the Period (E – F): |
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$ |
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=G |
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| Cash Purchase Price Paid to each Originator during the Period: |
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$
$ |
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H |
| Subordinated Loans made during the Period: |
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$ |
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I |
| Repayments of Subordinated Loans received during the Period: |
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$ |
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J |
| Reduction of CMC’s equity in Buyer during the Period: |
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$ |
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K |
| Aggregate Outstanding Balance of Receivables contributed during the Period: |
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$ |
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L |
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Exh VII Receivables Sale Agreement |
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Schedule A
Documents to be Delivered to Buyer
on or Prior to the Closing Date
1. The Receivables Sale Agreement, duly executed by the parties thereto.
2. A copy of the Credit and Collection Policy to attach to the Receivables Sale Agreement as an
Exhibitof each of the Originators.
3. A certificate of the Secretary
or Assistant Secretary of each of the Originators and the Performance Guarantor certifying:
(a) A copy of the Resolutions of the Board of
Directors of such Person, authorizing its execution, delivery and performance of the Transaction Documents to which it is a party;
(b) A
copy of its Organic Documents (certified, to the extent that such documents are filed with any governmental authority, by the Secretary of State of its jurisdiction of incorporation on or within thirty (30) days prior to the Closing Date); and
(c) Good Standing Certificates for each of the Originators issued by the Secretary of State of formation or incorporation, in each case
dated on or within thirty (30) days prior to the Closing Date.
(d) The names and signatures of the officers authorized on the
applicable Originators’ behalf to execute the Transaction Documents to which it is party.
4. Pre-filing state and federal tax lien,
judgment lien and UCC lien searches against each of the Originators dated on or within thirty (30) days prior to the Closing Date from the jurisdictions acceptable to the Buyer and its assigns.
5. UCC-1 financing statements for each of the Originators in form suitable for filing in the State of formation or incorporation, as
applicable naming the applicable Originator as the debtor/seller and the Administrative Agent as the total assignee of secured party and reasonably describing the Receivables Assets.
6. UCC termination statements or amendments (if any), necessary to release all security interests and other rights of any Person in the
Receivables Assets previously granted by any Originator and other related release documentation.
7. Executed copies of Collection
AccountLock-Box Agreements for each Lock-Box and Collection Account.
8. One or more favorable opinions of legal counsel for the Originators and the Performance Guarantor reasonably acceptable to the Buyer (and
the Administrative Agent, as the Buyer’s assignee) which addresses the following matters and such other matters as the Administrative Agent may reasonably request:
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Receivables Sale Agreement |
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(a) valid existence, good standing, due authorization, execution, delivery, enforceability and
other corporate matters with respect to each of the Originators and the Performance Guarantor;
(b) the creation of a valid and perfected
security interest in favor of the Buyer (and the Administrative Agent, for the benefit of the Purchasers and its assigns) in (i) all of the Receivables Assets and (ii) all proceeds of any of the foregoing;
(c) the existence of a “true sale” of the Receivables from each of the Originators to the Buyer under this Agreement;
(d) the inapplicability of the doctrine of substantive consolidation to the Buyer and the Originators, the Performance Guarantor and their
respective Subsidiaries in connection with any bankruptcy proceeding involving any of the foregoing.
10. A Compliance Certificate signed
by one either chief executive officer, chief financial officer, any vice president, principal accounting officer, treasurer or assistant treasurer of each of the Originators and the Performance Guarantor certifying that, as of the Closing Date, no
Termination Event or Unmatured Termination Event exists and is continuing.
11. If applicable, executed copies of (i) all consents
from and authorizations by any Persons and (ii) all waivers and amendments to existing credit facilities, that are necessary in connection with the Receivables Sale Agreement and the Transaction Documents.
12. One separate executed Subordinated Note in favor of each of the Originators.
13. The Performance Undertaking, duly executed by the Performance Guarantor in favor of the Buyer.
14. If applicable, a direction letter executed by the Originators authorizing the Buyer (and the Administrative Agent, as its assignee) and
directing warehousemen to allow the Buyer (and the Administrative Agent, as its assignee) to inspect and make copies from the Originators’ books and records maintained at off-site data processing or storage facilities.
15. The Purchase Agreement, duly executed by each of the parties thereto, and delivery of all documents and opinions and payment of all fees,
required thereunder.
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Receivables Sale Agreement |
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54 |
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Schedule B
Provisions to be included in any pledge
Stock of CMC Receivables Inc.; Limitation on Actions. The parties hereto acknowledge that the pledge hereunder of the capital stock
(the “SPV Stock”) of CMC Receivables Inc., a Delaware corporation (“SPV”), and certain subordinated notes made by the SPV in favor of the Grantors (the “Subordinated Notes”)
and, collectively with the SPV Stock, the “SPV Assets”), is prohibited by the terms of the Transaction Documents unless certain limitations with respect to the pledge of the SPV Assets are set forth herein. As used herein the
term “Lenders’ Agent” shall refer to any entity acting as agent holding collateral under bank facility agreement for the benefit of certain lenders.
To induce the Administrative Agent, on behalf of the Purchasers (collectively, the “Securitization Secured Parties”),
to permit the pledge of the SPV Assets to any Lenders’ Agent, the parties hereto agree to the following limitations:
(a)
Notwithstanding anything to the contrary contained herein:
(i) Prior to the Facility Termination Date, each the holders of any
Subordinated Note (“Noteholders”) and the Lenders’ Agent agrees that it will not, without the prior written consent of the Administrative Agent, take any action adverse to the interests of the of the Securitization
Secured Parties under or related to the Transaction Documents, including, without limitation, (i) exercising any voting rights with respect to the SPV Stock, (ii) foreclosing (whether by contractual, judicial or non-judicial foreclosure or
otherwise) on the SPV Assets or exercise any other rights and remedies in respect of the SPV Assets, (iii) causing or consenting to (A) any amendment or other modification to the certificate of incorporation, by-laws or other
organizational documents of SPV or to any Subordinated Note, (B) any merger, consolidation or other combination of SPV with or into any other Person or (C) any failure of SPV to perform or comply with the Receivables Sale Agreement
including any of SPV’s payment obligations under the Receivables Sale Agreement, (iv) causing SPV to violate or breach any term or provision in any Transaction Document, (v) causing SPV to incur any debt, other than, in each case, as
may be allowed in the Transaction Documents or (vi) otherwise taking any action which would compromise or call into question the intended bankruptcy-remote structure of the transactions contemplated by the Purchase Agreement and the other
Transaction Documents;
(ii) Prior to the Facility Termination Date, (A) in the event that any Noteholder or the Lenders’
Agent, receives any payments or funds constituting collateral under the Transaction Documents, such Noteholder or the Lenders’ Agent, as applicable, shall hold such payments or funds in trust for the benefit of the Administrative Agent, and
shall promptly transfer such payments or funds to the Administrative Agent and (B) each of the Noteholders and the Lenders’ Agent, for itself and for the Lenders, agrees that, with respect to the SPV Assets, it will not, without the prior
written consent of the Administrative Agent or as permitted under the Purchase Agreement, make or receive any dividends or distributions on such collateral;
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Receivables Sale Agreement |
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(iii) Prior to the Facility Termination Date, (A) this Section
shall not be amended, restated, supplemented or otherwise modified without the prior written consent of the Administrative Agent, at the reasonable discretion of the Administrative Agent, and the provisions of this Section
shall be contained in any agreement that amends and restates this Agreement and (B) each of the Noteholders and the Lenders’ Agent, for itself and for the Lenders agrees that no such party shall enter into any additional agreement that
would adversely affect the rights of the Administrative Agent and/or the Securitization Secured Parties set forth in Section hereof; and
(iv) Prior to the date that is one year and one day after the Facility Termination Date, each of Noteholders and the Lenders’ Agent
agrees that it will not institute against, or join any other Person in instituting against, SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any
state of the United States or any other jurisdiction;
(v) Prior to the date that is one year and one day after the Facility Termination
Date, neither any Noteholder nor the Lenders’ Agent nor any Lender shall object to or contest in any administrative, legal or equitable action or proceeding (including, without limitation, any insolvency, bankruptcy, receivership, liquidation,
reorganization, winding up, readjustment, composition or other similar proceeding relating to any Originator (as defined in the Purchase Agreement) or SPV or their respective property) or object to or contest in any other manner (1) the
interests of SPV and its successors and assigns in any of the assets transferred (or purported to be transferred) by any Originator to SPV pursuant to the Transaction Documents and/or (2) the interests of the Administrative Agent, and/or any of
the Securitization Secured Parties in the Pool Assets or otherwise take any action which would compromise or call into questions the intended bankruptcy-remote structure of the transactions contemplated by the Purchase Agreement and the other
Transaction Documents. Neither any Noteholder nor the Lenders’ Agent nor any lender shall object to or contest in any manner the receipt of any payment by the Administrative Agent and/or any of the Securitization Secured Parties with respect to
the Pool Assets in accordance with the terms of the Transaction Documents for the satisfaction of the Receivables Obligations.
(c) The
provisions of this Section shall continue to be effective or be reinstated, as the case may be, if at any time any payment of the Receivables Obligations is rescinded or must otherwise be returned by the Administrative Agent
or any of the lenders upon the insolvency, bankruptcy or reorganization of any Originator, the Performance Guarantor or SPV or otherwise, all as though such payment had not been made.
(b) The Administrative Agent for the ratable benefit of the Securitization Secured Parties shall be a third-party beneficiary with respect to
this Section .
| 1 |
Please note that this subordinated note may not be pledged without consent. |
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Receivables Sale Agreement |
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56 |
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EXHIBIT AB TO
OMNIBUS AMENDMENT NO. 12
RECEIVABLES PURCHASE AGREEMENT
DATED AS OF APRIL 5, 2011
AS AMENDED BY AMENDMENT NO. 1 DATED
AS OF DECEMBER 28, 20112011,
OMNIBUS AMENDMENT NO. 1 DATED AS
OF MAY 3, 2013 AND OMNIBUS AMENDMENT NO. 2 DATED AS
OF AUGUST 15, 2014
AMONG
CMC RECEIVABLES, INC.,
AS THE SELLER,
COMMERCIAL METALS COMPANY, AS THE SERVICER,
LIBERTY STREET FUNDING LLCNIEUW AMSTERDAM
RECEIVABLES CORPORATION, AS A CONDUIT PURCHASER,
THE BANK OF NOVA SCOTIACOÖPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, AS A COMMITTED PURCHASER AND
AS LIBERTY STREETNIEUW
AMSTERDAM ADMINISTRATOR,
FAIRWAY FINANCE COMPANY, LLC, AS A
CONDUIT PURCHASER,
BANK OF MONTREAL,
AS A COMMITTED PURCHASER,
BMO CAPITAL MARKETS CORP., AS FAIRWAY
ADMINISTRATOR,
WELLS FARGO BANK, N.A., AS A COMMITTED
PURCHASER,
AND
WELLS FARGO BANK, N.A., AS ADMINISTRATIVE AGENT
TABLE OF CONTENTS
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PAGE |
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| ARTICLE I. TERMS OF THE INVESTMENTS |
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2 |
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| Section 1.1. |
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Investment Facility |
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2 |
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| Section 1.2. |
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Making Investments |
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3 |
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| Section 1.3. |
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Transfer of Receivables and Other Purchased Assets |
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3 |
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| Section 1.4. |
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Terms and Conditions for Sale, Assignment and Transfer |
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4 |
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| Section 1.5. |
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Purchased Assets Coverage Percentage Computation |
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5 |
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| Section 1.6. |
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Fees |
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6 |
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| Section 1.7. |
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Payment Requirements |
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6 |
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| Section 1.8. |
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Yield |
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6 |
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| Section 1.9. |
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Suspension of the LMIR |
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7 |
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| ARTICLE II. PAYMENTS AND COLLECTIONS |
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| Section 2.1. |
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Settlement Procedures |
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7 |
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| Section 2.2. |
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Payment Rescission |
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10 |
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| Section 2.3. |
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Clean-up Option |
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11 |
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| Section 2.4. |
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Amount of Collections |
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11 |
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| ARTICLE III. REPRESENTATIONS AND WARRANTIES |
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11 |
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| Section 3.1. |
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Representations and Warranties of the Seller |
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11 |
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| Section 3.2. |
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Representations and Warranties of the Servicer |
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15 |
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| ARTICLE IV. CONDITIONS OF EFFECTIVENESS AND PURCHASES |
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18 |
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| Section 4.1. |
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Conditions Precedent to Effectiveness |
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18 |
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| Section 4.2. |
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Conditions Precedent to All Investments |
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19 |
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| ARTICLE V. COVENANTS |
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19 |
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| Section 5.1. |
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Affirmative Covenants of the Seller Parties |
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19 |
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| Section 5.2. |
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Negative Covenants of the Seller Parties |
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27 |
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| ARTICLE VI. ADMINISTRATION AND COLLECTION |
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29 |
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| Section 6.1. |
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Designation of the Servicer |
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29 |
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| Section 6.2. |
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Duties of the Servicer |
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30 |
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| Section 6.3. |
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Lock-Box Accounts |
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32 |
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| Section 6.4. |
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Collection Notices |
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32 |
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| Section 6.5. |
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Responsibilities of the Seller |
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33 |
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| Section 6.6. |
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Reports |
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33 |
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| Section 6.7. |
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Servicing Fees |
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33 |
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| ARTICLE VII. AMORTIZATION EVENTS |
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34 |
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| Section 7.1. |
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Amortization Events |
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34 |
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| Section 7.2. |
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Remedies |
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37 |
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ii
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| ARTICLE VIII. INDEMNIFICATION |
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38 |
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| Section 8.1. |
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Indemnities by the Seller |
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38 |
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| Section 8.2. |
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Indemnities by the Servicer |
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41 |
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| Section 8.3. |
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Increased CostCosts and Reduced Return |
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43 |
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| Section 8.4. |
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Other Costs and Expenses |
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44 |
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| Section 8.5. |
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Taxes |
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44 |
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| ARTICLE IX. THE ADMINISTRATIVE AGENT AND THE LIBERTY STREET
ADMINISTRATORADMINISTRATORS |
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46 |
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| Section 9.1. |
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Appointment |
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46 |
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| Section 9.2. |
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Delegation of Duties |
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47 |
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| Section 9.3. |
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Exculpatory Provisions |
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48 |
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| Section 9.4. |
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Reliance by the Administrative Agent, the Liberty Street Administrator and the PurchasersInvestor Parties |
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48 |
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| Section 9.5. |
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Notice of Amortization Events |
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49 |
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| Section 9.6. |
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Non-Reliance on the Administrative Agent, the Liberty Street Administrator and Other PurchasersOther Investor
Parties |
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49 |
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| Section 9.7. |
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Indemnification of Administrative Agent and Liberty Street Administratorthe Administrators |
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50 |
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| Section 9.8. |
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Administrative Agent and Liberty Street AdministratorAdministrators in their Individual Capacities |
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51 |
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| Section 9.9. |
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Successor Administrative Agent |
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51 |
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| Section 9.10. |
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UCC Filings |
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51 |
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| Section 9.11. |
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Conflict Waivers |
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52 |
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| ARTICLE X. ASSIGNMENTS; PARTICIPATIONS |
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52 |
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| Section 10.1. |
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Assignments; Pledge to Federal Reserve Bank |
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52 |
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| Section 10.2. |
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Participations |
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53 |
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| Section 10.3. |
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Replacement of Purchaser |
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54 |
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| ARTICLE XI. GRANT OF SECURITY INTEREST |
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54 |
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| Section 11.1. |
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Grant of Security Interest |
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54 |
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| ARTICLE XII. MISCELLANEOUS |
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55 |
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| Section 12.1. |
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Waivers and Amendments |
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55 |
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| Section 12.2. |
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Notices |
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56 |
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| Section 12.3. |
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Ratable Payments |
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56 |
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| Section 12.4. |
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Protection of Ownership and Security Interests |
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|
57 |
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| Section 12.5. |
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Confidentiality |
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|
57 |
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| Section 12.6. |
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Limitation of Liability |
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|
58 |
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| Section 12.7. |
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CHOICE OF LAW |
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|
58 |
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| Section 12.8. |
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CONSENT TO JURISDICTION |
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59 |
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| Section 12.9. |
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WAIVER OF JURY TRIAL |
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59 |
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| Section 12.10. |
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Integration; Binding Effect; Survival of Terms |
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59 |
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| Section 12.11. |
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Counterparts; Severability; Section References |
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60 |
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| Section 12.12. |
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PATRIOT Act |
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60 |
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| Section 12.13. |
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Recourse Against Certain Parties |
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60 |
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| Section 12.14. |
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Limitation on Payments |
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61 |
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| Section 12.15. |
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Non-Petition |
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61 |
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| <Signature Pages Follow> |
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61 |
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iii
EXHIBITS AND SCHEDULES
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|
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| Exhibit I |
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Definitions |
| Exhibit II-A |
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Form of Investment Notice |
| Exhibit II-B |
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Form of Reduction Notice |
| Exhibit III |
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Seller’s Chief Executive Office, Principal Place of Business, Records Locations, Federal Taxpayer ID Number and Organizational ID Number |
| Exhibit IV |
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Lock-Boxes and Lock-Box Accounts |
| Exhibit V |
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Form of Compliance Certificate |
| Exhibit VI |
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Form of Assignment Agreement[Reserved] |
| Exhibit VII |
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Credit and Collection Policy |
| Exhibit VIII |
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Form of Interim Report |
| Exhibit IX |
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Form of Monthly Report |
| Exhibit X |
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Form of Performance Undertaking |
| Exhibit XI |
|
Corporate Names; Trade Names; Assumed Names |
| Schedule A |
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Commitments |
| Schedule B |
|
Closing Documents |
| Schedule C |
|
Divisions |
iv
RECEIVABLES PURCHASE AGREEMENT
THIS RECEIVABLES PURCHASE AGREEMENT, dated as of April 5, 2011
and amended as of December 28, 2011, May 3, 2013 and August 15, 2014, is among:
(a) CMC Receivables, Inc., a Delaware corporation (the
“Seller”),
(b) Commercial Metals Company, a Delaware corporation (“CMC”), as initial
Servicer,
(c) Wells Fargo Bank, N.A., a national banking association
(“WFB” or a “Committed Purchaser”), The Bank of Nova Scotia (“Scotiabank”) and each of the other banks from
time to time party hereto (each of the foregoing, including WFB and Scotiabank,
(d) Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank
Nederland”, New York Branch (“Rabobank” or a “Committed Purchaser”),
(e) Bank of Montreal (“BMO”) or a “Committed
Purchaser”),
(d) Liberty Street Fundingf) Nieuw
Amsterdam Receivables Corporation, a Delaware corporation (“Nieuw Amsterdam” or a “Conduit Purchaser”),
(g) Fairway Finance Company, LLC, a Delaware limited liability company
(“Liberty StreetFairway” or a “Conduit Purchaser”; the Conduit
Purchasers and, together with the Committed Purchasers, the “Purchasers”),
(e) The
Bank of Nova Scotiah) Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch in its capacity as administrator of the
Liberty StreetNieuw Amsterdam Funding Group (in such capacity, together with its successor and assigns in such capacity, the “Liberty
StreetNieuw Amsterdam Administrator”), and
(i) BMO Capital Markets Corp. in its capacity as administrator of the Fairway Funding
Group (in such capacity, together with its successor and assigns in such capacity, the “Fairway Administrator” and together with the Nieuw Amsterdam Administrator, the “Administrators”), and
(fj) WFB in its capacity as administrative agent for the
Purchasers (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”).
Unless defined elsewhere herein, capitalized terms used in this Agreement shall have the meanings assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
The Seller desires to transfer and assign Receivables to the
Purchasers from time to time. On the terms and subject to the conditions set forth herein, the Purchasers desire to acquire Receivables from the Seller from time to
time. In lieu of requiring cash payments for all of the Receivables, the Seller may from time to time accept deferred payment obligations.
1
Scotiabank has been requested and is willing to act as Liberty Street
Administrator on behalf of itself and Liberty Street in accordance with the terms hereof.
WFB has been
requested and is willing to act as Administrative Agent on behalf of the Purchasers in accordance with the terms hereof.
ARTICLE I.
TERMS OF
THE INVESTMENTS
Section 1.1. Investment Facility.
(a)
Investments. On the terms and subject to the conditions hereof, the Seller may, from time to time before the
Facility Termination Date, request that the Purchasers make investmentsInvestments ratably (based on their Percentages) in the Purchased Assets (each, an
“Investment”) in accordance with Section 1.2. On the terms and subject to the conditions hereof: (i) WFB severally commits to make Investments (through the Administrative Agent) from time to time from the
date hereof to the Facility Termination Date, based on its Percentage of the Investment Price for each Investment requested pursuant to Section 1.2(a); and (ii) Liberty
StreetNieuw Amsterdam may, and in the event that Liberty StreetNieuw Amsterdam declines to,
ScotiabankRabobank severally commits to, make Investments (through the Administrative Agent) from time to time from the date hereof to the Facility Termination Date, based
on the Liberty StreetNieuw Amsterdam Funding Group’s Percentage of the Investment Price for each Investment requested pursuant to Section 1.2(a); and
(iii) Fairway may, and in the event that Fairway declines to, BMO severally commits to, make Investments (through the Administrative Agent) from time to time from the date hereof to the Facility Termination Date, based on the Fairway
Funding Group’s Percentage of the Investment Price for each Investment requested pursuant to Section 1.2(a); provided that under no circumstances shall any Purchaser make any Investment if, after giving effect to such
Investment, (x) such Purchaser’s Capital (or, in the case of the Liberty Streeta Funding Group, the Liberty
Streetsuch Funding Group’s aggregate CapitalFunding Limit) outstanding would exceed its
Commitment, (y) the Aggregate Capital would exceed the Purchase Limit, or (z) the Purchased Assets Coverage Percentage would exceed 100%. Until further written notice from the Fairway
Administrator, the Seller is hereby notified that all Investments by the Fairway Funding Group will be funded by BMO, its successors and permitted assigns.
(b) Reductions in Purchase Limit. The Seller may, upon
at least ten (10) Business Days’ notice to the Administrative Agent (who will promptly notify the Purchasers), terminate in whole or reduce in part, ratably amongst the Purchasers in accordance with their respective Percentages, the unused
portion of the Purchase Limit; provided that (i) each partial reduction of the Purchase Limit shall be in a minimum amount of $1,000,000 (or a larger integral multiple of
$100,000) for each of WFB and each of the Liberty Street Funding Group considered as a whole
Funding Groups considered as a whole, and (ii) in no event may the Purchase Limit be reduced below the outstanding Aggregate Capital unless accompanied by a payment of Aggregate Capital in an aggregate amount necessary to reduce the Aggregate
Capital to the reduced Purchase Limit.
2
Section 1.2. Making Investments(a) .
. Each request for an Investment hereunder may be made on any day upon the Seller’s irrevocable written notice in the form of Exhibit II-A hereto (each, an
“Investment Notice”) delivered to WFB and the PurchasersAdministrators prior to 12:00
noon (New York time) at least one (a) Business Day before the requested Investment Date, specifying: (ai)
the aggregate amount of cash (the “Cash Purchase Price”), if any, requested to be paid to the Seller for such Investment (which, unless such amount is $0, shall not be less than $1,000,000 per
participating Purchaser or a larger integral multiple of $100,000), (bii) the requested date of such Investment
(which shall be a Business Day) and (ciii) the pro forma calculation of the Purchased Assets Coverage Percentage after giving effect to the increase in the
Capital.Aggregate Capital. By paying the Cash Purchase Price for any Investment, the Purchasers agree to purchase, and the Seller agrees to sell, the Purchased Assets in accordance
with Section 1.3, and the Purchasers agree to pay the Deferred Purchase Price in accordance with Section 1.4(c) (it being understood that such Deferred Purchase Price shall be payable solely out of Collections).
Section 1.3. Transfer of Receivables and Other Purchased Assets.
(a) Sale of Receivables. In consideration of the Purchasers’ agreement to make Investments, the entry into this Agreement
by the Administrative Agent, the Liberty Street Administrator and the Purchasers, and the Administrative Agent’s and PurchasersInvestor Parties, and the Investor
Parties’ agreement to make payments to the Seller from time to time in accordance with Section 1.4, effective on the Closing Date, the Seller hereby sells, conveys, transfers and assigns to the Administrative Agent, on behalf of
the Purchasers, all of the Seller’s right, title and interest in and to (i) all Receivables existing as of the close of business on the Initial Cutoff Date or thereafter arising
from time to time prior to the Facility Termination Date, and all rights and payments relating thereto, (ii) all Related Security relating thereto, whether existing on the Initial Cutoff Date or thereafter arising, (iii) all Collections
thereof, whether existing on the Initial Cutoff Date or thereafter arising, (iv) each Lock-Box and each Lock-Box Account, whether existing on the Initial Cutoff Date or thereafter arising, and (v) all proceeds of any of the foregoing,
whether existing on the Initial Cutoff Date or thereafter arising (collectively, the “Pool Assets”).
(a)
Purchase of Purchased Assets. Subject to the terms and conditions hereof, the Administrative Agent (on behalf of the Purchasers) hereby purchases and accepts from the Seller all Pool Assets sold, assigned and transferred pursuant to
Section 1.3(a) (collectively, the “Purchased Assets”).
(b) Obligations Not Assumed. The
foregoing sale, assignment and transfer does not constitute and is not intended to result in the creation, or an assumption by the Administrative Agent, the Liberty Street
Administratoreither of the Administrators or any Purchaser, of any obligation of the Seller, any Originator or any other Person under or in connection with the Receivables or any
other Related Security, all of which shall remain the obligations and liabilities of the Seller, such Originator and/or such other Person, as applicable.
3
Section 1.4. Terms and Conditions for Sale, Assignment and Transfer. Subject to the
terms and conditions hereof, in consideration for the sale, assignment and transfer of the Purchased Assets by the Seller to the Administrative Agent (on behalf of the Purchasers) hereunder:
(a) Investments. On the Closing Date, and thereafter from time to time prior to the Facility Termination Date, on request of the
Seller for an Investment in accordance with Section 1.2, the Administrative Agent (on behalf of the Purchasers), in accordance with Section 1.2, shall pay to the Seller, each such
Purchaser’s (or its Funding Group’s) Percentage of the amount requested by the Seller under Section 1.2; provided, however, that nothing herein shall
obligate the Administrative Agent to make any payment in excess of the funds it receives from the Purchasers.
(b)
Reinvestments. On each Business Day prior to the Facility Termination Date, the Servicer, on behalf of the Administrative Agent and the Purchasers, shall pay to the Seller, out of Collections of the Receivables, the amount available for
reinvestment in accordance with Section 2.1(b)(ii). Each such payment is herein referred to as a “Reinvestment”.
(c) Deferred Purchase Price. The Servicer, on behalf of the Administrative Agent and the Purchasers, shall pay to the Seller,
from Collections, the amounts payable to the Seller from time to time pursuant to Section 2.1(b)(ii), Section 2.1(b)(iv) and clause fifth of Section 2.1(d)(ii) (such amounts, the “Deferred
Purchase Price” with respect to the Purchased Assets) at the times specified in such Sections. The parties hereto acknowledge and agree that the Administrative Agent and the Purchasers shall have the right to, and intend to, setoff
(i) the Seller’s obligation to pay (or cause to be paid) to the PurchasersInvestor Parties (or to the Administrative Agent on their behalf) all Collections on the
portion of the Purchased Assets attributable to the Deferred Purchase Price against (ii) the Administrative Agent’s and the Purchasers’ obligations to pay (or cause to be paid) to the Seller the Deferred Purchase Price.
(d) Seller Payments Limited to Collections. Notwithstanding any provision contained in this Agreement to the contrary, the
Administrative Agent and the PurchasersInvestor Parties shall not be obligated to pay any amount to the Seller as the purchase
priceInvestment Price of the Purchased Assets pursuant to subsections (b) and (c) above except to the extent of Collections on
Receivablesreceived and available for distribution to the Seller in accordance with this Agreement. Any amount that the Administrative Agent or any Purchaser
doesany Investor Party is not required to pay pursuant
to the Seller in accordance with the preceding sentence due to insufficiency of Collections shall not constitute a claim
(as defined in § 101 of the Bankruptcy Code) against or corporate or limited liability company obligation of such
PersonInvestor Party for any such insufficiency unless and until such amount becomes available for distribution to the Seller in accordance with
Section 2.1(d)(ii).
(e) Intent of the Parties. The parties to this Agreement intend that the sale, assignment
and transfer of Purchased Assets to the Administrative Agent (on behalf of the Purchasers) shall be treated as a sale for all purposes (other than for federal, state and local income and franchise tax purposes as provided in the following paragraph
of this clause (e)). If notwithstanding the intent of the parties, such sale, transfer and assignment is not treated as a
4
sale for such purposes, such sale, assignment and transfer shall be treated as the grant of, and the Seller does hereby grant to the Administrative Agent (for the benefit of the
PurchasersInvestor Parties) a security interest in the following property to secure all of the Seller’s obligations (monetary or otherwise) under this Agreement and
the other Transaction Documents to which it is a party, whether now or hereafter existing or arising, due or to become due, direct or indirect, absolute or contingent: all of the Seller’s right, title and interest in, to and under all Pool
Assets, whether now or hereafter owned, existing or arising. The Seller hereby authorizes the Administrative Agent to file financing statements describing as the collateral covered thereby as “all assets of the debtor, whether now owned or
hereafter created, acquired or arising, and all proceeds of the foregoing” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Agreement. The Administrative Agent, for the
benefit of the PurchasersInvestor Parties, shall have, with respect to the PoolPurchased
Assets, and in addition to all the other rights and remedies available to the Administrative Agent and the PurchasersInvestor Parties, all the rights and remedies of a
secured party under any applicable UCC.
Notwithstanding the foregoing paragraph of this clause (e), the Seller Parties, the
Administrative Agent and the PurchasersInvestor Parties intend and agree to treat, for U.S. federal, state and local income and franchise tax (in the nature of
income tax) purposes only, the sale, assignment and transfer of the Purchased Assets to the Administrative Agent (on behalf of the PurchasersInvestor Parties) as a loan
or loans to the Seller secured by the PoolPurchased Assets. The provisions of this Agreement and all related
Transaction Documents shall be construed to further these intentions of the parties.
(f) Nature of Obligations; Defaulting
Purchasers. Each Purchaser’s obligations hereunder shall be several, such that the failure of any Committed Purchaser (or, as applicable, its Funding Group) to make a payment
in connection with any Investment (each such Committed Purchaser, a “Defaulting Purchaser”) shall not
relieve any other Committed Purchaser of its obligation hereunder to make payment for any such Investment or drawing. Notwithstanding anything in this Section 1.4(f) to the contrary, no Purchaser shall be required to
make any Investment or payment with respect to such drawing pursuant to this Section 1.4(f) for an amount which would cause the aggregate Capital of such Purchaser (after giving effect to such
Investment) to exceed (i) in the case of Wells, its Commitment, and (ii) in the case of the Liberty Street Funding Group, Scotiabank’s Commitment.a Funding
Group, the relevant Committed Purchaser’s Commitment. At any time while a Committed Purchaser is a Defaulting Purchaser, such Defaulting Purchaser and, if applicable, its Funding Group, shall forfeit the right to vote on amendments and waivers
to the Transaction Documents, or to receive any unused fees described in paragraph (b) of the Fee Letter.
Section 1.5.
Purchased Assets Coverage Percentage Computation.
The Purchased Assets Coverage Percentage shall
bewas initially computed on December 28, 2011. Thereafter, until the Facility Termination Date, such Purchased Assets Coverage Percentage shall be automatically recomputed on
each Business Day other than a Termination Day. From and after the occurrence of any Termination Day, the Purchased Assets Coverage Percentage shall (until the event(s) giving rise to such Termination Day are satisfied or are waived in accordance
with the terms of this Agreement) be deemed to be 100%. The Purchased Assets Coverage Percentage shall become zero when the Final Payout Date has occurred and the Servicer shall have received the accrued Servicing Fee thereon.
5
Section 1.6. Fees.
The Seller shall pay to the Administrative Agent andInvestor
Parties the Purchasers Fees, in the amounts and on the dates set forth in the Fee Letter and the Administrative Agent’s Fee Letter.
Section 1.7. Payment Requirements.
All payments in respect of Capital shall be paid to the Administrative Agent for the ratable account of the applicable Purchasers. One or more
Seller Parties shall initiate a wire transfer of amounts to be paid or deposited by it pursuant to any provision of this Agreement no later than 1:00 p.m. (New York City time) on the day when due in immediately available funds. If
suchAny amounts that are payable to the Administrative Agent or
WFB, they shall be paid to the Administrative Agent’s Account for prompt distribution to the appropriate party or parties. If
suchAny amounts that are payable to the Liberty
StreetNieuw Amsterdam Administrator, they shall be paid to the Liberty StreetNieuw Amsterdam
Administrator’s Account for prompt distribution to the appropriate members of the Liberty StreetNieuw Amsterdam Funding Group. Any amounts that are payable to the Fairway
Administrator, they shall be paid to the Fairway Administrator’s Account for prompt distribution to the appropriate members of the Fairway Funding Group. All computations of Yield and per annum Fees under the Transaction Documents
shall be made on the basis of a year consisting of three hundred sixty (360) days for the actual number of days elapsed. If any amount hereunder shall be payable on a day which is not a Business Day, such amount shall be payable on the next
succeeding Business Day.
Section 1.8. Yield.
The Capital of each Investment shall accrue Yield for each day at its then
applicable Yield Rate. It is understood and agreed that (a) any Portion of Capital that is funded by Liberty
Streeta Conduit Purchaser through the issuance of Commercial Paper shall accrue Yield at thesuch Conduit
Purchaser’s CP Rate, and (b) any Portion of Capital that is funded by Scotiabank, whether initially pursuant to
Section 1.1(a)(ii) or because Liberty Street has put a Portion of Capital to Scotiabank pursuant to its Liquidity Agreement,a Conduit
Purchaser through a Liquidity Funding or by a Committed Purchaser shall accrue Yield at the LMIR (or, if the LMIR is not available, the Alternate Base Rate). On each Monthly Payment
Date, (ai) the Seller shall pay in arrears to WFB an aggregate amount equal to the accrued and
unpaid Yield on its Capital for each day during the Calculation Period (or portion thereof) then most recently ended, and (bii)
the Seller shall pay in arrears to the Liberty Street Administratoreach of the Administrators for the account of
the applicable Conduit Purchaser and Committed Purchaser(s) in the Liberty Streetits Funding Group an aggregate
amount equal to the accrued and unpaid Yield on their Portions of Capital for each day during the Calculation Period (or portion thereof) then most recently ended.
6
Section 1.9. Suspension of the LMIR.
If any Committed Purchaser determines (in commercially reasonable discretion applied consistently with respect to similar facilities) that
(a) funding any Investment at the LMIR would violate any applicable law, rule, regulation, or directive of any governmental or regulatory authority, whether or not having the force of law, or
(b) suchthe LMIR does not accurately reflect the cost of acquiring or maintaining such Investment, then such Committed Purchaser may suspend the availability of
suchthe LMIR, and such Committed Purchaser’s Capital shall thereafter accrue Yield at the Alternate Base Rate.
ARTICLE II.
PAYMENTS
AND COLLECTIONS
Section 2.1. Settlement Procedures.
(a) Administration of Collections. The collection of the Receivables shall be administered by the Servicer in accordance with
this Agreement. The Seller shall provide to the Servicer on a timely basis all information needed for such administration, including notice of the occurrence of any Termination Day and current computations of the Purchased Assets Coverage
Percentage.
(b) Setting Aside Collections; Reinvestments. The Servicer shall, on each day on which Collections or
Deemed Collections of Receivables are received (or deemed received) by the Seller or the Servicerby the Seller Parties (or Deemed Collections are paid in cash by the
Seller), take the following actions in the order specified:
(i) set aside and hold in trust (and shall, at the request
of the Administrative Agent or the Liberty Streetany Administrator after the Dominion Date, segregate in a separate account approved by the Administrative Agent) for the
benefit of the Purchasers, out of such Collections and Deemed Collections, first, an amount equal to the aggregate Yield accrued through such day for each Portion of Capital and not previously set
aside, second, an amount equal to the Fees accrued and unpaid through such day and not previously set aside, and third, to the extent funds are available
therefor, an amount equal to the Servicing Fee accrued through such day and not previously set aside,
(ii) subject
to Section 2.1(f), if such day is not a Termination Day, remit to the Seller the remainder of such Collections. SuchSubject to
Section 2.1(f), such remainder shall, (xA) to the extent representing a return of the Aggregate Capital, be automatically reinvested (ratably among the Purchasers
according to each Purchaser’s Capital) in the Purchased Assets and (yB) to the extent not representing a return of the Aggregate Capital, be paid to the Seller in
respect of the Deferred Purchase Price for the Purchased Assets; provided, however, that if the Purchased Assets Coverage Percentage would exceed 100%, then the Servicer shall not reinvest or remit to the Seller, but shall set aside
and hold in trust for the benefit of the PurchasersInvestor Parties (and shall, at the request of the Administrative Agent or the Liberty Street
Administratoreither of the Administrators, segregate in a separate account approved by the Administrative Agent) a portion of such Collections and Deemed Collections that, together
with the other Collections and Deemed Collections set aside pursuant to this paragraph, shall equal the
7
amount necessary to reduce the Purchased Assets Coverage Percentage to 100% (determined as if such Collections and Deemed Collections set aside had been applied to reduce the
Aggregate Capital at such time), which amount shall be deposited into the Administrative Agent’s Account (for the ratable benefit of the Purchasers), pending
distribution on the next Capital Settlement Date in accordance with Section 2.1(c); to the Purchasers, and
(iii) if such day is a Termination Day, set aside, segregate and hold in trust (and shall, at the request of the Administrative
Agent or any Administrator after the Dominion Date, segregate in a separate account approved by the Administrative Agent) for the benefit of the
PurchasersInvestor Parties the entire remainder of such Collections and Deemed Collections; provided that if amounts are set aside and held
in trust on any Termination Day of the type described in clause (a) of the definition of “Termination Day” and, thereafter, the conditions set forth in Section 4.2 are satisfied or waived by the
Administrative Agent and the Required Purchasers, such previously set-aside amounts shall, to the extent representing a return of Aggregate Capital, be reinvested and ratably
(determined according to outstanding Capital), be reinvested and/or paid to the Seller in respect of the Deferred Purchase Price for the Purchased Assets in accordance with clause (ii) above on the day of such subsequent
satisfaction or waiver of conditions, as the case may be, and
(iv) subject to Section 2.1(f),
if such day is not a Termination Day, pay to the Seller (on behalf of the Administrative Agent and the
PurchasersInvestor Parties) for the Seller’s own account and in payment of the Deferred Purchase Price for the Purchased Assets any Collections and Deemed Collections
in excess of amounts required to be reinvested in accordance with clause (i), (ii) or (iii) above.
(c) Deposit of Collections on Settlement Dates. The Servicer shall, in accordance with the priorities set forth in
Section 2.1(d), deposit into the Administrative Agent’s Account, on each Settlement Date (or, solely with respect to Collections and Deemed Collections held for the Purchasers pursuant to Section 2.1(f)(iii), such other
date approved by the Administrative Agent with at least five (5) Business Days prior written notice to the Administrative Agent of such payment)and on each Termination Day,
Collections and Deemed Collections held for the Purchasers pursuant to Section 2.1(b)(i) or 2.1(f) plus the amount of Collections and Deemed Collections then held for the Purchasers pursuant to
Section 2.1(b)(ii) and Section 2.1(b)(iii); provided that if CMC or an Affiliate thereof is the Servicer, such day is not a Termination Day and the Administrative Agent has not notified CMC (or such Affiliate)
that the right to retain the portion of Collections and Deemed Collections set aside pursuant to Section 2.1(b)(i) that represents the Servicing Fee is revoked, CMC (or such Affiliate) may retain the portion of the
Collections and Deemed Collections set aside pursuant to Section 2.1(b)(i) that represents the Servicing Fee in payment in full of the accrued Servicing Fees so set aside. No later than the second Business Day after the
end of each Calculation Period, the Liberty Street Administrator(i) each of the Administrators will notify the Servicer by facsimile or electronic mail of
the amount of Yield accrued with respect to each Portion of Capital funded by any member of the Liberty Streetand unpaid Yield owing to the members of its
Funding Group during such Calculation Period or portion thereof, and (ii) the Administrative Agent will notify the Servicer by facsimile or electronic mail of the
amount of Yield accrued with respect to each Portion of Capital funded byand unpaid Yield owing to WFB during such Calculation Period or portion thereof.
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(d) Distribution of Collections by the Administrative Agent. Upon receipt of funds
deposited into the Administrative Agent’s Account pursuant to clause (c) above, the Administrative Agent shall cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination Day and the Purchased Assets Coverage Percentage does not
exceed 100%, first to the Administrative Agent’s Account (for the benefit of WFB and the Administrative Agent) and to the Liberty Street Administratoreach of
the Administrators (for the benefit of the applicable member(s) of the Liberty Street their respective Funding
GroupGroups) in payment in full of all accrued and unpaid Yield and Fees with respect to each Portion of
Capital funded byowing to their constituents, and second, if the Servicer has set aside amounts in respect of the Servicing Fee pursuant to clause (b)(i) above and
has not retained such amounts pursuant to clause (c) above, to the Servicer (payable in arrears on each Settlement Date) in payment in full of the accrued Servicing Fees so set aside, and
(ii) if such distribution occurs on a Termination Day or on
aany day when the Purchased Assets Coverage Percentage exceeds 100%, first to the Administrative Agent’s Account (for the benefit of
WFB and the Administrative Agent and WFB) and to the Liberty Street Administrator’s
Accounteach of the Administrators (for the benefit of the applicable member(s) of the Liberty Street their
respective Funding GroupGroups) in payment in full of all accrued and unpaid Yield and Fees with
respect to each Portion of Capital funded byowing to their constituents, second to the Administrative Agent’s Account (for the ratable benefit of and prompt
distribution to WFB and the PurchasersAdministrators) in payment in full of their respective
Capital in full (or, if such day is not a Termination Day, the amount necessary to reduce the Purchased Assets Coverage Percentage to 100%)
(, determined as if such Collections had been applied to reduce such Capital), third, to the Servicer in payment in full of all accrued Servicing
Fees, fourth, if the Capital and accrued Yield with respect to each Portion of Capital have been reduced to zero, and all accrued Servicing Fees payable to the Servicer have been paid in full, to the
any Indemnified Party or Affected Person in payment in full of any other amounts owed thereto by the Seller hereunder, and fifth, after the occurrence of the Final Payout Date, all additional Collections with respect
to the Purchased Assets shall be paid to the Seller for its own account in payment of the Deferred Purchase Price for such Purchased Assets.
(e) Deemed Collections. For the purposes of this Section 2.1:
(i) if on any day a Dilution occurs, the Seller shall be deemed to have received a Deemed Collection and such Deemed Collection
shall be immediately applied to reduce the Net Pool Balance by the amount of such Deemed Collection. To the extent the effect of such Deemed Collection on the Net Pool Balance shall cause an Investment Excess, the Seller shall either deliver to the
Servicer immediately available funds in an amount equal to the lesser of (A) the sum of all Deemed Collections deemed received by the Seller and (B) an amount necessary to
eliminate such Investment Excess, and in each case, the Servicer shall remit the same to the Administrative Agent pursuant to this Section 2.1;
(ii) except as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any
Receivable shall be applied to the Receivables of such Obligor in the order of the age of such Receivables, starting with the oldest such Receivable, unless such Obligor designates in writing its payment for application to specific Receivables.
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(f) Voluntary Reductions. If at any time the Seller shall wish to cause the
reduction of Aggregate Capital (but not to commence the liquidation, or reduction to zero, of the entire Aggregate Capital), the Seller may do so as follows:
(i) the Seller shall provide each Purchaser and the Servicer with irrevocable prior written notice in the form of
Exhibit II-B hereto (each, a “Reduction Notice”) of any proposed reduction of Aggregate Capital not later than 12:00 noon (New York City time) one
(1) Business Day prior to the Business Day on which the proposed reduction is to occur (the “Proposed Reduction Date”). Such Reduction Notice shall (a) be prepared in accordance with the most recent Settlement
Report, and (b) designate (i) the Proposed Reduction Date, and (ii) the amount of Aggregate Capital to be reduced (the “Aggregate Reduction”) which shall be not less than $500,000 per Purchaser and shall be
distributed ratably to the Investments of each Purchaser in accordance with the amount of Capital owing to each Purchaser. Only one (1) Reduction Notice shall be outstanding at any time;
(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause
Collections not to be reinvested until the amount thereof not so reinvested shall equal the desired amount of Aggregate Reduction; and
(iii) the Servicer shall hold such Collections in trust for the benefit of the Administrative Agent (for the ratable
benefit of the Purchasers)Investor Parties, for payment to the Administrative Agent (for the ratable benefit of the Purchasers) by deposit into the Administrative Agent’s
Account on the next Business Day or such other date approved by the Administrative Agent and the Required Purchasers, and Capital shall be deemed reduced in the amount to be so paid to the
Administrative Agent’s Account only when in fact finally so paid.
Upon receipt by the Administrative Agent in the Administrative Agent’s
Account of any amount paid in reduction of the Aggregate Capital pursuant to sub-clause (iii) above, the Administrative Agent shall cause such funds to be promptly distributed to WFB and the Liberty Street
Administratoreach of the Administrators (for the ratable benefit of the applicable members of the Liberty
Streetits Funding Group) in payment of the applicable Purchasers’ outstanding Capital.
Section 2.2. Payment Rescission. No payment of any of the Aggregate Unpaids shall be considered paid or applied hereunder to the
extent that, at any time, all or any portion of such payment or application is rescinded by application of law or judicial authority, or must otherwise be returned or refunded for any reason.
The Seller shall remain obligated for the amount of any
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payment or application so rescinded, returned or refunded, and shall promptly pay to the applicable Purchaser, the Liberty
Streetapplicable Administrator or the Administrative Agent, as the case may be, the full amount thereof, together with
any Yield thereon from the date of any such rescission, return or refunding.
Section 2.3. Clean-up Option. At any time
while the Aggregate Capital outstanding is less than 10% of the Purchase Limit, Servicer shall have the right (after providing at least five (5) Business Days’ prior written notice to the Administrative Agent and the
Liberty Street AdministratorAdministrators) to repurchase all, but not less than all, of the Purchased Assets. The purchase price in respect thereof shall be an amount
equal to the sum (without duplication) of the Aggregate Unpaids through the date of such repurchase, payable in immediately available funds. Such repurchase shall be without representation,
warranty or recourse of any kind by, on the part of, or against the Administrative Agent, the Liberty Street Administratoreither of the Administrators or any Purchaser
except for a representation and warranty that the reconveyance to Servicer is being made free and clear of any Adverse Claim created by the Administrative Agent, the Liberty Street
Administratoreither of the Administrators or the applicable Purchaser. On the date of repurchase of the Purchased Assets pursuant to this Section, the Commitments of the Committed
Purchasers shall automatically terminate.
Section 2.4. Amount of Collections. Notwithstanding any provision of this
Agreement to the contrary, failure to have sufficient Collections to make any payment when due and payable hereunder shall in no event defer the due date of such
payment or deposit, and the applicable Seller Party shall remain obligated for the amount of such deficiency.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of
the Seller. The Seller
hereby represents and warrants to the Administrative Agent, the Liberty Street AdministratorInvestor Parties, as of the date hereof and
as of the Purchasersdate of each Investment that:
(a) Existence and Power. The Seller is duly organized, validly
existing and in good standing under the laws of the State of Delaware. The Seller is duly qualified to do business and is in good standing as a foreign corporation, and has and holds all
corporate power and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is conducted except where the failure to so qualify or so hold could not reasonably be
expected to have a Material Adverse Effect.
(b) Power and Authority; Due Authorization, Execution and Delivery. The
execution and delivery by the Seller of this Agreement and each other Transaction Document to which it is a party, the performance of its obligations hereunder and thereunder and the use of
the proceeds of the Purchases made hereunder, are within its corporate powers and authority and have been duly authorized by all necessary corporate action on its part. This Agreement and each other Transaction Document to which
the Seller is a party has been duly executed and delivered by the Seller.
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(c) No Conflict. The execution and delivery by
the Seller of this Agreement and each other Transaction Document to which it is a party, and the performance of its obligations hereunder and thereunder do not contravene or violate
(i) its Organic Documents, (ii) any law, rule or regulation applicable to it, (iii) any restrictions under any material agreement, contract or instrument to which it is a party or by which it or any of its property is bound, or
(iv) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in the creation or imposition of any Adverse Claim on assets of
the Seller (except as created hereunder) except, in any case with respect to Clauses (i) through (iv) above, where such contravention or violation could not reasonably be expected
to have a Material Adverse Effect; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(d) Governmental Authorization. Other than the filing of the financing statements required hereunder, no authorization or
approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution and delivery by the Seller of this Agreement
and each other Transaction Document to which it is a party and the performance of its obligations hereunder and thereunder.
(e)
Actions, Suits. (i) There are no actions, suits or proceedings pending, or to the best of the Seller’s knowledge, threatened in writing, against or affecting
the Seller, or any of its properties, in or before any court, arbitrator or other body, and which determination could reasonably be expected to have a Material Adverse Effect, and
(ii) the Seller is not in default with respect to any order of any court, arbitrator or governmental body.
(f) Binding Effect. This Agreement and each other Transaction Document to which
the Seller is a party constitute the legal, valid and binding obligations of the Seller enforceable against
the Seller in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or
limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(g) Accuracy of Information. All information (other than projections but including, without limitation, Interim Reports and
Monthly Reports) heretofore furnished by the Seller or by any Authorized Officer of an Originator to the Administrative Agent, the Liberty Street Administrator or any of
the PurchasersInvestor Parties for purposes of or in connection with this Agreement, any of the other Transaction Documents or any transaction contemplated hereby or
thereby is, and all such information hereafter furnished by the Seller or any such Authorized Officer to the Administrative Agent, the Liberty Street Administrator or any
of the PurchasersInvestor Parties will be, true and accurate in all material respects on the date such information is stated or certified and does not and will not contain
any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading.
(h) Use of Proceeds. The Seller will not use the proceeds of any
Investment hereunder (i) for a purpose that violates, or would be inconsistent with, Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time or (ii) to acquire any security in any
transaction which is subject to Section 12, 13 or 14 of the Securities Exchange Act of 1934, as amended.
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(i) Good Title. Immediately prior to or contemporaneously with each Investment
hereunder, the Seller shall be the legal and beneficial owner of the Receivables and Related Security with respect thereto, free and clear of any Adverse Claim, except as created by the
Transaction Documents. There have been duly filed all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect
the Seller’s ownership interest in each Receivable, its Collections and the Related Security.
(j) Perfection. Assuming the filing of the financing statements approved by
the Seller on the date hereof (which will be filed by the Administrative Agent or its representatives), this Agreement, together with the filing of such financing statements, is effective
to, and shall, upon each Investment hereunder, transfer to the Administrative Agent for the benefit of the relevant Purchaser or Purchasers (and the Administrative Agent for the benefit of such Purchaser or Purchasers shall acquire from
the Seller) a valid and perfected first priority ownership or security interest in each Receivable existing or hereafter arising and in all other
PoolPurchased Assets, free and clear of any Adverse Claim, except as created or permitted by the
TransactionsTransaction Documents. In accordance with the preceding sentence, the Administrative Agent confirms that it or its representatives have duly filed all financing
statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Administrative Agent’s (on behalf of the Purchasers) ownership or security interest in the
PoolPurchased Assets.
(k) Places of Business and
Locations of Records. The principal places of business and chief executive office of the Seller and the offices where it keeps all of its Records are located at the address(es)
listed on Exhibit III or such other locations of which the Administrative Agent and the Liberty Street AdministratorAdministrators have been notified in accordance with
Section 5.2(a) in jurisdictions where all action required by Section 12.4(a) has been taken and completed. The Seller’s Federal Employer Identification Number and
Organizational Identification Number are correctly set forth on Exhibit III.
(l) Collections. The conditions and
requirements set forth in Section 5.1(j) and Section 6.2 have at all times been satisfied and duly performed. The names and addresses of all Lock-Box Banks, together with the account numbers of the Lock-Box Accounts of
the Seller at each Lock-Box Bank and the post office box number of each Lock-Box, are listed on Exhibit IV. The Seller has not
granted any Person, other than the Administrative Agent as contemplated by this Agreement, control of any Lock-Box Account, or the right to take control of any such Lock-Box Account at a future time or upon the occurrence of a future event.
Each of the Lock-Box Banks has been duly instructed to wire all available funds in the Lock-Box Accounts on each Business Day to the Administrative Agent’s Account. Each remittance of Collections by the Seller Parties to the
Administrative Agent, the Liberty Street AdministratorAdministrators or the Purchasers hereunder has been made (i) in payment of a debt incurred by such Seller Party
in the ordinary course of its business or financial affairs, and (ii) in the ordinary course of business or financial affairs of such Seller Party.
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(m) Material Adverse Effect. Since November 30,
2010,May 31, 2014, no event has occurred that would have a Material Adverse Effect.
(n) Names. Except as stated on Exhibit XI, in the past five (5) years,
the Seller has not used any legal names, trade names or assumed names other than the name in which it has executed this Agreement.
(o) Ownership of the Seller. CMC owns, directly or
indirectly, 100% of the issued and outstanding Capital Securities of all classes of the Seller, free and clear of any Adverse Claim (other than Adverse Claims granted in connection with the
Senior Credit Agreement, as such agreement may be amended or refinanced from time to time). Such Capital Securities are validly issued and there are no options, warrants or other rights to acquire Capital Securities of
the Seller.
(p) Not an Investment Company.
The Seller is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or any successor statute.
(q) Compliance with Law. The Seller has complied in all respects
with all applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject, except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect. Each
Receivable, together with the Contract related thereto, does not contravene any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and privacy), and no part of such Contract is in violation of any such law, rule or regulation, except, in each case, where such contravention or violation could not reasonably be
expected to have a Material Adverse Effect.
(r) Compliance with Credit and Collection Policy.
The Seller has complied in all material respects with the Credit and Collection Policy with regard to each Receivable and the related Contract, and has not made any change to such Credit
and Collection Policy prohibited by Section 5.2(c).
(s) Payments to Applicable Originators. With respect to each
Receivable, the Seller has given reasonably equivalent value to the applicable Originator in consideration therefor and such transfer was not made for or on account of an antecedent debt.
No transfer by any Originator of any Receivable under the Sale Agreement is or may be voidable under any section of the Bankruptcy Reform Act of 1978 (11 U.S.C. §§ 101 et seq.), as amended.
(t) Enforceability of Contracts. Each Contract with respect to each Eligible Receivable is effective to create, and has created,
a legal, valid and binding obligation of the related Obligor to pay the Outstanding Balance of the Eligible Receivable created thereunder and any accrued interest thereon, enforceable against the Obligor in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
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(u) Eligible Receivables. Each Receivable included in the Net Pool Balance on a
Settlement Report as an Eligible Receivable was an Eligible Receivable as of the last day of the period covered by such Settlement Report.
(v) No Investment Excess. The Seller has determined that,
immediately after giving effect to each Investment hereunder, no Investment Excess exists.
(w) Financial Information. All
financial statements and all other financial information furnished to the Purchasers and described in Section 5.1 have been and will be prepared in accordance with GAAP consistently applied, and do or will present fairly the consolidated
financial condition of the Persons covered thereby as at the dates thereof and the results of their operations for the periods then ended; provided that unaudited financial statements of the
Seller and each of Performance Guarantor and its Subsidiaries have been prepared without footnotes, without reliance on any physical inventory and are subject to year-end adjustments. Any projections furnished by
the Seller or by any Authorized Officer of an Originator to the Purchasers for purposes of or in connection with this Agreement were prepared in good faith based upon estimates and
assumptions stated therein which, at the time of preparation, were believed to be reasonable.
(x) OFAC.
The Seller is not a Person (i) whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) who engages in any dealings or transactions prohibited by Section 2 of such executive order,
or is otherwise associated with any such person in any manner violative of Section 2, or (iii) on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department
of Treasury’s Office of Foreign Assets Control regulation or executive order.
(y) Patriot Act.
The Seller is in compliance, in all material respects, with the USA Patriot Act (Title 111 of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”). No part of the
proceeds of the Purchases will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity,
in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
(z) Rule 3a-7. Each of the Receivables is an “eligible asset” within
the meaning of Rule 3a-7(b)(1) of the Investment Company Act of 1940, as amended.
Section 3.2. Representations and Warranties
of the Servicer. The Servicer hereby represents and warrants to the Administrative Agent, the Liberty Street Administrator and the PurchasersInvestor Parties as of
the date hereof and as of each Investment Date that:
(a) Existence and Power. The Servicer is duly organized, validly
existing and in good standing under the laws of the State of Delaware. The Servicer is duly qualified to do business and is in good standing as a foreign corporation, and has and holds all corporate
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power and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is conducted except where the failure to
so qualify or so hold could not reasonably be expected to have a Material Adverse Effect.
(b) Power and Authority; Due
Authorization, Execution and Delivery. The execution and delivery by the Servicer of this Agreement and each other Transaction Document to which it is a party, the performance of its obligations hereunder and thereunder, are within its
corporate powers and authority and have been duly authorized by all necessary corporate action on its part. This Agreement and each other Transaction Document to which the Servicer is a party has been duly executed and delivered by the Servicer.
(c) No Conflict. The execution and delivery by the Servicer of this Agreement and each other Transaction Document to which
it is a party, and the performance of its obligations hereunder and thereunder do not contravene or violate (i) its Organic Documents, (ii) any law, rule or regulation applicable to it, (iii) any restrictions under any material
agreement, contract or instrument to which it is a party or by which it or any of its property is bound, or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in the
creation or imposition of any Adverse Claim on assets of the Servicer (except as created hereunder) except, in any case with respect to clauses (i) through (iv) above, where such contravention or violation could not reasonably be expected
to have a Material Adverse Effect; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(d) Governmental Authorization. No authorization or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due execution and delivery by the Servicer of this Agreement and each other Transaction Document to which it is a party and the performance of its obligations hereunder and thereunder.
(e) Actions, Suits. (i) There are no actions, suits or proceedings pending, or to the best of the Servicer’s
knowledge, threatened in writing, against or affecting the Servicer, or any of its properties, in or before any court, arbitrator or other body, that could reasonably be expected to have a Material Adverse Effect, and (ii) the Servicer is not
in default with respect to any order of any court, arbitrator or governmental body that could reasonably be expected to have a Material Adverse Effect.
(f) Binding Effect. This Agreement and each other Transaction Document to which the Servicer is a party constitute the legal,
valid and binding obligations of the Servicer enforceable against the Servicer in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating
to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(g) Accuracy of Information. All information (other than projections) heretofore furnished by the Servicer or by any Authorized
Officer of an Originator to the Administrative Agent, the Liberty Street Administrator or any of the PurchasersInvestor Parties for purposes of or in
connection with this Agreement, any of the other Transaction Documents or
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any transaction contemplated hereby or thereby is, and all such information hereafter furnished by the Servicer or any such Authorized Officer to the Administrative Agent, the Liberty
Street Administrator or any of the PurchasersInvestor Parties will be, true and accurate in all material respects on the date such information is stated or
certified and does not and will not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading.
(h) Collections. The conditions and requirements set forth in Section 5.1(j) and Section 6.2 have at all
times been satisfied and duly performed.
(i) Material Adverse Effect. Since November 30, 2010, no event has occurred
that would have a Material Adverse Effect.
(j) Not an Investment Company. The Servicer is not an “investment
company” within the meaning of the Investment Company Act of 1940, as amended, or any successor statute.
(k) Compliance with
Law. The Servicer has complied in all respects with all applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
(l) Compliance with Credit and Collection Policy. The Servicer has complied in
all material respects with the Credit and Collection Policy with regard to each Receivable and the related Contract, and has not made any change to such Credit and Collection Policy prohibited by Section 5.2(c).
(m) OFAC. Neither the Servicer nor any Originator nor any Subsidiary of any Originator is a Person (i) whose property or
interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner violative of Section 2, or (iii) on the list
of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.
(n) Patriot Act. Each of the Servicer, the Originators and their respective Subsidiaries is in compliance, in all material
respects, with the Act. No part of the proceeds of the Receivables will be used, directly or indirectly, by any of the foregoing for any payments to any governmental official or employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
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(o) ERISA Compliance.
(i) Each Pension Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other federal or state
laws. Each Pension Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto
and, to the best knowledge of the Servicer, nothing has occurred which would prevent, or cause the loss of, such qualification. The Servicer and each ERISA Affiliate have made all required contributions to each Pension Plan subject to
Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Pension Plan.
(ii) There are no pending or, to the best knowledge of the Servicer, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Pension Plan that would be reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Pension Plan that has
resulted or would reasonably be expected to result in a Material Adverse Effect.
(iii) (a) No ERISA Event has occurred or is reasonably
expected to occur; (b) no Pension Plan has any Unfunded Pension Liability which has resulted or which would reasonably be expected to have a Material Adverse Effect; (c) neither the Servicer nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA) which has resulted or which would reasonably be expected to have a
Material Adverse Effect; (d) neither the Servicer nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan which has resulted or which would reasonably be expected to have a Material Adverse Effect; and (e) neither the Servicer nor any ERISA Affiliate has
engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA which has resulted or which would reasonably be expected to have a Material Adverse Effect.
(p) Risk Retention. The Originators, individually or through related entities,
have collectively retained a material net economic interest in the Receivables in an amount at least equal to the percentage required under, and in a manner permitted by, Paragraph 1 of Article 405 of the European Union Capital Requirements
Regulation by reference to the portion of Receivables for which they are each an Originator, and have not entered into any credit risk mitigation or any short positions or any other hedge in a manner with respect to such net economic interest,
except to the extent permitted by the European Union Risk Retention Requirements.
ARTICLE IV.
CONDITIONS OF EFFECTIVENESS AND PURCHASES
Section 4.1. Conditions Precedent to Effectiveness. The effectiveness of this Agreement is subject to the conditions precedent
that (a) the Administrative Agent shall have received on or before the date hereof those documents listed on Schedule B, and (b) the Administrative Agent and each of the Purchasers shall have received all Fees and expenses required to be
paid on such date pursuant to the terms of this Agreement and the Fee Letter.
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Section 4.2. Conditions Precedent to All Investments. Each initial
Investment, Incremental Investment and Reinvestment shall be subject to the further conditions precedent that (a) the Servicer shall have delivered to the Administrative Agent and the Liberty Street
AdministratorAdministrators on or prior to the date of such Investment, in form satisfactory to the Administrative Agent, all Settlement Reports as and when due under
Section 6.6; (b) the Facility Termination Date shall not have occurred; (c) the Administrative Agent and the Purchasers shall have received such other approvals, opinions or documents as it may reasonably request, it being
understood that no such opinions shall be requested unless there has been a change in law or circumstance; and (d) on the applicable Investment Date, the following statements shall be true (and acceptance of the proceeds of such Investment
shall be deemed a representation and warranty by the Seller that such statements are then true):
(i) the representations and warranties set forth in Article III are true and correct in all material respects on and as
of the date of such Investment as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall remain true and correct in
all material respects as of such earlier date;
(ii) no event has occurred and is continuing, or would result from such
Investment, that will constitute an Amortization Event or a Potential Amortization Event; and
(iii) no Investment Excess
exists or will result from such PurchaseInvestment.
ARTICLE V.
COVENANTS
Section 5.1. Affirmative Covenants of the Seller
Parties. Until the date on which the Aggregate Unpaids have been paid in full (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and the termination or expiration of all of the
Commitments:
(a) Financial Reporting. Such Seller Party will maintain, for itself and each of its Subsidiaries, a system of
accounting established and administered in accordance with GAAP, and furnish or cause to be furnished to the Administrative Agent (who will promptly deliver a copy to the Liberty Street
AdministratorAdministrators):
(i) Annual
Reporting. As soon as available and in any event within five (5) days after the date the annual financial statements are required to be filed with the SEC, but in no event later than one hundred (100) days after the end of each
Fiscal Year, (A) a copy of the consolidated balance sheet of Performance Guarantor and its Subsidiaries, and the related consolidated statements of income and cash flow of Performance Guarantor and its Subsidiaries for such Fiscal Year, setting
forth in
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comparative form the figures for the immediately preceding Fiscal Year, audited (without any Impermissible Qualification) by a “Big Four” accounting firm or other independent public
accountants reasonably acceptable to the Administrative Agent, together with (B) the balance sheet and the related income statement of the Seller.
(ii) Quarterly Reporting. As soon as available and in any event within five (5) days after the date that
quarterly financial statements are required to be filed with the SEC (excluding the last quarterly Fiscal Quarterfiscal quarter of each Fiscal Year), but in no event later
than fifty (50) days after the end of each of the first three Fiscal Quartersfiscal quarters of each Fiscal Year, (A) an unaudited consolidated balance sheet of
Performance Guarantor and its Subsidiaries as of the end of such Fiscal Quarterfiscal quarter and consolidated statements of income and cash flow of Performance Guarantor
and its Subsidiaries for such Fiscal Quarterfiscal quarter and for the period commencing at the end of the previous Fiscal Year and ending with the end of such
Fiscal Quarterfiscal quarter, and including (in each case), in comparative form the figures for the corresponding Fiscal
Quarterfiscal quarter in, and year to date portion of, the immediately preceding Fiscal Year, certified as complete and correct by the chief financial or accounting Authorized
Officer of Performance Guarantor (subject to normal year-end audit adjustments), together with (B) the balance sheet and the related income statement of the Seller.
(iii) Compliance Certificates. Together with the financial statements required hereunder, a compliance
certificate in substantially the form of Exhibit V signed by the applicable Seller Party’s Authorized Officer and dated the date of such annual financial statement or such quarterly financial statement, as the case may be, and
concurrently with delivery of any financial compliance computation or certificate under the Senior Credit Agreement, a copy of same addressed to the Administrative Agent and the Liberty Street
AdministratorAdministrators.
(iv) Shareholders
Statements and Reports. Promptly and in any event within five (5) Business Days upon the furnishing thereof to the shareholders of Performance Guarantor, copies of all financial statements, reports and proxy statements so furnished.
(v) S.E.C. Filings. Promptly and in any event within five (5) Business Days upon the filing thereof,
copies of all registration statements (other than any registration statements on Form S-8 or its equivalent) and any reports on Form 8-K, 10-K or 10-Q which Performance Guarantor files with the SEC.
(vi) Copies of Notices. Promptly and in any event within five (5) Business Days upon its receipt of any
notice, request for consent, financial statements, certification, report or other communication under or in connection with any Transaction Document from any Originator or any Lock-Box Bank, copies of the same.
(vii) Material Indebtedness, Projections and Notices. Promptly upon furnishing thereof to the lenders or
noteholders under any agreement governing any Material Indebtedness of CMC and its Subsidiaries (or any agent or trustee for the
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foregoing), and in any event within five (5) Business Days copies of all projections, compliance certificates and default notices required to be delivered pursuant to such agreements (in
each case without duplication of any of the items described above in this Section 5.1(a)).
(viii) Other
Information. Reasonably promptly, from time to time, such other information, documents, records or reports relating to the Receivables or the financial condition, operations or business of such Seller Party as the Administrative Agent
or the Liberty Streetany Administrator may from time to time reasonably request in order to protect the interests of the Administrative Agent and the
PurchasersInvestor Parties under or as contemplated by this Agreement, or to assist any Investor Party in complying with the
requirements of the European Union Capital Requirements if applicable to such Investor Party.
Reports and financial statements required to be
delivered pursuant to clauses (i), (ii), (iv) and (v) of this Section 5.1(a) shall be deemed to have been delivered on the date when such reports, or reports containing such financial statements, are posted on the SEC’s
website at www.sec.gov or CMC’s website at www.cmc.com. The Seller will promptly notify the Administrative Agent and the Liberty Street
AdministratorAdministrators in writing of such posting (which notification may be provided by email).
(b) Notices. Such Seller Party will notify the Administrative Agent (who will promptly notify the Liberty Street
AdministratorAdministrators) in writing of any of the following promptly upon learning of the occurrence thereof, describing the same and, if applicable, the steps being taken with
respect thereto:
(i) Amortization Events or Potential Amortization Events. The occurrence of each
Amortization Event and each Potential Amortization Event, by a statement of an Authorized Officer of such Seller Party.
(ii) Judgment and Proceedings. (A) (1) the entry of any judgment or decree against the Servicer or any
of its respective Subsidiaries (other than the Seller) if the aggregate amount of all judgments and decrees then outstanding against the Servicer and such Subsidiaries exceeds $50,000,000
after deducting (x) the amount with respect to which the Servicer or any such Subsidiary is insured and with respect to which the insurer has not disputed coverage, and (y) the amount for which the Servicer or any such Subsidiary is
otherwise indemnified if the terms of such indemnification are satisfactory to the Administrative Agent, and (2) the institution of any litigation, arbitration proceeding or governmental proceeding against
the Seller or the Servicer which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect; and (B) the entry of any judgment or decree against
the Seller if the aggregate amount of all judgments and decrees then outstanding against the Seller exceeds $14,425 after
deducting (x) the amount with respect to which the Seller is insured and with respect to which the insurer has not disputed coverage, and (y) the amount for which
the Seller is otherwise indemnified if the terms of such indemnification are satisfactory to the Administrative Agent.
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(iii) Material Adverse Effect. The occurrence of any event or
condition that has had, or could reasonably be expected to have, a Material Adverse Effect.
(iv) Defaults and
Collateral Events Under Other Agreements. The occurrence of a default or an event of default under any other financing arrangement relating to Material Indebtedness (including a line of credit which would constitute Material Indebtedness if
fully funded) in aggregate principal amount pursuant to which any Originator is a debtor or an obligor, or the occurrence of a Level One Collateral Event, Level One Collateral Reinstatement Event, Level Two Collateral Event
or Level Two Collateral Reinstatement Event, in each case, under and as defined in the Senior Credit Agreement.
(v) Termination Date. The occurrence of the “Termination Date” under and as defined in the Sale
Agreement.
(vi) Change of Independent Director. At least 10 days prior to any proposed change of the sole
(or, as applicable, the sole remaining) Independent Director for any reason other than death, incapacity or resignation of the incumbent director, notice of such proposed change together with a certificate of
the Seller certifying that the proposed replacement director satisfies the criteria set forth in the definition of “Independent Director” and requesting the
Administrative Agent’s written acknowledgement that in its reasonable judgment, the designated replacement satisfies such criteria. As soon as reasonably practicable but in any event within 10 days after any Seller Party receives notice of the
death, incapacity or resignation of the sole (or, as applicable, the sole remaining) incumbent Independent Director, notice of the proposed replacement director together with a certificate of
the Seller certifying that the proposed replacement director satisfies the criteria set forth in the definition of “Independent Director” and requesting the
Administrative Agent’s written acknowledgement that in its reasonable judgment, the designated replacement satisfies such criteria.
(vii) Ratings Change. The occurrence of any change from time to time in the ratings from S&P or Moody’s
of the Performance Guarantor’s long term unsecured debt.
(c) Compliance with Laws and Preservation of Legal Existence.
Such Seller Party will comply with all applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject, except where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect. Such Seller Party will preserve and maintain its legal existence, rights, franchises and privileges in the jurisdiction of its organization, and qualify and remain qualified in good standing as a foreign corporation in each
jurisdiction where its business is conducted, except where the failure to so preserve and maintain or qualify could not reasonably be expected to have a Material Adverse Effect.
(d) Audits. Such Seller Party will furnish to the Administrative Agent and the Liberty Street
AdministratorAdministrators from time to time such information with respect to it and the Receivables as the Administrative Agent or the Liberty
Streetany Administrator may
22
reasonably request. Such Seller Party will, from time to time during regular business hours as reasonably requested by the Administrative Agent or the Liberty
Streetany Administrator upon at least five (5) Business Days’ notice and at the sole cost of such Seller
Party, permit the Administrative Agent (accompanied by the Liberty Street Administratoreither or both Administrators), or its respective agents or representatives (and
shall cause each Originator to permit the Administrative Agent (accompanied by the Liberty Street Administratoreither or both Administrators), or its respective agents or
representatives): (i) to examine and make copies of and abstracts from all Records in the possession or under the control of such Person relating to the Receivables and the Related Security, including, without limitation, the related Contracts,
and (ii) to visit the offices and properties of such Person for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to such Person’s financial condition or the Receivables and the
Related Security or any Person’s performance under any of the Transaction Documents or any Person’s performance under the Contracts and, in each case, with any of the officers or employees of
the Seller or the Servicer having knowledge of such matters (each such visit, a “Review”); provided that, so long as no Amortization Event has occurred
and is continuing, the Seller Parties shall only be responsible for the costs and expenses of two(2) such Reviews in any one Contract Year.
(e) Keeping and Marking of Records and Books.
(i) the Servicer will (and will cause each Originator to) maintain and implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing Receivables in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the
collection of all Receivables (including, without limitation, records adequate to permit the prompt identification of each new Receivable and all Collections of and adjustments to each existing Receivable). The Servicer will (and will cause each
Originator to) give the Administrative Agent and the Liberty Street AdministratorAdministrators notice of any material change in the administrative and operating procedures
referred to in the previous sentence.
(ii) The Servicer will (and will cause each other Originator to) (A) on or prior to the date
hereof, make a notation in its books and records relating to the Receivables, acceptable to the Administrative Agent, evidencing that the Receivables and related Contracts included in the Purchased Assets have been sold in accordance with the
Agreement, and (B) upon the request of the Administrative Agent following the occurrence and during the continuation of an Amortization Event, deliver to the Administrative Agent all invoices included in the Contracts (including, without
limitation, all multiple originals of any such invoice) relating to the Receivables.
(f) Compliance with Contracts and Credit and
Collection Policy. The Servicer will (and will cause each Originator to) timely and fully (i) perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the
Contracts related to the Receivables, and (ii) comply in all material respects with the Credit and Collection Policy in regard to each Receivable and the related Contract.
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(g) Performance and Enforcement of the Sale Agreement and the Performance
Undertaking. The Seller will, and will require each of the Originators to, perform each of their respective obligations and undertakings under and pursuant to the Sale Agreement in
all material respects. The Seller will purchase Receivables under the Sale Agreement in material compliance with the terms thereof and will vigorously enforce the rights and remedies
accorded to it as purchaser under the Sale Agreement. The Seller will take all actions to perfect and enforce its rights and interests (and the rights and interests of the
Administrative Agent and the PurchasersInvestor Parties as assignees of the Seller) under the Sale Agreement and
the Performance Undertaking as the Administrative Agent or the Liberty Streetany Administrator may from time to time reasonably request, including, without limitation,
making claims to which it may be entitled under any indemnity, reimbursement or similar provision contained in the Sale Agreement.
(h)
Ownership. The Seller will (or will require each Originator to) take all necessary action to (i) vest legal and equitable title to the Receivables, the Related Security and
the Collections irrevocably in the Seller, free and clear of any Adverse Claims other than Adverse Claims in favor of the Administrative Agent and the Purchasers (including, without
limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the
Seller’s interest in such Receivables, Related Security and Collections and such other action to perfect, protect or more fully evidence the interest of the Seller therein as the
Administrative Agent or the Liberty Streetany Administrator may reasonably request), and (ii) establish and maintain, in favor of the Administrative Agent, for the
benefit of the Purchasers, a valid and perfected first priority ownership interest (and/or a valid and perfected first priority security interest) in the PoolPurchased
Assets to the full extent contemplated herein, free and clear of any Adverse Claims other than Adverse Claims in favor of the Administrative Agent for the benefit of the Purchasers (including, without limitation, the filing of all financing
statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Administrative Agent’s (for the benefit of the Purchasers) interest in the
PoolPurchased Assets and such other action to perfect, protect or more fully evidence the interest of the Administrative Agent for the benefit of the Purchasers as the
Administrative Agent or the Liberty Streetany Administrator may reasonably request).
(i) Separateness. The Seller acknowledges that the
Administrative Agent, the Liberty Street Administrator and the PurchasersInvestor Parties are entering into the transactions contemplated by this Agreement in reliance upon
the Seller’s identity as a legal entity that is separate from each of the Originators and their respective other Affiliates (each, a “CMC Entity”). 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 Administrative Agent or
the Liberty Streetany Administrator 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 other CMC Entities and not
just a division thereof. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, except as herein specifically otherwise provided, the
Seller will:
(i) compensate all employees, consultants and agents directly, from
the Seller’s bank accounts, for services provided to the Seller by such employees, consultants and agents and, to the extent
any employee, consultant or agent of the Seller is also an employee, consultant or agent of any other CMC Entity, allocate the compensation of such employee, consultant or agent between
the Seller and such CMC Entity on a basis which reflects the services rendered to the Seller and such CMC Entity;
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(ii) clearly identify its offices as separate and distinct from any space
occupied by any other CMC Entity even if such space is leased or subleased from, or is on or near premises occupied by, any other CMC Entity;
(iii) have separate stationery and other business forms (each of which may be computer-generated);
(iv) conduct its business solely in its own name through its duly authorized officers or agents including, without limitation,
in all oral and written communications such as letters, invoices, purchase orders, contracts, statements and applications;
(v) allocate all overhead expenses (including, without limitation, telephone and other utility charges) for items shared
between the Seller and any other CMC Entity on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to
actual use;
(vi) at all times maintain at least one Independent Director;
(vii) maintain its Organic Documents in conformity with this Agreement, such that (A) it does not amend, restate,
supplement or otherwise modify such Organic Document in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, this Section 5.1(i); and
(B) it provides for the notice, the Seller certification and the Administrative Agent’s written acknowledgement specified in Section 5.1(b)(vi) hereof;
(viii) ensure that all corporate actions with respect to (A) the filing for any petition of bankruptcy of
the Seller and (B) the merger, consolidation, dissolution or liquidation of the Seller are duly authorized by unanimous vote
of its directors (including the Independent Director);
(ix) maintain complete and correct books and records of account and
minutes of meetings and other proceedings of its shareholder(s) and directors;
(x) maintain its certificate of
incorporation and by-laws in conformity with this Agreement, such that it does not amend, restate, supplement or otherwise modify its Organic Documents in any respect that would impair its ability to comply with the terms or provisions of any of the
Transaction Documents, including, without limitation, this Section 5.1(i);
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(xi) maintain its financial, corporate and other books and records separate from
those of any other CMC Entity;
(xii) prepare its financial statements separately from those of other CMC Entities and
insure that any consolidated financial statements of any other CMC Entity that include the Seller have detailed notes clearly stating that
the Seller is a separate corporate entity;
(xiii) maintain
bank account(s) that are separate from those of any other CMC Entity and, except as permitted in the Transaction Documents, not commingle funds or other assets of the Seller with those of
any other CMC Entity;
(xiv) except as permitted herein, pay operating expenses and liabilities from its own funds and not
permit any other CMC Entity to pay any of the Seller’s operating expenses or liabilities (except pursuant to allocation arrangements that comply with the requirements of clause
(ii) above);
(xv) maintain adequate capitalization in light of its business and purpose and in any event maintain at
all times the Required Capital Condition and refrain from making any dividend, distribution, redemption of capital stock or payment of any subordinated indebtedness which would cause such Required Capital Condition to cease to be so maintained;
(xvi) not hold itself out or permit itself to be held out as having agreed to pay or as being liable for the debts of any other
CMC Entity nor will it hold any other CMC Entity out or permit any other CMC Entity to be held out as having agreed to pay or as being liable for the debts of the Seller nor will it fail to
correct any known misrepresentation with respect to the foregoing;
(xvii) not operate or purport to operate as an
integrated, single economic unit with one or more of the other CMC Entities;
(xviii) not seek or obtain credit or incur
any obligation to any third party based upon the assets of one or more of the other CMC Entities or induce any such third party to reasonably rely on the creditworthiness of one or more of the other CMC Entities;
(xix) not guaranty or otherwise become liable with respect to indebtedness of any other CMC Entity nor permit guaranties or
liability by any other CMC Entity of the indebtedness of the Seller (except as contemplated by the Performance Undertaking and this Agreement);
(xx) maintain an arm’s-length relationship with each other CMC Entity, including, without limitation, payment of an
arm’s-length servicing fee for any receivables-servicing functions performed by any other CMC Entity on behalf of the Seller;
26
(xxi) not, directly or indirectly, be named and shall not enter into any
agreement to be named as a direct or contingent beneficiary or loss payee on any insurance policy covering the property of any other CMC Entity; and
(xxii) take such other actions as are necessary on its part to ensure that the facts and assumptions set forth in the opinion
issued by Haynes and Boone,Sidley Austin LLP, as counsel for the Seller Parties, in connection with the closing
or initial purchase under the Sale Agreement and relating to substantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
(j) Collections. Such Seller Party will cause (1) all proceeds from all Lock-Boxes to be directly deposited by a Lock-Box
Bank into a Lock-Box Account and (2) each Lock-Box and Lock-Box Account to be subject at all times to a Lock-Box Agreement that is in full force and effect. In the event any payments relating to Receivables are remitted directly to
the Seller or any Affiliate of the Seller, the Seller will remit (or
will cause all such payments to be remitted) directly to a Lock-Box Bank and deposited into a Lock-Box Account within one (1) Business Day following receipt thereof, and, at all times prior to such remittance,
the Seller will itself hold or, if applicable, will cause such payments to be held in trust for the exclusive benefit of the Administrative Agent and the Purchasers, subject to the
Servicer’s rights under Section 6.2(c).
(k) Taxes. Such Seller Party will file all federal and all other
material tax returns and reports required by law to be filed by it and will promptly pay all taxes and governmental charges at any time owing, except any such taxes which are not yet delinquent or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books. The Seller will pay when due any taxes payable in connection with the
Receivables, exclusive of Excluded Taxes.
(l) Insurance. The
Seller will maintain in effect, or cause to be maintained in effect, at the Seller’s own expense, such casualty and liability insurance as
the Seller shall deem appropriate in its good faith business judgment.
(m)
Payment to Originators. With respect to any Receivable purchased by the Seller from an Originator, such purchase shall be effected under, and in strict compliance with the terms
of, the Sale Agreement, including, without limitation, the terms relating to the amount and timing of payments to be made to such Originator in respect of the purchase price for such Receivable.
Section 5.2. Negative Covenants of the Seller Parties. Until
the date on which the Aggregate Unpaids have been paid in full (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and the termination or expiration of all of the Commitments:
(a) Name Change, Offices and Records. The Seller will not change its
name, identity or legal structure (within the meaning of Section 9-507(c) of any applicable enactment of the UCC) or relocate its chief executive office or any office where Records are kept
27
unless it shall have: (i) given the Administrative Agent and the Liberty Street AdministratorAdministrators at
least thirty (30) days’ prior written notice thereof and (ii) delivered to the Administrative Agent all financing statements, instruments and other documents reasonably requested by the Administrative Agent or the Liberty
Streetany Administrator in connection with such change or relocation.
(b) Change in Payment Instructions to Obligors. Except as may be required by the Administrative Agent pursuant to
Section 6.2(b), such Seller Party will not add or terminate any bank as a Lock-Box Bank, or make any change in the instructions to Obligors regarding payments to be made to any Lock-Box or Lock-Box Account, unless the Administrative
Agent shall have received, at least twenty (20) days before the proposed effective date therefor, (i) written notice of such addition, termination or change and (ii) with respect to the addition of a Lock-Box Bank or a Lock-Box
Account or Lock-Box, an executed Lock-Box Agreement with respect to the new Lock-Box Account or Lock-Box; provided, however, that the Servicer may make changes in instructions to Obligors regarding payments if such new instructions
require such Obligor to make payments to another existing Lock-Box Account that is subject to a fully-executed and effective Lock-Box Agreement.
(c) Modifications to Contracts and Credit and Collection Policy. No Seller Party will, and no Seller Party will permit any
Originator to, make any change to the Credit and Collection Policy that could reasonably be expected to materially decrease the credit quality of any newly created Receivables or materially adversely affect the collectability of the Receivables.
Except as provided in Section 6.2(d), no Seller Party will, or will permit any Originator to, extend, amend or otherwise modify the terms of any Receivable or any terms of any Contract related to such Receivable in any material respect
other than in accordance with the Credit and Collection Policy.
(d) Sales, Liens. Other than the ownership and security
interests contemplated by the Transaction Documents, the Seller will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, or
create or suffer to exist any Adverse Claim upon (including, without limitation, the filing of any financing statement) or with respect to, any Receivable, Related Security or Collections, or upon or with respect to any Contract under which any
Receivable arises, or any Lock-Box or Lock-Box Account, or assign any right to receive income with respect thereto (other than, in each case, the creation of the interests therein in favor of the Administrative Agent for the benefit of the
Purchasers provided for herein), and the Seller will defend the right, title and interest of the Administrative Agent for the benefit of the Purchasers in, to and under any of the foregoing
property, against all claims of third parties claiming through or under the Seller or any Originator.
(e) Termination of Sale Agreement. Except as otherwise permitted under Section 7.1(k),
the Seller will not terminate the Sale Agreement or send any termination notice to any Material Originator in respect thereof, without the prior written consent of each of the Purchasers.
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(f) Restricted Junior Payments. After the occurrence and during the continuance of
any Amortization Event, the Seller will not make any Restricted Junior Payment while any Aggregate Unpaids remain outstanding.
(g) Seller Indebtedness. Except as contemplated by the Transaction Documents,
the Seller will not incur or permit to exist any Indebtedness or liability on account of deposits except: (i) the Aggregate Unpaids, (ii) the Subordinated Loans, and
(iii) other current accounts payable arising in the ordinary course of business and not overdue.
(h) Prohibition on Additional
Negative Pledges. The Seller will not (and will not authorize any Originator to) enter into or assume any agreement (other than this Agreement and the other Transaction Documents)
prohibiting the creation or assumption of any Adverse Claim upon the PoolPurchased Assets except as contemplated by the Transaction Documents, or otherwise prohibiting or
restricting any transaction contemplated hereby or by the other Transaction Documents.
(i) ERISA. Servicer shall not, and
will not suffer or permit any of its ERISA Affiliates to: (a) engage in a prohibited transaction or violation of the fiduciary responsibility rules with respect to any Pension Plan which has resulted or would reasonably be expected to result in
a Material Adverse Effect, (b) engage in a transaction that could be subject to Section 4069 or 4212(c) of ERISA or (c) withdraw from any Multiemployer Plan or permit any Pension Plan maintained by it to be terminated if such
withdrawal or termination could result in withdrawal liability (as described in Part 1 of Subtitle E of Title IV of ERISA) or the imposition of a Lien on any property of Servicer or any Subsidiary pursuant to Section 4068 of ERISA.
ARTICLE VI.
ADMINISTRATION AND COLLECTION
Section 6.1. Designation of the Servicer.
(a) The servicing, administration and collection of the Receivables shall be conducted by such Person (the
“Servicer”) so designated from time to time in accordance with this Section 6.1. CMC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms of this
Agreement. At any time after the occurrence and during the continuance of an Amortization Event, the Administrative Agent and the Liberty Street Administrator, acting
jointly,Required Purchasers may at any time designate as the Servicer any Person to succeed CMC or any successor Servicer.
(b) CMC may delegate to the Originators, as sub-Servicers of the Servicer, certain of its duties and responsibilities as the Servicer
hereunder in respect of the Receivables originated by such Originators. Without the prior written consent of the Purchasers, the Servicer shall not be permitted to delegate any of its duties or responsibilities as the Servicer to any Person other
than (i) the other Originators, and (ii) with respect to certain Charged-Off Receivables, outside collection agencies in accordance with its customary practices. The Seller shall
not be permitted to further delegate to any other Person any of the duties or responsibilities of the Servicer delegated to it by CMC. If at any time following the occurrence of an
29
Amortization Event, the Administrative Agent and the Liberty Street AdministratorAdministrators, acting jointly, shall
designate as the Servicer any Person other than CMC, all duties and responsibilities theretofore delegated by CMC to the Seller or any Originator may, at the discretion of the
Administrative Agent or the Liberty Streetany Administrator, be terminated forthwith on notice given by the Administrative Agent or the Liberty
Streetany Administrator to CMC and to the Seller (with, in the case of the Liberty
Streetan Administrator, a copy to the other Administrator and to the Administrative Agent and, in the case of the
Administrative Agent, a copy to the Liberty Street AdministratorAdministrators).
(c) Notwithstanding the foregoing subsection (b), (i) the Servicer shall be and remain primarily liable to the
Administrative Agent, the Liberty Street Administrator and the PurchasersInvestor Parties for the full and prompt performance of all duties and responsibilities of the
Servicer hereunder and (ii) the Administrative Agent, the Liberty Street Administrator and the PurchasersInvestor Parties shall be entitled to deal exclusively with
the Servicer in matters relating to the discharge by the Servicer of its duties and responsibilities hereunder. The Administrative Agent, the Liberty Street Administrator and the
PurchasersInvestor Parties shall not be required to give notice, demand or other communication to any Person other than the Servicer in order for communication to the Servicer and
its sub-Servicer or other delegate with respect thereto to be accomplished. The Servicer, at all times that it is the Servicer, shall be responsible for providing any sub-Servicer or other delegate of the Servicer with any notice given to the
Servicer under this Agreement.
Section 6.2. Duties of the Servicer.
(a) The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to collect each Receivable from time
to time, all in accordance with applicable laws, rules and regulations, with reasonable care and diligence, and in accordance with the Credit and Collection Policy of each respective Originator.
(b) The Servicer will instruct all Obligors to pay all Collections directly to a Lock-Box or Lock-Box Account. The Servicer shall cause
a Lock-Box Agreement in form reasonably acceptable to the Administrative Agent to be in effect with respect to each Lock-Box and Lock-Box Account. In the case of any remittances received in any Lock-Box or Lock-Box Account that shall have been
identified, to the satisfaction of the Servicer, to not constitute Collections or other proceeds of the PoolPurchased Assets, the Servicer shall promptly remit such items
to the Person identified to it as being the owner of such remittances. From and after the date the Administrative Agent delivers to any Lock-Box Bank a Collection Notice pursuant to Section 6.4 (such date, the “Dominion
Date”), the Administrative Agent, on behalf of the Purchasers, may request that the Servicer, and the Servicer thereupon promptly shall instruct all Obligors to remit all payments thereon to a new depositary account specified by the
Administrative Agent and, at all times thereafter, the Seller and the Servicer shall not deposit or otherwise credit, and shall not permit any other Person to deposit or otherwise credit to
such new depositary account any cash or payment item other than Collections.
(c) The Servicer (and from and after the Dominion
Date, the Administrative Agent) shall administer the Collections in accordance with the procedures described herein and
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in Article II. Subject to the last sentence of this Section 6.2(c), the Servicer shall hold in trust for the account of the
Seller and each Purchaserthe Investor Parties their respective shares of the Collections in accordance with Article II. Following the occurrence of the Dominion
Date, the Servicer shall, upon the request of the Administrative Agent or the Liberty Streetany Administrator, segregate, in a manner acceptable to the Administrative
Agent, all cash, checks and other instruments received by it from time to time constituting Collections from the general funds of the Servicer or the Seller prior to the remittance thereof
in accordance with Article II to the extent of any accrued and unpaid Aggregate Unpaids, and the requirement to continue such segregation shall continue until such Amortization Event is waived in the sole discretion of the Required Purchasers
or until the conditions to further Purchases and Reinvestments set forth in Section 4.2 are satisfied. Subject to Section 2.2, at all times while the Servicer is required to segregate Collections pursuant to the preceding
sentence, the Servicer shall segregate and deposit with a bank designated by the Administrative Agent such allocable share of Collections of Receivables set aside for the Purchasers on the first Business Day following receipt by the Servicer of such
Collections, duly endorsed or with duly executed instruments of transfer. Notwithstanding anything in this Agreement to the contrary, for so long as the Administrative Agent or the Liberty
Streetany Administrator is not permitted to and has not requested the segregation of Collections in accordance with this Section 6.2(c) and CMC or one of its Affiliates
is the Servicer, the Servicer may process Collections as a part of a central cash management system maintained by CMC and its Affiliates, which system shall include written records (which may be electronic) of all debits and credits attributable to
the Seller and its Receivables and all other participants in such system and, prior to the Dominion Date, such funds may be commingled with other funds of CMC and its Affiliates.
(d) The Servicer may, in accordance with the Credit and Collection Policy, extend the maturity of any Receivable or adjust the
Outstanding Balance of any Receivable as the Servicer determines to be appropriate to maximize Collections thereof; provided, however, that such extension or adjustment shall not alter the status of such Receivable as a Delinquent
Receivable, Defaulted Receivable or Charged-Off Receivable or limit the rights of the Administrative Agent, the Liberty Street Administrator or the PurchasersInvestor
Parties under this Agreement. Notwithstanding anything to the contrary contained herein, following the occurrence and during continuation of an Amortization Event, the Administrative Agent shall have the absolute and unlimited right to direct
the Servicer to commence or settle any legal action with respect to any Receivable or to foreclose upon or repossess any Related Security.
(e) The Servicer shall hold in trust for the Seller, the
Administrative Agent, the Liberty Street Administrator and each Purchaser and the Investor Parties all Records in its possession that (i) evidence or relate to the
Receivables, the related Contracts and Related Security or (ii) are otherwise necessary or desirable to collect the Receivables and shall, following the occurrence of an Amortization Event that is continuing (provided such Amortization Event is
not, in the sole discretion of the Administrative Agent, the Liberty Street Administrator and the Purchasersapplicable Investor Parties, waived in accordance with this
Agreement, neither the Administrative Agent, the Liberty Street Administrator nor any Purchasernone of the Investor Parties shall be required to grant any such waiver), as
soon as practicable upon demand of the Administrative Agent, deliver or make available to the Administrative Agent all such Records, at a place selected by the Administrative Agent. The Servicer shall, one (1) Business Day following receipt
thereof turn over (A) to the Seller any
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cash collections or other cash proceeds in accordance with Article II and (B) to the applicable Person any cash collections or other cash proceeds received with respect to
Indebtedness not constituting Receivables. The Servicer shall, from time to time at the request of the Administrative Agent or the Liberty Streetany Administrator, furnish
to the PurchasersAdministrative Agent and the Administrators (promptly after any such request) a calculation of the amounts set aside for the
PurchasersInvestor Parties pursuant to Article II.
(f) Any payment by an Obligor in respect of any indebtedness owed by it to an Originator or
the Seller shall, except as otherwise specified by such Obligor or otherwise required by Contract or law and unless otherwise instructed by the Administrative Agent, be applied as a
Collection of any Receivable of such Obligor (starting with the oldest such Receivable) to the extent of any amounts then due and payable thereunder before being applied to any other receivable or other obligation of such Obligor.
Section 6.3. Lock-Box Accounts. Pursuant to the Sale Agreement, the
applicable Originator has granted to the Seller a security interest in, among other things, each Lock-Box Account. The Seller hereby assigns its security interest in each Lock-Box Account to the Administrative Agent, for the benefit of the Investor
Parties. Subject to the terms of the applicable Lock-Box Agreement, Seller shall grant to the Administrative Agent for the benefit of the Purchasershas
been given “control” (within the meaning of the UCC) over each Lock-Box and Lock-Box Account. The Seller hereby authorizes the Administrative Agent, and
agrees that the Administrative Agent shall be entitled after the occurrence of an Amortization Event to (a) endorse the Seller’s name on checks and other instruments representing
Collections, (b) enforce the Receivables, the related Contracts and the Related Security and (c) take such action as shall be necessary or desirable to cause all cash, checks and other instruments constituting Collections of Receivables to
come into the possession of the Administrative Agent rather than the Seller.
Section 6.4. Collection Notices. The Administrative Agent is authorized to date and to deliver to the Lock-Box Banks the
Collection Notices (i) upon the occurrence and during the continuance of an Amortization Event or (ii) upon not less than five (5) Business Days’ prior written notice to the Seller Parties if deemed necessary or advisable in the
reasonable judgment of the Administrative Agent or the Required Purchasers following a material adverse change in financial condition or circumstances of the Seller or the Performance
Guarantor at any time that Excess Availability is less than $20,000,000 (it being understood that (a) if Excess Availability of at least $20,000,000 is restored before the Administrative Agent delivers any Collection Notice, the Administrative
Agent shall not be allowed to deliver any Collection Notices unless and until Excess Availability falls below $20,000,000 again, and (b) no further prior notice to the Seller Parties shall be required to deliver such Collection Notice). Subject
to the terms of the applicable Lock-Box Agreement, the Seller has transferred to the Administrative Agent for the benefit of the PurchasersInvestor Parties, effective when
the Administrative Agent delivers such notice, exclusive “control” over each Lock-Box and related Lock-Box Accounts. In case any authorized signatory of the Seller whose signature
appears on a Lock-Box Agreement shall cease to have such authority before the delivery of such notice, such Collection Notice shall nevertheless be valid as if such authority had remained in force.
The Seller hereby authorizes the Administrative Agent, and agrees that the Administrative Agent shall be entitled (x) at any time after delivery of the Collection Notices, to endorse
the Seller’s name on checks and other instruments representing Collections, (y) at any time after an Amortization Event hereunder has
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occurred and is continuing, to enforce the Receivables, the related Contracts and the Related Security, and (z) at any time after an Amortization Event hereunder has occurred and is
continuing, to take such action as shall be necessary or desirable to cause all cash, checks and other instruments constituting Collections of Receivables to come into the possession of the Administrative Agent rather than
the Seller.
Section 6.5. Responsibilities of
the Seller. Anything herein to the contrary notwithstanding, the exercise by the Administrative Agent, the Liberty Street Administrator and the
Purchasersany of the Investor Parties of their rights hereunder shall not release the Servicer, any Originator or the
Seller from any of their duties or obligations with respect to any Receivables or under the related Contracts. The PurchasersInvestor Parties shall have no obligation
or liability with respect to any Receivables or related Contracts, nor shall any of them be obligated to perform the obligations of the Seller.
Section 6.6. Reports.
(a) On each Interim Reporting Date (if any), the Servicer shall prepare and deliver not later than 11:00 a.m. (New York City time) to
the PurchasersAdministrative Agent and the Administrators an Interim Report in the form of Exhibit VIII hereto (appropriately completed and executed).
(b) On each Monthly Reporting Date, the Servicer shall prepare and deliver not later than 11:00 a.m. (New York City time) to the
PurchasersAdministrative Agent and the Administrators, a Monthly Report for the calendar month then most recently ended in the form of Exhibit IX hereto
(appropriately completed and executed).
(c) At such times as the Administrative Agent or the Liberty
Streetany Administrator shall reasonably request, the Servicer shall prepare and deliver not later than 11:00 a.m. (New York City time) two (2) Business Days after such
request a listing by Obligor of all Receivables together with an aging of such Receivables.
Section 6.7. Servicing Fees. In
consideration of CMC’s agreement to act as the Servicer hereunder, so long as CMC shall continue to perform as the Servicer hereunder, CMC shall be paid a fee (the “Servicing Fee”) on each Monthly Payment Date, in
arrears for the immediately preceding Calculation Period, equal to 1.0% per annum of the average aggregate Outstanding Balance of all Receivables during such period. At any time while the Servicer is not an Affiliate of
the Seller, the Servicing Fee shall be computed at such rate per annum as the Administrative Agent, the Liberty Street
Administrator,Administrators, the Seller and the substitute Servicer may mutually agree.
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ARTICLE VII.
AMORTIZATION EVENTS
Section 7.1. Amortization Events. The occurrence of any one or more of the following events shall constitute an
“Amortization Event”:
(a) (i) Any Seller Party shall fail to make any payment or deposit of Capital
required to be paid to the Administrative Agent or the Liberty Street Administratoror deposited for the benefit of any
PurchaserInvestor Party under any Transaction Document and such failure under this clause (i) continues for one (1) Business Day after the date when the same was
required to be made; or (ii) any Seller Party shall fail to make any payment or deposit of any other amount required to be paid to a Purchaser, the Administrative Agent, the Liberty Street Administrator or
anor for the benefit of any Investor Party or Indemnified Party under this Agreement or any other Transaction Document to which it is a party and such failure under this clause
(ii) continues for two (2) Business Days after the date when the same was required to be made.
(b) Any Seller Party
shall fail to perform or observe any covenant contained in any provision of Section 5.1(b)(vi), Section 5.1(i)(vi), Section 5.2, Section 6.2(c) or Section 6.6 (and, (i) in the case of
Section 6.6 only, such failure continues for two (2) Business Days after the date when the same was required to be performed and (ii) in the case of Section 5.1(b)(vi) and Section 5.1(i)(vi) only, such
failure continues for ten (10) Business Days after the date when the same was required to be performed).
(c) Any Seller Party
shall fail to perform or observe any other covenant, agreement or other obligation hereunder (other than as referred to in another paragraph of this Section 7.1) or any other Transaction Document to which it is a party and such failure
shall continue for thirty (30) consecutive Business Days following the earlier to occur of (i) notice from the Administrative Agent, the Liberty Street Administrator or any
Purchaserany Investor Party of such non-performance or non-observance, or (ii) the date on which an Authorized Officer of such Seller Party otherwise becomes aware of such
non-performance or non-observance.
(d) Any representation, warranty, certification or statement made by any Seller Party in this
Agreement, any other Transaction Document or in any other document required to be delivered pursuant hereto or thereto shall prove to have been incorrect when made or deemed made in any material respect; provided that the materiality
threshold in this subsection shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold; provided further that in the case of Section 3.1(v) only, such failure continues for one
(1) Business Day after the date when the representation, warranty, certification or statement was required to be made.
(e) On
any Settlement Date, after giving effect to the turnover and application of Collections and Deemed Collections, an Investment Excess shall exist and be continuing for one (1) Business Day after such Settlement Date.
(f) (i) The Seller shall fail to pay any principal of or premium or
interest on any of its Indebtedness (other than Indebtedness under this Agreement) which is outstanding when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure
shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such
Indebtedness and shall continue after the applicable grace period, if any, specified in such
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agreement or instrument, if the effect of such event or condition is to accelerate, or permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to
be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case
prior to the stated maturity thereof; or
(ii) Performance Guarantor or any Originator shall fail to pay any principal of or premium or
interest on any of its Material Indebtedness which is outstanding when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Material Indebtedness and shall
continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or permit the acceleration of, the maturity of such Material Indebtedness; or any such Material
Indebtedness shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or defease such Material Indebtedness
shall be required to be made, in each case prior to the stated maturity thereof.
(g) (i) Any Seller Party, any Originator or any
other Material Subsidiary shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors;
(ii) any proceeding shall be instituted by the Seller seeking to adjudicate it
bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property;
(iii) any proceeding shall be instituted against the Seller seeking to adjudicate
it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property and, unless such proceeding is consented to or acquiesced in by
the Seller, such proceeding of the type described in this clause (iii) remains undismissed, unvacated or unstayed for a period of sixty (60) days;
(iv) (A) any proceeding shall be instituted by Performance Guarantor, Servicer, any Originator or any Material Subsidiary (other than
the Seller) seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial
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part of its property, or (B) any proceeding shall be instituted against any Performance Guarantor, Servicer, any Originator or any Material Subsidiary (other than
the Seller) seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property
and, unless such proceeding is consented to or acquiesced in by Performance Guarantor, Servicer, such Originator or such Material Subsidiary, such proceeding of the type described in this clause (B) remains undismissed, unvacated or unstayed
for a period of sixty (60) days; or
(v) Any Seller Party, any Originator or any Material Subsidiary shall take any corporate action
to authorize any of the actions set forth in clauses (i), (ii) or (iv) above in this subsection (g).
(h) As at the end
of any calendar month:
(i) the average of the Delinquency Ratios for the three months then most recently ended shall
exceed 5.00%;
(ii) the average of the Default Ratios for the three months then most recently ended shall exceed 4.00%; or
(iii) the average of the Dilution Ratios for the three months then most recently ended shall exceed 8.00%.
(i) A Change of Control shall occur.
(j) (i) One or more final judgments for the payment of money in an amount in excess of $14,425, individually or in the aggregate, shall
be entered against the Seller or (ii) one or more final judgments for the payment of money in an amount in excess of
$10,000,000,25,000,000, individually or in the aggregate, shall be entered against Performance Guarantor, Servicer or any Originator on claims not covered by insurance or
as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of execution.
(k) Either (i) the “Termination Date” under and as defined in the Sale Agreement shall occur with respect to any
Material Originator or (ii) any Material Originator shall for any reason cease to transfer, or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to
the Seller under the Sale Agreement.
(l) The Performance Undertaking
shall cease to be effective or to be the legally valid, binding and enforceable obligation of Performance Guarantor, or Performance Guarantor shall contest in any proceeding in any court or any mediation or arbitral proceeding such effectiveness,
validity, binding nature or enforceability of its obligations thereunder.
(m) This Agreement shall terminate in whole or in part
(except in accordance with its terms), or shall cease to be effective or to be the legally valid, binding and enforceable
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obligation of the Seller, or any Originator shall directly or indirectly contest in any manner such effectiveness, validity, binding
nature or enforceability, or the Administrative Agent for the benefit of the Purchasers shall cease to have a valid and perfected first priority security interest in the Receivables, the Related Security and the Collections with respect thereto and
the Lock-Box Accounts.
(n) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the
TaxInternal Revenue Code with regard to any of the Receivables or Related Security and such lien shall not have been released within ten (10) Business Days.
(o) The PBGC shall file notice of a lien pursuant to Section 4068 of ERISA with respect to any of the Receivables or Related
Security and such lien shall not have been released within ten (10) Business Days; or any of the following events shall occur with respect to any Pension Plan: (i) the institution of any steps by Performance Guarantor, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a result of such termination, Performance Guarantor or any such member could be required to make a contribution to such Pension Plan, or could reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $10,000,00025,000,000; of (ii) a contribution failure occurs with respect to any Pension Plan sufficient to
give rise to a lien under section 302(f) of ERISA.
(p) The Interest Coverage Ratio shall be less than
(i) 2.50 to 1.00 on May 31, 2011 or at any time through and including November 29, 2012, or (ii) 3.00 to 1.00 at any time thereafter.
(q) The Debt to Capitalization Ratio shall be greater than 0.60 to 1.00 at any time.
(r) Any Subsidiary Originator shall commence or institute any lawsuit or similar proceeding seeking to collect payment under the
applicable Subordinated Note.
(s) Failure ofOn the date
three months prior to the maturity date of the 2017 Notes or on any date thereafter, the Performance Guarantor shall fail to maintain
at all times that the 2017 Notes are outstanding, Liquidity (as defined in the Senior Credit Agreement as in effect on December 28, 2011, without regard
to any subsequent amendment unless each of the Purchasers has given its prior written consent thereto) of at least $150,000,000 in excess of the outstanding aggregate
principal amount of the 2013 Notes at all times on and after May 15, 2013 while the 2013 Notes remain outstanding2017 Notes.
Section 7.2. Remedies. Upon the occurrence and during the continuation of an Amortization Event, the
Administrative Agent may, and upon the direction of the Required Purchasers, shall, take any of the following actions: (i) replace the Person then acting as the Servicer, (ii) upon notice to the Seller Parties, declare the Amortization
Date to have occurred, whereupon the Commitments shall terminate and the Amortization Date shall forthwith occur, without demand, protest or further notice of any kind, all of which are
hereby expressly waived by each Seller Party; provided, however, that upon the occurrence of an Amortization Event described in Section 7.1(g)(ii) or (iii), or of an actual or deemed entry of an order for relief with
respect to any Seller Party under the Federal Bankruptcy Code, the Commitments shall
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automatically terminate and the Amortization Date shall automatically occur, without demand, protest or any notice of any kind, all of
which are hereby expressly waived by each Seller Party, and (iii) notify Obligors of the Administrative Agent’s and Purchasersother Investor Parties’
interest in the Receivables. The aforementioned rights and remedies shall be without limitation, and shall be in addition to all other rights and remedies of the Administrative Agent and the
PurchasersInvestor Parties otherwise available under any other provision of this Agreement, by operation of law, at equity or otherwise, all of which are hereby expressly
preserved, including, without limitation, all rights and remedies provided under the UCC, all of which rights shall be cumulative.
ARTICLE VIII.
INDEMNIFICATION
Section 8.1. Indemnities by the
Seller.
(a) . (a) Without limiting any other rights that the
Administrative Agent or any PurchaserInvestor Parties may have hereunder or under applicable law, the Seller
hereby agrees to indemnify (and to pay, within 30 days after receipt of a reasonably detailed invoice) the Administrative Agent, the Liberty Street
Administrator(i) each Investor Party and each of the Purchasers and their respective assigns, officers, directors, agents and employees
(eachof such Investor Party, and (ii) with respect to the Conduit Purchasers, each Funding Source that is not an Investor Party (each of the Persons in the foregoing
clauses (i) and (ii), an “Indemnified Party”), from and against any and all damages, losses, claims, taxes, liabilities, costs, reasonable
expenses, penalties and for all other amounts payable, including reasonable fees and disbursements of
externaloutside counsel (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of
themsuch Indemnified Party arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by the Administrative Agent, the Liberty
Street Administrator or any Purchasersuch Investor Party or other Funding Source of an interest in the
ReceivablesPurchased Assets or the use of the proceeds therefrom excluding, however, in all of the foregoing instances:
(Ai) Indemnified Amounts to the extent a final judgment of a court
of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence, fraud or willful misconduct or fraud on the part of
anthe Indemnified Party seeking indemnification;
(Bii) Indemnified Amounts to the extent the same
includeincludes losses in respect of Receivables that are uncollectible solely on account of the insolvency,
bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a dispute giving rise to a Dilution) of the related Obligor; or
(C) Excluded Taxes of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization
for income tax purposes of the Purchasers’ making of Investments in the Purchased Assets as a loan or loans by the Purchasers to Seller secured by the Pool Assets;iii) Taxes
(which shall be governed by Sections 8.3 and 8.5);
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provided, however, that nothing contained in this sentence shall limit the liability of
the Seller or limit the recourse of the PurchasersInvestor Parties to
the Seller for amounts otherwise specifically provided to be paid by the Seller under the terms of this Agreement. Without
limiting the generality of the foregoing indemnification, the Seller shall indemnify the Indemnified Parties for Indemnified Amounts (including, without limitation, losses in respect of
uncollectible Receivables, regardless of whether reimbursement therefor would constitute recourse to the Seller) relating to or resulting from:
(1) any representation or warranty made by any Seller Party, the Performance Guarantor or any Originator (or any officers of
any such Person) under or in connection with this Agreement, any other Transaction Document or any other information or report required to be delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made
or deemed made;
(2) the failure by any Seller Party or any Originator to comply with any applicable law, rule or
regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of any Originator to keep or perform any of
its obligations, express or implied, with respect to any Contract;
(3) any failure of any Seller Party, any Originator or
the Performance Guarantor to perform its duties, covenants or other obligations in accordance with the provisions of any Transaction Document to which it is a party;
(4) any environmental liability, products liability, personal injury or damage suit, or other similar claim arising out of or
in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(5) any
dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid
and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise
or services;
(6) the commingling of Collections of Receivables at any time with other funds;
(7) any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document,
the transactions contemplated hereby, the use of the proceeds of an Investment, the ownership of the PoolPurchased Assets or any Investment therein or any other
investigation, litigation or proceeding relating to any Seller Party or any Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(8) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being
immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
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(9) any Amortization Event described in Section 7.1(g);
(10) any failure of the Seller to acquire and maintain legal and
equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from any Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of
the Seller to give reasonably equivalent value to the applicable Originator under the Sale Agreement in consideration of the transfer by it of any Receivable, or any attempt by any Person
to void such transfer under statutory provisions or common law or equitable action;
(11) any failure to vest and maintain
vested in the Administrative Agent for the benefit of the PurchasersInvestor Parties legal and equitable title to, and ownership of, a perfected ownership interest or first
priority perfect security interest in the PoolPurchased Assets, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(12) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under
the UCC of any applicable jurisdiction or other applicable laws with respect to any PoolPurchased Assets, whether on the date hereof or at any subsequent time, except to
the extent such failure or delay is caused by the Administrative Agent;
(13) any action or omission by any Seller Party
which reduces or impairs the rights of the Administrative Agent, the Liberty Street Administrator or the Purchasersany of the Investor Parties with respect to any
PoolPurchased Assets or the value of any PoolPurchased Assets;
(14) any attempt by any Person to void any Investment or the security interest in the
PoolPurchased Assets granted hereunder, whether under statutory provision, common law or equitable action; and
(15) the failure of any Receivable included in the calculation of the Net Pool Balance as an Eligible Receivable to be an
Eligible Receivable at the time so included.
Notwithstanding anything to the contrary in this
Agreement, Indemnified Amounts shall not include any amount arising out of any Investor Party’s bearing the Credit Risk of any Obligor to pay amounts lawfully owed in respect of a Purchased Asset.
(b) (b) After receipt by an Indemnified Party of
notice of any investigative, administrative or judicial proceeding (collectively, a “Proceeding”) involving such Indemnified Party, such Indemnified Party shall, if a claim in respect thereof is to be made against
the Seller hereunder, promptly notify the Seller in writing, and in reasonable detail, of such Proceeding. Upon receipt of notice
from an Indemnified Party seeking indemnification hereunder with respect to any such Proceeding, the Seller shall be entitled to assume the defense of any such Proceeding with counsel
reasonably satisfactory to the Administrative Agent (or, in the case of an Indemnified Party that is or is affiliated with any member of the Liberty Streeta Funding Group,
the Liberty Streetapplicable Administrator). Upon the Seller’s assumption of the defense of any such
Proceeding, the Indemnified Party shall have the right to participate in
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such Proceeding and to retain its own counsel, but the Seller shall not be
liable for any legal expenses of other counsel subsequently incurred by such Indemnified Party in connection with the defense thereof unless (x) the Seller agrees in writing to pay
such fees and expenses, (y) the Seller fails to employ counsel reasonably satisfactory to the Administrative Agent (or, in the case of an Indemnified Party that is or is affiliated
with any member of the Liberty Streeta Funding Group, the Liberty Streetapplicable
Administrator) in a timely manner, or (z) the Indemnified Party shall have been advised by counsel that there are actual or potential conflicting interests between the Seller, on the
one hand, and the Indemnified Party, on the other hand, including situations in which there are one or more legal defenses available to the Indemnified Party that are different from or additional to those available to Seller; provided,
however, that the Seller shall not in any event be responsible hereunder for the fees and expenses of more than one counsel (plus local counsel, where necessary) for all Indemnified
Parties in connection with any Proceeding. The Seller shall have the sole authority to settle any claim for monetary damages and, if
the Seller chooses not to assume the defense of any such Proceeding, no Indemnified Party will consent to a settlement of, or the entry of any judgment arising from, any Proceeding without
the Seller’s prior written consent, which shall not be unreasonably withheld or delayed.
Section 8.2. Indemnities by the Servicer. (a) Without limiting any other rights that the Administrative Agent, the
Liberty Street Administrator or any Purchaserany of the Investor Parties may have hereunder or under applicable law, the Servicer hereby agrees to indemnify (and pay upon demand
to) each Indemnified Party from and against any and all damages, losses, claims, taxes, liabilities, costs, reasonable expenses and for all other amounts payable, including reasonable fees and disbursements of external counsel (all
of the foregoing being collectively referred to as “Servicer Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the Servicer’s failure to duly and punctually perform its
obligations under this Agreement excluding, however, in all of the foregoing instances:
(A) Servicer Indemnified Amounts to
the extent a final judgment of a court of competent jurisdiction holds that such Servicer Indemnified Amounts resulted from gross negligence or willful misconduct on the part of an Indemnified Party; and
(B) Servicer Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the
insolvency, bankruptcy or lack of creditworthiness or financial inability or unwillingness to pay (other than a dispute giving rise to a Dilution) of the related Obligor;
provided, however, that nothing contained in this sentence shall limit the liability of the Servicer or limit the recourse of the
PurchasersInvestor Parties to the Servicer for Collections received by the Servicer and required to be remitted by it under the terms of this Agreement. Without limiting
the generality of the foregoing indemnification, the Servicer shall indemnify the Indemnified Parties for Servicer Indemnified Amounts (including, without limitation, losses in respect of uncollectible Receivables, regardless of whether
reimbursement therefor would constitute recourse to the Servicer) relating to or resulting from:
(i) any representation or
warranty made by the Servicer (or any officers of the Servicer) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have
been false or incorrect when made or deemed made;
41
(ii) the failure by the Servicer to comply with any applicable law, rule or
regulation with respect to the collection of any Receivable or Related Security;
(iii) any failure of the Servicer to
perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(iv) the commingling by the Servicer of Collections of Receivables or funds or other assets arising therefrom at any time with
other funds;
(v) any investigation, litigation or proceeding relating to the Servicer in which any Indemnified Party
becomes involved as a result of any of the transactions contemplated hereby;
(vi) any Amortization Event of the described
in Section 7.1(g) with respect to the Servicer; and
(vii) any action or omission by the Servicer relating to
its obligations hereunder which reduces or impairs the rights of the Administrative Agent or the Purchasers with respect to any Receivable or the value of any such Receivable.
(b) (b) After receipt by
ana Indemnified Party of notice of any Proceedings involving such Indemnified Party, such Indemnified Party shall, if a claim in respect thereof is to be made against
Servicer hereunder, promptly notify the Servicer in writing, and in reasonable detail, of such Proceeding. Upon receipt of notice from an Indemnified Party seeking indemnification hereunder with respect to any such Proceeding, the Servicer shall be
entitled to assume the defense of any such Proceeding with counsel reasonably satisfactory to the Administrative Agent (or, in the case of ana Indemnified Party that is or
is affiliated with any member of the Liberty Streeta Funding Group, the Liberty
Streetapplicable Administrator). Upon the Servicer’s assumption of the defense of any such Proceeding, the Indemnified Party shall have the right to participate in such
Proceeding and to retain its own counsel but the Servicer shall not be liable for any legal expenses of other counsel subsequently incurred by such Indemnified Party in connection with the defense thereof unless (x) the Servicer agrees in
writing to pay such fees and expenses, (y) the Servicer fails to employ counsel reasonably satisfactory to the Administrative Agent (or, in the case of an Indemnified Party that is or is affiliated with any member of the Liberty
Streeta Funding Group, the Liberty Streetapplicable Administrator) in a timely manner, or (z) the
Indemnified Party shall have been advised by counsel that there are actual or potential conflicting interests between the Servicer, on the one hand, and the Indemnified Party, on the other hand, including situations in which there are one or more
legal defenses available to the Indemnified Party that are different from or additional to those available to the Servicer; provided, however, that the Servicer shall not in any event be responsible hereunder for the fees and expenses
of more than one counsel (plus local counsel, where necessary) for all Indemnified Parties in connection with any Proceeding. The Servicer shall have the sole authority to settle any claim for monetary damages and, if the Servicer chooses not
42
to assume the defense of any such Proceeding, no Indemnified Party will consent to a settlement of, or the entry of any judgment arising from, any Proceeding without the Servicer’s prior
written consent, which shall not be unreasonably withheld or delayed.
Section 8.3. Increased
CostCosts and Reduced Return. If after the date hereof, any PurchaserAugust
15, 2014, any Funding Source shall be charged any fee, expense or increased cost on account of the adoption after the date hereof of any applicable law, rule or regulation (including
any applicable law, rule or regulation regarding capital adequacy), and any accounting principles) or any
change after the date hereof in any of the foregoingapplicable law, rule or regulation, or any
change after the date hereof in the interpretation or administration thereofof any applicable law, rule or
regulation by the Financial Accounting Standards Board or any Governmental Authority, any governmental authority, any central bank or any comparable
agency charged with the interpretation or administration thereof, or compliance with any request or directive (whether or not having the force of law) of any such authority, central bank or
comparable agency (a “Regulatory Change”): (i) that subjects any Purchaser to any charge or
withholding on or with respect to this Agreement or a Purchaser’s obligations hereunder (including, without limitation, its obligations to pay the Deferred Purchase Price), or on or with respect to the Receivables, or changes the basis of
taxation of payments to any Purchaser of any amounts payable hereunder (except for Excluded Taxes or taxes excluded by Section 8.1) or
(iia) that subjects any Funding Source to any Taxes — other than Indemnified Taxes (which are governed by Section 8.5(a)) and Excluded Taxes (which are governed by
Section 8.5(b)) — on its Investments, loans, loan principal, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, (b) that imposes, modifies or deems applicable any
reserve, assessment, insurance or other insurance-related charge, special deposit or similar requirement against assets of, deposits with or for the account of a
PurchaserFunding Source, or credit extended by a Purchaseror any commitments to extend credit by a
Funding Source pursuant to this Agreement or (iiia Program Support Agreement, or (c) that imposes any other condition the result of which is to increase the cost
to a PurchaserFunding Source of performing its obligations hereunderunder this Agreement or a
Program Support Agreement, or to reduce the rate of return on a PurchaserFunding Source’s capital as a consequence of its obligations
hereunderunder this Agreement or a Program Support Agreement, or to reduce the amount of any sum received or receivable by a
PurchaserFunding Source under this Agreement or a Program Support Agreement or to require any payment calculated
by reference to the amount of interests or loans held or interest received by it, then, upon demand by the related Funding Source or, if applicable
Purchaser, its Funding Group’s Administrator, the Seller shall pay to such PurchaserFunding Source or
such Administrator, for the benefit of the relevant Funding Source, such amounts charged to such PurchaserFunding Source or such amounts to otherwise compensate such
PurchaserFunding Source for such increased cost or such reduction; provided that notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act adopted on July 21, 2010 and all requests, rules, guidelines or directives thereunder or issued in connection
therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or
foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be an adoption, change, request or directive subject to this
Section 8.3(a)a “Regulatory Change”, regardless of the date enacted, adopted or issued. Notwithstanding the foregoing, no Purchaser that is not
organized under the laws of the United States of America, or a state thereof, shall be
43
entitled to reimbursement or compensation hereunder unless and until it has delivered to Seller two (2) duly completed and signed originals of United States Internal Revenue Service
Form W-8BEN or W-8ECI, as applicable, certifying in either case that such Purchaser is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes.
For the avoidance of doubt, payments under this Section 8.3 in respect of increased taxes shall be without duplication of any Taxes payable pursuant to Section 8.5.
Section 8.4. Other Costs and Expenses. The Seller shall pay to each of
the Conduit Purchasers, any fees charged by the rating agencies that rate its Commercial Paper which is specifically attributable to this Agreement. In addition, the Seller shall pay to the Administrative
Agent, on demand, all reasonable and documented costs and out-of-pocket expenses in connection with the preparation, execution,
delivery and administration of this Agreement, the and other transactions contemplated hereby and the other documents to be delivered hereunder, including
without limitation, the cost of auditors auditing the books, records and procedures of the Seller, reasonable fees and out-of-pocket expenses of external legal counsel for the
Administrative Agent with respect thereto and with respect to advising each of the Administrative Agent as to its rights and remedies under this Agreement.
the Transaction Documents to which it is a party. The Seller shall pay to the Administrative Agent and the Liberty Street
Administratoreach of the Administrators, on demand, any and all of their reasonable costs and out-of-pocket expenses, if
any, including reasonable and documented external counsel fees and out-of-pocket expenses in connection with (i) any amendments, any waivers or the enforcement of this Agreement and the other documents delivered hereunder and (ii) any
restructuring or workout of this Agreement or such documents, or the administration of this Agreement following an Amortization Event.
Section 8.5. Taxes.
(a) Any and all payments by or on account of any obligation of the Seller under any
Transaction Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of the Seller) requires the deduction or withholding of any
Tax from any such payment by the Seller, then the Seller shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and,
if such Tax is an Indemnified Tax, then the sum payable by the Seller shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under
this Section 8.5) the applicable Indemnified Party receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) The Seller shall timely pay to the relevant Governmental Authority in accordance
with applicable law, or at the written request of the applicable Indemnified Party timely reimburse it for the payment of, any Other Taxes.
(c) The Seller shall indemnify each Indemnified Party, on the first Settlement Date
which is at least 45 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to
44
amounts payable under this Section 8.5) payable or paid by such Indemnified Party and any reasonable out-of-pocket expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Each Indemnified Party will promptly notify the Seller of any event of which it has
knowledge, which will entitle such Indemnified Party to compensation pursuant to this Section 8.5; provided, however, that failure of any Indemnified Party to demand indemnification for any Taxes shall not constitute a waiver of such
right to indemnification, except that the Seller shall not be required to indemnify an Indemnified Party for Taxes under this Section 8.5 unless such Indemnified Party notifies the Seller of such claim no later than 45 days after such
Indemnified Party has knowledge of such Taxes being imposed or arising. Any notice claiming compensation under this Section 8.5 shall set forth in reasonable detail the additional amount or amounts to be paid to it hereunder and shall be
conclusive in the absence of manifest error.
(d) Each Indemnified Party
agrees that it will use reasonable efforts to reduce or eliminate any claim for indemnity pursuant to this Section 8.5, including, subject to applicable law, a change in the funding office of such Indemnified Party; provided,
however, that nothing contained herein shall obligate any Indemnified Party to take any action that imposes on such Indemnified Party any material additional costs or imposes material legal or regulatory burdens, nor which, in such
Indemnified Party’s reasonable opinion, would have a material adverse effect on its business, operations or financial condition.
(e) If any Indemnified Party receives a refund of any Taxes as to which it has been
indemnified pursuant to this Section 8.5 (including by the payment of additional amounts pursuant to this Section 8.5), it shall pay to the Seller an amount equal to such refund (but only to the extent of indemnity payments made under this
Section with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) of such Indemnified Party and without interest (other than any interest paid by the relevant Governmental Authority with
respect to such refund). The Seller, upon the request of such Indemnified Party, shall repay to such Indemnified Party the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) in the event that such Indemnified Party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will the Indemnified Party be required to pay
any amount to the Seller pursuant to this clause (e) the payment of which would place the Indemnified Party in a less favorable net after-Tax position than the Indemnified Party would have been in if the Tax subject to indemnification and
giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Indemnified
Party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the Seller or any other Person.
(f) If any Purchaser is entitled to an exemption from or reduction of withholding or
backup withholding tax (“Withholding Tax”) with respect to any payments
45
under any Transaction Document, it shall deliver to the Seller and Servicer, on or prior to the date on which such Purchaser becomes a
Purchaser under this Agreement and as otherwise prescribed by applicable law or reasonably requested by the Seller, such valid, properly completed and duly executed forms, certificates, and documentation (including Internal Revenue Service Form
W-8ECI, W-8BEN-E, W-8IMY or W-9 or successor form of the foregoing), along with any applicable attachments (including, in case of a Person claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a
certificate reasonably satisfactory to the Seller to the effect that such Person is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Seller within the meaning of
Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code), prescribed by applicable law or reasonably requested by the Seller, the Servicer, the Administrative Agent or
any Administrator as will permit such payments to be made without or at a reduced rate of withholding. Each Purchaser agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall
update such form or certification or promptly notify the Seller, Servicer and Administrative Agent, in writing of its legal inability to do so. Each Purchaser shall replace or update such forms when necessary to maintain any applicable exemption and
as requested by the Administrative Agent, the Administrators or the Seller, as applicable. Each Purchaser agrees to hold the Administrative Agent, the Administrators, the Servicer and the Seller harmless from any Withholding Taxes relating to
payments by the Seller to such Purchaser or such indemnitee arising from such Purchaser’s failure to comply with this Section 8.5(f).
(g) If a payment made to any of the Investor Parties or the Servicer hereunder would
be subject to U.S. federal Withholding Tax imposed by FATCA if such payee were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as
applicable), such payee shall deliver to the Seller at the time or times prescribed by law and at such time or times reasonably requested by the Seller, such documentation prescribed by applicable law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Seller as may be necessary for the Seller to comply with its obligations under FATCA and to determine that such payee has
complied with such payee’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.
ARTICLE IX.
THE
ADMINISTRATIVE AGENT AND THE LIBERTY STREET
ADMINISTRATORADMINISTRATORS
Section 9.1. Appointment.
(a) Each Purchaser hereby irrevocably designates and appoints WFB, as Administrative Agent hereunder, and authorizes the Administrative
Agent to take such action on its behalf under the provisions of the Transaction Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of the
46
Transaction Documents, together with such other powers as are reasonably incidental thereto. Each of Liberty StreetNieuw
Amsterdam and ScotiabankRabobank hereby irrevocably designates and appoints
ScotiabankRabobank, as Liberty StreetNieuw Amsterdam Administrator hereunder, and authorizes
the Liberty StreetNieuw Amsterdam Administrator to take such action on its behalf under the provisions of the Transaction Documents and to exercise such powers and perform
such duties as are expressly delegated to the Liberty StreetNieuw Amsterdam Administrator by the terms of the Transaction Documents, together with such other powers as are
reasonably incidental thereto. Each of Fairway and BMO hereby irrevocably designates and appoints BMO Capital Markets Corp., as Fairway Administrator hereunder, and authorizes the Fairway
Administrator to take such action on its behalf under the provisions of the Transaction Documents and to exercise such powers and perform such duties as are expressly delegated to the Fairway Administrator by the terms of the Transaction Documents,
together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, neither the Administrative Agent nor the Liberty Street
Administratoreither of the Administrators shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Purchaser, and
no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of the Administrative Agent or the Liberty Street Administratoreither of the
Administrators shall be read into this Agreement or otherwise exist against the Administrative Agent or the Liberty Street Administratoreither of the Administrators.
(b) The provisions of this Article IX are solely for the benefit of the Administrative Agent, the Liberty Street
AdministratorAdministrators and the Purchasers, and neither of the Seller Parties shall have any rights as a third-party
beneficiary or otherwise under any of the provisions of this Article IX (other than as provided in Section 9.9), except that this Article IX shall not affect any obligations which the Administrative Agent, the
Liberty Streetany Administrator or any Purchaser may have to either of the Seller Parties under the other provisions of
this Agreement.
(c) In performing its functions and duties hereunder, the Administrative Agent shall act solely as the
Administrative Agent of the Purchasers and does not assume nor shall be deemed to have assumed any obligation or relationship of trust or agency with or for either of the Seller Parties or
any of their respective successors and assigns. In performing its functions and duties hereunder, the Liberty Street Administratoreach of the Administrators shall act
solely as the administrator of the Liberty Streetits Funding Group and does not assume nor shall be deemed to have assumed any obligation or relationship of trust or agency
with or for either of the Seller Parties, WFB,any of the Administrative
AgentInvestor Parties or any of their respective successors and assigns.
Section 9.2. Delegation of Duties. Each of the Administrative Agent and the Liberty Street
AdministratorAdministrators may execute any of its duties under the applicable Transaction Documents by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. NeitherNone of the Administrative Agent
noror the Liberty Street AdministratorAdministrators shall be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
47
Section 9.3. Exculpatory Provisions.
NeitherNone of the Administrative Agent, the Liberty Street AdministratorAdministrators nor any
of their respective directors, officers, agents or employees shall be (i) liable for any action lawfully taken or omitted to be taken by it or them or any Person described in Section 9.2 under or in connection with the Transaction
Documents (except for its, their or such Person’s own bad faith, gross negligence or willful misconduct), or (ii) responsible in any manner to any of the Purchasers or other agents for any recitals, statements, representations or
warranties made by the Seller contained in any Transaction Document or in any certificate, report, statement or other document referred to or provided for in, or received under or in
connection with, any Transaction Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document furnished in connection herewith, or for any failure of either of
the Seller Parties to perform its respective obligations hereunder, or for the satisfaction of any condition specified in Article IV, except receipt of items required to be
delivered to the Administrative Agent or, as applicable, the Liberty Street AdministratorAdministrators. Neither the Administrative Agent nor the Liberty Street
AdministratorAdministrators shall be under any obligation to any Purchaser to ascertain or to inquire as to the observance or performance of any of the agreements or covenants
contained in, or conditions of, any Transaction Document, or to inspect the properties, books or records of the Seller Parties. This Section 9.3 is intended solely to govern the
relationships between (a) the Administrative Agent, on the one hand, and the
Purchasers, on the other, and (b) the Liberty Street Administratoreach of the Administrators, on the one
hand, and the members of the Liberty Streetits Funding Group, on the other.
Section 9.4. Reliance by the Administrative Agent, the Liberty Street Administrator and the
PurchasersInvestor Parties.
(a)
The Administrative Agent, the Liberty Street Administrator and each PurchaserEach of the Investor Parties shall in all cases be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Seller Parties),
independent accountants and other experts selected by the Administrative Agent, the Liberty Street Administrator or such Purchasersuch Investor Party. Each of the
Administrative Agent and the Liberty Street AdministratorAdministrators shall in all cases be fully justified in failing or refusing to take any action under this Agreement
or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of (i) in the case of the Liberty Streetan
Administrator, each member of the Liberty Streetits Funding Group, and (ii) in the case of the Administrative
Agent, and each Purchaser (except where another provision of this Agreement specifically authorizes the Administrative Agent to take action based on the instructions of
less than all of the Purchasers).
(b) Any action taken by the Administrative Agent in accordance with Section 9.4(a)
shall be binding upon all Purchasersof the Investor Parties, and any action taken by the Liberty
Streetan Administrator in accordance with Section 9.4(a) shall be findingbinding upon all
members of the Liberty Streetits Funding Group.
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Section 9.5. Notice of Amortization Events. None of the Administrative
Agent, the Liberty Street Administrator nor any PurchaserInvestor Parties shall be deemed to have knowledge or notice of the occurrence of any Amortization Event or Potential
Amortization Event unless it or, in the case of a Purchaser that is a member of a Funding Group, such Funding Group’s Administrator, has received notice from another party hereto
referring to this Agreement, stating that an Amortization Event or a Potential Amortization Event has occurred hereunder and describing such Amortization Event or Potential Amortization Event. In the event that the Administrative Agent, the
Liberty Street Administrator or any Purchaserany of the Investor Parties receives such a notice, it shall promptly give notice thereof to the Administrative Agent and the
other Purchasers, as applicableAdministrators, who will promptly advise their constituents of the contents thereof. The Administrative Agent shall take such action with
respect to such Amortization Event or Potential Amortization Event as shall be directed by any PurchaserWFB or the Liberty
Streetany Administrator.
Section 9.6. Non-Reliance on the
Administrative Agent, the Liberty Street Administrator and Other PurchasersOther Investor Parties. Each of the Purchasers expressly acknowledges that neither
the Administrative Agent, the Liberty Streetany Administrator nor any of their respective officers, directors, employees, agents, attorneys-in-fact or
affiliatesAffiliates has made any representations or warranties to it and that no act by the Administrative Agent or the Liberty
Streetany Administrator hereafter taken, including, without limitation, any review of the affairs of the Seller Parties,
shall be deemed to constitute any representation or warranty by the Administrative Agent or the Liberty Streetsuch Administrator. Each of the Purchasers also represents and
warrants to the Administrative Agent, the Liberty Street Administrator Administrators and the other Purchasers that it has, independently and without reliance upon any such
Person (or any of theirsuch Person’s Affiliates) and based on such documents and information as it has deemed appropriate, made its own appraisal
of, and investigation into, the business, operations, property, prospects, financial and other conditions and creditworthiness of
the Seller Parties and made its own decision to enter into this Agreement. Each of the Purchasers also represents that it will, independently and without reliance upon the Administrative
Agent, the Liberty Streetany Administrator or any other Purchaser, and based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, prospects, financial and other
condition and creditworthiness of the Seller Parties. None of the Administrative Agent, the Liberty Street
AdministratorAdministrators nor any Purchaser, nor any of their respective Affiliates, shall have any duty or responsibility to provide any party to this Agreement with any credit
or other information concerning the business, operations, property, prospects, financial and other condition or creditworthiness of the Seller Parties which may come into the possession of
such Person or any of its respective officers, directors, employees, agents, attorneys-in-fact or affiliates.
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Section 9.7. Indemnification of Administrative Agent and Liberty Street
Administratorthe Administrators.
(a) . Each
Committed Purchaser agrees to indemnify the Administrative Agent and its officers, directors, employees, representatives and agents (to the extent not reimbursed by
the Seller Parties and without limiting the obligation of the Seller Parties to do so), ratably in accordance with their
respective Percentages or Capital, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including, without limitation, the
reasonable fees and disbursements of counsel for the Administrative Agent or such Person in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not the Administrative
AgentWFB in its capacity as Administrative Agent or such Person shall be designated a party thereto) that may at any time be imposed on, incurred by or asserted against the
Administrative Agent or such Person as a result of, or arising out of, or in any way related to or by reason of, any of the transactions contemplated hereunder or the execution, delivery or performance of this Agreement or any other document
furnished in connection herewith (but excluding any such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the bad faith, gross negligence or willful misconduct of
the Administrative Agent or such Person as finally determined by a court of competent jurisdiction). Each member of the Liberty Street Funding Group agrees to indemnify the Liberty Street
Administrator and its officers, directors, employees, representatives and agents (to the extent not reimbursed by Seller Parties and without limiting the obligation of Seller Parties to do so), ratably in accordance with their respective Capital,
from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of
counsel for the Liberty Street Administrator or such Person in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not the Liberty
Street Administrator in its capacity as such or such Person shall be designated a party thereto) that may at any time be imposed on, incurred by or asserted against the Liberty Street Administrator
or such Person as a result of, or arising out of, or in any way related to or by reason of, any of the transactions contemplated hereunder or the execution, delivery or performance of this Agreement or any other document furnished in connection
herewith (but excluding any such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from the bad faith, gross negligence or willful misconduct of the
Liberty Street Administrator or such Person as finally determined by a court of competent jurisdiction).
(b) Each Committed Purchaser in a Funding Group agrees to indemnify its
Administrator and its officers, directors, employees, representatives and agents (to the extent not reimbursed by the Seller Parties and without limiting the obligation of the Seller Parties to do so), ratably in accordance with their respective
Capital, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Administrator or such Person in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Administrator in its capacity as such or such Person shall be
designated a party thereto) that may at any time be imposed on, incurred by or asserted against such Administrator or such
50
Person as a result of, or arising out of, or in any way related to or by reason of, any of the transactions contemplated hereunder or the
execution, delivery or performance of this Agreement or any other document furnished in connection herewith (but excluding any such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the bad faith, gross negligence or willful misconduct of such Administrator or such Person as finally determined by a court of competent jurisdiction).
Section 9.8. Administrative Agent and Liberty Street
AdministratorAdministrators in their Individual Capacities. Each of the Administrative Agent and the Liberty Street
AdministratorAdministrators in its individual capacity and its affiliatesAffiliates may make loans to,
accept deposits from and generally engage in any kind of business with the Seller Parties and their Affiliates as though it were not the Administrative Agent or the Liberty
Streetan Administrator, as the case may be, hereunder. With respect to its Investments, if any, each of the Administrative Agent and the Liberty Street
AdministratorAdministrators shall have the same rights and powers under this Agreement as any Purchaser and may exercise the same as though it were not the Administrative Agent or
the Liberty Streetan Administrator, as the case may be, and the terms “Purchaser” and “Purchasers” shall include each of the Administrative Agent and
the Liberty Street AdministratorAdministrators in its individual capacity.
Section 9.9. Successor Administrative Agent. The Administrative Agent, upon thirty (30) days’ notice to
the Seller Parties and the Purchasers, (or, as applicable, their Administrators) may voluntarily resign and may
be removed at any time, with or without cause, by the Purchasers. If the Administrative Agent shall voluntarily resign or be removed as Administrative Agent under this Agreement, then the Liberty Street Administrator shall
immediatelyremaining Committed Purchasers (or their respective Funding Group’s Administrator) shall jointly appoint a Committed Purchaser or an Administrator to become the
successor Administrative Agent, whereupon such successor Administrative Agent shall succeed to the rights, powers and duties of the Administrative Agent and the term “Administrative Agent” shall mean such successor Administrative Agent.
Upon resignation or replacement of any Administrative Agent in accordance with this Section 9.9, the retiring Administrative Agent shall execute or authorize the filing of such UCC-3 assignments and amendments, and assignments and
amendments of the Transaction Documents, as may be necessary to give effect to its replacement by a successor Administrative Agent. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of
Article VIII and this Article IX shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
Section 9.10. UCC Filings. Each of the Purchasers hereby expressly recognizes and agrees that the Administrative
Agent may be designated as the secured party of record on the various UCC filings required to be made under this Agreement and the party entitled to amend, release and terminate the UCC filings under the Sale Agreement in order to perfect their
respective interests in the Receivables, Collections and Related Security, that such designation shall be for administrative convenience only in creating a record or nominee holder to take certain actions hereunder on behalf of the Purchasers and
that such listing will not affect in any way the status of the Purchasers as the true parties in interest with respect to the PoolPurchased Assets. In addition, such
listing shall impose no duties on the Administrative Agent other than those expressly and specifically undertaken in accordance with this Article IX.
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Section 9.11. Conflict Waivers.
ScotiabankEach of the Administrators or one or more of its Affiliates acts, or may in the future act: (i) as administrative agent for Liberty
Streetadministrator for the Conduit Purchaser in its Funding Group, (ii) as issuing and paying agent for Liberty
Streetsuch Conduit Purchaser’s Commercial Paper, (iii) to provide credit or liquidity enhancement for the timely payment for Liberty
Streetsuch Conduit Purchaser’s Commercial Paper and (iv) to provide other services from time to time for Liberty
Streetsuch Conduit Purchaser (collectively, the “ScotiaAdministrator Roles”).
Each of the Administrative Agent and the Purchasers hereby acknowledges and consents to any and all ScotiaAdministrator Roles and agrees that in connection with any
ScotiaAdministrator Role, Scotiabankeach Administrator may take, or refrain from taking,
any action which it, in its discretion, deems appropriate, including, without limitation, in its role as administrative agent for Liberty Streetadministrator for the applicable
Conduit Purchaser, the giving of notice to the liquidity banks of a mandatory purchase pursuant to the applicable Liquidity Agreement, and hereby acknowledges that neither
Scotiabanksuch Administrator nor any of its Affiliates has any fiduciary duties hereunder to any Purchaser (other than Liberty
Streetthe applicable Conduit Purchaser) arising out of any of the Scotiaits Administrator Roles.
ARTICLE X.
ASSIGNMENTS; PARTICIPATIONS
Section 10.1. Assignments; Pledge to Federal Reserve Bank.
(a) Each of the parties hereby consents to any future assignment by Liberty Street to Scotiabank, individually or as
liquidity agent for the banks from time to time party to the Liquidity Agreement,a Conduit Purchaser of all or any portion of Liberty
Streetsuch Conduit Purchaser’s rights and obligations hereunder to its Administrator, its Liquidity Banks and their
respective Affiliates, without the consent of the Seller or any other Person. In addition to and not in limitation of the foregoing: (i) any Purchaser may at any time and from time to time, with the prior written consent
of its Administrator (if applicable) and the Administrative Agent (in each case, which consent shall not be unreasonably
withheld, denied or delayed), assign to one or more Eligible Assignees (each, an “Assignee Purchaser”) all or any part of its rights and obligations under this
Agreement (and, if applicable, under the applicable Liquidity Agreement) pursuant to an assignment agreement, substantially in the form set forth in Exhibit
VI hereto (the (an “Assignment Agreement”) executed by such Assignee Purchaser and such selling
Purchaser and reasonably acceptable to the Administrative Agent, the applicable Administrator (if any) and the Seller; and (ii) so long as no Amortization Event shall have occurred and
be continuing, the consent of the Seller (which consent shall not be unreasonably withheld or delayed) shall be required prior to the effectiveness of any such assignment other than to an
existing Purchaser or one of its Affiliates and other than as provided in the first sentence of this Section 10.1(a). Upon delivery of the executed Assignment Agreement to the
Administrative Agent, such selling Purchaser shall be released from its obligations hereunder to the extent of such assignment. Thereafter, upon recordation in the Register, the Assignee
Purchaser shall for all purposes be a Purchaser party to this Agreement and shall have all the rights and obligations of a Purchaser
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under this Agreement to the same extent as if it were an original party hereto and thereto, and no further consent or action by the
Seller, the Purchasers or the Administrative Agent shall be required. Neither the Seller nor the Servicer shall have the right to assign its rights or obligations under this
Agreement. The Purchasers may not assign all or any part of their rights or obligations under this Agreement other than as permitted by this Section 10.1.
(b) Notwithstanding any other provision of this Agreement to the contrary, any Purchaser may at any time pledge or grant a security interest
in all or any portion of its rights (including, without limitation, rights to payment of principal and interest) under this Agreement to secure obligations of such Purchaser to a Federal Reserve Bank located in the United States of America, without
notice to or consent of any other party hereto; provided that no such pledge or grant of a security interest shall release such Purchaser from any of its obligations hereunder or substitute any such pledgee or grantee for such Purchaser as a party
hereto.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Seller, shall maintain a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Purchasers and each Purchaser’s interest in this Agreement and the other Transaction
Documents pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Seller, the Administrative Agent and the Purchaser shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a Purchaser hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Seller and any Purchaser, at any reasonable time and from
time to time upon reasonable prior notice. The parties intend for the Investments (for federal, state and local income and franchise tax purposes, as set forth in Section 1.4(e)) evidenced by this Agreement to be in registered form for tax
purposes.
Section 10.2. Participations. Any Purchaser may,
without the consent of any other party to this Agreement (but with notice by such Purchaser to the Administrative Agent and the Seller at least 5 business Days prior to any such sale), in
the ordinary course of its business at any time sell to one or more Persons (each a “Participant”) participating interests in its Commitment and(if
applicable), its Investments. Notwithstanding any such sale by a Purchaser of a participating interest to a Participant, such Purchaser’s rights and obligations under this Agreement shall remain unchanged, such Purchaser shall remain solely
responsible for the performance of its obligations hereunder, and each of the parties hereto shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement. Each
Purchaser agrees that any agreement between such Purchaser and any such Participant in respect of such participating interest shall not restrict such Purchaser’s right to agree to any amendment, supplement, waiver or modification to this
Agreement, except for any amendment, supplement, waiver or modification described in Section 12.1(b)(i). Each Purchaser that sells a participation shall, acting solely for this
purpose as an agent of the Seller, maintain a register on which it enters the name and address of each Participant and such Participant’s interest in the rights and obligations under this Agreement and the other Transaction Documents (the
“Participant Register”); provided that no Purchaser shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a
Participant’s interest in any rights or obligations under any Transaction Document) to any Person except (i) to the extent that such disclosure is necessary to establish that such rights and obligations are in registered form under
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Section 5f.103-1(c) of the United States Treasury Regulations and (ii) to the Seller upon the reasonable request of the Seller.
The entries in the Participant Register shall be conclusive absent manifest error, and such Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Section 10.3. Replacement of Purchaser(i) . If
(i) the Seller becomes obligated to pay additional amounts to any Purchaser pursuant to
Section 8.3,8.3 or Section 8.5, (ii) any Purchaser gives
notice of the occurrence of any circumstances described in Section 1.7, or (ii Committed Purchaser becomes a Defaulting Purchaser, or
(iii) any Purchaser (or its Administrator) does not consent to any matter requiring its consent under Section 12.1 when the Required Purchasers have otherwise consented
to such matter, then the Administrative Agent or CMC may, within 90
days thereafter, designate another bank or financial institution meeting the requirements of an Eligible Assignee (or otherwise reasonably acceptable to the Administrative Agent) (such
other institution being called a “Replacement Purchaser”) to purchase the Capital of such Purchaser and such Purchaser’s rights hereunder, without recourse to or warranty by, or expense to, such Purchaser, for a purchase
price equal to the outstanding Capital and accrued Yield payable to such Purchaser plus any accrued but unpaid fees owed to such Purchaser and any other amounts payable to such Purchaser
under this Agreement, and to assume all the obligations of such Purchaser hereunder, all in compliance with Section 10.1.10.1; provided,
however, that (a) if a Defaulting Purchaser is a member of a Funding Group, the Administrative Agent or CMC may replace its entire Funding Group, and (b) unless an Amortization Event shall have occurred and be continuing, the Seller
shall have the right to consent to any Replacement Purchaser selected by the Administrative Agent, which consent shall not be unreasonably withheld or delayed. Upon such purchase and assumption (pursuant to an Assignment Agreement), such
Purchaser shall no longer be a party hereto or have any rights hereunder (other than rights with respect to indemnities and similar rights applicable to such Purchaser prior to the date of such purchase and assumption) and shall be relieved from all
obligations to the Seller hereunder, and the Replacement Purchaser shall succeed to the rights and obligations of such Purchaser hereunder.
ARTICLE XI.
GRANT OF
SECURITY INTEREST
Section 11.1. Grant of Security Interest. In addition to any ownership interest which the
Administrative Agent may from time to time acquire pursuant hereto, the Seller hereby grants to the Administrative Agent, for the
ratable benefit of the PurchasersInvestor Parties, a continuing security interest in all of the
Seller’s right, title and interest in, to and under the Pool Assets, prior to all other liens on and security interests therein to secure the prompt and complete payment of the Aggregate Unpaids and the performance of all of
the Seller’s obligations under the Transaction Documents. The Administrative Agent is hereby authorized to file a financing statement naming
the Seller as the debtor and/or seller and describing the collateral covered thereby as “all personal property and the proceeds thereof”, “all assets and the proceeds
thereof” or words of similar effect. The Administrative Agent and the PurchasersInvestor Parties shall
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have, in addition to the rights and remedies that they may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other applicable law, which
rights and remedies shall be cumulative.
ARTICLE XII.
MISCELLANEOUS
Section 12.1. Waivers and Amendments.
(a) No failure or delay on the part of the Administrative Agent, the Liberty Street Administrator or any
Purchaserany of the Investor Parties in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law.
Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which given.
(b) No
provision of this Agreement may be amended, supplemented, modified or waived except in writing in accordance with the provisions of this Section 12.1(b). This Agreement and the provisions hereof may only be amended,
supplemented, modified or waived only in a writing signed by the Seller, the Servicer, the Administrative Agent and the Required Purchasers; provided, however, that
(i) the Liberty Streeta Conduit Purchaser’s or Committed Purchaser’s Funding Group’s Administrator’s signature on any amendment, supplement,
modification or waiver shall have the same force and effect as the signature of any member of the Liberty Streetsuch Funding Group, (ii) the Administrative Agent, the
Liberty Street AdministratorAdministrators and the Purchasers may enter into amendments to modify any of the terms or provisions of Article IX of this Agreement
without the consent of the Seller or Servicer, provided that such amendment has no negative impact upon the Seller
or Servicer, and (iii) without the consent of each Purchaser directly affected thereby (or, in the case of a member of the Liberty Streeta Funding Group, the
Liberty Streetits applicable Administrator), no such amendment supplement, modification or waiver shall (A) extend the Facility Termination Date or the date of any payment or
deposit of Collections by the Seller or the Servicer, (B) reduce the rate or extend the time of payment of Yield (or any component of Yield), (C) reduce any
Feefee payable to the Administrative Agent or to or for the benefit of any Purchaser, (D) change the Capital of any Investment, (E) amend, modify or waive any
provision of the definition of Required Purchasers or this Section 12.1(b), (F) consent to or permit the assignment or transfer by the Seller or Servicer of any of its
respective rights and obligations under this Agreement, (G) change the definition of “Commitment” or “Purchased Assets Coverage Percentage” or
(H) amend or modify any defined term (or any defined term used directly or indirectly in such defined term) used in clauses (A) through (G) above in a manner that would circumvent the intention of the restrictions set
forth in such clauses. The Seller acknowledges that a Conduit Purchaser’s ability to consent to any amendment or supplement to, or modification or waiver of, this Agreement may
require prior confirmation from the rating agencies who rate its Commercial Paper that such amendment, supplement, modification or waiver will not cause a downgrade in or withdrawal of any existing rating of such Commercial
Paper. Any modification or waiver made in accordance with this Section 12.1 shall be binding upon each of the parties hereto.
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Section 12.2. Notices. Except as provided in this Section 12.2, all
communications and notices provided for hereunder shall be in writing (including by letter, facsimile, electronic mail or similar writing) and shall be given to the other parties hereto at their respective addresses or telecopy numbers set forth on
the signature pages hereof or at such other address or telecopy number as such Person may hereafter specify for the purpose of notice to each of the other parties hereto. Each such notice or other communication shall be effective (a) if given
by facsimile or electronic mail, upon the receipt thereof, (b) if given by mail, five (5) Business Days after the time such communication is deposited in the mail with first class postage prepaid or (c) if given by any other means,
when received at the address specified in this Section 12.2. The Seller hereby authorizes the Purchasers and the Liberty Street Administrator to effect Purchases and
Yield Rate selectionseach of the Investor Parties to effect Investments based on telephonic notices made by any Person whom the Administrative Agent or the Liberty Street
Administrator, as the case may be,such Investor Party in good faith believes to be acting on behalf of the Seller.
The Seller agrees to deliver promptly to the Administrative Agent and the Liberty Street
AdministratorAdministrators a written confirmation of each telephonic notice signed by an Authorized Officer of the
Seller; provided, however, the absence of such confirmation shall not affect the validity of such notice. If the written confirmation differs from the action taken by WFB or a member of the Liberty Street Funding Group, as
the case may beany of the Investor Parties, the records of the Administrative Agent (in the case of WFB) or the
Liberty Streetapplicable Administrator, as applicable, (in all other cases) shall govern absent
manifest error.
Section 12.3. Ratable Payments. If any Purchaser, whether by setoff or otherwise, has payment made to it
with respect to any portion of the Aggregate Unpaids owing to such Purchaser (other than payments received pursuant to Section 8.3 or 8.4) in a greater proportion than that received by any other Purchaser entitled to receive a
ratable share of such Aggregate Unpaids, such Purchaser agrees, promptly upon demand, to purchase for cash without recourse or warranty a portion of such Aggregate Unpaids held by the other Purchasers so that after such purchase each Purchaser will
hold its ratable proportion of such Aggregate Unpaids; provided that if all or any portion of such excess amount is thereafter recovered from such Purchaser, such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
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Section 12.4. Protection of Ownership and Security Interests.
(a) The Seller agrees that from time to time, at its expense, it will
promptly execute and deliver all instruments and documents, and take all actions, that may be necessary or desirable, or that the Administrative Agent or the Liberty
Streetany Administrator may reasonably request, to perfect, protect or more fully evidence the Administrative Agent’s (on behalf of the
PurchasersInvestor Parties) ownership of or security interest in the Pool Assets or Purchased Assets, or to
enable the Administrative Agent or the PurchasersInvestor Parties to exercise and enforce their rights and remedies hereunder. At any time after the occurrence of an
Amortization Event, the Administrative Agent may, or the Administrative Agent may direct the Seller or the Servicer to, notify the Obligors of Receivables, at
the Seller’s expense, of the ownership or security interests of the PurchasersInvestor Parties under this
Agreement and may also direct that payments of all amounts due or that become due under any or all Receivables be made directly to the Administrative Agent or its designee. The Seller or
the Servicer (as applicable) shall, at any PurchaserInvestor Party’s request, withhold the identity of such
PurchaserInvestor Party in any such notification.
(b)
If any Seller Party fails to perform any of its obligations hereunder, the Administrative Agent, the Liberty Street Administrator or any Purchaserany Investor Party may
(but shall not be required to) perform, or cause performance of, such obligations, and the Administrative Agent’s , the Liberty Street Administrator’s or such
Purchasersuch Investor Party’s costs and expenses incurred in connection therewith shall be payable by the Seller
as provided in Section 8.4. Each Seller Party irrevocably authorizes the Administrative Agent at any time and from time to time in the sole discretion of the Administrative Agent, and appoints the Administrative Agent as its
attorney-in-fact, to act on behalf of such Seller Party (i) to execute on behalf of the Seller as debtor (if required) and
to file financing statements necessary or desirable in the Administrative Agent’s sole discretion to perfect and to maintain the perfection and priority of the ownership or security
interest of the PurchasersInvestor Parties in the ReceivablesPurchased Assets, including,
financing statements describing as the collateral covered thereby “all of debtor’s personal property or assets” or words to that effect, not
withstandingnotwithstanding that such wording may be broader in scope than the ReceivablesPurchased
Assets described in this Agreement and (ii) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Receivables as a financing statement in such offices as the Administrative
Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the interests of the Purchasers in the Receivables. This appointment is coupled with an interest and is irrevocable.
Section 12.5. Confidentiality.
(a) Each of the parties hereto shall maintain and shall cause each of its employees and officers to maintain the confidentiality of the
Fee Letter, the Administrative Agent’s Fee Letter and the other nonpublic, confidential or proprietary information with respect to the Originators, the Seller, the Performance
Guarantor, the Administrative Agent, the Purchasers Parties, the Funding Sources and their respective businesses obtained by it or them in connection with the structuring,
negotiating and execution of the transactions contemplated herein, except that such party and its directors, officers and employees may disclose such
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information (i) to such party’s external accountants, attorneys, investors, potential investors and credit enhancers and the agents or advisors of such Persons, and (ii) as
required by any applicable law or regulation or by any court, regulatory body or agency having jurisdiction over such party (including, without limitation, the filing of this Agreement with the SEC as an exhibit to an annual or quarterly report
under the Securities Exchange Act of 1934); and provided, further, that such party shall have no obligation of confidentiality in respect of any information which may be generally available to the public or becomes available to the
public through no fault of such party.
(b) Anything herein to the contrary notwithstanding, each Seller Party hereby consents to
the disclosure of any nonpublic information with respect to it and any Originator (i) to the Administrative Agent, the Liberty Street Administrator and each of the
PurchasersFunding Sources, (ii) to any prospective or actual assignee or participant of the Administrative Agent or any of the
PurchasersFunding Sources, (iii) to any investor in, or any rating agency who
rates, any Conduit Purchaser’s Commercial Paper or other debt securities or to any
such Commercial Paper dealer, (iv) to any provider of a surety, guaranty or credit or liquidity enhancement to Liberty
Streeta Conduit Purchaser or any entity organized for the purpose of purchasing, or making loans secured by, financial assets for which any
of the Committed PurchaserPurchasers or any of
theirits respective Affiliates acts as the administrative agentadministrator, (v) to a
nationally recognized statistical rating organization in compliance with Rule 17g-5 under the Securities Exchange Act of 1934 (or to any other rating agency in compliance with any similar rule or regulation in any relevant jurisdiction), and
(vi) to any officers, directors, employees, outside accountants, advisors and attorneys of any of the foregoing, provided each such Person is advised of the confidential nature of such information and (except in the case of a
Person described in clauses (iii) and (v) above) agrees to be bound by the provisions of this Section 12.5. In addition, the Administrative Agent and the Purchasers
mayeach of the Investor Parties may (A) disclose any such nonpublic information pursuant to any law, rule, regulation, direction, request or order of any judicial,
administrative or regulatory authority or proceedings (whether or not having the force or effect of law), and (B) disclose the existence and principal terms of this Agreement and the other
Transaction Documents (including the type and size of the transaction, the company logo , names and respective roles of the Seller, the Servicer, the Administrative Agent and the Administrators in connection therewith) for the purpose of conducting
and marketing their respective businesses.
Section 12.6. Limitation of Liability. Except with respect to any claim
arising out of the willful misconduct or gross negligence of the Administrative Agent, the Liberty Street Administrator or any Purchaserany of the Investor Parties, no
claim may be made by any Seller Party or any other Person against the Administrative Agent or any Purchaser or theirany of the Investor Parties or its respective
Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and each Seller Party hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
Section 12.7. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW
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YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO) EXCEPT TO THE EXTENT
THAT THE PERFECTION OF THE ADMINISTRATIVE AGENT’S SECURITY INTEREST IN THE COLLATERAL OR REMEDIES HEREUNDER IN RESPECT THEREOF ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
Section 12.8. CONSENT TO JURISDICTION. EACH SELLER PARTY
HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT AND EACH SELLER PARTY HERETOO HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, THE LIBERTY STREET ADMINISTRATOR OR ANY PURCHASERANY OF THE PARTIES
TO BRING PROCEEDINGS AGAINST ANY SELLEROTHER PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY SELLER PARTY AGAINST THE
ADMINISTRATIVE AGENT, THE LIBERTY STREET ADMINISTRATOR OR ANY PURCHASERANY OTHER PARTY HERETO OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY
PURCHASERANY PARTY HERETO INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY
SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN THE BOROUGH OF MANHATTAN, NEW YORK.
Section 12.9. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY SELLER PARTY
HERETO PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 12.10. Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction Document contain the final and complete integration of all prior expressions by the
parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings.
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(b) This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns (including any trustee in bankruptcy). This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and
effect until terminated in accordance with its terms; provided, however, that the rights and remedies with respect to (i) any breach of any representation and warranty made by any Seller Party pursuant to Article V,
(ii) the indemnification and payment provisions of Article VIII, and Sections 12.6 through and including 12.9 shall be continuing and shall survive any termination of this Agreement.
Section 12.11. Counterparts; Severability; Section References. This Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. Any provisions of this Agreement which are
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Unless otherwise expressly indicated, all references herein to “Article,” “Section,”
“Schedule” or “Exhibit” shall mean articles and sections of, and schedules and exhibits to, this Agreement.
Section 12.12. PATRIOT Act. Each PurchaserInvestor
Party that is subject to the requirements of the Act hereby notifies the Seller and the Servicer that pursuant to the requirements of the Act, it is required to obtain, verify and
record information that identifies the Seller Parties, the Originators and their respective Subsidiaries, which information includes the name and address of
the Seller Parties, the Originators their respective Subsidiaries and other information that will allow such Purchasers to
identify such parties in accordance with the Act.
Section 12.13. Recourse Against Certain Parties. No recourse under or
with respect to any obligation, covenant or agreement (including, without limitation, the payment of any Fees or any other obligations) of any Seller Party or Liberty Streetany
Conduit Purchaser contained in this Agreement or any other agreement, instrument or document entered into by it pursuant hereto or in connection herewith shall be had against any incorporator, affiliate, stockholder, officer, partner, member,
manager, employee or director of any Seller Party or Liberty Streetany Conduit Purchaser by the enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Seller Parties or Liberty Streeteach Conduit Purchaser contained in
this Agreement and all of the other agreements, instruments and documents entered into by it pursuant hereto or in connection herewith are, in each case, solely the corporate or limited
liability company obligations of the Seller Parties or Liberty Streetsuch Conduit Purchaser, as the case may be, and that no personal liability whatsoever shall attach
to or be incurred by the Seller Parties, Liberty Streetany Conduit Purchaser or any incorporator or organizer, stockholder, affiliate, officer, partner, member, manager,
employee or director thereof under or by reason of any of the obligations, covenants or agreements of the Seller Parties contained in this Agreement or in any other such instruments, documents or agreements, or that are implied therefrom. By way of
clarification, the foregoing sentence shall not limit recourse to any Seller Party for its respective obligations under this Agreement.
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Section 12.14. Limitation on Payments. Notwithstanding any provisions contained in
this Agreement to the contrary, Liberty Streetno Conduit Purchaser shall not,
andnor shall notit be obligated to, pay any amount pursuant to this Agreement unless
(a) Liberty Streetsuch Conduit Purchaser has received funds which may be used to make such payment and which funds are not required to repay its Commercial Paper and
advances under its Program Support Agreements when due and (b) after giving effect to such payment, either (i) there is sufficient liquidity availability (determined in accordance with the Program Support Agreements), under all of the
liquidity facilities for Liberty Streetsuch Conduit Purchaser’s Commercial Paper program, to pay the “Face Amount” (as defined below) of all outstanding
Commercial Paper and advances under its Program Support Agreements when due or (ii) all Commercial Paper and advances under the Program Support Agreements are paid in full. Any amount which Liberty
Streeta Conduit Purchaser does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in §101 of the Bankruptcy Code) against or
limited liability company obligation of Liberty Streetsuch Conduit Purchaser for any such insufficiency unless and until such payment may be made in accordance with clauses
(a) and (b) above. The agreements in this Section shall survive termination of this Agreement and payment of all obligations hereunder. As used in this Section, the term “Face Amount” means, with respect to
outstanding Commercial Paper or advances under Liberty Streeta Conduit Purchaser’s Program Support Agreements, (x) the face amount of any such Commercial Paper
issued on a discount basis, and (y) the principal amount of, plus the amount of all interest accrued and to accrue thereon to the stated maturity date of, any such Commercial Paper issued on an interest-bearing basis or any such advances under
its Program Support Agreements.
Section 12.15.
Non-Petition. Each of the parties hereto hereby agrees that it will not institute against any Conduit Purchaser, or join any Person in instituting against any Conduit Purchaser, any
insolvency proceeding (namely, any proceeding of the type referred to in Section 7.1(g)(ii) or (iii) as if references to the “Seller” therein were references to such Conduit Purchaser) so long as any Commercial Paper or other
senior Indebtedness issued by such Conduit Purchaser, as the case may be, shall be outstanding or there shall not have elapsed one year plus one day since the last day on which any such Commercial Paper or other senior Indebtedness shall have been
outstanding. The parties’ obligations under this Section 12.15 shall survive termination of this Agreement.
<Signature Pages Follow>
61
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date hereof.
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| CMC RECEIVABLES, INC., AS SELLER |
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| By: |
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| Name: |
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| Title: |
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Address for Notices:
6565 N. MacArthur Blvd., Suite 800
Irving, TX 75039
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| Attn: |
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VP and Treasurer |
| Email: |
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louis.federleCarey.Dubois@cmc.com |
| Phone: |
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(214972) 689-4370308-4092 |
| Fax: |
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(214) 689-5890 |
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| COMMERCIAL METALS COMPANY, AS THE SERVICER |
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| By: |
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| Name: |
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| Title: |
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Address for Notices:
6565 N. MacArthur Blvd., Suite 800
Irving, TX 75039
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| Attn: |
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VP and Treasurer |
| Email: |
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louis.federleCarey.Dubois@cmc.com |
| Phone: |
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(214972) 689-4370308-4092 |
| Fax: |
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(214) 689-5890 |
62
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| WELLS FARGO BANK, N.A.,
INDIVIDUALLY AS A COMMITTED
PURCHASER AND AS ADMINISTRATIVE AGENT |
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| By: |
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| Name: |
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Eero MakiWilliam P. Rutkowski |
| Title: |
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Senior Vice President |
Address for Notices:
Wells Fargo Bank, N.A.
6 Concourse Parkway, Suite
14501100 Abernathy Road, N.E., Suite 1500
Atlanta, GA
30328-5657
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| Attention: |
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Eero MakiWilliam P. Rutkowski |
| Email: |
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rsgglobal@wachoviaWFCFReceivablesSecuritizationAtlanta@wellsfargo.com;
william.rutkowski@wellsfargo.com |
| Phone: |
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(404770) 732-0821508-2180 |
| Fax: |
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(404866) 732-0801972-3558 |
63
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THE BANK OF NOVA SCOTIACOÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH,
INDIVIDUALLY AS A COMMITTED PURCHASER AND AS LIBERTY
STREETNIEUW AMSTERDAM
ADMINISTRATOR |
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| By: |
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| Name: |
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| Title: |
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| By: |
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| |
Name:
Title:
Address for Notices:
The Bank of Nova
Scotia
711 Louisiana Street
Suite 1400
Houston, TX 77002
Attention: Justin Perdue
Email: justin_perdue@scotiacapital.com; liberty_street@scotiacapital.com
Phone: (713) 759-3452
Fax: (832) 426-6023
With a copy to:
The
Bank of Nova Scotia
Director, Asset-Backed Finance
One Liberty Plaza, 26th Floor
New York,
NY 10006
Attention: Darren WardAddresses:
Rabobank Nederland, New York Branch
245 Park Avenue, 37th Floor
New York, New York 10167
Attention: New York Securitization Group (NYSG)
Facsimile No.: (914) 304-9324
Phone No.: (212) 808-6816
Email: naconduit@rabobank.com
64
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| BMO CAPITAL MARKETS CORP., AS FAIRWAY ADMINISTRATOR |
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| By: |
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| |
| Name: |
| Title: |
Address for Notices:
BMO Capital Markets, Securitization
Attention: Judd Deppisch
115 S. LaSalle St., 25W
Chicago, IL 60603
Email: judd.deppisch@bmo.com; sonia.zamora@bmo.com; fundingdesk@bmo.com
Phone: 312-461-5107; 312-461-2880
Fax: 312-293-4908
With a copy to:
Bank of Montreal
c/o BMO Capital Markets, Corporate Banking
Attention: Ann Kozak
115 S. LaSalle St., 25W
Chicago, IL 60603
Email: ann.kozak@bmo.com
Phone: 312-293-4484
Fax: 312-293-4948
65
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| BANK OF MONTREAL, AS A COMMITTED PURCHASER |
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| By: |
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| |
| Name: |
| Title: |
Address for Notices:
Bank of Montreal
c/o BMO Capital Markets, Corporate Banking
Attention: Ann Kozak
115 S. LaSalle St., 25W
Chicago, IL 60603
Email: ann.kozak@bmo.com
Phone: 312-293-4484
Fax: 312-293-4948
With a copy to:
BMO Capital Markets, Securitization
Attention: Judd Deppisch
115 S. LaSalle St., 25W
Chicago, IL 60603
Email: judd.deppisch@bmo.com; sonia.zamora@bmo.com; fundingdesk@bmo.com
Phone: 312-461-5107; 312-461-2880
Fax: 312-293-4908
66
|
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| NIEUW AMSTERDAM RECEIVABLES CORPORATION, INDIVIDUALLY AS A CONDUIT
PURCHASER |
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| By: |
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| |
| Name: |
| Title: |
Address for Notices:
Global Securitization Services, LLC
68 South Service Road, Suite 120
Melville, New York 11747
Facsimile No.: (212) 302-8767
Telephone No.: (631)930-7266
Email: darren_ward@scotiacapital.com
Phone: (212) 225-5264
Fax:
(212) 225-5274
nieuwam@gssnyc.com
With copy to:
Rabobank Nederland, New York Branch
245 Park Avenue, 37th Floor
New York, New York 10167
Attention: New York Securitization Group (NYSG)
Facsimile No.: (914) 304-9324
Phone No.: (212) 808-6816
Email: naconduit@rabobank.com
67
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LIBERTY STREET FUNDINGFAIRWAY FINANCE COMPANY, LLC, INDIVIDUALLY AS
A CONDUIT PURCHASER |
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| By: |
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| Name: |
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| Title: |
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Address for Notices:
Liberty Street Funding LLC
c/o Global
Securitization Services, LLCFairway Finance Company, LLC
114 West 47th
Street, Suite 2310
New York, New York 10036
c/o BMO Capital Markets, Securitization
Attention: Jill A. RussoJeff BaCote, Don McCardle
115 S. LaSalle St., 25W
Chicago, IL 60603
Email: jrusso@gssnyc.com; liberty_street@scotiacapital.comfundingdesk@bmo.com
Phone: (212) 295-2742
312-293-8005
Fax: (212) 302-8767 312-461-3189
With a copy to:
BMO Capital Markets, Securitization
Attention: Judd Deppisch
115 S. LaSalle St., 25W
Chicago, IL 60603
Email: judd.deppisch@bmo.com; sonia.zamora@bmo.com;
Phone: 312-461-5107; 312-461-2880
Fax: 312-293-4908
68
EXHIBIT I
DEFINITIONS
Capitalized
terms used and not otherwise defined herein, are used with the meanings attributed thereto in Agreement or, if not defined therein, in the Sale Agreement.
Except as otherwise specified in this Agreement, all references in this Agreement (i) to any Person (other than the Seller) shall be
deemed to include such Person’s successors and assigns, and (ii) to any law, agreement, statute or contract specifically defined or referred to in this Agreement shall be deemed references to such law, agreement, statute or contract as the
same may be supplemented, amended, waived, consolidated, replaced or modified from time to time, but only to the extent permitted by, and effected in accordance with, the terms thereof. The words “herein,”
“hereof” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any provision of this Agreement, and references to
“Article,” “Section,” “paragraph,” “Exhibit,” “Schedule” and “Appendix” are references to this Agreement
unless otherwise specified. Whenever the context so requires, words importing any gender include the other gender. Any of the defined terms may, unless the context otherwise requires, be used in the singular or the plural depending on the reference;
the singular includes the plural and the plural includes the singular. The word “or” shall not be exclusive.
All
accounting terms not otherwise defined in this Agreement shall have the meanings assigned them in conformity with GAAP. All terms used in Article 9 of the UCC and not specifically defined in this Agreement shall be defined herein and in the
Transaction Documents as such terms are defined in the UCC as in effect in the State of New York. Each reference to this Agreement, any other Transaction Document, or any other agreement shall be a reference to such agreement together with all
exhibits, schedules, attachments and appendices thereto, in each case as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof. References to “writing” include
telecopying, printing, typing, lithography and other means of reproducing words in a tangible visible form including computer generated information accessible in tangible visible form. References to “written” include faxed,
printed, typed, lithographed and other means of reproducing words or symbols in a tangible visible form consistent with the preceding sentence. The words “including,” “includes” and
“include” shall be deemed to be followed by the words “without limitation”. For purposes of determining any ratio or making financial calculations hereunder that include a reference to one or more
months in such determination, such reference shall be deemed a reference to a Fiscal Monthcalendar month.
Unless otherwise expressly provided herein, any period of time ending on a day which is not a Business Day shall end on the next succeeding
Business Day, and any notice or report which is not received by the time specified in this Agreement, shall be deemed to have been received on the next Business Day. Unless otherwise stated
in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and
“until” each means “to but excluding.”
Exhibit I - Page 1
In addition, as used in this Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Act” has the
meaning specified in Section 3.1(y).
“Adjusted Dilution Ratio” means, at any time, the rolling average of
the Dilution Ratio for the 12 Calculation Periods then most recently ended.
“Adverse Claim” means a Lien,
security interest, charge or encumbrance, or other right or claim in, of or on any Person’s assets or properties in favor of any other Person.
“Administrative Agent” has the meaning set forth in the preamble to this Agreement.
“Administrative Agent’s Account” means account no.
, or any other account or accounts as the Administrative Agent may
indicate from time to time.
“Administrative Agent’s
AccountFee Letter” means that certain letter agreement dated as of December 28,
2011August 15, 2014 by and between the Administrative Agent and the Seller, as the same may be amended, restated or
otherwise modified from time to time.
“Affiliate” means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common control with, such Person or any Subsidiary of such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of
voting securities of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by Contract or otherwise.
“Affiliated Obligor” means any Obligor that is an Affiliate of
another Obligor.
“Aggregate Capital” means, on any date of determination, the aggregate amount of Capital of
all Investments outstanding on such date.
“Aggregate Reduction” has the meaning specified in Section
2.1.2.1(f).
“Aggregate Unpaids”
means, at any time, the sum of the Aggregate Capital and all Required Amounts.
“Agreement” means this Receivables
Purchase Agreement, as it may be amended, restated, supplemented or otherwise modified and in effect from time to time.
Exhibit I - Page 2
“Alternate Base Rate” means, for any day, a rate per annum equal
to the sum of (a) the higher as of such day of (i) the Prime Rate, or (ii) one-half of one percent (0.50%) above the Federal Funds Rate, plus (b) the Applicable Margin. For purposes of determining the Alternate Base
Rate for any day, changes in the Prime Rate or the Federal Funds Rate shall be effective on the date of each such change.
“Amortization Date” means the earliest to occur of (a) the Business Day immediately prior to the occurrence of an
Amortization Event set forth in Section 7.1(g)(ii) or (iii) or the actual or deemed entry of an order for relief with respect to any Seller Party under the Federal Bankruptcy
Code, (b) the Business Day specified in a written notice from the Administrative Agent or any Purchaser following the occurrence and during continuation of any other Amortization Event, and (c) the date which is five (5) Business
Days after the Administrative Agent’s receipt of written notice from the Seller that it wishes to terminate the facility evidenced by this Agreement.
“Amortization Event” has the meaning specified in Section 7.1.
“Applicable Margin” has the meaning set forth in the Fee Letter.
“Assignee Purchaser” has the meaning set forth in Section 10.1.
“Assignment Agreement” has the meaning set forth in Section 10.1.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the
capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under
the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.
“Authorized Officer” means, with respect to any Person, its chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller.
“Broken Funding
Costs” means, for each Portion of Capital of a Conduit Purchaser which: (i) is reduced without compliance by the Seller with the notice requirements hereunder or (ii) does not become subject to an Aggregate Reduction following
the delivery of any Reduction Notice or (iii) is assigned by a Conduit Purchaser to a related Liquidity Bank under its Liquidity Agreement or terminated prior to the date on which it was originally scheduled to end; an amount equal to the
excess, if any, of (A) the Yield that would have accrued during the remainder of the tranche periods for such Conduit Purchaser’s Commercial Paper determined by such Conduit Purchaser or its Administrator to relate to such Portion of
Capital including and subsequent to the date of such reduction, assignment or termination (or in respect of clause (ii) above, the date such Aggregate Reduction was designated to occur pursuant to the Reduction Notice) of such Portion of
Capital if such reduction, assignment or termination had not occurred or such Reduction Notice had not been delivered, over (B) the income, if any, actually received during the remainder of such period by the holder of such Portion of Capital
from investing the amount of such reduction. All Broken Funding Costs shall be due and payable hereunder upon demand.
Exhibit I - Page 3
“Business Day” means (i) any day on which banks are not authorized
or required to close in New York, New York or Atlanta, Georgia, (ii) if the applicable Business Day relates to any computation or payment to be made with respect to the LMIR, any day on which dealings in dollar deposits are carried on in the
London interbank market, and (iii) if the applicable Business Day relates to any computation or payment to be made with respect to thea CP Rate, any day on which the
Depository Trust Company is open for business.
“Calculation Period” means a Fiscal
Monthcalendar month.
“Capital” means, with
respect to any Purchaser, the aggregate amount paid to (or for the benefit of) the Seller in respect of Investments by such Purchaser, as reduced from time to time by Collections distributed and applied on account of such Capital pursuant to
Section 2.1(d) of the Agreement; provided that if such Capital shall have been reduced by any distribution and thereafter all or a portion of such distribution is rescinded or must otherwise be returned for any reason, such
Capital shall be increased by the amount of such rescinded or returned distribution as though it had not been made.
“Capital
Securities” means, with respect to any Person, all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of such Person’s capital, whether now outstanding or hereafter issued.
“Capital Settlement Date” means the
nextfirst Business Day after any Settlement Report revealing an Investment Excess is delivered.
“Capital Lease” means, as of any date, any lease of property, real or personal, the obligations of the lessee in
respect of which are required in accordance with GAAP to be capitalized on the balance sheet of the lessee.
“Capitalized
Rentals” means, for any Person and as of any date of any determination, the amount at which the aggregate Rentals due and to become due under all Capital Leases under which such Person is a lessee would be reflected as a liability on a
consolidated balance sheet of such Person.
“Cash Purchase Price” has the meaning specified in
Section 1.2(a).
“Change of Control” means:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right
to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the Voting Stock of such Person;
Exhibit I - Page 4
(b) during any period of 12 consecutive calendar months, a majority of the members of the board
of directors or other equivalent governing body of such Person cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that
board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election
or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent
governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors);
(c) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise (including, without limitation, through
the acquisition of securities convertible into Voting Stock of CMC), or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of CMC;
(e) any Material Originator ceases to be a wholly-owned Subsidiary of CMC;
or
(f) CMC ceases to own directly at least 99% of the outstanding Voting Stock of
the Seller.
“Charged-Off Receivable” means a
Receivable: (a) as to which the Obligor thereof has taken any action, or suffered any event to occur, of the type described in Section 7.1(g) (as if references to any
Seller Party therein refer to such Obligor); (b) as to which the Obligor thereof, if a natural person, is deceased, (c) which, consistent with the Credit and Collection Policy, would be written off
the Seller’s books as uncollectible, or (d) which has been identified by the Seller as uncollectible.
“Closing Date” means April 5, 2011.
“CMC” has the meaning set forth in the preamble to this Agreement.
“Collection Notice” means, with respect to a Lock-Box Agreement, a notice given by the Administrative Agent to the
related Lock-Box Bank in substantially the form attached to such Lock-Box Agreement or otherwise pursuant to which the Administrative Agent exercises its right to direct the disposition of funds on deposit in the Lock-Box Account in accordance with
such Lock-Box Agreement.
“Collections” means, with respect to any Receivable, all cash collections and other cash
proceeds in respect of such Receivable, including, without limitation, all yield, Finance Charges or other related amounts accruing in respect thereof, and all cash proceeds of Related Security with respect to such Receivable.
Exhibit I - Page 5
“Commercial Paper” means promissory notes of Liberty
Streeta Conduit Purchaser issued by it in the commercial paper market.
“Commitment” means, for each Committed Purchaser, the
maximum aggregate amount which such Committed Purchaser is obligated to pay hereunder on account of all Investments in an amount not to exceed in the aggregate, the amount set forth
opposite such Committed Purchaser’s name on Schedule A to this Agreement or in the Assumption Agreement or other agreement pursuant to which it became a
Committed Purchaser, as such amount may be modified in accordance with the terms hereof.
“Concentration Limit” means, at any time:
(a) in relation to
all Earned but Unbilled Receivables, 10% of total billed Receivables as of the last day of the prior Calculation Period,
(b) with respect to the aggregate Outstanding Balance of Eligible Receivables
owing from the 4 Largest NR/NIG Obligors and their Affiliated Obligors, 13.0% of the Outstanding Balance of all Eligible Receivables, and
(c) “Concentration Limit” means, at any
time, (a) in relation to all Earned but Unbilled Receivables, 10% of total billed Receivables as of the last day of the prior Calculation Period, and (b) in relation to the
aggregate Outstanding Balance of Receivables owed by any other single Obligor and its AffiliatesAffiliated
Obligors (if any), the applicable concentration limit shall be determined as follows for Obligors who have a non-credit-enhanced, senior unsecured long-term debt rating currently assigned to them by S&P and Moody’s (or in the absence
thereof, the equivalent short term unsecured senior debt ratings), the applicable concentration limit shall be determined according to the following table:
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|
| Concentration Limit Level |
|
S&P Short-
Term Rating
(if no long-
term rating is
available) |
|
Moody’s
Short-Term
Rating (if no
long-term
rating is
available) |
|
S&P Rating
Long-Term
Rating |
|
Moody’s
Long-Term
Rating |
|
Allowable % of
Eligible
Receivables |
|
| 1 |
|
A-1+ |
|
P-1 |
|
AA or better |
|
Aa2 or better |
|
|
12.50 |
% |
| 2 |
|
A-1 |
|
P-1 |
|
³ A |
|
³ A2 |
|
|
10.00 |
% |
| 3 |
|
A-2 |
|
P-2 |
|
³ BBB |
|
³ Baa2 |
|
|
8.00 |
% |
| 4 |
|
A-3 |
|
P-3 |
|
BBB- |
|
Baa3 |
|
|
6.00 |
% |
| 5 |
|
Below A-3 or
Not Rated by
S&P |
|
Below P-3 or
Not Rated by
Moody’s |
|
Below BBB-
or Not Rated
by S&P |
|
Below Baa3 or
Not Rated by
Moody’s |
|
|
3.25 |
% |
Exhibit I - Page 6
; provided, however, that (i) if any Obligor has a split rating, the applicable rating will be
the higher of the two (if there is only one rating level difference), one rating below the higher rating (if there are two rating levels difference), and one rating above the lower of the two (if there are more than two rating levels difference),
(ii) if any Obligor is not rated by either S&P or Moody’s, the applicable Concentration Limit shall be the one set forth in the last line of the table above, (iii) if any Obligor does not have any rating, concentration limit level
5 shall apply and (iv) subject to the sole discretion of all Purchasers’ sole discretion and/or an increase in the Required Reserve Factor Floor, upon
the Seller’s request from time to time, all of the Purchasers may agree to a higher percentage of Eligible Receivables for a
particular Obligor and its Affiliates (each such higher percentage, a “Special Concentration Limit”), it being understood that any Special Concentration Limit may be cancelled by any Purchaser upon not less than five
(5) Business Days’ written notice to the Seller and the Administrative Agent.
“Conduit Purchaser” has the meaning set forth in the preamble
to this Agreement.
“Consolidated EBITDA” means Consolidated Net Income plus, without duplication and to the
extent deducted in determining Consolidated Net Income, (a) interest expense, (b) income taxes, and (c) depreciation and amortization expense, which will include any non-recurring, non-cash write-offs, impairments, or other charges on
any asset that otherwise in the normal course would have been depreciated or amortized over its useful life including any write-off of good will, in each case of the Performance Guarantor and its Subsidiaries and computed on a consolidated basis and
in accordance with GAAP.
“Consolidated Funded Debt” means all Funded Debt of the Performance Guarantor and its
consolidated Subsidiaries, determined on a consolidated basis and eliminating intercompany items.
“Consolidated Interest
Expense” means interest expense of the Performance Guarantor and its consolidated Subsidiaries, computed on a consolidated basis and in accordance with GAAP.
“Consolidated Net Income” means, for any period, for the Performance Guarantor and its consolidated Subsidiaries
computed on a consolidated basis in accordance with GAAP, the net income of the Performance Guarantor and its Subsidiaries.
“Consolidated Tangible Net Worth” means the total shareholders’ equity of the Performance
Guarantor and its consolidated Subsidiaries, calculated in accordance with GAAP and reflected on the most recent balance sheet of the Performance Guarantor, minus Intangible Assets.
“Contract” means, with respect to any Receivable, any and all instruments, agreements, invoices or other writings
pursuant to which such Receivable arises or which evidences such Receivable.
Exhibit I - Page 7
“Contract Year” means each period beginning on the Closing Date or any
anniversary thereof prior to the Final Payout Date and ending on March 30 of the succeeding year.
“Controlled
Group” means the Purchaser, the Guarantors (as defined in the Senior Credit Agreement) and any Person that for purposes of Title IV of ERISA is a member of the controlled group of or under common control (within the meaning of
Section 414 of the Internal Revenue Code) with the Purchaser or any such Guarantor.
“CP Costs” means, for either Conduit Purchaser on each day
during a Calculation Period on which such Conduit Purchaser funds any Portion of Capital through the issuance of Pooled Commercial Paper, the sum of (a) discount or interest accrued on Pooled Commercial Paper on such day, plus (b) any and
all accrued commissions in respect of placement agents and Commercial Paper dealers, and issuing and paying agent fees incurred, in respect of such Pooled Commercial Paper for such day, plus (c) other costs associated with funding small or
odd-lot amounts with respect to all receivable purchase or financing facilities which are funded by Pooled Commercial Paper for such day, minus (d) any accrual of income net of expenses received on such day from investment of collections
received under all receivable purchase or financing facilities funded substantially with Pooled Commercial Paper, minus (e) any payment received on such day net of expenses in respect of such Conduit Purchaser’s Broken Funding Costs
related to the prepayment of any Investment of such Conduit Purchaser pursuant to the terms of any receivable purchase or financing facilities funded by such Conduit Purchaser substantially with Pooled Commercial Paper. In addition to the foregoing
costs, if the Seller shall request any Investment during any period of time determined by a Conduit Purchaser or its Administrator in its sole discretion, to result in incrementally higher CP Costs applicable to such Investment, such Conduit
Purchaser’s Portion of Capital shall, during such period, be deemed to be funded by such Conduit Purchaser in a special pool (which may include capital associated with other receivable purchase or financing facilities) for purposes of
determining such Conduit Purchaser’s additional CP Costs applicable only to such special pool and charged each day during such period against such Portion of Capital. Each Conduit Purchaser or its Administrator, as the case may be, shall
allocate such Conduit Purchaser’s CP Costs for each day on a pro rata basis, based upon the percentage share its Portion of Capital hereunder represents in relation to all assets held by such Conduit Purchaser and funded substantially with
Pooled Commercial Paper
“CP Rate” means, for Liberty Street and for any Calculation Period for any
Portion of Capital the per annum rate equivalent to the sum of (a) the weighted average cost (as determined by the Liberty Street Administrator and which shall include commissions of placement agents and dealers, incremental carrying
costs incurred with respect to Commercial Paper of Liberty Street maturing on dates other than those on which corresponding funds are received by Liberty Street, other borrowings by Liberty Street (other than under any Program Support Agreement) and
any other costs associated with the issuance of Commercial Paper) of or related to the issuance of Commercial Paper that is allocated, in whole or in part, by Liberty Street to fund or maintain such Portion of Capital (and which may be also
allocated in part to the funding of other assets of Liberty Street); provided, however, that if any component of such rate is a discount rate, in calculating the “CP Rate” for such Portion of Capital for such
Calculation
Exhibit I - Page 8
Period, the Liberty Street Administrator shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum;
provided, further, that notwithstanding anything in this Agreement or the other Transaction Documents to the contrary, the Seller agrees that any amounts payable to Liberty Street in respect of Yield for any Calculation Period with
respect to any Portion of Capital funded by Liberty Street at the CP Rate shall include an amount equal to the portion of the face amount of the outstanding Commercial Paper issued to fund or maintain such Portion of Capital that corresponds to the
portion of the proceeds of such Commercial Paper that was used to pay the interest component of maturing Commercial Paper issued to fund or maintain such Portion of Capital, to the extent that Liberty Street had not received payments of interest in
respect of such interest component prior to the maturity date of such maturing Notes (for purposes of the foregoing, the “interest component” of Commercial Paper equals the excess of the face amount thereof over the net proceeds received
by Liberty Street from the issuance of Commercial Paper, except that if such Commercial Paper is issued on an interest-bearing basis its “interest component” will equal the amount of interest accruing on such Commercial Paper through
maturity), plus (b) the Applicable Margin.any Conduit Purchaser on any day, the per annum rate equivalent to such Conduit Purchaser’s CP Costs for such day on its
Portion of Capital.
“Credit and Collection Policy” means the Originators’ credit and collection policies
and practices relating to Contracts and Receivables existing on the date hereof and summarized in Exhibit VII hereto, as modified from time to time in accordance with this Agreement.
“Credit Risk” means credit losses on Purchased Assets incurred
by any Investor Party as a result of the risk of bankruptcy, insolvency, other financial or credit condition resulting in an inability to pay in respect of an Obligor.
“Cut-Off Date” means for any Monthly Report or monthly computation, the last day of each Calculation Period, and for
any Interim Report or related computation, the last day of the period covered by such Interim Report, as applicable.
“Days
Sales Outstanding” means, as of any day, an amount equal to the product of (a) 91, multiplied by (b) the amount obtained by dividing (i) the aggregate Outstanding Balance of all Receivables as of the most recent Cut-Off
Date, by (ii) the aggregate amount of Receivables created during the three (3) Calculation Periods including and immediately preceding such Cut-Off Date.
“Debt to Capitalization Ratio” means, as of any date of determination, for the Performance Guarantor and its
Subsidiaries on a consolidated basis, the ratio of (a) Consolidated Funded Debt as of such date to (b) Total Capitalization as of such date.
“Deemed Collections” means the aggregate of all amounts the
Seller shall have been deemed to have received as a Collection of a Receivable. The Seller shall be deemed to have received a Collection of a Receivable if any Dilution occurs with
respect to such Receivable. The amount of the Collection which the Seller shall be deemed to have received shall equal, in the case of clauses (a)-(d) of the definition of
“Dilution,” the amount by which the Outstanding Balance of such Receivable was reduced as a result thereof and, in the case of clause (e) of the definition of “Dilution,” the Outstanding
Balance of such Receivable.
Exhibit I - Page 9
“Default Horizon Ratio” means, as of any Cut-Off Date, the ratio
(expressed as a decimal) computed by dividing (i) the aggregate sales generated by the Originators during the last three months ending on such Cut-Off Date (or such other period as the Administrative Agent may determine based on a Review), by
(ii) the Net Pool Balance as of such Cut-off Date.
“Default Ratio” means, as of any Cut-Off Date, the ratio
(expressed as a percentage) computed by dividing (a) the total amount of Receivables, which became Defaulted Receivables during the month that includes such Cut-Off Date, by (b) the aggregate sales generated by the Originators during the
month occurring three months prior to the month ending on such Cut-Off Date.
“Defaulted Receivable” means a
Receivable: (a) as to which the obligor thereof has suffered an event of bankruptcy; (b) which, consistent with the Credit and Collection Policy, should be written off as uncollectible; or (c) as to which any payment, or part thereof,
remains unpaid for more than 60 days past due.
“Deferred Purchase Price” has the meaning specified in
Section 1.4(c).
“Delinquency Ratio” means, at any time, a percentage equal to (a) the aggregate
outstanding principal balance of all Receivables that were Delinquent Receivables at such time divided by (b) the aggregate outstanding principal balance of all Receivables at such time.
“Delinquent Receivable” means a Receivable as to which any payment, or part thereof, remains unpaid for more than 60
days or more from the due date.
“Dilution” means the amount of any reduction or cancellation of the outstanding
principal balance of a Receivable due to (a) any defective or rejected goods or services, any cash discount or any other adjustment by any Originator or any Affiliate thereof (other than as a result of any Collections), or as a result of any
governmental or regulatory action, (b) any setoff in respect of any claim by the Obligor thereof (whether such claim arises out of the same or a related or an unrelated transaction), (c) any warranty claim, rebate or refund, (d) any
misstatement of the amount thereof, or (e) any misrepresentation.
“Dilution Horizon Ratio” means, as of any
Cut-off Date, a ratio (expressed as a decimal), computed by dividing (a) the aggregate sales generated by the Originators during the month ending on such Cut-Off Date plus 50% of the aggregate sales generated by the Originators during the month
which is one month prior to the month ending on such Cut-Off Date, by (b) the Net Pool Balance as of such Cut-Off Date, or, in each case, a longer period if it is determined during the most recently completed field examination that the average
lag between the issuance of credit memoranda and the date of the related invoice is longer than 45 days.
“Dilution
Ratio” means, as of any Cut-Off Date, a ratio (expressed as a percentage), computed by dividing (a) the total amount of decreases in outstanding principal balances due to Dilution during the month ending on such Cut-Off Date, by
(b) the aggregate sales generated by the Originators during the month ending two months prior to the month ending on such Cut-Off Date.
Exhibit I - Page 10
“Dilution Reserve” means, for any month, the product (expressed as a
percentage) of: (a) the sum of (i) 2.00 times the Adjusted Dilution Ratio as of the immediately preceding Cut-Off Date, plus (ii) the Dilution Volatility Component as of the immediately preceding Cut-Off Date,
times (b) the Dilution Horizon Ratio as of the immediately preceding Cut-Off Date.
“Dilution Volatility
Component” means, at any time, the product (expressed as a percentage) of (i) the difference between (a) the highest monthly rolling average Dilution Ratio over the 12 month period then most recently ended and (b) the
Adjusted Dilution Ratio, and (ii) a fraction, the numerator of which is equal to the amount calculated in (i)(a) of this definition and the denominator of which is equal to the amount calculated in (i)(b) of this definition.
“Dominion Date” has the meaning specified in Section 6.2(b).
“Earned but Unbilled Receivable” means a Receivable which meets the criteria for an Eligible Receivable but which is
not yet evidenced by a final invoice.
“Eligible Assignee” means any bank or other financial institution organized
under the laws of the United States or a political subdivision thereof having a combined capital and surplus of at least $250,000,000.
“Eligible Receivable” means a Receivable:
(a) the Obligor of which (i) is not an Affiliate of any Originator or Performance Guarantor; or (ii) is not a government or a
governmental subdivision or agency (unless the Assignment of Claims Act of 1940, as amended, has been complied with),
(b) which is not a
Delinquent Receivable or Defaulted Receivable or owing from an Obligor as to which more than 50% of the aggregate Outstanding Balance of all Receivables owing from such Obligor are Defaulted Receivables,
(c) which by its terms is due and payable within 6590 days of the
original billing date therefor, or such later date as my be reasonably agreed to by the Purchasers,
(d) which is an “account”
or a “payment intangible” as defined in section 9-102 of the UCC of all applicable jurisdictions,
(e) which is not a
Foreign Receivable and is denominated and payable only in United States dollars in the United States and is not an Excess Foreign Receivable,
(f) which arises under a Contract, invoice or other written contractual obligation which, together with such Receivable, is in full force and
effect and constitutes the legal, valid and binding obligation of the related Obligor enforceable against such Obligor in accordance with its terms,
Exhibit I - Page 11
(g) which arises under a
Contract, (whether or not constituting an invoice) or other written contractual obligation that contains an
obligation to pay a specified sum of money, contingent only upon the sale of goods or the provision of services by the applicable Originator,
(h) which, together with the Contract related thereto, does not contravene any law, rule or regulation applicable thereto (including, without
limitation, any law, rule and regulation relating to truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no part of the Contract related
thereto is in violation of any such law, rule or regulation,
(i) which satisfies in all material respects all applicable requirements of
the Credit and Collection Policy,
(j) which was generated in the ordinary course of the applicable Originator’s business,
(k) which arises solely from the sale of goods or the provision of services to the related Obligor by the applicable Originator, and not by
any other Person that is not an Originator (in whole or in part),
(l) which is not subject to (A) any right of rescission or
set-off, or (B) any currently asserted counterclaim or other defense (including defenses arising out of violation of usury laws) or any other Adverse Claim of the applicable Obligor against the applicable Originator (i.e., the Obligor with the
right, claim or defense has such right claim or defense directly against the Originator rather than against an affiliate of such Originator), and the Obligor thereon holds no right as against the applicable Originator to cause such Originator to
repurchase the goods or merchandise the sale of which gave rise to such Receivable (except with respect to sale discounts effected pursuant to the Contract, or defective, rejected or returned goods in accordance with the terms of the Contract);
provided, however, that (1) if such rescission, set-off, counterclaim, defense or repurchase right affects only a portion of the Outstanding Balance of such Receivable, then such Receivable may be deemed an Eligible Receivable to
the extent of the portion of such Outstanding Balance which is not so affected (i.e., the amount of the outstanding claim or the amount the Obligor is entitled to set-off against the applicable Originator based on the amount which such Originator
owes the applicable Obligor) would be netted against the applicable Receivable, but the excess of the Receivable over such outstanding claim or set-off would be included as an Eligible Receivable) and (2) Receivables of any Obligor which has
any accounts payable from the applicable Originator (thus giving rise to a potential offset against such Obligor’s Receivables) may be treated as Eligible Receivable to the extent that such Obligor has agreed pursuant to a written agreement in
form and substance satisfactory to the Administrative Agent, that such Receivable shall not be subject to such offset,
(m) as to which
the applicable Originator has satisfied and fully performed all obligations on its part with respect to such Receivable required to be fulfilled by it, and no further action is required to be performed by any Person with respect thereto other than
payment thereon by the applicable Obligor,
Exhibit I - Page 12
(n) as to which all right, title and interest to and in which has been validly transferred by the
applicable Originator directly or indirectly to the Seller pursuant to the Sale Agreement, and the Seller has good and marketable
title thereto free and clear of any Adverse Claim (other than pursuant to the Transaction Documents), and
(o) is required to be paid into
a Lock-Box or Lock-Box Account that is the subject to a Lock-Box Agreement.
“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended, and any successor statute thereto of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections
thereto.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with
Performance Guarantor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by Performance
Guarantor or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Performance Guarantor or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV
of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Performance Guarantor or any ERISA Affiliate.
“European Union Risk Retention
Requirements” means Part 5 (Articles 404-410) of the European Union Capital Requirements Regulation, Commission Delegated Regulation (EU) No 625/2014 of 13 March
2014 and Commission Delegated Regulation (EU) No 602/2014 of 4 June 2014, as the same may be amended or re-enacted from time to time and any guidelines or related documents published from time to time in relation thereto by the European Banking
Authority (or any predecessor or successor agency or authority) and the European Commission. References herein to the European Union Risk Retention Requirements or to any Article or other provision thereof shall include (i) any corresponding
law or rule in effect in any country in the European Economic Area and applicable (directly or indirectly) to the Committed Purchaser(s) in the Nieuw Amsterdam Funding Group (and, for the avoidance of doubt, references thereto shall also include any
related direction given by an applicable Governmental Authority to the Committed Purchaser(s) in the Nieuw Amsterdam Funding Group or any Affiliate thereof in relation to any investments or exposures to risk in connection
with the transactions contemplated by the Transaction Documents), and (ii) any amendments to the foregoing and any
applicable order, instrument or regulation made or issued under the European Union Capital Requirements Regulation Directive (Directive 2013/36 (EU).
Exhibit I - Page 13
“European Union Capital
Requirements Regulation” means the European Union Capital Requirements Regulation (Regulation (EU) No 575/2013).
“Excess Availability” means, on any date of determination, the excess, if any, over the Aggregate Capital outstanding,
of the difference between the Net Pool Balance and the Required Reserves as of the date of the most recent Settlement Report.
“Excess Foreign Receivable” means all or any portion of the
Outstanding Balance of a Foreign Receivable that, if added to all other Foreign Receivables then included as Eligible Receivables for purposes of computing the Net Pool Balance, would cause the aggregate Outstanding Balance of all such included
Foreign Receivables to exceed 2% of the aggregate Outstanding Balance of all Receivables.
“Excluded Taxes”
means (i) taxesTaxes imposed on or measured by any Purchaser’s overall net income, capital or overall net profits by the jurisdiction
under which such Purchaser is organized or otherwise resident for tax purposes, and (ii) any branch profit taxesnet or gross income, franchise Taxes and backup withholding taxes,
in each case imposed on any Indemnified Party as a result of a present or former connection between that Indemnified Party (including any applicable lending office or by virtue of principal office, organization or incorporation) and the jurisdiction
of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from such Indemnified Party having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement), (ii) any branch profits Taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which a Purchaser is resident for
tax purposesdescribed in clause (i) above, (iii) any Taxes that result from any Investor Party’s failure to comply with the requirements of Section 8.5(e) or
Section 8.5(f), (iv) in the case of any Purchaser, any withholding Taxes that are imposed on amounts payable to such Purchaser pursuant to a law in effect at the time such Purchaser becomes a party to this Agreement or such Purchaser
changes the applicable funding office with respect to this Agreement, and (v) any Taxes under FATCA.
“Facility
Termination Date” means the earliestearlier of (i) December 26, 2014,August
15, 2017, and (ii) the Amortization Date.
“Fairway
Administrator’s Account” means (a) for payment of upfront fees, account
no. , (b) for all other payments in respect of
account
no. , (c) for all other payments in respect of Fairway-funded
Investments, account no.
, or (d) any other account or accounts as the Fairway Administrator may indicate from time to time.
Exhibit I - Page 14
“Fairway Funding
Group” means, collectively, Fairway and BMO.
“FATCA” means Section 1471 through 1474 of the Internal
Revenue Code and any regulations or official interpretations thereof (including any revenue ruling, revenue procedure, notice or similar guidance issued by the Internal Revenue Service thereunder as a precondition to relief or exemption from taxes
under such Sections, regulations and interpretations) any agreements entered into pursuant to section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any published
intergovernmental agreement entered into in connection with the implementation of the foregoing.
“Federal Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy,” as amended and any successor statute thereto.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum for each day during such
period equal to (i) the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for
the preceding Business Day) by the Federal Reserve Bank of New York in the Composite Closing Quotations for U.S. Government Securities; or (ii) if such rate is not so published for any day which is a Business Day, the average of the quotations
at approximately 11:30 a.m. (New York City time) for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.
“Fee Letter” means that certain amended and restated Fee
Letter dated as of December 28, 2011August 15, 2014 by and among the Seller, the Administrative Agent, the
Liberty Street AdministratorAdministrators and the Purchasers, as the same may be amended, restated or otherwise modified from time to time.
“Fees” means, collectively, any fees payable pursuant to the Fee Letter or the Administrative Agent’s Fee Letter.
“Final Payout Date” means the date on or after the Facility Termination Date on which (i) the Purchase Limit
and all Commitments have been reduced to zero ($0), and (ii) all Aggregate Unpaids have been paid in full.
“Finance
Charges” means, with respect to a Contract, any finance, interest, late payment charges or similar charges owing by an Obligor pursuant to such Contract.
“Fiscal Month” means one of the three fiscal periods in a Fiscal Quarter each of which is approximately one
month in duration.
“Fiscal Quarter” means one of one of the four fiscal periods in a Fiscal Year
each of which is approximately three months in duration.
“Fiscal Year” means any period of twelve
consecutive calendar months ending on August 31; references to a Fiscal Year with a number corresponding to any calendar year (e.g., the “20102014 Fiscal
Year”) refer to the Fiscal Year ending on August 31 of such calendar year.
Exhibit I - Page 15
“Foreign Receivable” means any Receivable the Obligor of which is not
organized under the laws of the United States or Canada or any political subdivision thereofof the foregoing.
“4 Largest NR/NIG Obligors” means, for any period of
determination, the NR/NIG Obligors of Receivables with the four (4) largest aggregate Outstanding Balances of all Receivables of any NR/NIG Obligor and its Affiliated Obligors (considered as if they were one and the same NR/NIG Obligor).
“Funded Debt” of any Person means, as of the date of determination and without duplication (a) all
Indebtedness of such Person for borrowed money or which has been incurred in connection with the acquisition of plant, property and equipment, (b) all Capitalized Rentals of such Person, and (c) all Guaranties by such Person of Funded Debt
of others; provided, however, at such time, if any, that any obligations outstanding under this Agreement or any other receivables facility of such Person is classified as Indebtedness for borrowed money to be disclosed on a financial
statement of such Person pursuant to GAAP, such amount outstanding under this Agreement or any other receivables facility shall, without duplication, be included as Funded Debt of such Person.
“Funding Group” means the Nieuw Amsterdam Funding Group or the
Fairway Funding Group.
“Funding Limit” means, as to
the members of any Funding Group considered in the aggregate, an amount equal to the applicable Committed Purchaser’s Commitment.
“Funding Source” means (i) each of the Investor Parties,
and (ii) each Liquidity Bank and each other bank, insurance company or other funding entity providing liquidity, credit enhancement or back-up purchase support or facilities to any Conduit Purchaser.
“GAAP” means generally accepted accounting principles in effect in the United States of America from time to time.
“Governmental Authority” means the government of the United States of
America, or any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court,
central bank, or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of pror pertaining to
government. (including any supra-national bodies such as the European Union or the European Central Bank), and any accounting board or authority (whether or not a part of
government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic.
“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary
Exhibit I - Page 16
obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to
pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee
against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such
Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as
a verb has a corresponding meaning.
“Impermissible Qualification” means any qualification or exception to the
opinion or certification of any independent public accountant as to any financial statement of the Performance Guarantor:
(a) which is of
a “going concern” or similar nature;
(b) which relates to the limited scope of examination of matters relevant to such
financial statement;
(c) which relates to the treatment or classification of any item in such financial statement and which, if adjusted
in the manner deemed appropriate by the Performance Guarantor’s independent public accountants, would have the effect of causing an Amortization Event.
“Incremental Investment” means an Investment that increases the total outstanding Aggregate Capital hereunder.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
Exhibit I - Page 17
(b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations
of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by
a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in
recourse;
(f) Capital Leases and Synthetic Lease Obligations;
(g) obligations in respect of Redeemable Stock of such Person;
(h) any amounts outstanding under this Agreement or any other receivables facility; and
(i) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company or similar limited liability entity) in which such Person is a general partner or a joint venturer and for whose Indebtedness such Person is directly or indirectly liable, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Capital Lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
“Indemnified Taxes”
means Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Seller under any Transaction Document.
“Independent Director/Manager” means a director or manager
of a Borrowerthe Seller who (a) shall not have been at the time of such Person’s appointment or at any time during the preceding five years and shall not be as
long as such person is a director or manager of such Borrowerthe Seller (i) a director, officer, employee, partner, shareholder, member, manager or Affiliate of any of
the following Persons (collectively, the “Independent Parties”): the Performance Guarantor, the Servicer, any Originator, or any of their respective Subsidiaries or Affiliates (other than one or both
Borrowersthe Seller or another special purpose entity which is a Subsidiary or Affiliate of the Performance Guarantor or an Originator), (ii) a supplier to any of the
Independent Parties or one or both Borrowersthe Seller, (iii) the beneficial owner (at the time of such individual’s appointment as an Independent
Director/Manager or at any time thereafter
Exhibit I - Page 18
while serving as an Independent Director/Manager) of any of the outstanding membership or other equity interests of the
BorrowerSeller, the Servicer any Originator, the Performance Guarantor or any of their respective Subsidiaries or Affiliates, having general voting rights, (iv) a
Person controlling or under common control with any director, officer, employee, partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties or such
Borrowerthe Seller, or (v) a member of the immediate family of any director, officer, employee, partner, shareholder, member, manager, affiliate or supplier of any of the
Independent Parties or such Borrowerthe Seller; (b) has not less than three (3) years’ experience
in serving as an independent director or manager for special purpose vehicles engaged in securitization and/or structured financing transactions, and (c) is employed by AMACAR Group, LLC, Lord Securities Corporation, Global Securitization
Services LLC, Organization Services, Inc., a subsidiary of Wilmington Trust, or CSC Entity Services, LLC. To the fullest extent permitted by applicable law, including the Georgia Business Corporation Code as in effect from time to time,
the Independent Director’s/Manager’s fiduciary duty in respect of any decision on any matter requiring the unanimous vote of such Borrowerthe
Seller’s directors or managers (including the Independent Director/Manager) shall be to such Borrowerthe Seller and its creditors rather than solely to
such Borrowerthe Seller’s equity holders. In furtherance of the foregoing, when voting on matters subject to the vote of the directors or managers, including any
matter requiring the unanimous vote of z Borrowerthe Seller’s directors or managers (including the Independent Director/Manager), notwithstanding that such
Borrowerthe Seller is not then insolvent, the Independent Director/Manager shall take into account the interests of the creditors of such
Borrowerthe Seller as well as the interests of such Borrower.“Intangible Assets” means as of the date of any determination thereof the total amount
of all goodwill, patents, trade names, trade marks, copyrights, franchises, experimental expense, organizational expense, unamortized debt discount and expense, deferred assets (other than prepaid insurance, prepaid taxes, and supplies, spare parts,
and other Tangible Assets which are treated as deferred assets on the books of the Performance Guarantor), the excess of cost of shares acquired over book value of related assets , and such other assets of the Performance Guarantor and its
consolidated Subsidiaries as are properly classified as “Intangible Assets” in accordance with GAAPthe Seller.
“Interest Coverage Ratio” means, as of the end of each fiscal quarter, the ratio of (a) Consolidated EBITDA to
(b) Consolidated Interest Expense, in each case for the then-most recently concluded period of four consecutive fiscal quarters.
“Interim Report” means a report in substantially the form of Exhibit VIII hereto (appropriately completed),
furnished by the Servicer to the Administrative Agent and the Purchasers pursuant to Section 6.6.
“Interim
Reporting Date” means any Business Day (other than a Monthly Reporting Date) specified by the Administrative AgentRequired Purchasers, upon reasonable prior
notice to the Administrative Agent and the Seller Parties (i) upon the occurrence and during the continuance of an Amortization Event and (ii) if deemed necessary or advisable in
the reasonable judgment of the Administrative AgentRequired Purchasers following (a) an adverse change in financial condition or circumstances of the Performance
Guarantor, or (b) the occurrence of a Level One Collateral Event, Level One Collateral Reinstatement Event, Level Two Collateral Event or Level Two Collateral Reinstatement Event, in each case, under and as
defined in the Senior Credit Agreement.
Exhibit I - Page 19
“Investment” has the meaning set
forthspecified in Section 1.1(a).
“Investment
Date” means the dateBusiness Day on which an Investment or a Reinvestment is
madeoccurs pursuant to this Agreement.
“Investment
Excess” means, on any Business Day, that (a) the Aggregate Capital outstanding hereunder exceeds the Purchase Limit, or (b) the Purchased Assets Coverage Percentage shall exceed 100%.
“Investment Notice” has the meaning set forth in Section 1.2.
“Investment Price” means, for any Investment, the sum of the Cash Purchase Price therefor (if any) plus the Deferred
Purchase Price therefor.
“Investor Parties” means the
Administrative Agent, the Administrators and the Purchasers, and “Investor Party” means any of them.
“IRS” means the United States Internal Revenue Service.
“Liberty Street Administrator’s Account” means account
no. , or any other account or accounts as the Liberty Street Administrator may
indicate from time to time.
“Liberty Street Funding Group” means, collectively, Liberty Street
and Scotiabank.
“LIBOR Market Index Rate” means, for any day, (i) for the first $30,000,000
of WFB’s Investment, the three-month Eurodollar Rate and for all other purposes, the one-month Eurodollar Rate, in each case for U.S. dollar deposits as reported on the Reuters Screen LIBOR01 Page or any other page that may replace
such page from time to time for the purpose of displaying offered rates of leading banks for London interbank deposits in United States dollars, as of 11:00 a.m. (London time) on such date, or if such day is not a Business Day, then the immediately
preceding Business Day (or if not so reported, then as determined by the Administrative Agent from another recognized source for interbank quotation), in each case, changing when and as such rate changes or (ii) if such rate is not so published
or otherwise established for any such day, the Alternate Base Rate.
“Lien” means any security interest, mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property, or other priority or preferential arrangement of any kind or nature whatsoever.
“Liquidity” has the meaning set forth in the Senior Credit
Agreement as in effect on June 26, 2014 without regard to any subsequent waiver thereof or amendment thereto unless each of
the Purchasers has given its prior written consent thereto and regardless of whether the Senior Credit Agreement remains in effect.
Exhibit I - Page 20
“Liquidity Agreement” means any existing or future agreement between
Liberty Streeta Conduit Purchaser and the Committed Purchaser(s) in the Liberty Streetits
Funding Group in connection herewith for the purpose of providing liquidity with respect to the Portion of Capital funded by Liberty Streetsuch Conduit Purchaser.
“Liquidity Commitment” means, as to each Committed Purchaser
in a Funding Group while its Conduit Purchaser is actively funding under this Agreement, its commitment under the applicable Liquidity Agreement to the Conduit Purchaser in its Funding Group. For the avoidance of doubt, the Liquidity Commitments of
the Committed Purchasers in each Funding Group shall, in the aggregate, equal 102% of the Commitment of the applicable Funding Group under this Agreement.
“Liquidity Bank” means (a) as to Nieuw Amsterdam,
Rabobank and each other bank that from time to time hereafter becomes a party to its Liquidity Agreement, and (b) as to Fairway, BMO and each other bank that from time to time hereafter becomes a party to its Liquidity Agreement.
“Liquidity Funding” means a funding by a Conduit Purchaser of
a Portion of Capital with the proceeds of a put to or loan by its Liquidity Banks pursuant to its Liquidity Agreement rather than with the proceeds of such Conduit Purchaser’s Commercial Paper.
“LMIR” means, on any date of determination, a rate per annum equal to the sum of (a) the LIBOR Market Index Rate
plus (b) the Applicable Margin.
“Lock-Box” means each locked postal box with respect to which a bank who has
executed a Lock-Box Agreement has been granted exclusive access for the purpose of retrieving and processing payments made on the Receivables and which is listed on Exhibit IV.
“Lock-Box Account” means each concentration account, depositary account, lock-box account or similar account in which
any Collections are collected or deposited and which is listed on Exhibit IV.
“Lock-Box Agreement”
means, in respect of any Lock-Box Account(s), an agreement among Sellerthe Originator that is the owner of such
Lock-Box Account(s), the Administrative Agent and a, as assignee of the Seller’s security interest therein, and the applicable Lock-Box
Bank, perfecting the Administrative Agent’s security interest in one or moresuch Lock-Box
AccountsAccount(s).
“Lock-Box Bank”
means, at any time, any of the banks holding one or more Lock-Box Accounts.
“Loss Reserve” means, for any
Calculation Period, the product (expressed as a percentage) of (a) 2.00, times (b) the highest three-month rolling average Default Ratio during the 12 Calculation Periods ending on the immediately preceding Cut-Off Date,
times (c) the Default Horizon Ratio as of the immediately preceding Cut-Off Date.
Exhibit I - Page 21
“Material Adverse Effect” means a material adverse effect on (a) the
financial condition or operations of (i) the Seller, (ii) the Performance Guarantor and its Subsidiaries, taken as a
whole, or (iii) any Originator, (b) the ability of any Seller Party to perform its obligations under this Agreement or the Sale Agreement or the ability of Performance Guarantor to perform its obligations under the Performance Undertaking,
(c) the legality, validity or enforceability of this Agreement or any other Transaction Document, (d) the Administrative Agent’s or any Purchaser’s interest in any material portion of the Receivables, the Related Security or the
Collections with respect thereto, or (e) the collectability of any material portion of the Receivables.
“Material
Indebtedness” means Indebtedness in excess of $10,000,00025,000,000 in aggregate principal amount.
“Material Originator” means any Originator originating more than 10% of the Receivables during any twelve months
period.
“Material Subsidiary” has the meaning set forth in the Senior Credit Agreement as of the date hereof.
“Monthly Payment Date” means the fifth Business Day of each Calculation Period.
“Monthly Report” means a report in substantially the form of Exhibit IX hereto (appropriately completed),
furnished by the Servicer to the Administrative Agent and the Purchasers pursuant to Section 6.6.
“Monthly
Reporting Date” means the 15th day of each month hereafter (or, if any such day is not a Business Day, the next succeeding Business Day thereafter).
“Moody’s” means Moody’s Investors Service, Inc.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to
which Performance Guarantor or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“Net Pool Balance” means, at any time, the aggregate Outstanding Balance of all Eligible Receivables at such time
minus the aggregate amount by which the Outstanding Balance of Earned but Unbilled Receivables exceeds the Concentration Limit therefor and minus the aggregate amount by which the Outstanding Balance of all
eligibleEligible Receivables of each Obligor and its Affiliates exceeds the Concentration Limit or Special Concentration Limit therefor.
Exhibit I - Page 22
“Non Rated Obligor” shall mean any Obligor rated
below A-3 or P-3 or which is not rated by either S&P or Moody’s, respectively. Nieuw Amsterdam” has the meaning set forth in the preamble to this
Agreement.
“Nieuw Amsterdam Administrator’s
Account” means (a) for payment of upfront fees,
Account
No.: , and (b) for all other payments, account
no. , or any other account or accounts as the Nieuw Amsterdam Administrator may indicate from time to time.
“Nieuw Amsterdam Funding Group” means, collectively, Nieuw
Amsterdam and Rabobank.
“NR/NIG Obligor” means an
Obligor described in Concentration Limit Level 5 of the table in the definition of “Concentration Limit.”
“Obligor” means a Person obligated to make payments pursuant to a Contract.
“Organic Document” means, relative to any Person, its certificate or articles of incorporation or formation, its
by-laws, its partnership agreement, its memorandum and articles of association, its limited liability company agreement and/or operating agreement, share designations or similar organization documents and all shareholder agreements, voting trusts
and similar arrangements applicable to any of its authorized Capital Securities.
“Originator” has the meaning
provided in the Sale Agreement. For the avoidance of doubt, a Person that ceases to be an “Originator” in accordance with the Transaction Documents shall cease to constitute an Originator for all purposes of the Transaction Documents.
“Other Taxes” means all stamp, court or documentary,
intangible, recording, filing or similar Taxes that arise from any payment made under any Transaction Document from the execution, deliver, performance, enforcement or registration of any Transaction Document, except any such Taxes imposed with
respect to an assignment.
“Outstanding Balance” of any Receivable at any time means the then outstanding
principal balance thereof.
“Participant” has the meaning set forth in Section 10.2.
“Participant Register” has the meaning set forth in Section
10.2.
“PBGC” means the Pension Benefit Guaranty Corporation and any Person succeeding to any or all of its
functions under ERISA.
“Pension Plan” means a “Plan” as such term is defined in the Senior Credit
Agreement as of the date hereof.
Exhibit I - Page 23
“Percentage”
means, (a) as to WFB, the ratio (expressed as a percentage) of its Commitment to the aggregate of all Commitments, and
(b) as to the Liberty Streetany Funding Group
considered as a whole, the ratio (expressed as a percentage) of Scotibank’s Commitmentits Funding Limit to the aggregate of
allthe Commitments of all Committed Purchasers party to this Agreement.
“Performance Guarantor” means CMC.
“Performance Undertaking” means a performance undertaking in the form of Exhibit X hereto, duly executed by the
Performance Guarantor in favor of Sellerthe Seller, as the same may be amended, restated or otherwise modified from
time to time with the consent of the Seller, the Administrative Agent and each of the Administrators.
“Person” means an individual, partnership, corporation (including a business trust), limited liability company, joint
stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
“PoolPurchased Assets” has the meaning
set forth in Section 1.3(a).
“Pooled Commercial
Paper” means all Commercial Paper issued by a Conduit Purchaser from time to time that is subject to any pooling arrangement by such Conduit Purchaser, but excluding short-term Commercial Paper issued by such Conduit Purchaser to fund a
specific asset or assets in its portfolio.
“Portion of Capital” means, with respect to any Purchaser and its
Capital, any separate portion of such Capital being funded or maintained by such Purchaser (or its successors or permitted assigns) by reference to a particular interest
rateYield Rate basis. In addition, at any time when such Capital is not divided into two or more such portions, “Portion of Capital” means 100% of such
Capital.
“Potential Amortization Event” means an event which, with the passage of any applicable cure period or
the giving of notice, or both, would constitute an Amortization Event.
“Prime Rate” means a rate per annum
equal to the prime rate of interest announced from time to time by WFB (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes.
“Proposed Reduction Date” has the meaning specified in Section 2.1(f).
“Program Support Agreement” means the, as to
each Conduit Purchaser, its Liquidity Agreement and any other agreement or instrument executed by any insurance company, bank or other funding entity providing liquidity, credit enhancement or back-up purchase support or facilities to
Liberty Streetsuch Conduit Purchaser.
“Purchase” each Incremental Investment and each Reinvestment.
Exhibit I - Page 24
“Purchase Limit” means $200,000,000, as such amount may be
changed reduced from time to time pursuant to Section 1.1(b) of the Agreement; provided, however,
that in the event that (a) the Seller notifies the Administrative Agent and the Administrators that it wishes to increase the Purchase Limit to $300,000,000, (b) no Amortization Event or Potential Amortization Event exists and is
continuing, (c) the Seller obtains sufficient additional commitments from existing or new Purchasers, and (d) the Administrative Agent consents in its sole discretion, the Purchase Limit may be increased to $300,000,000 (or, if less, to an
aggregate amount not to exceed the total Commitments after giving effect to such new commitments).
“Purchased
Assets” has the meaning set forth in Section 1.3(b).
“Purchased Assets Coverage
Percentage” means, at any time and subject to Section 1.5 of the Agreement, the percentage computed as:
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Aggregate Capital + Required Reserve |
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Net Pool Balance |
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The Purchased Assets Coverage Percentage shall be determined from time to time in accordance with Section 1.5 of
the Agreement.
“Purchaser” has the meaning set forth in the preamble to this Agreement and shall include their
respective successors and permitted assigns.
“Receivable” means the indebtedness and other obligations owed (at
the time it arises, and before giving effect to any transfer or conveyance contemplated under the Transaction Documents) to an Originator, whether constituting an account, chattel paper, an instrument or a general intangible, arising from the sale
of goods or provision of services by a division of such Originator listed on Schedule C hereto and includes, without limitation, the obligation to pay any Finance Charges with respect thereto. Indebtedness and other rights and obligations
arising from any one transaction, including, without limitation, indebtedness and other rights and obligations represented by an individual invoice, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other
rights and obligations arising from any other transaction.
“Records” means, with respect to any Receivable, all
Contracts and other documents, books, records and other information (including, without limitation, computer programs, tapes, disks, punch cards, data processing software and related property and rights) relating to such Receivable, any Related
Security therefor and the related Obligor.
“Redeemable Stock” means any Capital Securities of the Performance
Guarantor or any of its Subsidiaries which prior to the Facility Termination Date is or may be (a) mandatorily redeemable, (b) redeemable at the option of the holder thereof or (c) convertible into Indebtedness.
“Reduction Notice” has the meaning set forth in Section 2.1(f).
Exhibit I - Page 25
“Reinvestment” has the meaning set forth in Section 1.4(b).
“Related Security” means, with respect to any Receivable:
(i) all right, title and interest (if any) in the goods, the sale of which gave rise to such Receivable, and any and all
insurance contracts with respect thereto,
(ii) all other security interests or liens and property subject thereto from
time to time, if any, purporting to secure payment of such Receivable, whether pursuant to the invoice or other Contract related to such Receivable or otherwise, together with all financing
statements and security agreements describing any collateral securing such Receivable,
(iii) all guaranties, insurance and
other supporting obligations, agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the invoice related to such Receivable or otherwise,
(iv) all Records related to such Receivables, and
(vvi) all proceeds of any of the foregoing.
When used in this Agreement, the term “Related Security” shall also include
(a) all right, title and interest of the Seller in, to and under the Sale Agreement
and, (b) all of the Seller’s rights and remedies under the Performance Undertaking, and(c) all of
the Seller’s right to receive payments of Deferred Purchase Price pursuant to this Agreement, and (d) the proceeds of the foregoing.
“Rentals” means and includes as of the date of any determination thereof all fixed payments (including as such all
payments which the lessee is obligated to make to the lessor on termination of the lease or surrender of the property) payable by the Performance Guarantor or a Material Subsidiary, as lessee or sublessee under a lease of real or personal property,
but shall be exclusive of any amounts required to be paid by the Performance Guarantor or a Material Subsidiary (whether or not designated as rents or additional rents) on account of maintenance, repairs, insurance, taxes and similar charges. Fixed
rents under any so-called “percentage leases” shall be computed solely on the basis of the minimum rents, if any, required to be paid by the lessee regardless of sales volume or gross revenues.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the
30 day notice period has been waived.
“Required Amounts” means, on any date of determination, collectively, the
sum of (a) any Investment Excess that then exists, plus (b) all accrued and unpaid Yield and Fees, the Indemnified Amounts, the Servicer Indemnified Amounts, any Investment Excess and any and all other amounts (other than
Aggregate Capital) payable to the Administrative Agentany or all of the
PurchasersInvestor Parties under the Transaction Documents.
Exhibit I - Page 26
“Required Purchasers” means Purchasers with
Commitments in excess of 66 2/3% of the aggregate Commitment.:
(a) at any time there is only one Committed Purchaser, such Committed Purchaser (or
its Funding Group’s Administrator, if applicable),
(b) at any time
there are only two Committed Purchasers, (i) solely for purposes of Section 7.2 of this Agreement, either Committed Purchaser (or its Funding Group’s Administrator, as applicable), and (ii) for all other purposes, both Committed
Purchasers (or their respective Administrators, as applicable), and
(c) at
all other times, Committed Purchasers (or their respective Administrators, as applicable) with Commitments in excess of 66-2/3%
of the aggregate of all Commitments (or, if no Commitments are outstanding, Purchasers with outstanding Capital in excess of 66-2/3% of the outstanding Aggregate Capital).
“Required Reserve” means, on any day during a month, the product of (a) the greater of (i) the Required
Reserve Factor Floor and (ii) the sum of the Loss Reserve, the Yield Reserve, the Dilution Reserve and the Servicing Reserve, times (b) the Net Pool Balance as of the Cut-Off Date immediately preceding such month.
“Required Reserve Factor Floor” means, for any month, the sum (expressed as a percentage) of
(a) 1613% (or such higher percentage as may be specified by the Purchasers in connection with granting a Special Concentration Limit) plus (b) the
product of the Adjusted Dilution Ratio and the Dilution Horizon Ratio, in each case, as of the immediately preceding Cut-Off Date, plus (c) the Yield Reserve, plus (d) the Servicing Reserve.
“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect, on account of any
share of stock of any class of the Seller now or hereafter outstanding, except a dividend payable solely in shares of the Seller
of that class or any junior class, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any membership interest of
the Seller now or hereafter outstanding, (iii) any payment or prepayment of principal of, premium, if any, or interest, fees or other charges on or with respect to, and any redemption,
purchase, retirement, defeasance, sinking fund or similar payment and any claim for rescission with respect to the Subordinated Loans, (iv) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any stock of the Seller now or hereafter outstanding, and (v) any payment of management fees by
the Seller (except for reasonable management fees to an Originator or its Affiliates in reimbursement of actual management services performed).
“Review” shall have the meaning specified in Section 5.1(d) of this Agreement.
“Sale Agreement” means that certain Receivables Sale Agreement, dated as of April 5, 2011, by and between the
Originators, as sellers, and CMC Receivables, Inc., as buyer, as the same may be amended, restated or otherwise modified from time to time.
Exhibit I - Page 27
“S&P” means Standard & Poor’s, a Standard &
Poor’s Business Services LLC business.
“SEC” means the Securities and Exchange Commission.
“Seller” has the meaning set forth in the preamble to this Agreement.
“Seller Parties” means, collectively, (a) the Seller,
and (b) at any time that CMC is acting as the Servicer or the Performance Guarantor, CMC.
“Senior Credit
Agreement” means that certain ThirdFourth Amended and Restated Credit Agreement dated December 28,
2011,as of June 26, 2014, by and among CMC and CMCLUXCMC International Finance
S.à. R.L., as borrowers, each lender from time to time party heretothereto, and Bank of America, N.A., as administrative agent, swing line lender
and letter of credit issuer.
“Servicer” means at any time the Person (which may be the Administrative Agent) then
authorized pursuant to Article VI to service, administer and collect Receivables.
“Servicing Fee” has the meaning
set forth in Section 6.7.
“Servicing Reserve” means, the product (expressed as a percentage) of
(a) 1%, times (b) a fraction, the numerator of which is the highest Days Sales Outstanding for the most recent 12 months and the denominator of which is 360.
“Settlement Date” means either a Monthly Payment Date or a Capital Settlement Date.
“Settlement Report” means a Monthly Report or an Interim Report.
“Subordinated Loan” means each loan or advance evidenced by a Subordinated Note.
“Subordinated Note” means each “Note” under and as defined in the Sale Agreement.
“Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding securities having ordinary
voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, association, limited
liability company, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references herein
to a “Subsidiary” shall mean a Subsidiary of CMC.
Exhibit I - Page 28
“Swap Contract” means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement,
and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under
any Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith,
such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a lender under the Senior Credit Agreement or any Affiliate of such lender).
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic,
off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would
be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Tangible Assets”
means as of the date of any determination thereof the total amount of all assets of the Performance Guarantor and its consolidated Subsidiaries (less depreciation, depletion and other properly deductible valuation reserves) after deducting
Intangible Assets.
“Taxes” means all taxes, charges,
fees, levies or other assessments (including income, gross receipts, profits, withholding, excise, property, sales, use, license, occupation and franchise taxes and including any related interest, penalties or other additions) imposed by any taxing
authority (whether foreign or domestic).
“Termination Day” means: (a) each day on which the conditions
set forth in Article IV of this Agreement are not satisfied or (b) each day that occurs on or after the Facility Termination Date.
Exhibit I - Page 29
“Total Capitalization” means, as of any date of determination, for the
Performance Guarantor and its Subsidiaries on a consolidated basis, the sum of (a) Consolidated Tangible Net Worth as of such date and (b) Consolidated Funded Debt as of such date.
“Transaction Documents” means, collectively, this Agreement, each Investment Notice, the Sale Agreement, each Lock-Box
Agreement, the Fee Letter, the Administrative Agent’s Fee Letter, any Subordinated Note issued pursuant to the Sale Agreement, the Performance Undertaking, and all other instruments,
documents and agreements required to be executed and delivered pursuant hereto.
“20132017 Notes” means those certain
5.6256.50% Notes of CMCthe Performance Guarantor due
NovemberJuly 15, 20132017 in the aggregate principal amount of
$200,000,000400,000,000 issued pursuant to that certain Indenture, dated as of July 31, 1995, by and between
CMCthe Performance Guarantor, as issuer, and The Bank of New York Trust Company, N.A. (successor to JPMorgan Chase Bank), as trustee.
“UCC” means the Uniform Commercial Code as from time to time in effect in the specified jurisdiction.
“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“Voting Stock” means, with respect to any Person, Capital Securities of any class or kind ordinarily having the power
to vote for the election of directors, managers or other voting members of the governing body of such Person.
“WFB” has the meaning set forth in the preamble to this Agreement.
“Yield” means for each day for each Purchaser, an amount equal to the product of the applicable Yield Rate multiplied
by the Capital of such Purchaser, annualized on a 360-day basis.
“Yield Rate” means, on any day, (a) in
respect of any Portion of Capital funded by a Committed Purchaser, a rate per annum equal to the LMIR (or, if the LMIR is not available to such Committed Purchaser, the Alternate Base Rate), and (b) in respect of any Portion of
Capital funded by Liberty Streeta Conduit Purchaser through the issuance of Commercial Paper, a rate per annum equivalent to its CP
Rate, and (c) in respect of any Portion of Capital funded by a Conduit Purchaser through a Liquidity Funding, a rate per annum equal to the LMIR (or, if the LMIR is not available to the
applicable Liquidity Bank, the Alternate Base Rate).
“Yield Reserve” means for any Calculation Period, the
product (expressed as a percentage) of (i) 1.5 times (ii) the Alternate Base Rate as of the immediately preceding Cut-Off Date times (iii) a fraction, the numerator of which is the highest Days Sales Outstanding for the most recent 12
Calculation Periods and the denominator of which is 360.
Exhibit I - Page 30
All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms
used in Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein as defined in such Article 9.
Exhibit I - Page 31
EXHIBIT II-A
FORM OF INVESTMENT NOTICE
[Date]
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Wells Fargo Bank, N.A., as Administrative Agent |
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Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch, as Nieuw Amsterdam Administrator |
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The Bank of Nova Scotia, as Liberty StreetBank of Montreal and BMO Capital Markets Corp., as Fairway Administrator |
Re: INVESTMENT NOTICE
Ladies and
Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement dated as of April 5, 2011 (as amended, restated,
supplemented or otherwise modified from time to time, the “Receivables Purchase Agreement”), among CMC Receivables, Inc. (the “Seller”),
Commercial Metals Company, as initial Servicer, the purchasersPurchasers and Administrators from time to time party thereto (the
“Purchasers”), and Wells Fargo Bank, N.A., as Administrative Agent for the Purchasers. Capitalized terms used herein shall have the meanings assigned to such terms in the Receivables Purchase Agreement.
This letter constitutes an Investment Notice pursuant to Section 1.2(a) of
the Receivables Purchase Agreement. The Seller requests that the Purchasers make an Investment in a pool of receivables on
, [201 ], for an Investment Price of $ with a Cash Purchase
Price of $ divided as follows:
|
|
|
Wells Fargo Bank, N.A.: $ |
|
WFB: $ |
|
|
| Nieuw Amsterdam |
|
|
| Funding Group: |
|
$ |
|
The Bank of Nova Scotia: $ Fairway Funding Group:
$ |
Subsequent to this Investment, the Aggregate Capital will be $ .
The BankEach of Nova
Scotiathe Administrators will wire its Funding Group’s share of the Cash Purchase Price to such account as
Wells Fargo Bank, N.A.the Administrative Agent may specify in writing from time to time.
Wells Fargo Bank, N.A. toThe
Administrative Agent shall credit the aggregate Cash Purchase Price in immediately available funds to the following account:
[Account Name]
[Account No.]
[Bank Name & Address]
[ABA #]
Reference:
Telephone advice to: [Name] @ tel. no.
( ) .
In connection with the Incremental Investment to be made on the above-specified Investment Date, the
Seller hereby certifies that the following statements are true on the date hereof, and will be true on the Investment Date (before and after giving effect to the proposed Incremental Investment):
(i) the representations and warranties set forth in Article III of the Receivables Purchase Agreement are true and correct in all
material respects on and as of the date of such Investment as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall
remain true and correct in all material respects as of such earlier date;
(ii) no event has occurred and is continuing, or would result
from the proposed Incremental Investment, that will constitute an Amortization Event or a Potential Amortization Event;
(iii) the
Aggregate Capital after giving effect to the Investment requested hereby, will not exceed the Purchase Limit;
(iv) after giving effect
to the Investment requested hereby, the Purchased Assets Coverage Percentage shall not exceed 100%; and
(v) the Facility Termination
Date has not occurred.
|
|
|
| Very truly yours, |
|
| CMC RECEIVABLES, INC. |
|
| By: |
| Name: |
| Title: |
EXHIBIT II-B
FORM OF REDUCTION NOTICE
[Date]
| To: |
Wells Fargo Bank, N.A., as Administrative Agent The Bank of Nova Scotia, as Liberty StreetCoöperatieve Centrale Raiffeisen- Boerenleenbank
B.A., “Rabobank Nederland”, New York Branch, as Nieuw Amsterdam Administrator Bank of Montreal and BMO Capital Markets Corp., as Fairway Administrator |
Re: REDUCTION NOTICE
Ladies and
Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement dated as of April 5, 2011 (as amended, restated,
supplemented or otherwise modified from time to time, the “Receivables Purchase Agreement”), among CMC Receivables, Inc. (the “Seller”),
Commercial Metals Company, as initial Servicer, the purchasersPurchasers and Administrators from time to time party thereto (the
“Purchasers”), and Wells Fargo Bank, N.A., as Administrative Agent for the Purchasers. Capitalized terms used herein shall have the meanings assigned to such
termsthem in the Receivables Purchase Agreement.,
This letter constitutes a Reduction Notice pursuant to Section 2.1(f)(i) of the Receivables Purchase Agreement. The Seller desires to
reduce the Aggregate Capital on , 201 by $ (the
“Aggregate Reduction”). divided as follows:
|
|
|
| WFB: |
|
$ |
|
|
Nieuw Amsterdam
Funding Group: |
|
$ |
| Fairway Funding Group: |
|
$ |
Subsequent to this Aggregate Reduction, the Aggregate Capital will be
$ .
|
|
|
| Very truly yours, |
|
| CMC RECEIVABLES, INC. |
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
EXHIBIT III
SELLER’S CHIEF EXECUTIVE OFFICE, PRINCIPAL PLACE OF BUSINESS, RECORDS
LOCATIONS, FEDERAL TAXPAYER ID NUMBER AND ORGANIZATIONAL ID
NUMBER
|
|
|
|
|
| NAME OF SELLER
ADDRESS OF CHIEF
EXECUTIVE OFFICE AND
LOCATION OF RECORDS |
|
STATE OF
INCORPORATION
ORGANIZATION
NUMBER |
|
FEDERAL EMPLOYEE
IDENTIFICATION NUMBER |
| CMC Receivables, Inc.
6565 N. MacArthur Blvd.
Suite 1036
Irving, TX 75039 |
|
Delaware
#3404428 |
|
75-2942626 |
EXHIBIT IV
LOCK-BOXES AND LOCK-BOX ACCOUNTS
|
|
|
|
|
|
LOCK-BOX BANK NAME AND
ADDRESS |
|
POST OFFICE BOX
ADDRESS |
|
CORRESPONDING ACCOUNT
NUMBER |
| |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
| To: |
Each of the Purchasers and Wells Fargo Bank, N.A., as Administrative Agent |
| |
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch, as Nieuw Amsterdam Administrator |
| |
BMO Capital Markets Corp., as Fairway Administrator |
This Compliance Certificate is furnished pursuant to that certain Receivables Purchase Agreement dated as of April 5, 2011 (as amended, restated or
otherwise modified from time to time, the “Agreement”), among CMC Receivables, Inc. (the “Seller”), Commercial Metals Company (the
“Servicer”), the Purchasers and Administrators from time to time party thereto, and Wells Fargo Bank, N.A., as Administrative Agent. Capitalized terms used herein
shall have the meanings assigned to such terms in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
(A) I am the duly elected
of the [Seller/Servicer].
(B) I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the
transactions and condition of the [Seller/Servicer and its Subsidiaries] during the accounting period covered by the attached financial statements.
(C) To the best of my knowledge, no event has occurred which constitutes an Amortization Event or Potential Amortization Event, as each
such term is defined under the Agreement, [during or at the end of the accounting period covered by the attached financial statements or]1 as of the date of this Certificate, except as set forth
in paragraph (D) below.
(D) Described below are the exceptions, if any, to paragraph (C) by
listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the [Seller/Servicer] has taken, is taking, or proposes to take with
respect to each such condition or event:
.
The foregoing certifications, together with the financial statements delivered
with this Certificate, are made and delivered this day of , 201 .
|
| |
| [Name] |
| On behalf of the [Seller/Servicer], in [his/her] capacity as [title] thereof. |
EXHIBIT VI
[FORM OF] ASSIGNMENT AGREEMENTRESERVED]
This ASSIGNMENT AGREEMENT (this “Assignment Agreement”) is entered into as of the
day of ,
, by and between
(“Assignor”) and
(“Assignee”).
PRELIMINARY STATEMENTS
(1) This Assignment Agreement is being executed and delivered in accordance with
Section 10.1 of that certain Receivables Purchase Agreement dated as of April 5, 2011 (as amended, restated or otherwise modified from time to time, the
“Purchase Agreement”), among CMC Receivables, Inc.
(“Seller”), Commercial Metals Company, as initial Servicer, the Purchasers from time to time
party thereto, and Wells Fargo Bank, N.A., as Administrative Agent for the Purchasers (in such capacity, together with its successors and assigns, the “Administrative
Agent”). Capitalized terms used and not otherwise defined herein are used with the meanings set forth or incorporated by reference in the Purchase Agreement.
(2) Assignor is a Purchaser party to the Purchase Agreement, and Assignee wishes to become a Purchaser thereunder;
and
(3) Assignor is selling and assigning to Assignee an undivided
% (the “Transferred
Percentage”) interest in all of Assignor’s rights and obligations under the Purchase Agreement and the other Transaction Documents, including, without limitation,
Assignor’s Commitment and (if applicable) the Capital of Assignor’s Investments as set forth herein.
AGREEMENT
The
parties hereto hereby agree as follows:
The sale, transfer and assignment effected by this Assignment Agreement
shall become effective (the “Effective Date”) [two (2) Business Days] following the date on which a written notice of effectiveness hereof is
delivered by the applicable Purchaser to the Assignee. From and after the Effective Date, Assignee shall be a Purchaser party to the Purchase Agreement for all purposes thereof as if Assignee were an original party thereto and Assignee agrees to be
bound by all of the terms and provisions contained therein.
If Assignor has no outstanding
Capital under the Purchase Agreement on the Effective Date, Assignor shall be deemed to have hereby transferred and assigned to Assignee, without recourse, representation or warranty (except as provided in sixth paragraph
below), and the Assignee shall be deemed to have hereby irrevocably taken, received and assumed from Assignor, the Transferred Percentage of Assignor’s Commitment and all rights and obligations associated therewith under the terms of the
Purchase Agreement, including, without limitation, the Transferred Percentage of Assignor’s future funding obligations under Section 1.1 of the Purchase Agreement.
If Assignor has any outstanding Capital under the Purchase Agreement, at or before 12:00 noon, local time of Assignor, on the
Effective Date Assignee shall pay to
Assignor, in immediately available funds, an amount equal to the sum of (i) the Transferred Percentage of the outstanding Capital of Assignor’s Investments (such amount, being
hereinafter referred to as the “Assignee’s Capital”); (ii) all accrued but unpaid (whether or not then due) Yield
attributable to Assignee’s Capital; and (iii) accruing but unpaid fees and other costs and expenses payable in respect of Assignee’s Capital for the period commencing upon each date such unpaid amounts commence accruing, to and
including the Effective Date; whereupon, Assignor shall be deemed to have sold, transferred and assigned to Assignee, without recourse, representation or warranty (except as provided in paragraph 6 below), and Assignee shall
be deemed to have hereby irrevocably taken, received and assumed from Assignor, the Transferred Percentage of Assignor’s Commitment and the Capital of Assignor’s Investments (if applicable) and all related rights and obligations under the
Purchase Agreement and the Transaction Documents, including, without limitation, the Transferred Percentage of Assignor’s future funding obligations under Article I of the Purchase Agreement.
Concurrently with the execution and delivery hereof, Assignor will provide to Assignee copies of all documents requested by
Assignee which were delivered to Assignor pursuant to the Purchase Agreement.
Each of the parties to this
Assignment Agreement agrees that at any time and from time to time upon the written request of any other party, it will execute and deliver such further documents and do such further acts and things as such other party may reasonably request in
order to effect the purposes of this Assignment Agreement.
By executing and delivering this Assignment
Agreement, Assignor and Assignee confirm to and agree with each other, and the other Purchasers as follows: (a) other than the representation and warranty that it has not created any Adverse Claim upon any interest being transferred hereunder,
Assignor makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made by any other Person in or in connection with the Purchase Agreement, or the other Transaction Documents or
the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Purchase Agreement or any other instrument or document furnished pursuant thereto or the perfection, priority, condition, value or sufficiency of any Pool
Assets; (b) Assignor makes no representation or warranty and assumes no responsibility with respect to the financial condition of Assignee, Seller, any Obligor, any Affiliate of Seller or the performance or observance by Seller, any Obligor or
any Affiliate of Seller of any of their respective obligations under the Transaction Documents or any other instrument or document furnished pursuant thereto or in connection therewith; (c) Assignee confirms that it has received a copy of the
Purchase Agreement and copies of such other Transaction
Documents, and other documents and information as it has requested and deemed appropriate to make its own credit analysis and decision to enter into this Assignment Agreement;
(d) Assignee will, independently and without reliance upon Agent, any Purchaser or Seller and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Purchase Agreement and the other Transaction Documents; (e) Assignee appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under the Transaction
Documents as are delegated to Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (f) Assignee agrees that it will perform in accordance with their terms all of the
obligations which, by the terms of the Purchase Agreement and the other Transaction Documents, are required to be performed by it as a Purchaser.
Schedule I hereto sets forth the revised Commitment of Assignor and the Commitment of Assignee, as well
as administrative information with respect to Assignee.
THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment Agreement to be executed by their respective duly authorized officers of the date hereof.
|
|
|
[ASSIGNOR] |
|
|
By: |
|
________________________________________________
|
Title: |
|
|
|
[ASSIGNEE] |
|
|
By: |
|
________________________________________________ |
Title: |
|
|
|
|
|
[CONSENTED TO: |
|
CMC RECEIVABLES, INC. |
|
|
By: |
|
________________________________________________ |
Name: |
|
|
Title:] |
|
|
SCHEDULE I TO ASSIGNMENT AGREEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
|
| Date: ,
|
|
| Transferred Percentage: %
|
Attention:
Phone:
Fax:
EXHIBIT VII
CREDIT AND COLLECTION POLICY
[SEE
ATTACHED]
EXHIBIT VIII
FORM OF INTERIM REPORT
CMC Receivables,
Inc. Interim Servicer Report
For the End of Day:
, 20
The undersigned hereby represents and warrants that the foregoing is a true and accurate accounting with respect to outstanding receivables as of
xx/xx/xxxx is in accordance with the Receivables Purchase Agreement dated April 5, 2011 and that all representations and warranties related to such Agreement are restated and reaffirmed.
|
|
|
| Signed: ________________________________________
|
|
Date: ________________________________________ |
|
|
| Title: __________________________________________
|
|
|
EXHIBIT IX
FORM OF MONTHLY REPORT
CMC Receivables, Inc. Monthly Servicer Report
For the Month Ended:
(PAGE)
EXHIBIT X
FORM OF PERFORMANCE UNDERTAKING
[INSERT]SEE ATTACHED]
Exhibit IX - Page 1
EXHIBIT XI
CORPORATE NAMES; TRADE NAMES; ASSUMED NAMES
|
|
|
|
|
| CORPORATE NAME |
|
TRADE NAME |
|
ASSUMED NAME |
| CMC Receivables Inc. |
|
N/A |
|
N/A |
SCHEDULE A
COMMITMENTS
|
|
|
|
|
| PURCHASER |
|
COMMITMENT |
|
| WFB |
|
$ |
100,000,000 |
|
| Rabobank |
|
$ |
50,000,000 |
|
| BMO |
|
$ |
50,000,000 |
|
| AGGREGATE COMMITMENT |
|
$ |
200,000,000 |
|
Schedule A
SCHEDULE B
CLOSING DOCUMENTS
| 1. |
Receivables Sale Agreement |
| 2. |
Receivables Purchase Agreement |
| 3. |
Performance Undertaking |
| 4. |
Deposit Account Control Agreement (With Activation) with Bank of America, N.A. |
| 5. |
Blocked Account Agreement with Notice with Bank of New York Mellon |
| 6. |
Subordinated Note in favor of CMC Cometals Processing, Inc. |
| 7. |
Subordinated Note in favor of Howell MetalCommercial Metals Company |
| 8. |
Subordinated Note in favor of Structural Metals, Inc. |
| 9. |
Subordinated Note in favor of CMC Steel Fabricators, Inc. |
| 10. |
Subordinated Note in favor of SMI Steel Inc. (n/k/a SMI Steel LLC) |
| 11. |
Subordinated Note in favor of SMI-Owen Electric Steel Company, Inc. of South Carolina |
| 12. |
Subordinated Note in favor of AHT, Inc. |
| 13. |
Monthly Report for February 2011 by Servicer |
| 14. |
Officer’s Certificate of Seller |
| 15. |
Officer’s Certificate of Originators |
| 16. |
Secretary’s Certificate of CMC Receivables, Inc. with all exhibits |
| 17. |
Secretary’s Certificate of Commercial Metals Company with all exhibits |
| 18. |
Secretary’s Certificate of CMC Cometals Processing, Inc. with all exhibits |
19. |
Secretary’s Certificate of Howell Metal Company with all exhibits[intentionally deleted] |
| 20. |
Secretary’s Certificate of Structural Metals, Inc. with all exhibits |
| 21. |
Secretary’s Certificate of CMC Steel Fabricators, Inc. with all exhibits |
| 22. |
Secretary’s Certificate of SMI Steel Inc. (n/k/a SMI Steel LLC) with all exhibits |
| 23. |
Secretary’s Certificate of SMI-Owen Electric Steel Company, Inc. of South Carolina with all exhibits |
| 24. |
Secretary’s Certificate of AHT, Inc. with all exhibits |
| 25. |
UCC-1 financing statement naming CMC Receivables, Inc. as debtor (“all assets”) |
| 26. |
UCC-1 financing statement for each Originator naming the Originator as debtor, CMC Receivables, Inc. as assignee, and Administrative Agent as total assignee/secured party |
| 27. |
Copies of termination documents of the prior facility with Bank of Nova Scotia (including executed terminations of DACAs, lockbox agreements, etc.) |
| 28. |
Copies of UCC-3 terminations of the prior facility with Bank of Nova Scotia |
| 30. |
Officer’s Certificate for Legal Opinions |
| 31. |
Legal Opinions of Haynes & Boone relating to (i) corporate, enforceability and security interest opinionsinterests, (ii) true sale/contribution and
(ii) substantive non-consolidation opinions |
| 32. |
Post-Closing UCC lien searches evidencing the filing of the UCC financing statements |
Schedule B - Page 1
SCHEDULE C
DIVISIONS
|
|
|
| Originator |
|
Participating Division |
|
|
| Commercial Metals Company |
|
ALL DIVISIONS |
|
|
| CMC Cometals Processing, Inc. |
|
ALL DIVISIONS |
|
|
| AHT, Inc. |
|
ALL DIVISIONS |
|
|
| Structural Metals, Inc. |
|
CMC Steel Texas |
|
|
CMC Logistics |
|
|
CMC Distribution |
|
|
| CMC Steel Fabricators, Inc. |
|
CMC Steel Arizona |
|
|
CMC Southern Post |
|
|
CMC Steel Arkansas |
|
|
| SMI Steel LLC |
|
CMC Steel Alabama |
|
|
| Owen Electric Steel Company of South Carolina |
|
CMC Steel South Carolina |
| 1 |
NOT APPLICABLE TO COMPLIANCE CERTIFICATE DELIVERED PRIOR TO INITIAL PURCHASE. |
Schedule C - Page 1
EXHIBIT C
TO OMNIBUS AMENDMENT NO. 2
PERFORMANCE UNDERTAKING
THIS PERFORMANCE UNDERTAKING (this “Undertaking”), dated as of April 5, 2011, is executed by
Commercial Metals Company, a Texas corporation (“CMC” or “Provider”), in favor of CMC Receivables, Inc., a Delaware corporation (together with its successors and assigns,
“Recipient”).
RECITALS
1. CMC COMETALS PROCESSING, INC., a Texas corporation (“Cometals
Processing, Inc”), STRUCTURAL METALS, INC., a Texas corporation
(“SMI”), (“CMC Cometals Processing”), Howell Metal Company, a Virginia corporation
(“Howell”), Structural Metals, Inc., a Texas corporation (“CMC Steel TX”), CMC Steel Fabricators, Inc., a Texas corporation, (“CMC
Steel”), SMI Steel, Inc., an Alabama corporation (“CMC Steel AL”), CMC STEEL FABRICATORS, INC., a Texas corporation
(“CMC Steel”), SMI STEEL LLC, an Alabama limited liability company (“SMI - Owen Steel Co. Inc.Steel”),
OWEN ELECTRIC STEEL COMPANY OF SOUTH CAROLINA, a South Carolina corporation (“CMC Steel
SC”)Owen Electric”), and AHT, IncINC., a Pennsylvania
corporation (“CMC ImpactAHT”, together with CMC Cometals Processing, Howell, CMC Steel
TXSMI, CMC Steel, CMCSMI Steel
AL, and CMC Steel SCOwen Electric, the
“OtherSubsidiary Originators” and each, a “Subsidiary
Originator”), CMC and Recipient have entered into a Receivables Sale Agreement, dated as of April 5, 2011 (as amended, restated or otherwise modified from time to time, the “Sale Agreement”), pursuant to
which CMC and the OtherSubsidiary Originators, subject to the terms and conditions contained therein, are selling their right, title and interest in certain of their
accounts receivable to Recipient.
2. Each of the
OtherSubsidiary Originators is a Subsidiary of Provider, and Provider is expected to receive substantial direct and indirect benefits from the sale of accounts by the
OtherSubsidiary Originators to the Recipient pursuant to the Sale Agreement (which benefits are hereby acknowledged).
3. As an inducement for Recipient to purchase the OtherSubsidiary
Originators’ accounts pursuant to the Sale Agreement, Provider has agreed to guaranty the due and punctual performance by the OtherSubsidiary Originators of their
respective obligations under the Sale Agreement.
4. Provider wishes to guaranty the due and punctual performance by the
OtherSubsidiary Originators of their respective obligations to Recipient under or in respect of the Sale Agreement as provided herein.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy of which Provider hereby acknowledges, Provider hereby agrees as follows:
1
Section 1. Definitions. Capitalized terms used herein and not defined herein shall
have the respective meanings assigned thereto in the Sale Agreement or, if not defined in the Sale Agreement, in the Purchase Agreement (as hereinafter defined). In addition:
“Agreements” means, collectively, the Sale Agreement and the Purchase Agreement.
“Contractual Obligation” of any Person shall mean any provision of any security issued by such Person or of any
agreement, instrument or undertaking under which such Person is obligated or by which it or any of the property owned by it is bound.
“Obligations” means, collectively, all covenants, agreements, terms, conditions and indemnities to be performed and
observed by any OtherSubsidiary Originator under and pursuant to the Sale Agreement and each other document executed and delivered by such
OtherSubsidiary Originator pursuant to the Sale Agreement, including, without limitation, the due and punctual payment of all sums which are or may become due and owing by
such OtherSubsidiary Originator under the Sale Agreement, whether for fees, expenses (including counsel fees), indemnified amounts or otherwise, whether upon any
termination or for any other reason.
“Purchase Agreement” means that certain Receivables Purchase Agreement dated
as of April 5, 2011, among Recipient, as Seller, Provider, as initial Servicer, Wells Fargo Bank, N.A., individually, and the other purchasers from time to time party thereto (each, together with its successors and permitted assigns, a
“Purchaser” and, together with its successors and assigns, the “Purchasers”), the Administrators from time to time party thereto, and Wells
Fargo Bank, N.A., as administrative agent for the Purchasers (in such capacity, together with its successors and assigns, the “Administrative Agent”), as the same may be amended, restated or otherwise modified from time to
time.
“Performance Undertaking
Default” means the occurrence of any of the
following:
(a) Any representation, warranty, certification or statement made
or deemed made by any of the Provider in this Undertaking or in any other document delivered pursuant hereto shall prove to have been false or misleading in any material respect when made or deemed made; provided that the materiality
threshold in this subsection shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold;
(b) Any Termination Event shall occur under the Sale Agreement; or
(c) An Event of Bankruptcy shall occur with respect to the Provider.
“Requirements of Law” for any Person shall mean the
articles or certificate of incorporation and bylaws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation, or determination of an arbitrator or a court or other governmental authority, in each case
applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
2
Section 2. Guaranty of Performance of Obligations. Provider hereby guarantees to
Recipient, the full and punctual payment and performance by the OtherSubsidiary Originators of their respective Obligations. This Undertaking is an absolute, unconditional
and continuing undertaking of the full and punctual performance of all of the Obligations under the Agreements and each other document executed and delivered by any
OtherSubsidiary Originator pursuant to the AgreementsSale Agreement and is in no way
conditioned upon any requirement that Recipient first attempt to collect any amounts owing by any OtherSubsidiary Originator to Recipient, the Administrative Agent, or the
Purchasers from any other Person or resort to any collateral security, any balance of any deposit account or credit on the books of Recipient, the Administrative Agent, or any Purchaser in favor of any
OtherSubsidiary Originator or any other Person or other means of obtaining payment. Should any
OtherSubsidiary Originator default in the payment or performance of any of the Obligations, Recipient (or its assigns) may cause the immediate performance by Provider of
the Obligations of such OtherSubsidiary Originator and cause any payment Obligations to become forthwith due and payable to Recipient (or its assigns), without demand or
notice of any nature (other than as expressly provided herein), all of which are hereby expressly waived by Provider. Notwithstanding the foregoing, this Undertaking is not a guarantee of the collection of any of the Receivables and Provider shall
not be responsible for any Obligations to the extent the failure to perform such Obligations by any OtherSubsidiary Originator results from Receivables being uncollectible
on account of the insolvency, bankruptcy or lack of creditworthiness or other financial or credit condition resulting in the
inability to pay in respect of an Obligor or unwillingness to pay (other than a dispute giving rise to a Purchase Price Credit) of the related Obligor; provided,
that nothing herein shall relieve any OtherSubsidiary Originator from performing in full its Obligations or Provider of its undertaking hereunder with respect to the full
performance of such duties.
Section 3. Provider’s Further Agreements to Pay. Provider further agrees, as the principal
obligor and not as a guarantor only, to pay to Recipient (and its assigns), forthwith upon demand in funds immediately available to Recipient, all reasonable costs and expenses (including court costs and reasonable legal expenses) incurred or
expended by Recipient in connection with the Obligations, this Undertaking and the enforcement thereof, together with interest on amounts recoverable under this Undertaking from the time when such amounts become due until payment, at a rate of
interest (computed for the actual number of days elapsed based on a 360 day year) equal to the Yield Ratelesser of (a) LMIR per
annum and (b) the maximum interest rate permitted by applicable law.
Section 4. Waivers by Provider. Provider waives notice of acceptance of this Undertaking, notice of any action taken or omitted by
Recipient (or its assigns) in reliance on this Undertaking, and any requirement that Recipient (or its assigns) be diligent or prompt in making demands under this Undertaking, giving notice of the Termination Date, any Amortization Event, any other
default or omission by any OtherSubsidiary Originator or asserting any other rights of Recipient under this Undertaking. Provider warrants that it has adequate means to
obtain from each OtherSubsidiary Originator, on a continuing basis, information concerning the financial condition of such
OtherSubsidiary Originator, and that it is not relying on Recipient to provide such information, now or in the future. Provider also irrevocably waives all defenses
(i) that at any time may be available in respect of the Obligations by virtue of any statute of limitations, valuation, stay, moratorium law or other similar law now or hereafter in effect or (ii) that arise under the law of suretyship,
including impairment of
3
collateral. Recipient (and its assigns) shall be at liberty, without giving notice to or obtaining the assent of Provider and without relieving Provider of any liability under this Undertaking,
to deal with each OtherSubsidiary Originator and with each other party who now is or after the date hereof becomes liable in any manner for any of the Obligations, in such
manner as Recipient in its sole discretion deems fit, and to this end Provider agrees that the validity and enforceability of this Undertaking, including without limitation, the provisions of
Section 78 hereof, shall not be impaired or affected by any of the following: (a) any extension, modification or renewal of, or indulgence with respect to,
or substitutions for, the Obligations or any part thereof or any agreement relating thereto at any time (except that such extension, modification or renewal of, or indulgence with respect to,
or substitutions for, the Obligations, if duly granted or agreed to be granted in accordance with the Transaction Documents, shall be given effect in determining the extent of the Obligations which the Undertaking is required to perform or cause to
be performed); (b) any failure or omission to enforce any right, power or remedy with respect to the Obligations or any part thereof or any agreement relating thereto, or any collateral securing the Obligations or any part thereof;
(c) any waiver of any right, power or remedy or of the Termination Date, any Amortization Event or any default with respect to the Obligations or any part thereof or any agreement relating
thereto (except that such waiver, if duly granted, agreed to be granted or made in accordance with the Transaction Documents, shall be given effect in determining the extent of the Obligations
which the Undertaking is required to perform or cause to be performed); (d) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of any other obligation of any person or
entity with respect to the Obligations or any part thereof (except that such release, surrender, compromise, settlement, waiver, subordination or modification, if duly granted, agreed to be
granted or made in accordance with the Transaction Documents, shall be given effect in determining the extent of the Obligations which the Undertaking is required to perform or cause to be performed); (e) the enforceability or validity of
the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to the Obligations or any part thereof; (f) the application of payments received from any source to the payment
of any payment Obligations or any part thereof or amounts which are not covered by this Undertaking even though Recipient (or its assigns) might lawfully have elected to apply such payments to any part or all of the payment Obligations or to amounts
which are not covered by this Undertaking; (g) the existence of any claim, setoff or other rights which Provider may have at any time against any OtherSubsidiary
Originator in connection herewith or any unrelated transaction; (h) any assignment or transfer of the Obligations or any part thereof; or (i) any failure on the part of any
OtherSubsidiary Originator to perform or comply with any term of the AgreementsSale Agreement
or any other document executed in connection therewith or delivered thereunder, all whether or not Provider shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (a) through (i) of this
Section 4.
Section 5. Unenforceability of Obligations Against
OtherSubsidiary Originators. Notwithstanding (a) any change of ownership of any
OtherSubsidiary Originator or the insolvency, bankruptcy or any other change in the legal status of any
OtherSubsidiary Originator; (b) the change in or the imposition of any law, decree, regulation or other governmental act which does or might impair, delay or in any
way affect the validity, enforceability or the payment when due of the Obligations; (c) the failure of any OtherSubsidiary Originator or Provider to maintain in full
force, validity or effect or to obtain or renew when required all governmental and other approvals, licenses or consents required in connection with the
4
Obligations or this Undertaking, or to take any other action required in connection with the performance of all obligations pursuant to the Obligations or this Undertaking; or (d) if any of
the moneys included in the Obligations have become irrecoverable from the applicable OtherSubsidiary Originator for any other reason other than final payment in full of the
payment Obligations in accordance with their terms, this Undertaking shall nevertheless be binding on Provider. This Undertaking shall be in addition to any other guaranty or other security for the Obligations, and it shall not be rendered
unenforceable by the invalidity of any such other guaranty or security. In the event that acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of any
OtherSubsidiary Originator or for any other reason with respect to any OtherSubsidiary
Originator, all such amounts then due and owing with respect to the Obligations under the terms of the AgreementsSale Agreement, or any other agreement evidencing, securing
or otherwise executed in connection with the Obligations, shall be immediately due and payable by Provider.
Section 6.
Representations and Warranties. Provider hereby represents and warrants to Recipient that:
(a) Organizational Existence;
Compliance with Law. Provider (i) is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, (ii) has the corporate or other organizational power and authority and the legal right
to own and operate its property and to conduct its business, (iii) is duly qualified as a foreign corporation or other organization and in good standing under the laws of each jurisdiction where its ownership of property or the conduct of its
business requires such qualification, except where a failure to be so qualified would not have a Material Adverse Effect, and (iv) is in compliance with all Requirements of Law except where the failure to be in compliance would not have a
Material Adverse Effect.
(b) Organizational Power; Authorization. Provider has the corporate or other organizational power and
authority to make, deliver and perform this Undertaking and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Undertaking. No consent or authorization of, or filing with,
any Person (including, without limitation, any governmental authority) is required in connection with the execution, delivery or performance by Provider, or the validity or enforceability against Provider of this Undertaking, other than such
consents, authorizations or filings which have been made or obtained.
(c) Enforceable Obligations. This Undertaking has been duly
executed and delivered, and this Undertaking constitutes legal, valid and binding obligations of Provider, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity. The execution and delivery of this Undertaking do not result in the creation or imposition of any Adverse Claim on assets
of Provider.
(d) No Material Litigation. No litigation, investigations or proceedings of or before any courts, tribunals,
arbitrators or governmental authorities are pending or, to the knowledge of Provider, threatened in writing by or against Provider or any of its Subsidiaries, or
5
against any of their respective properties or revenues, existing or future (a) with respect to this Undertaking or any of the transactions contemplated hereby, or
(b) which, if adversely determined, would reasonably be expected to have a Material Adverse Effect.
(e) No Legal
Bar. The execution, delivery and performance by Provider of this Undertaking will not violate any material Requirements of Law or cause a breach or default under any of its material Contractual Obligations, where such violation would reasonably
be expected to have a Material Adverse Effect.
(f) Disclosure and Material Adverse Effect. No representation or warranty contained
in this Undertaking or in any other document furnished from time to time pursuant to the terms of this Undertaking, contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary to make
the statements herein or therein not misleading as of the date made or deemed to be made. Except as may be set forth herein, there is no fact known to Provider or any of its Subsidiaries which has had, or is reasonably expected to have, a Material
Adverse Effect.
(g) Compliance with Law. Provider is in compliance with all Requirements of Law, except where the failure to be in
compliance would not have a Material Adverse Effect.
(h) Financial Condition. On the date hereof and after giving effect to the
transactions contemplated by the Transaction Documents, (i) the assets of Provider and its Subsidiaries, at fair valuation and based on their present fair saleable value, will exceed Provider’s or such Subsidiary’s debts, including
contingent liabilities, (ii) the remaining capital of Provider or such Subsidiary will not be unreasonably small to conduct Provider’s or such Subsidiary’s business, and (iii) neither Provider nor any of its Subsidiaries will
have incurred debts, or have intended to incur debts, beyond its ability to pay such debts as they mature. For purposes of this Section 6(h), “debt” means any liability on a claim, and
“claim” means (a) the right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or
(b) the right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(i) Payment of Taxes and Claims, Etc. Provider has, and has caused each of its Subsidiaries to,
pay (i) all taxes, assessments and governmental charges imposed upon it or upon its property, and (ii) all claims (including, without limitation, claims for labor, materials, supplies or services) which might, if unpaid, become
ana material Adverse Claim upon its property, unless, in each case, the validity or amount thereof is being contested in good faith by appropriate proceedings and adequate
reserves have been maintained with respect thereto in accordance with GAAP.
Section 7. [Reserved.]
Section 8. Subrogation; Subordination. Notwithstanding anything to the contrary contained herein, until the Obligations are paid
in full, Provider: (a) will not enforce or otherwise exercise any right of subrogation to any of the rights of Recipient, the Administrative Agent or
6
any Purchaser against any OtherSubsidiary Originator, (b) hereby waives all rights of
subrogation until the date after the Facility Termination Date on which all of the Aggregate Unpaids shall have been paid and performed in full (whether contractual, under Section 509
of the United States Bankruptcy Code, at law or in equity or otherwise) to the claims of Recipient, the Administrative Agent and the Purchasers against any OtherSubsidiary
Originator and all contractual, statutory or legal or equitable rights of contribution, reimbursement, indemnification and similar rights and “claims” (as that term is defined in the United States Bankruptcy Code) which
Provider might now have or hereafter acquire against any OtherSubsidiary Originator that arise from the existence or performance of Provider’s obligations hereunder,
(c) will not claim any setoff, recoupment or counterclaim against any OtherSubsidiary Originator in respect of any liability of Provider to such
OtherSubsidiary Originator and (d) waives any benefit of and any right to participate in any collateral security which may be held by the Administrative Agent or the
Purchasers. The payment of any amounts due with respect to any indebtedness of any OtherSubsidiary Originator now or hereafter owed to Provider is hereby subordinated to
the prior payment in full of all of the Obligations. Provider agrees that, after the occurrence of any default in the payment or performance of any of the Obligations, Provider will not demand, sue for or otherwise attempt to collect any such
indebtedness of any OtherSubsidiary Originator to Provider until all of the Obligations shall have been paid and performed in full. If, notwithstanding the foregoing
sentence, Provider shall collect, enforce or receive any amounts in respect of such indebtedness while any Obligations are still unperformed or outstanding, such amounts shall be collected, enforced and received by Provider as trustee for Recipient
(and its assigns) and be paid over to Recipient (or its assigns) on account of the Obligations without affecting in any manner the liability of Provider under the other provisions of this Undertaking. The provisions of this Section 8
shall be supplemental to and not in derogation of any rights and remedies of Recipient under any separate subordination agreement which Recipient may at any time and from time to time enter into with Provider.
Section 9. Termination of Performance Undertaking. Provider’s obligations hereunder shall continue in full force and effect
until all Obligations are finally paid and satisfied in full and the Sale Agreement is terminated, provided that this Undertaking shall continue to be effective or shall be reinstated, as the case may be, if at any time payment or
other satisfaction of any of the Obligations is rescinded or must otherwise be restored or returned upon the bankruptcy, insolvency, or reorganization of any OtherSubsidiary
Originator or otherwise, as though such payment had not been made or other satisfaction occurred, whether or not Recipient (or its assigns) is in possession of this Undertaking. No invalidity, irregularity or unenforceability by reason of the
federal bankruptcy code or any insolvency or other similar law, or any law or order of any government or agency thereof purporting to reduce, amend or otherwise affect the Obligations shall impair, affect, be a defense to or claim against the
obligations of Provider under this Undertaking.
Section 10. Effect of Bankruptcy. This Performance Undertaking shall survive
the insolvency of any OtherSubsidiary Originator and the commencement of any case or proceeding by or against any
OtherSubsidiary Originator under the federal bankruptcy code or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes. No automatic
stay under the federal bankruptcy code with respect to any Originator or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes to which such Originator is subject shall postpone the obligations of Provider under
this Undertaking.
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Section 11. Setoff. Regardless of the other means of obtaining payment of any of the
Obligations, Recipient (and its assigns) is hereby authorized at any time and from time to time, without notice to Provider (any such notice being expressly waived by Provider) and to the fullest extent permitted by law, to set off and apply any
deposits and other sums against the obligations of Provider under this Undertaking, whether or not Recipient (or any such assign) shall have made any demand under this Undertaking and
althoughunless such Obligations may beare contingent or unmatured.
Section 12. Taxes. All payments to be made by Provider hereunder shall be made free and clear of any deduction or withholding. If
Provider is required by law to make any deduction or withholding on account of tax or otherwise from any such payment, the sum due from it in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such
deduction or withholding, Recipient receivereceives a net sum equal to the sum which theyit
would have received had no deduction or withholding been made.
Section 13. Further Assurances. Provider agrees that it will
from time to time, at the request of Recipient (or its assigns), provide information relating to the business and affairs of Provider as Recipient may reasonably request. Provider also agrees to do all such things and execute all such documents as
Recipient (or its assigns) may reasonably consider necessary or desirable to give full effect to this Undertaking and to perfect and preserve the rights and powers of Recipient hereunder.
Section 14. Successors and Assigns. This Performance Undertaking shall be binding upon Provider, its successors and permitted
assigns, and shall inure to the benefit of and be enforceable by Recipient and its successors and assigns. Provider may not assign or transfer any of its obligations hereunder without the prior written consent of each of Recipient and the
Administrative Agent (with the consent of theall Purchasers). Without limiting the generality of the foregoing sentence, Recipient may assign or otherwise transfer the
AgreementsSale Agreement, any other documents executed in connection therewith or delivered thereunder or any other agreement or note held by
themit evidencing, securing or otherwise executed in connection with the Obligations, or sell participations in any interest therein, to any other entity or other person,
and such other entity or other person shall thereupon become vested, to the extent set forth in the agreement evidencing such assignment, transfer or participation, with all the rights in respect thereof granted to the Recipient herein.
Section 15. Amendments and Waivers. No amendment or waiver of any provision of this Undertaking nor consent to any departure by
Provider therefrom shall be effective unless the same shall be in writing and signed by Recipient, the Administrative Agent (with the consent of the Required Purchasers) and Provider. No failure on the part of Recipient to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.
Section 16. Notices. All notices and other communications provided for hereunder shall be made in writing and shall be addressed
as follows: if to Provider, at the address set forth beneath its signature hereto, and if to Recipient, at the addresses set forth beneath its signature hereto, or at such other addresses as each of Provider or any Recipient may
8
designate in writing to the other. Each such notice or other communication shall be effective (1) if given by telecopy, upon the receipt thereof, (2) if given by mail, three
(3) Business Days after the time such communication is deposited in the mail with first class postage prepaid or (3) if given by any other means, when received at the address specified in this Section 16.
Section 17. GOVERNING LAW. THIS UNDERTAKING SHALL BE GOVERNED, AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAWS OF THE STATE OF NEW YORK BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).
Section 18. CONSENT TO
JURISDICTION. EACH OF PROVIDER AND RECIPIENT HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, NEW YORK, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS UNDERTAKING, THE AGREEMENTS OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED THEREUNDER AND EACH OF PROVIDER AND RECIPIENT HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM.
Section 19. WAIVER OF JURY TRIAL. EACH OF PROVIDER AND RECEPIENT
HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS UNDERTAKING, ANY DOCUMENT EXECUTED
BY PROVIDER OR RECIPIENT PURSUANT TO THIS UNDERTAKING OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 20. Bankruptcy Petition. Provider hereby covenants and agrees
that, prior to the date that is one year and one day after the payment in full of all outstanding senior Indebtedness of Recipient, it will not institute against, or join any other Person in instituting against, Recipient any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States.
Section
20.21. Miscellaneous. This Undertaking constitutes the entire agreement of Provider with respect to the
matters set forth herein. The rights and remedies herein provided are cumulative and not exclusive of any remedies provided by law or any other agreement, and this Undertaking shall be in addition to any other guaranty of or collateral security for
any of the Obligations. The provisions of this Undertaking are severable, and in any action or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency, reorganization
9
or other law affecting the rights of creditors generally, if the obligations of Provider hereunder would otherwise be held or determined to be avoidable, invalid or unenforceable on account of
the amount of Provider’s liability under this Undertaking, then, notwithstanding any other provision of this Undertaking to the contrary, the amount of such liability shall, without any further action by Provider or Recipient, be automatically
limited and reduced to the highest amount that is valid and enforceable as determined in such action or proceeding. Any provisions of this Undertaking which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. Unless otherwise specified, references herein to “Section” shall mean a reference to sections of this Undertaking.
Section 22. Counterparts. This Undertaking may be executed in two or more
counterparts and by different parties on separate counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, Provider has caused this Undertaking to be executed and
delivered as of the date first above written.
COMMERCIAL METALS COMPANY
By:
Name:
Title:
Address for Notices:
Commercial Metals Company
Attention:
Fax: ( )
6565 N. MacArthur Blvd., Suite 800
Irving, TX 75039
Attn: VP and Treasurer
Email:
Carey.Dubois@cmc.com
Phone: (972)
308-4092
Fax:
(214) 689-5890
11
Agreed to and accepted as of the
date first above written:
CMC RECEIVABLES, INC.
|
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| By: |
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| Name: |
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Carey Dubois |
| Title: |
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Treasurer |
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