Exhibit 10.3


 


EXECUTION
COPY


 


AMENDED AND
RESTATED RECEIVABLES SALE AND SERVICING AGREEMENT


 


Dated as of March 17, 2009


 


by and among


 


EACH OF THE
ENTITIES PARTY HERETO FROM TIME TO TIME


AS ORIGINATORS,


 


GGRC CORP.,


 


as Buyer,


 


and


 


GEORGIA GULF
CORPORATION,


 


as Servicer


 

















 


	
  ARTICLE I

  	
  DEFINITIONS AND INTERPRETATION

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  2

  
	
  Section 1.02.

  	
  Rules of Construction

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  TRANSFERS OF RECEIVABLES

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Agreement to Transfer

  	
  2

  
	
  Section 2.02.

  	
  Grant of Security Interest

  	
  4

  
	
  Section 2.03.

  	
  Originators Remain Liable

  	
  5

  
	
  Section 2.04.

  	
  Sale Price Credits

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  CONDITIONS PRECEDENT

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Conditions Precedent to Initial Transfer

  	
  5

  
	
  Section 3.02.

  	
  Conditions Precedent to all Transfers

  	
  6

  
	
  Section 3.03.

  	
  Conditions Precedent to Initial Sales from New Originators

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  REPRESENTATIONS, WARRANTIES AND COVENANTS

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Representations and Warranties of the Transaction Parties

  	
  7

  
	
  Section 4.02.

  	
  Affirmative Covenants of the Originators

  	
  15

  
	
  Section 4.03.

  	
  Negative Covenants of the Originators

  	
  20

  
	
  Section 4.04.

  	
  Breach of Representations, Warranties or Covenants

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  INDEMNIFICATION

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Indemnification

  	
  24

  
	
  Section 5.02.

  	
  Indemnities by the Servicer

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  MISCELLANEOUS

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Notices

  	
  27

  
	
  Section 6.02.

  	
  No Waiver; Remedies

  	
  28

  
	
  Section 6.03.

  	
  Successors and Assigns

  	
  29

  
	
  Section 6.04.

  	
  Termination; Survival of Obligations

  	
  29

  
	
  Section 6.05.

  	
  Complete Agreement; Modification of Agreement

  	
  30

  
	
  Section 6.06.

  	
  Amendments and Waivers

  	
  30

  
	
  Section 6.07.

  	
  Governing Law; Consent to Jurisdiction; Waiver of Jury Trial

  	
  30

  
	
  Section 6.08.

  	
  Counterparts

  	
  31

  
	
  Section 6.09.

  	
  Severability

  	
  31

  
	
  Section 6.10.

  	
  Section Titles

  	
  32

  
	
  Section 6.11.

  	
  No Setoff

  	
  32

  
	
  Section 6.12.

  	
  Confidentiality

  	
  32

  
	
  Section 6.13.

  	
  Further Assurances

  	
  33

  
	
  Section 6.14.

  	
  Fees and Expenses

  	
  33

  
	
  Section 6.15.

  	
  Nonrecourse Obligations

  	
  33

  



 


i

















 


	
  Section 6.16.

  	
  Interpretation

  	
  34

  
	
  Section 6.17.

  	
  Amendment and Restatement

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  SERVICER PROVISIONS

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Appointment of the Servicer

  	
  34

  
	
  Section 7.02.

  	
  Duties and Responsibilities of the Servicer

  	
  35

  
	
  Section 7.03.

  	
  Collections on Receivables

  	
  35

  
	
  Section 7.04.

  	
  Covenants of the Servicer

  	
  36

  
	
  Section 7.05.

  	
  Reporting Requirements of the Servicer

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  EVENTS OF SERVICER TERMINATION

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Events of Servicer Termination

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  SUCCESSOR SERVICER PROVISIONS

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Servicer Not to Resign

  	
  43

  
	
  Section 9.02.

  	
  Appointment of the Successor Servicer

  	
  43

  
	
  Section 9.03.

  	
  Duties of the Servicer

  	
  43

  
	
  Section 9.04.

  	
  Effect of Termination or Resignation

  	
  44

  
	
  Section 9.05.

  	
  Power of Attorney

  	
  44

  
	
  Section 9.06.

  	
  No Proceedings

  	
  44

  



 


ii

















 


THIS AMENDED
AND RESTATED RECEIVABLES SALE AND SERVICING AGREEMENT (as amended, restated,
supplemented or otherwise modified and in effect from time to time, this “Agreement”)
is entered into as of March 17, 2009, by and among each of the persons
signatory hereto from time to time as Originators (each an “Originator”
and, collectively, the “Originators”), GEORGIA GULF CORPORATION (“Parent”),
a Delaware corporation, in its capacity as servicer hereunder (in such
capacity, the “Servicer”) and GGRC CORP., a Delaware corporation (“Buyer”).


 


RECITALS


 


A.            The
Buyer is a special purpose corporation.


 


B.            Buyer
has been formed for the sole purposes of purchasing all Receivables originated
by each Originator and selling undivided interests in such Receivables to the
Purchasers under the Purchase Agreement.


 


C.            Each
Originator intends to sell, and Buyer intends to purchase, such Receivables,
from time to time, as described herein.


 


D.            In
addition, Parent may, from time to time, contribute capital to Buyer in the
form of Contributed Receivables or cash.


 


E.             Parent,
in its capacity as an Originator, together with Georgia Gulf Chemicals &
Vinyls, LLC, Georgia Gulf Lake Charles, LLC and Royal Mouldings Limited
(collectively with Parent, the “Existing Originators”) and the Buyer are
parties to that certain Receivables Sale Agreement dated as of November 15,
2002, as amended from time to time (the “Existing Sale Agreement”)
pursuant to which the Existing Originators sold and assigned or, in the case of
Parent, contributed to the Buyer all of such Existing Originator’s right, title
and interest to its Receivables from time to time thereunder.


 


F.             The
parties to the Existing Sale Agreement wish to amend and restate the Existing
Sale Agreement in its entirety (but this Agreement shall not constitute a
novation of the Existing Sale Agreement).


 


G.            Each
Originator party hereto which is not an Existing Originator (collectively, the “New
Originators”) wishes to become party hereto in order to set forth the terms
and conditions under which such New Originators may hereafter sell and assign
to the Buyer Receivables, and each Existing Originator agrees to such New
Originators becoming party hereto.


 


H.            In
order to effectuate the purposes of this Agreement and the Purchase Agreement,
Buyer desires to appoint Parent to service, administer and collect the
Transferred Receivables and Parent is willing to act in such capacity as
Servicer hereunder on behalf of the Buyer and the Purchasers on the terms and
conditions set forth herein.


 

















 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the premises and the mutual covenants
hereinafter 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

DEFINITIONS AND INTERPRETATION


 


Section 1.01.          Definitions.  Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in Annex X.


 


Section 1.02.          Rules of Construction.  For purposes of this Agreement, the rules of
construction set forth in Annex X shall govern.  All Appendices hereto, or expressly
identified to this Agreement, are incorporated herein by reference and, taken
together with this Agreement, shall constitute but a single agreement.


 


ARTICLE
II

TRANSFERS OF RECEIVABLES


 


Section 2.01.          Agreement to Transfer.


 


(a)           Receivables Transfers.  Prior to the Effective Date, each Existing
Originator sold, assigned, transferred, conveyed or contributed to the Buyer,
without recourse (except to the extent provided in the Existing Sale Agreement)
such Existing Originator’s right, title and interest in and to all Receivables
existing or arising from time to time prior to the Effective Date.  Subject to the terms and conditions hereof,
each Originator agrees to sell (without recourse except to the limited extent
specifically provided herein) or (in the case of the Parent) contribute to
Buyer, commencing on the Effective Date in the case of each Existing Originator
and commencing on the applicable Initial Sale Date with respect to each New
Originator and on each Business Day thereafter until the Facility Termination
Date) (each such date, a “Transfer Date”), all Receivables owned by it
on each such Transfer Date (to the extent not already sold, assigned,
transferred, conveyed or contributed pursuant to the Existing Sale Agreement), and Buyer agrees to purchase or acquire as a capital
contribution all such Receivables on each such Transfer Date.  All such Transfers by an Originator to Buyer
shall collectively be evidenced by a certificate of assignment substantially in
the form of Exhibit 2.01(a) (each, a “Receivables
Assignment,” and collectively, the “Receivables Assignments”).  Each Existing Originator and Buyer shall
execute and deliver a Receivables Assignment on or before the Effective Date,
and each New Originator and Buyer shall execute and deliver a Receivables
Assignment on or before the Initial Sale Date with respect to such New
Originator.


 


(b)           Determination of Sold Receivables.  On and as of each Transfer Date, all
Receivables then owned by each Originator and not previously acquired by Buyer
(or that have not been contributed to Buyer in accordance with Section 2.01(d)),
shall be sold immediately upon their creation to Buyer (each such Receivable
sold immediately upon its creation pursuant to this Section 2.01(b),
individually, a “Sold Receivable” and, collectively, the “Sold
Receivables”).


 


2

















 


(c)           Payment of Sale Price.  (i)  In consideration for each Sale of
Sold Receivables hereunder, Buyer shall pay to the Originator thereof on the
Transfer Date therefor the applicable Sale Price therefor (x) in Dollars
in immediately available funds or (y) with the proceeds of a Subordinated
Loan as provided in clause (ii) below. 
All cash payments by Buyer under this Section 2.01(c)(i) shall
be effected by means of a wire transfer on the day when due to such account or
accounts as the Originators may designate from time to time.


 


(ii)           To the extent that the Sale Price of
Sold Receivables exceeds the amount of cash then available to Buyer, each
applicable Originator hereby agrees to make a subordinated loan (each, a “Subordinated
Loan”) to Buyer in an amount not to exceed the lesser of (i) the
amount of such excess in satisfaction of the equivalent portion of the Sale
Price not paid in cash and (ii) the maximum Subordinated Loan that could
be borrowed without rendering Buyer’s Net Worth less than the Required Capital
Amount.  Notwithstanding the
foregoing,  no Canadian Originator shall
make Subordinated Loans, and such Canadian Originator shall be entitled to be
paid the Sale Price in cash, unless and until Parent otherwise elects by
written notice to the Buyer and the Administrative Agent and such Subordinated
Loans are subject to such terms as are acceptable to the Canadian Originator,
Buyer and Administrative Agent to ensure that interest payments on such
Subordinated Loans will not be subject to withholding tax, deduction or other
Charge.  The Subordinated Loans of an
Originator shall be evidenced by a subordinated promissory note substantially
in the form of Exhibit 2.01(c)(ii) hereto (a “Subordinated
Note”) executed by Buyer and payable to such Originator.  Each Subordinated Loan shall bear interest
and be payable as provided in the related Subordinated Note.


 


(d)           Determination of Contributed
Receivables.  Prior to the delivery
of an Election Notice, on each Transfer Date on which Buyer cannot pay the Sale
Price therefore in cash or with Subordinated Loans, the Parent shall identify
Receivables then owned by the Originators which have not been previously
acquired by Buyer, and the Parent shall, unless the Parent delivers an Election
Notice on such date, contribute such Receivables as a capital contribution to
the Buyer (each such contributed Receivable, individually, a “Contributed
Receivable,” and collectively, the “Contributed Receivables”), to
the extent Buyer cannot so pay the Sale Price therefor in cash or through
Subordinated Loans pursuant to the foregoing clause
(c).  Notwithstanding the
foregoing, Parent shall not be obligated to make additional contributions to
Buyer at any time.  If on any Transfer
Date (i) the Parent elects not to contribute Receivables to Buyer when the
Buyer cannot pay the Sale Price therefore in cash or through Subordinated
Loans, or (ii) any Originator does not sell (or in the case of the Parent,
sell or contribute) all of its then owned Receivables to Buyer, the Parent
shall deliver to Buyer not later than 5:00 p.m. (New York time) on the
Business Day immediately preceding such Transfer Date a notice of election
thereof (each such notice, an “Election Notice”).


 


(e)           Ownership of Transferred
Receivables.  On and after each
Transfer Date and after giving effect to the Transfers to be made on each such
date, Buyer shall own the Transferred Receivables and no Originator shall take
any action inconsistent with such ownership nor shall any Originator claim any
ownership interest in such Transferred Receivables.


 


(f)            Reconstruction of General Trial
Balance.  If at any time any
Originator fails to generate its General Trial Balance, Buyer shall have the
right to reconstruct such General Trial 


 


3

















 


Balance so that a
determination of the Sold Receivables and Contributed Receivables can be made
pursuant to Section 2.01(b). 
Each Originator agrees to cooperate with such reconstruction, including
by delivery to Buyer, upon Buyer’s request, of copies of all Records; provided,
that, unless a Termination Event has occurred and is continuing, the
Originators shall not have to assist in the reconstruction of the General Trial
Balance more frequently than once per calendar month.


 


(g)           Servicing of Receivables.  So long as no Event of Servicer Termination
shall have occurred and be continuing and no Successor Servicer has assumed the
responsibilities and obligations of the Servicer pursuant to Section 9.02,
the Servicer shall (i) conduct the servicing, administration and
collection of the Transferred Receivables and shall take, or cause to be taken,
all such actions as may be necessary or advisable to service, administer and
collect the Transferred Receivables, all in accordance with (A) the terms
of this Agreement, (B) customary and prudent servicing procedures for
trade receivables of a similar type and (C) all applicable laws, rules and
regulations, and (ii) hold all Contracts and other documents and incidents
relating to the Transferred Receivables in trust for the benefit of Buyer, as
the owner thereof, and for the sole purpose of facilitating the servicing of
the Transferred Receivables in accordance with the terms of this
Agreement.  Buyer hereby instructs the
Servicer, and the Servicer hereby acknowledges, that the Servicer shall hold
all Contracts and other documents relating to such Transferred Receivables in
trust for the benefit of the Buyer and the Servicer’s retention and possession
of such Contracts and documents shall at all times be solely in a custodial
capacity for the benefit of the Buyer and its assigns and pledgees.


 


(h)           Returned Items.  To the extent (i) any items in respect
of Collections of Transferred Receivables credited to a Lockbox Account are
subsequently returned or otherwise not collected by the related Lockbox Account
Bank (collectively, “Returned Items”) and (ii) an Originator makes
a payment to the related Lockbox Account Bank to reimburse such Lockbox Account
Bank for such Returned Items in accordance with the terms of the related
Lockbox Account Agreement, then (x) such Originator shall be deemed to
have made a Subordinated Loan to the Buyer in an amount equal to the amount
paid by such Originator in accordance with the terms of the related Lockbox
Account Agreement to such Lockbox Account Bank in respect of such Returned Items
and (y) the outstanding principal balance of the related Subordinated Note
shall be increased by the amount so paid by the Originator to the Lockbox
Account Bank.


 


(i)            Lockbox Accounts.  Each Existing Originator hereby ratifies its
prior sale to the Buyer, and each New Originator as of the Initial Sale Date
with respect to such New Originator hereby transfers to Buyer, all of its
respective rights, title and interest in and to each Lockbox Account and each
Lockbox applicable to such Originator as set forth on Schedule 4.01(t) hereto.


 


Section 2.02.          Grant of Security Interest.  The parties hereto intend that each Transfer
shall be absolute and shall constitute a purchase and sale or capital
contribution, as applicable, and not a loan. 
Notwithstanding the foregoing, in addition to and not in derogation of
any rights now or hereafter acquired by Buyer under Section 2.01
hereof, the parties hereto intend that this Agreement shall constitute a
security agreement under applicable law and if a court of competent jurisdiction
determines that any transaction provided for herein constitutes a loan and not
a sale or capital contribution, as applicable, that each Originator shall be
deemed to have granted, and each Originator hereby reaffirms the grant of any
security interest under the Existing Sale 


 


4

















 


Agreement and grants, to
Buyer a continuing security interest in all of such Originator’s right, title
and interest in, to and under (i) the Transferred Receivables and any
Receivables purported to be transferred hereunder whether now owned or
hereafter acquired by such Originator and (ii) the Lockbox Accounts, the
Lockboxes and all funds on deposit therein to secure the obligations of such
Originator to Buyer hereunder (including, if and to the extent that any
Transfer is recharacterized as a transfer for security under applicable law,
the repayment of a loan deemed to have been made by Buyer to the applicable
Originator in the amount of the Sale Price with respect thereto, including
interest thereon at the Index Rate).


 


Section 2.03.          Originators Remain Liable.  It is expressly agreed by the Originators
that, anything herein to the contrary notwithstanding, each Originator shall
remain liable to the Obligor (and any other party to the related Contract)
under any and all of the Receivables originated by it and under the Contracts
therefor to observe and perform all the conditions and obligations to be
observed and performed by it thereunder. 
Buyer shall not have any obligation or liability to the Obligor or any
other party to the related Contract under any such Receivables or Contracts by
reason of or arising out of this Agreement or the granting herein of a Lien
thereon or the receipt by Buyer of any payment relating thereto pursuant
hereto.  The exercise by Buyer of any of
its rights under this Agreement shall not release any Originator from any of
its respective duties or obligations under any such Receivables or Contracts.  Buyer shall not be required or obligated in
any manner to perform or fulfill any of the obligations of any Originator under
or pursuant to any such Receivable or Contract, or to make any payment, or to
make any inquiry as to the nature or the sufficiency of any payment received by
it or the sufficiency of any performance by any party under any such Receivable
or Contract, or to present or file any claims, or to take any action to collect
or enforce any performance or the payment of any amounts that may have been
assigned to it or to which it may be entitled at any time or times.


 


Section 2.04.          Sale Price Credits.  If on any day the Outstanding Balance of a
Receivable is reduced or canceled as a result of any Dilution Factor then, in
such event, the Buyer shall be entitled to a credit (each, a “Sale Price Credit”)
against the Sale Price otherwise payable hereunder in an amount equal to the
amount of such reduction or cancellation. 
If the Facility Termination Date has occurred or such Sale Price Credit
exceeds the Sale Price of the Receivables being sold by the applicable
Originator on any such day, then such Originator shall pay the remaining amount
of such Sale Price Credit in cash promptly (and in any event within one (1) Business
Day) thereafter, provided that if the Facility Termination Date has not
occurred, the applicable Originator shall be allowed to deduct the remaining
amount of such Sale Price Credit from any indebtedness owed to it under a
Subordinated Note to the extent permitted thereunder.


 


ARTICLE
III

CONDITIONS PRECEDENT


 


Section 3.01.          Conditions Precedent to Initial
Transfer.  The initial Transfer
hereunder on or after the Closing Date shall be subject to satisfaction of each
of the following conditions precedent:


 


(a)           Sale Agreement; Other Documents.  This Agreement or counterparts hereof shall
have been duly executed by, and delivered to, each Originator, the Servicer and
Buyer, and 


 


5

















 


Buyer shall have received
such information, documents, instruments, agreements and legal opinions as
Buyer shall request in connection with the transactions contemplated by this
Agreement, including all those identified in the Schedule of Documents (except
for items identified therein as applicable solely with respect to a New
Originator in which event such items may be delivered on or prior to the
Initial Sale Date for such New Originator). 
The Parent shall have executed in favor of the Buyer the Originator
Support Agreement in the form attached hereto as Exhibit 3.01(a).


 


(b)           Governmental Approvals.  Buyer shall have received (i) satisfactory
evidence that the Originators and the Servicer have obtained all required
consents and approvals of all Persons, including all requisite Governmental
Authorities, to the execution, delivery and performance of this Agreement and
the other Related Documents and the consummation of the transactions
contemplated hereby and thereby or (ii) an Officer’s Certificate from each
Originator and the Servicer in form and substance satisfactory to Buyer
affirming that no such consents or approvals are required.


 


(c)           Compliance with Laws.  Each Originator shall be in compliance with
all applicable foreign, federal, state, provincial and local laws and
regulations, including, without limitation, those specifically referenced in Section 4.02(f).


 


(d)           Purchase Agreement Conditions.  Each of those conditions precedent set forth
in Section 3.01 of the Purchase Agreement shall have been satisfied
or waived in writing as provided therein.


 


Section 3.02.          Conditions Precedent to all
Transfers.  Each Transfer hereunder
(including the initial Transfer) shall be subject to satisfaction of the
following further conditions precedent as of the Transfer Date therefor:


 


(a)           (i) the Administrative Agent
shall not have declared the Facility Termination Date to have occurred
following the occurrence of a Termination Event, and (ii) the Facility
Termination Date shall not have otherwise automatically occurred, in either
event, in accordance with Section 9.01 of the Purchase Agreement;
and


 


(b)           each Originator shall have taken such
other action, including delivery of approvals, consents, opinions, documents
and instruments to Buyer as Buyer may reasonably request.


 


(c)           The acceptance by any Originator of
the Sale Price for any Sold Receivables and the contribution to Buyer of any
Contributed Receivables on any Transfer Date shall be deemed to constitute, as
of any such Transfer Date, a representation and warranty by such Originator
that the conditions precedent set forth in this Article III have
been satisfied.  Upon any such acceptance
or contribution, title to the Transferred Receivables sold or contributed on
such Transfer Date shall be vested absolutely in Buyer, whether or not such
conditions were in fact so satisfied.


 


6














 


Section 3.03.          Conditions Precedent to Initial Sales from New
Originators.  The initial 
Transfer hereunder from any New Originator shall be subject to
satisfaction of the following further conditions precedent as of the Initial
Sale Date for such New Originator:


 


(a)           Sale Agreement; Other Documents. 
Buyer shall have received such information, documents, instruments,
agreements and legal opinions as Buyer shall reasonably request in connection
with the initial transfer from such New Originator, including a Receivables
Assignment executed by such New Originator and any other items identified in
the Schedule of Documents with respect to such New Originator and not
previously delivered under Section 3.01(a).


 


(b)           Lockbox Agreements.  Buyer shall
have received evidence reasonably satisfactory to it that the Obligors of the
Receivables to be sold by such New Originator have been instructed to remit all
payments with respect to such Receivables for deposit in a Lockbox or Lockbox
Account and shall have received a duly executed Lockbox Account Agreement with
respect to each such Lockbox Account, and an updated Schedule 4.01(t) to
include any additional accounts as a result of the inclusion of sales by such
New Originator.


 


(c)           Eligible Receivables.  Buyer shall
have received written confirmation from the Administrative Agent that the
Administrative Agent has satisfactorily completed its due diligence with
respect to the Receivables to be sold by such New Originator and approved such
Receivables for purchase under the Purchase Agreement.


 


(d)           Canadian Originator.  If the New
Originator is a Canadian Originator, Buyer shall have received written
confirmation from the Administrative Agent that the Administrative Agent has
completed its due diligence with respect to any cross-border tax and
enforceability issues relating to the sales of such Receivables under this
Agreement, the form of Subordinated Note (if any) to be issued in favor of the
Canadian Originator and the sales of interests in such Receivables under the
Purchase Agreement.


 


ARTICLE
IV

REPRESENTATIONS, WARRANTIES AND COVENANTS


 


Section 4.01.          Representations and Warranties of the Transaction
Parties.  To induce Buyer to purchase the Sold
Receivables and to acquire the Contributed Receivables, each Transaction Party,
as applicable, makes the following representations and warranties to Buyer as
of the Closing Date (or in the case of any Canadian Originator party hereof, as
of the Initial Sale Date with respect to the Canadian Originator) and, except
to the extent otherwise expressly provided below, as of each Transfer Date
(including, with respect to each New Originator, as of the applicable Initial
Sale Date), each of which shall survive the execution and delivery of this
Agreement.


 


(a)           Corporate Existence; Compliance with Law. 
Each Transaction Party (i) is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization; (ii) is
duly qualified to conduct business and is in good standing in each other
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so qualify
could not reasonably be expected to result in 


 


7

















 


a Material Adverse Effect;
(iii) has the requisite corporate power and authority and the legal right
to own, pledge, mortgage or otherwise encumber and operate its properties, to
lease the property it operates under lease, and to conduct its business, in
each case, as now, heretofore and proposed to be conducted; (iv) has all
licenses, permits, consents or approvals from or by, and has made all filings
with, and has given all notices to, all Governmental Authorities having
jurisdiction, to the extent required for such ownership, operation and conduct,
except where the failure to do any of the foregoing could not reasonably be
expected to result in a Material Adverse Effect; (v) is in compliance with
its articles or certificate of incorporation and by-laws; and (vi) subject
to specific representations set forth herein regarding ERISA, Environmental
Laws, tax laws and other laws, is in compliance with all applicable provisions
of law, except where the failure to so comply, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


 


(b)           Jurisdiction of Organization; Executive Offices;
Collateral Locations; Corporate or Other Names; FEIN. 
Each Originator is a registered organization of the type and is
organized under the laws of the State, Province or other jurisdiction, as
applicable, set forth in Schedule 4.01(b) (as supplemented from
time to time by written notice to Buyer and the Administrative Agent) (which is
its only jurisdiction of organization) and each such Originator’s organizational
identification number (if any), the current location of such Originator’s chief
executive office, principal place of business, other offices, the warehouses
and premises within which any records relating to the Receivables is stored or
located, and the locations of its records concerning the Receivables are set
forth in Schedule 4.01(b) and none of such locations has changed
within the past 12 months.  During the
five years prior to the Closing Date, except as set forth in Schedule
4.01(b), no Originator has been known as or used any corporate, legal,
fictitious or trade name.  In addition, Schedule
4.01(b) lists the federal employer identification number of each
Originator organized under the laws of the United States.


 


(c)           Corporate Power, Authorization, Enforceable
Obligations.  The execution, delivery and performance by
each Transaction Party of this Agreement and the other Related Documents to
which it is a party and the creation and perfection of all Transfers and Liens
provided for herein and therein and, solely with respect to clause (vii) below,
the exercise by Buyer, or its assigns of any of its rights and remedies under
any Related Document to which it is a party: 
(i) are within such Person’s corporate power; (ii) have been
duly authorized by all necessary or proper corporate and shareholder action; (iii) do
not contravene any provision of such Person’s articles or certificate of
incorporation or by-laws; (iv) do not violate any law or regulation, or
any order or decree of any court or Governmental Authority, including, for
greater certainty, in the case of any Canadian Originator, the Personal
Information Protection and Electronic Documents Act (Canada) or any other
applicable privacy laws (collectively, “Privacy Laws”); (v) do not
conflict with or result in the breach or termination of, constitute a default
under or accelerate or permit the acceleration of any performance required by,
any indenture, mortgage, deed of trust, lease, agreement or other instrument to
which such Person is a party or by which such Person or any of its property is
bound; (vi) do not result in the creation or imposition of any Adverse
Claim upon any of the property of such Person; and (vii) do not require
the consent or approval of any Governmental Authority or any other Person,
except those referred to in Section 3.01(b), all of which will have
been duly obtained, made or complied with prior to the Effective Date.  Each of the Credit Agreement and the Parent’s
public bond 


 


8

















 


indentures expressly
permits the sales of Receivables hereunder on the understanding that Buyer is a
separate entity.  On or prior to the
Effective Date, except as otherwise contemplated under Sections  3.01(a) and
3.03 with  respect to the New
Originators, each of the Related Documents shall have been duly executed and
delivered by each Transaction Party that is a party thereto and on the Closing
Date each such Related Document shall then constitute a legal, valid and
binding obligation of such Transaction Party, enforceable against it in
accordance with its terms.


 


(d)           No Litigation.  No Litigation
is now pending or, to the knowledge of any Transaction Party, threatened
against any Transaction Party or any other Subsidiary of the Parent that (i) challenges
such Transaction Party’s right or power to enter into or perform any of its
obligations under the Related Documents to which it is a party, or the validity
or enforceability of any Related Document or any action taken thereunder, (ii) seeks
to prevent the Transfer or pledge of any Receivable or the consummation of any
of the transactions contemplated under this Agreement or the other Related
Documents or (iii) is reasonably likely to be adversely determined and, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.  Except as set forth on Schedule
4.01(d), as of the Effective Date there is no Litigation pending or
threatened that seeks damages in excess of $10,000,000 or injunctive relief
against, or alleges criminal misconduct by, any Transaction Party or any other
Subsidiary of the Parent.


 


(e)           Solvency.  Both before
and after giving effect to (i) the transactions contemplated by this
Agreement and the other Related Documents and (ii) the payment and accrual
of all prior and current transaction costs by such Transaction Party in
connection with the foregoing, such Transaction Party is and will be
Solvent.  After giving effect to the sale
and contribution of Transferred Receivables by such Transaction Party and other
payments and transactions contemplated on such Transfer Date, such Transaction
Party is and will be Solvent.


 


(f)            Material Adverse Effect.  Since December 31,
2007, except as otherwise disclosed in Parent’s most recent 10-Q filing with
the SEC and any 8-K filings since the date of such 10-Q filing, (i) no
Transaction Party has incurred any obligations, contingent or non-contingent
liabilities, liabilities for Charges, long-term leases or unusual forward or
long-term commitments that, alone or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, (ii) no contract, lease or
other agreement or instrument has been entered into by any Transaction Party or
has become binding upon any Transaction Party’s assets and no law or regulation
applicable to any Transaction Party has been adopted that has had or could
reasonably be expected to have a Material Adverse Effect, (iii) no
Transaction Party is in default and no third party is in default under any
material contract, lease or other agreement or instrument to which such
Transaction Party is a party, and (iv) no event has occurred that alone or
together with other events could reasonably be expected to have a Material
Adverse Effect.


 


(g)           Ownership of Receivables; Liens. 
Each Originator owns each Receivable originated or acquired by it free
and clear of any Adverse Claim (other than any Adverse Claim created under the
Credit Agreement or expressly subordinated thereto and which is released
automatically upon the conveyance of such Receivable hereunder) and, from and
after each Transfer Date, Buyer will acquire valid and properly perfected title
to and the sole record and beneficial ownership interest in each Transferred
Receivable purchased or otherwise acquired on such date, free and clear of any
Adverse Claim or restrictions on transferability.  Each Originator 


 


9

















 


has received all
assignments, bills of sale and other documents, and has duly effected all
recordings, filings and other actions necessary to establish, protect and
perfect such Originator’s right, title and interest in and to the Receivables
originated or acquired by it and its other properties and assets.  Each Originator has rights in and full power
to transfer its Receivables hereunder. 
No effective financing statements or other similar instruments are of
record in any filing office listing any Originator as debtor and covering the
Transferred Receivables except with respect to the Liens granted to Buyer
hereunder.


 


(h)           Ventures, Subsidiaries and Affiliates; Outstanding
Stock and Debt.  Except as set forth in Schedule 4.01(h),
no Originator has any Subsidiaries, is engaged in any joint venture or
partnership with any other Person or is an Affiliate of any Person.  All of the issued and outstanding Stock of
each Originator is directly or indirectly owned by the Parent.  There are no outstanding rights to purchase
options, warrants or similar rights or agreements pursuant to which any
Originator may be required to issue, sell, repurchase or redeem any of its
Stock or other equity securities or any Stock or other equity securities of its
Subsidiaries.  All outstanding Debt of
each Originator as of the Effective Date is described on Schedule 4.01(h).


 


(i)            Taxes.  All material
tax returns, reports and statements, including information returns, required by
any Governmental Authority to be filed by any Transaction Party or any other
member of the Parent Group have been filed with the appropriate Governmental
Authority and all Charges have been paid prior to the date on which any fine,
penalty, interest or late charge may be added thereto for nonpayment thereof
(or any such fine, penalty, interest, late charge or loss has been paid),
excluding Charges or other amounts being contested in accordance with Section 4.02(k).  Proper and accurate amounts have been
withheld by each Transaction Party and each such member from its respective
employees for all periods in full and complete compliance with all applicable
federal, state, provincial, local and foreign laws and such withholdings have
been timely paid to the respective Governmental Authorities.  Schedule 4.01(i) sets forth as of
the Closing Date (i) those taxable years for which any Transaction Party’s
or any such member’s tax returns are currently being audited by the IRS or any
other applicable Governmental Authority and (ii) any assessments or
threatened assessments in connection with such audit or otherwise currently
outstanding.  Except as described on Schedule
4.01(i), no Transaction Party or any such member has executed or filed with
the IRS or any other Governmental Authority any agreement or other document
extending, or having the effect of extending, the period for assessment or
collection of any Charges.  No
Transaction Party or any such member and their respective predecessors are
liable for any Charges:  (A) under
any agreement (including any tax sharing agreements) or (B) to the best
of  each Transaction Party’s knowledge,
as a transferee.  As of the Closing Date,
no Transaction Party has agreed or been requested to make any adjustment under
IRC Section 481(a), by reason of a change in accounting method or
otherwise, that would have a Material Adverse Effect.


 


(j)            Intellectual Property.  As of the
Effective Date (and, in the case of any New Originator, as of the Initial Sale
Date with respect to such New Originator), each Originator owns or has rights
to use all intellectual property necessary to continue to conduct its business
as now or heretofore conducted by it or proposed to be conducted by it.  Each Originator conducts its business and
affairs without infringement of or interference with any intellectual property
of any other Person.  As of the Effective
Date (and, in the case of each New Originator, as of the applicable Initial Sale
Date), except as set forth in Schedule 4.01(j), no Originator is aware
of 


 


10

















 


any infringement or claim
of infringement by others of any material intellectual property of any
Originator.  No license or approval is
required for Buyer or its assignee (including the Administrative Agent) to use
any programs used by the Originators in the servicing of the Receivables other
than those which have been obtained and are in full force and effect.


 


(k)           Full Disclosure.  All
information provided by or on behalf of any Transaction Party pursuant to this
Agreement, any of the other Related Documents, or any other written statement
or information furnished by or on behalf of any Transaction Party to Buyer
relating to this Agreement, the Sold Receivables or any of the other Related
Documents, in each case, taken as a whole, is true and accurate as of its date
in every material respect, and none of this Agreement, any of the other Related
Documents, or any other written statement or information furnished by or on
behalf of any Transaction Party to Buyer relating to this Agreement or any of
the other Related Documents, in each case, taken as a whole, is misleading as
of its date as a result of the failure to include therein a material fact.  All information prepared by or on behalf of
any Transaction Party pursuant to this Agreement, any of the other Related
Documents, or any written statement furnished to Buyer has been prepared in
good faith by management of the applicable Transaction Party, as the case may
be, with the exercise of reasonable diligence.


 


(l)            Notices to Obligors.  Each
Originator has directed (or, in the case of any New Originator shall have
directed on or prior to the applicable Initial Sale Date) all Obligors of
Transferred Receivables originated by it to remit all payments with respect to
such Receivables for deposit in a Lockbox or Lockbox Account.


 


(m)          ERISA.  Each
Originator and its respective ERISA Affiliates are in material compliance with
ERISA and have not incurred and do not expect to incur any liabilities (except
for premium payments arising in the ordinary course of business) under Title IV
of ERISA.  Each Canadian Originator that
administers a defined benefit pension plan complies with applicable pension
benefits standards legislation and applicable laws and does not expect to incur
any liabilities in respect of a wind up, in whole or in part, of a defined
benefit pension plan.


 


(n)           Brokers.  No broker or
finder acting on behalf of any Transaction Party was employed or utilized in
connection with this Agreement or the other Related Documents or the
transactions contemplated hereby or thereby and no Transaction Party has any
obligation to any Person in respect of any finder’s or brokerage fees in connection
herewith or therewith.


 


(o)           Margin Regulations.  No
Transaction Party is engaged, nor will it engage, principally or as one of its
important activities, in the business of extending credit for the purpose of “purchasing”
or “carrying” any “margin security” as such terms are defined in Regulations T,
U or X of the Federal Reserve Board as now and from time to time hereafter in
effect (such securities being referred to herein as “Margin Stock”).  No Transaction Party owns any Margin Stock,
and no portion of the proceeds of the Sale Price from any Sale will be used,
directly or indirectly, for the purpose of purchasing or carrying any Margin
Stock, for the purpose of reducing or retiring any Debt that was originally
incurred to purchase or carry any Margin Stock or for any other purpose that
might cause any portion of such proceeds to be considered a “purpose credit”
within the meaning of Regulations T, U or X of the Federal Reserve Board.  No Transaction Party will take or permit to
be taken any action that might cause any Related Document to violate any
regulation of the Federal Reserve Board.


 


11

















 


(p)           Nonapplicability of Bulk Sales Laws. 
No transaction contemplated by this Agreement or any of the other Related
Documents requires compliance with any bulk sales act or similar law.


 


(q)           Investment Company Act Exemptions. 
Each purchase of Transferred Receivables under this Agreement
constitutes a purchase or other acquisition of notes, drafts, acceptances, open
accounts receivable or other obligations representing part or all of the sales
price of merchandise, insurance or services within the meaning of Section 3(c)(5) of
the Investment Company Act.


 


(r)            Government Regulation.  No
Transaction Party is an “investment company” or an “affiliated person” of, or “promoter”
or “principal underwriter” for, an “investment company,” as such terms are
defined in the Investment Company Act. 
No Transaction Party is subject to regulation under the Federal Power
Act, or any other federal or state statute that restricts or limits its ability
to incur Debt or to perform its obligations hereunder or under any other
Related Document.


 


(s)           Books and Records; Minutes. 
The by-laws or the certificate or articles of incorporation of each
Originator require it to maintain (i) books and records of account and (ii) minutes
of the meetings and other proceedings of its Stockholders and board of
directors (or an analogous governing body).


 


(t)            Deposit and Disbursement Accounts.  Schedule 4.01(t) lists
all banks and other financial institutions at which any Originator or the
Servicer maintains deposit accounts established for the receipt of collections
on accounts receivable, including any Lockbox Accounts, and such schedule
correctly identifies the name, address and telephone number of each depository,
the name in which the account is held, a description of the purpose of the
account, and the complete account number therefor.


 


(u)           Representations and Warranties in Other Related
Documents.  Each of the representations and warranties of
each Transaction Party contained in the Related Documents (other than this
Agreement) is true and correct and such Transaction Party hereby makes each
such representation and warranty to, and for the benefit of, the Buyer as if
the same were set forth in full herein. 
Each Transaction Party consents to the assignment of Buyer’s rights with
respect to all such representations and warranties to the Administrative Agent
and the Purchasers (and their respective successors and assigns) pursuant to
the Purchase Agreement as more fully described in Section 6.03
below.


 


(v)           Receivables.  With respect
to each Transferred Receivable acquired by the Buyer hereunder or currently
owned and acquired by Buyer pursuant to the Existing Sale Agreement:


 


(i)            Each Transferred Receivable included in any Investment
Base Certificate, Monthly Report, Weekly Report or Daily Report, as applicable,
as an Eligible Receivable, as of the applicable Transfer Date therefor,
satisfied the criteria for an Eligible Receivable;


 


12

















 


(ii)           immediately prior to its transfer to Buyer, such
Receivable was owned by the Originator thereof free and clear of any Adverse
Claim, and such Originator had the full right, power and authority to sell,
contribute, assign, transfer and pledge its interest therein as contemplated
under this Agreement and the other Related Documents and, upon such Transfer,
Buyer will acquire valid and properly perfected title to and the sole legal and
beneficial ownership interest in such Receivable, free and clear of any Adverse
Claim and, following such Transfer, such Receivable will not be subject to any
Adverse Claim as a result of any action or inaction on the part of such
Originator;


 


(iii)          the Transfer of each such Receivable pursuant to this
Agreement (or, if applicable, the Existing Sale Agreement) and the Receivables
Assignment executed by the Originator thereof constitutes, as applicable, a
valid sale, contribution, transfer, assignment, setover and conveyance to Buyer
of all right, title and interest of such Originator in and to such Receivable;
and


 


(iv)          the Originator of such Receivable has no knowledge of
any fact (including Dilution Factors and any defaults by the Obligor thereunder
on any other Receivable) that would cause it or should have caused it to expect
that payments on such Receivable will be materially impaired.


 


(w)          Fair Value.  With respect
to each Sold Receivable acquired by the Buyer hereunder, (i) the
consideration received from the Buyer in respect of such Sold Receivable
represents adequate consideration and fair and reasonably equivalent value for
such Sold Receivable as of the applicable Transfer Date and (ii) such
consideration is not less than the fair market value of such Sold Receivables,
in each case, as of the applicable Transfer Date and taking into account any
increase in the outstanding balance of the Subordinated Note.


 


(x)            Supplementary Representations.


 


(i)            Receivables; Accounts.


 


(A)          Each Receivable constitutes an “account” or a “payment
intangible” within the meaning of the applicable UCC and, in the case of any
Canadian Originator, each such Receivable also constitutes an “account” within
the meaning of the PPSA.


 


(B)           Each Lockbox Account constitutes a “deposit account”
within the meaning of the applicable UCC.


 


(ii)           Creation of Security Interest. 
Immediately prior to the sale or contribution of each Receivable
hereunder, the Originators own and have good and marketable title to such
Receivables and the Collections free and clear of any Adverse Claim other than
any Adverse Claim which is automatically released upon the conveyance of such
Receivable to Buyer.  Pursuant to the
Existing Sale Agreement, the Originators transferred to Buyer all of their right,
title and interest in and to the Lockboxes and the Lockbox Accounts.  This Agreement creates a valid and continuing
security interest (as defined in the applicable UCC and, in the case of any
Canadian Originator, as defined in the PPSA) in 


 


13

















 


the Transferred Receivables and the Collections in
favor of the Buyer, which security interest is prior to all other Adverse
Claims and is enforceable as such as against any creditors of and purchasers
from the Originators.


 


(iii)          Perfection.  On or prior
to the Effective Date, the Originators have caused the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under applicable law and entered into Lockbox Account Agreements
in order to perfect the sale of the Transferred Receivables from the
Originators to the Buyer pursuant to this Agreement.


 


(iv)          Priority.


 


(A)          Other than the transfer of the Transferred Receivables
by the Originators to the Buyer pursuant to this Agreement or the Existing Sale
Agreement, and other than any grant of security interest in Receivables
pursuant to the “Domestic Security Agreement” or “Canadian Security Agreement”
referred to in the Credit Agreement or pursuant to a security agreement
expressly subordinated thereto each of which is released automatically upon the
conveyance of such Receivable hereunder, no Originator has pledged, assigned,
sold, conveyed, or otherwise granted a security interest in any of the
Receivables, the Lockbox Accounts or the Lockboxes to any other Person.


 


(B)           No Originator has authorized, or is aware of, any
filing of any financing statement against any Originator that includes a
description of collateral covering the Receivables or any other assets transferred
to the Buyer hereunder, other than (i) any financing statement filed
pursuant to the “Domestic Security Agreement” or “Canadian Security Agreement”
referred to in the Credit Agreement the security interests evidenced by which
are released automatically upon the conveyance of Receivables hereunder), (ii) financing
statements filed pursuant to this Agreement and the Purchase Agreement, or (iii) financing
statements that have been validly terminated on or prior to the date hereof.


 


(C)           No Originator is aware of any judgment, ERISA or tax
lien filings against any Originator.


 


(D)          None of the Lockbox Accounts or any of the Lockboxes
are in the name of any Person other than the Buyer or the Administrative
Agent.  No Originator has consented to
any Lockbox Account Bank complying with instructions of any Person other than
the Administrative Agent.


 


(v)           Survival of Supplemental Representations. 
Notwithstanding any other provision of this Agreement or any other
Related Document, the representations contained in this Section 4.01(z) shall
be continuing, shall survive the Transfer of the Transferred Receivables to
Buyer and any subsequent assignment of the Transferred Receivables by Buyer,
and shall remain in full force and effect until the Termination Date.


 


14

















 


Section 4.02.          Affirmative Covenants of the Originators. 
Each Originator covenants and agrees that, unless otherwise consented to
by Buyer and the Administrative Agent, from and after the Effective Date and until
the Termination Date:


 


(a)           Offices and Records.  Each
Originator shall maintain its jurisdiction of organization, principal place of
business and chief executive office and the office at which it keeps its
Records at the respective locations specified in Schedule 4.01(b) or,
upon 30 days’ prior written notice to Buyer and the Administrative Agent, at
such other location in a jurisdiction where all action requested by Buyer, any
Purchaser or the Administrative Agent pursuant to Section 6.13
shall have been taken with respect to the Transferred Receivables.  Each Originator shall at its own cost and
expense, for not less than three years from the date on which each Transferred
Receivable was originated, or for such longer period as may be required by law,
maintain adequate Records with respect to such Transferred Receivable,
including records of all payments received, credits granted and merchandise
returned with respect thereto.  Upon the
request of Buyer, each Originator shall (i) mark each Contract (other than
invoices) evidencing each Transferred Receivable with a legend, acceptable to
Buyer, evidencing that Buyer has purchased such Transferred Receivable and that
the Administrative Agent, for the benefit of the Purchasers, has a security
interest in and lien thereon, and (ii) mark its master data processing
records evidencing such Transferred Receivables with such a legend.


 


(b)           Access.  Each
Originator shall, at its own expense (provided the Originators shall only be
required to pay for such visits three times a year so long as no Incipient
Termination Event or Termination Event shall have occurred and be continuing),
during normal business hours, from time to time upon three Business Days’ prior
notice and as frequently as Buyer or the Servicer determines to be
appropriate:  (i) provide Buyer, the
Servicer and any of their respective officers, employees, agents and
representatives access to its properties (including properties of such
Originator utilized in connection with the collection, processing or servicing
of the Transferred Receivables) and facilities, advisors and employees
(including officers) of each Originator, (ii) permit Buyer and the
Servicer and any of their respective officers, employees, agents and
representatives to inspect, audit and make extracts from such Originator’s
books and records, including all Records maintained by such Originator, (iii) permit
Buyer, the Servicer and their respective officers, employees, agents and
representatives, to inspect, review and evaluate the Transferred Receivables of
such Originator, and (iv) permit Buyer, the Servicer and their respective
officers, employees, agents and representatives to discuss matters relating to
the Transferred Receivables or such Originator’s performance under this
Agreement or the affairs, finances and accounts of such Originator with any of
its officers, directors, employees, representatives or agents (in each case,
with those Persons having knowledge of such matters) and with its independent
certified public accountants.  If an
Incipient Termination Event or a Termination Event shall have occurred and be
continuing, or the Buyer, in good faith, notifies any Originator that it
believes a Termination Event may have occurred and be continuing, each such
Originator shall (A) provide such access during normal business hours and
without advance notice,  (B) provide
Buyer and the Servicer with reasonable access to its suppliers and customers
and (C) shall make available to Buyer and the Servicer and their
respective counsel, as quickly as is possible under the circumstances,
originals or copies of all books and records, including Records maintained by
such Originator, as Buyer or the Servicer may reasonably request.  Each Originator shall deliver any document or
instrument necessary for Buyer or the Servicer, as they 


 


15

















 


may from time to time
reasonably request, to obtain records from any service bureau or other Person
that maintains records for such Originator, and shall maintain duplicate
records or supporting documentation on media, including computer tapes and
discs owned by such Originator.


 


(c)           [Intentionally Reserved].


 


(d)           Compliance With Credit and Collection Policies. 
Each Originator shall comply with the Credit and Collection Policies
applicable to each Transferred Receivable and the Contracts therefor, and with
the terms of such Receivables and Contracts.


 


(e)           Assignment.  Each
Originator agrees that, to the extent permitted under the Purchase Agreement,
Buyer may assign to the Administrative Agent for the benefit of the Purchasers
all of its right, title and interest in, to and under the Transferred
Receivables and this Agreement, including its right to exercise the remedies
set forth in Section 4.04. 
Each Originator agrees that, upon any such assignment, the assignee
thereof may enforce directly, without joinder of Buyer, all of the obligations
of such Originator hereunder, including any obligations of such Originator set
forth in Sections 4.04, 5.01 and 6.14 and that such assignees
are third party beneficiaries of the Buyer’s rights hereunder.


 


(f)            Compliance with Agreements and Applicable Laws. 
Each Originator shall perform each of its obligations under this
Agreement and the other Related Documents and comply with all federal, state,
provincial and local laws and regulations applicable to it and the Receivables,
including those relating to truth in lending, retail installment sales, fair
credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices, privacy, licensing, securities laws, margin regulations,
taxation, ERISA and labor matters and environmental laws and environmental
permits, except where the failure to so comply could not reasonably be expected
to result in a Material Adverse Effect. 
Each Originator shall pay all Charges, including any stamp duties, which
may be imposed as a result of the transactions contemplated by this Agreement
and the other Related Documents, except to the extent such Charges are being
contested in accordance with Section 4.01(m).


 


(g)           Maintenance of Existence and Conduct of Business. 
Each Originator shall:  (i) do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and its rights and franchises; (ii) continue
to conduct its business substantially as now conducted or as otherwise
permitted hereunder and in accordance with the terms of its certificate or
articles of incorporation and by-laws; (iii) at all times maintain,
preserve and protect all of its assets and properties which are necessary in
the conduct of its business, including all licenses, permits, charters and
registrations, and keep the same in good repair, working order and condition in
all material respects (taking into consideration ordinary wear and tear) and
from time to time make, or cause to be made, all necessary or appropriate
repairs, replacements and improvements thereto consistent with industry
practices; and (iv) transact business only in such corporate, legal and
trade names as are set forth in Schedule 4.02(g) or, upon 30 days’
prior written notice to Buyer, in such other corporate, legal or trade names
with respect to which all action requested by Buyer pursuant to Section 6.13
shall have been taken with respect to the Transferred Receivables.


 


16














 


(h)           Notice of Material Event. 
Each Originator shall promptly inform Buyer in writing of the occurrence
of any of the following, in each case setting forth the details thereof, any
notices or other correspondence relating thereto, and what action, if any, such
Originator proposes to take with respect thereto:


 


(i)            any Litigation commenced or threatened against the
Parent, any Originator or any other Subsidiary of the Parent or with respect to
or in connection with all or any portion of the Transferred Receivables that (A) seeks
damages or penalties in an uninsured amount in excess of $10,000,000 in the
aggregate, (B) seeks injunctive relief with respect thereto, (C) is
asserted or instituted against any Plan, its fiduciaries (in their capacity as
a fiduciary of any such Plan) or its assets or against the Parent, any
Originator or any other Subsidiary of the Parent or any of their respective
ERISA Affiliates in connection with any Plan, (D) alleges criminal
misconduct by the Parent, any Originator or any other Subsidiary of the Parent,
or (E) if determined adversely, could reasonably be expected to have a
Material Adverse Effect;


 


(ii)           the commencement of a case or proceeding by or against
the Parent, any Originator or any other Subsidiary of the Parent seeking a
decree or order in respect of the Parent, any Originator or such Subsidiary (A) under
the Bankruptcy Code or any other applicable federal, state, provincial or
foreign bankruptcy or other similar law, including the BIA or the CCAA, (B) appointing
a custodian, receiver, liquidator, assignee, trustee or sequestrator (or
similar official) for the Parent, any Originator or such Subsidiary or for any
substantial part of such Person’s assets, or (C) ordering the winding-up
or liquidation of the affairs of the Parent, any Originator or any other
Subsidiary of the Parent;


 


(iii)          the receipt of notice that (A) any license,
permit, charter, registration or approval necessary for the conduct of the
Parent’s, such Originator’s or any other Subsidiary of the Parent’s business is
to be, or may be, suspended or revoked, or (B) the Parent, such Originator
or any other Subsidiary of the Parent is to cease and desist any practice,
procedure or policy employed by the Parent, such Originator or any other
Subsidiary of the Parent in the conduct of its business if such cessation could
reasonably be expected to have a Material Adverse Effect;


 


(iv)          (A) any Adverse Claim made or asserted against
any of the Transferred Receivables of which it becomes aware or (B) any
determination that a Transferred Receivable was not an Eligible Receivable at
the time sale to Buyer or has ceased to be an Eligible Receivable on account of
any matter giving rise to indemnification under Section 5.01;


 


(v)           the execution or filing with the IRS or any other
Governmental Authority of any agreement or other document extending, or having
the effect of extending, the period for assessment or collection of any
Charges;


 


(vi)          the establishment of any Plan, Pension Plan, Title IV
Plan or undertaking to make contributions to any Multiemployer Plan, ESOP,
Welfare Plan or Retiree Welfare Plan not listed on Schedule 4.01(m);


 


17

















 


(vii)         any other event, circumstance or condition that has
had or could reasonably be expected to have a Material Adverse Effect; or


 


(viii)        any event, circumstance or condition that constitutes
an Event of Servicer Termination or Incipient Servicer Termination Event
hereunder.


 


(i)            Separate Identity.


 


(i)            Each Originator shall, and shall cause each other
member of the Parent Group to, maintain records and books of account separate
from those of Buyer.


 


(ii)           The financial statements of the Parent and its
consolidated Subsidiaries shall disclose the effects of each Originator’s
transactions in accordance with GAAP and, in addition, disclose that (A) Buyer’s
sole business consists of the purchase or acceptance through capital
contribution of the Transferred Receivables from the Originators and the
subsequent financing of such Receivables pursuant to the Purchase Agreement, (B) Buyer
is a separate legal entity with its own separate creditors who will be
entitled, upon its liquidation, to be satisfied out of Buyer’s assets prior to
any value in Buyer becoming available to Buyer’s equity holders and (C) the
assets of Buyer are not available to pay creditors of any Originator or any
other Affiliate of such Originator.


 


(iii)          The resolutions, agreements and other instruments
underlying the transactions described in this Agreement shall be continuously
maintained by each Originator as official records.


 


(iv)          Each Originator shall, and shall cause each other
member of the Parent Group to, maintain an arm’s-length relationship with Buyer
and shall not hold itself out as being liable for the Debts of Buyer.


 


(v)           Each Originator shall, and shall cause each other
member of the Parent Group to, keep its assets and its liabilities wholly
separate from those of Buyer.


 


(vi)          Each Originator shall, and shall cause each other
member of the Parent Group to, conduct its business solely in its own name or
the name of the Parent through its duly Authorized Officers or agents and in a
manner designed not to mislead third parties as to the separate identity of
Buyer.


 


(vii)         Each Originator shall respond to any inquiries with
respect to ownership of a Transferred Receivable by stating that Buyer is the
owner of such Transferred Receivable, and that such Transferred Receivable is
pledged to the Administrative Agent for the benefit of the Purchasers;


 


(viii)        No Originator shall (and each Originator shall cause
each other member of the Parent Group not to) mislead third parties by
conducting or appearing to conduct business on behalf of Buyer or expressly or
impliedly representing or suggesting that such Originator or any other member
of the Parent Group is liable or responsible for the 


 


18

















 


Debts of Buyer or that the assets of such Originator
or any other member of the Parent Group are available to pay the creditors of
Buyer.


 


(ix)           The operating expenses and liabilities of Buyer shall
be paid from Buyer’s own funds and not from any funds of any Originator or
other member of the Parent Group.


 


(x)            Each Originator shall, and shall cause each other
member of the Parent Group to, at all times have stationery and other business
forms and a mailing address and telephone number separate from those of Buyer.


 


(xi)           Each Originator shall, and shall cause each other
member of the Parent Group to, at all times limit its transactions with Buyer
only to those expressly permitted hereunder or under any other Related
Document.


 


(xii)          Each Originator shall, and shall cause each other
member of the Parent Group to, comply with (and cause to be true and correct)
each of the facts and assumptions contained in the opinion of Jones Day
relating to true sale and nonconsolidation matters delivered pursuant to the
Schedule of Documents.


 


(j)            ERISA and Environmental Notices. 
Each Originator shall give Buyer prompt written notice of (i) any
event that could reasonably be expected to result in the imposition of a Lien
under Section 412 of the IRC or Section 302 or 4068 of ERISA, (ii) any
event that could reasonably be expected to result in the incurrence by any
Originator of any Unfunded Pension Liability or any other liabilities under
Title IV of ERISA (other than premium payments arising in the ordinary course
of business), (iii) in the case of any Canadian Originator, (x) any
pension contributions that are due but unremitted for any defined benefit
pension plan to which it contributes and (y) any solvency deficiency
identified in the most recently filed actuarial report for any defined benefit
plan to which it contributes, and (iv) any environmental claims against
the Parent, any Originator or any other Subsidiary of the Parent which,
individually or in the aggregate, could reasonably be expected to exceed
$10,000,000.


 


(k)           Payment, Performance and Discharge of Obligations.


 


(i)            Subject to Section 4.02(k)(ii), each
Originator shall pay, perform and discharge or cause to be paid, performed and
discharged all of its obligations and liabilities, including all Charges upon
its income and properties and all lawful claims for labor, materials, supplies
and services, promptly when due.


 


(ii)           Each Originator may in good faith contest, by
appropriate proceedings, the validity or amount of any Charges or claims
described in Section 4.02(k)(i); provided, that (A) adequate
reserves with respect to such contest are maintained on the books of such
Originator or such member, as applicable, in accordance with GAAP, (B) such
contest is maintained and prosecuted continuously and with diligence, (C) none
of the Receivables may become subject to forfeiture or loss as a result of such
contest, (D) no Lien may be imposed on any of the Receivables to secure
payment of such Charges or claims other than inchoate tax liens and (E) such
Originator reasonably believes that 


 


19

















 


nonpayment or nondischarge thereof could not
reasonably be expected to have or result in a Material Adverse Effect.


 


(iii)          Each Originator shall, at its expense, timely and
fully perform and comply, in all material respects, with all provisions,
covenants and other promises required to be observed by it under the Contracts.


 


(l)            Deposit of Collections.  Each
Originator shall (and shall cause each of its Affiliates to) on or prior to the
Effective Date (or, in the case of a New Originator, on or prior to the
applicable Initial Sale Date) (i) instruct all Obligors to remit directly
into a Lockbox Account all payments with respect to any Receivables that are or
may be transferred hereunder, and (ii) deposit or cause to be deposited
promptly into a Lockbox Account, and in any event no later than the first
Business Day after receipt thereof, all Collections it may receive in respect
of Transferred Receivables (and until so deposited, all such Collections shall
be held in trust for the benefit of Buyer and its assigns (including the
Administrative Agent and the Purchasers)). 
No Originator shall make or permit to be made deposits into a Lockbox or
a Lockbox Account other than in accordance with this Agreement and the other
Related Documents.  Without limiting the
generality of the foregoing, each Originator shall use commercially reasonable
efforts to ensure that no Collections or other proceeds with respect to a
Receivable reconveyed to it pursuant to Section 4.04 hereof are
paid or deposited into any Lockbox or Lockbox Account.


 


(m)          Originators to Maintain Perfection and
Priority.  In order to evidence the interests of the
Buyer under this Agreement, each Originator shall, from time to time take such
action, or execute and deliver such instruments as may be reasonably requested
by the Buyer in order to maintain and perfect, as a first-priority interest,
the Buyer’s ownership and security interest in the Transferred Receivables and
all other assets sold to the Buyer pursuant hereto or to the Existing Sale
Agreement.  Notwithstanding anything else
in the Related Documents to the contrary, neither the Servicer nor any
Originator shall have any authority to file a termination, partial termination,
release, partial release or any amendment that deletes the name of a debtor or
excludes collateral of any such financing statements, without the prior written
consent of the Buyer.  Each Originator
agrees to maintain perfection and priority of the security interest in
accordance with Section 6.13 hereof. 
Buyer is authorized to file UCC financing statements naming Buyer as
secured party and Originators as Debtors and identifying the Transferred
Receivables as collateral and Buyer is authorized to file PPSA financing
statements naming Buyer as secured party and any Canadian Originator as Debtor
and identifying the Transferred Receivables as collateral.


 


Section 4.03.          Negative Covenants of the Originators. 
Each Originator covenants and agrees that, without the prior written
consent of Buyer, from and after the Closing Date and until the Termination
Date:


 


(a)           Sale of Receivables and Related Assets. 
No Originator shall sell, transfer, convey, assign (by operation of law
or otherwise) or otherwise dispose of, or assign any right to receive income in
respect of, any of its Receivables or Contracts therefor, or any of its rights
with respect to any Lockbox or Lockbox Account, except for the sales,
transfers, conveyances, assignments or dispositions expressly contemplated
hereunder.


 


20

















 


(b)           Liens.  No Originator
shall create, incur, assume or permit to exist any Adverse Claim on or with
respect to its Receivables (whether now owned or hereafter acquired) except for
Permitted Encumbrances that do not attach to Transferred Receivables and
Adverse Claims described in clauses (ii) and (iii) of the immediately
succeeding sentence.  No Originator shall
create, incur, assume or permit to exist any Lien upon any of its property or
receivables whether now owned or hereafter acquired, except for (i) Liens
permitted pursuant to Section 8.01 of the Credit Agreement; (ii) Liens
created pursuant to the Credit Agreement or any credit facility effecting a
refinancing of the Debt incurred pursuant to the Credit Agreement; (iii) Liens
securing Debt which by their terms are subordinate to the Liens created
pursuant to the Credit Agreement or any such refinancing facility described in
clause (ii) above; and (iv) other Liens expressly consented to in
writing by Buyer and the Administrative Agent; provided that any such
permitted Liens under clauses (ii) and (iii) expressly exclude or
release all Transferred Receivables from any such Lien and the terms and
conditions of the Debt secured by such Liens are not otherwise inconsistent
with the terms and conditions of this Agreement or any other Related Document
(but in any event which terms and conditions are consistent with the provisions
of the Credit Agreement relating to the transactions contemplated by this
Agreement and the other Related Documents).


 


(c)           Modifications of Receivables or Contracts. 
No Originator shall extend, amend, forgive, discharge, compromise,
cancel or otherwise modify the terms of any Transferred Receivable, or amend,
modify or waive any term or condition of any Contract therefor, except in its
capacity as a Servicer or Sub-Servicer and then only to the extent permitted
under Section 7.04(d).


 


(d)           Sale Characterization.  No Originator
shall (and each Originator shall cause each other member of the Parent Group
not to) make statements or disclosures or prepare any financial statements for
any purpose, including for federal income tax, reporting or accounting
purposes, that shall account for the transactions contemplated by this
Agreement in any manner other than with respect to the Sale of each Sold
Receivable originated or acquired by it, as a true sale or absolute assignment
of its full right, title and ownership interest in such Transferred Receivable
to Buyer and with respect to the Transfer of each Contributed Receivable
originated or acquired by Parent, as a contribution to the capital of Buyer.


 


(e)           Change in Business or Legal Structure. 
No Originator shall (i) make any changes in any of its business
objectives, purposes or operations that could reasonably be expected to have or
result in a Material Adverse Effect or (ii) amend, supplement or otherwise
modify its certificate or articles of incorporation, bylaws, limited liability
company agreement and other organizational documents in a manner that could
reasonably be expected to have or result in a Material Adverse Effect.  No Originator shall change the type of entity
it is, its jurisdiction of organization or its organizational identification
number, if any, issued by its state of organization, except upon 30 days’ prior
written notice to Buyer and with respect to which jurisdiction all action
reasonably requested by Buyer pursuant to Section 6.13 shall have
been taken with respect to the Transferred Receivables.


 


(f)            Actions Affecting Rights. 
No Originator shall (i) take any action, or fail to take any
action, if such action or failure to take action may interfere with the
enforcement of any rights hereunder or under the other Related Documents,
including rights with respect to the 


 


21

















 


Transferred Receivables;
or (ii) fail to pay any Charge, fee or other obligation of such Originator
with respect to the Transferred Receivables, or fail to defend any action, if
such failure to pay or defend may be reasonably expected to adversely affect
the priority or enforceability of the perfected title of Buyer to and the sole
legal and beneficial ownership interest of Buyer in the Transferred Receivables
or, prior to their Transfer hereunder, such Originator’s right, title or
interest therein.


 


(g)           ERISA.  No Originator
shall, or shall cause or permit any ERISA Affiliate to, cause or permit to
occur an event that could reasonably be expected to result in the imposition of
a Lien under Section 412 of the IRC or Section 302 or 4068 of ERISA
or cause or permit to occur an ERISA Event.


 


(h)           Change to Credit and Collection Policies. 
No Originator shall fail to comply in any material respect with, and no
change, amendment, modification or waiver shall be made to, the Credit and
Collection Policies without the prior written consent of Buyer.


 


(i)            Change in Instruction to Obligors. 
No Originator shall make any change in its instructions to Obligors
regarding the deposit of Collections with respect to the Transferred
Receivables, except to the extent Buyer consents in writing to such change.


 


(j)            Adverse Tax Consequences. 
No Originator shall take or permit to be taken any action (other than
with respect to actions taken or to be taken solely by a Governmental
Authority), or fail or neglect to perform, keep or observe any of its
obligations hereunder or under the other Related Documents, that would have the
effect directly or indirectly of subjecting any payment to Buyer, or to any
assignee who is a resident of the United States of America, to withholding
taxation.


 


(k)           No Proceedings.  Until the
date one year plus one day following the Termination Date, no Originator shall,
directly or indirectly, institute or cause to be instituted against Buyer any
proceeding of the type referred to in Sections 8.01(d) and 8.01(e) of
the Purchase Agreement.


 


(l)            Mergers, Acquisitions, Sales, etc. 
Other than as permitted pursuant to Sections  8.02, 8.04
or 8.05 of the Credit Agreement, no Originator shall (i) be a party
to any merger or consolidation, or directly or indirectly purchase or otherwise
acquire all or substantially all of the assets or any stock of any class of, or
any partnership or joint venture interest in, any other Person, or otherwise
create or acquire a Subsidiary, or (ii) directly or indirectly sell,
transfer, assign, convey or lease whether in one or a series of transactions,
all or substantially all of its assets other than pursuant hereto, or permit
any Subsidiary to do any of the foregoing, except for any such merger or
consolidation, sale, transfer, conveyance, lease or assignment of or by any
majority-owned Subsidiary into such Person or into, with or to any other
majority-owned Subsidiary and any such purchase or other acquisition by such
Person or any majority-owned Subsidiary of the assets or stock of any
majority-owned Subsidiary.  In connection
with any merger or consolidation that is permitted pursuant to Section 8.04
of the Credit Agreement, each Originator will (i) provide written notice
thereof to the Buyer, and (ii) take all such actions and deliver, or cause
to be delivered, such opinion letters of counsel, certificates and other
agreements that the Buyer deems reasonably necessary or desirable under the UCC
and/or the 


 


22

















 


PPSA, as applicable, to
maintain the perfection and priority of the Buyer’s ownership interest in the
Receivables.


 


(m)          Indebtedness.  No Originator
shall create, incur, assume or permit to exist any Debt, except (i) Debt
of such Person to any Affected Party, Buyer Indemnified Person or any other
Person expressly permitted by this Agreement or any other Related Document, and
(ii) other Debt permitted pursuant to Section 8.03 of the
Credit Agreement.


 


(n)           Modification to the Credit Agreement. 
The Parent will not agree to any amendment, modification or waiver to
any provision of the Credit Agreement (or any provision of the “Domestic
Security Agreement” or the “Canadian Security Agreement” referred to therein
that relates to the Receivables or transactions hereunder) after the date
hereof without the prior written consent of the Administrative Agent.


 


(o)           Commingling.  No Originator
shall (and each Originator shall cause each other member of the Parent Group
not to) deposit or permit the deposit of any funds that do not constitute
Collections of Transferred Receivables into any Lockbox or Lockbox Account, provided
that after the Facility Termination Date, so long as any Transferred
Receivables of an Obligor remain unpaid, no Originator shall instruct such
Obligor to remit Collections of any Transferred Receivables (or Receivables to
be transferred hereunder) to any Person or account other than to a Lockbox or
Lockbox Account.  If the Facility
Termination Date shall have occurred, no Originator shall instruct any Obligor
which is obligated on a Transferred Receivable to remit Collections of any
other Receivables owing by such Obligor other than to a Lockbox or Lockbox
Account, unless the Buyer has given its prior written consent and the
Originators  have implemented such
procedures reasonably required by Buyer to ensure that such Obligors continue
to make payments on the Transferred Receivables directly to a Lockbox or
Lockbox Account.  If any funds not
constituting collections of Transferred Receivables are nonetheless deposited
into a Lockbox or Lockbox Account and such Originator so notifies Buyer, Buyer
shall notify the Administrative Agent to promptly remit any such amounts to the
applicable Originator.


 


(p)           Purchases of Receivables. 
No Originator shall, directly or indirectly, purchase any accounts
receivable from any Person without the express written consent of the Buyer.


 


Section 4.04.          Breach of Representations, Warranties or Covenants. 
Upon discovery by any Originator or Buyer of any breach of
representation, warranty or covenant described in Section 4.01(g), 4.01(l),
4.01(v), 4.01(w), 4.01(z), 4.02(l), 4.02(m),
4.03(a), 4.03(b), 4.03(c), 4.03(d), 4.03(i) and
4.03(o) with respect to any Transferred Receivable, the party
discovering the same shall give prompt written notice thereof to the other
parties hereto.  The Originator that
breached such representation, warranty or covenant shall, if requested by
notice from Buyer, on the first Business Day following receipt of such notice,
either (a) repurchase the affected Transferred Receivable from Buyer for
cash remitted to the applicable Lockbox Account, (b) if the Termination
Date has not yet occurred, transfer ownership of a new Eligible Receivable or
new Eligible Receivables to Buyer on such Business Day, or (c) in the case
of Parent, make a capital contribution in cash to Buyer by remitting the amount
of such capital contribution to the Lockbox Account, in each case, in an amount
(the “Rejected Amount”) equal to the Billed Amount of such Transferred
Receivable minus any Collections received in respect thereof.  Each 


 


23

















 


Originator shall use
commercially reasonable efforts to ensure that no Collections or other proceeds
with respect to a Transferred Receivable so reconveyed to it are paid or
deposited into any Lockbox Account.


 


ARTICLE
V

INDEMNIFICATION


 


Section 5.01.          Indemnification.  Without
limiting any other rights that Buyer or any of its Stockholders, any of its
assignees including the Purchasers and the Administrative Agent, or any of
their respective officers, directors, employees or, agents and transferees,
successors and assigns (each, a “Buyer Indemnified Person”) may have
hereunder or under applicable law, each Originator hereby agrees to indemnify
and hold harmless each Buyer Indemnified Person from and against any and all
Indemnified Amounts that may be claimed or asserted against or incurred by any
such Buyer Indemnified Person in connection with or arising out of the
transactions contemplated under this Agreement or under any other Related
Document, any actions or failures to act in connection therewith, including any
and all reasonable legal costs and expenses arising out of or incurred in
connection with disputes between or among any parties to any of the Related
Documents, or in respect of any Transferred Receivable or any Contract therefor
or the use by such Originator of the Sale Price therefor; provided, that
no Originator shall be liable for any indemnification to a Buyer Indemnified
Person to the extent that any such Indemnified Amounts (a) result from
such Buyer Indemnified Person’s gross negligence or willful misconduct, as
finally determined by a court of competent jurisdiction, (b) constitute
 recourse for uncollectible or uncollected Transferred Receivables due to
the failure (without cause or justification triggered by the actions of any
Originator) or inability on the part of the related Obligor to perform its
obligations thereunder or the occurrence of any event of bankruptcy or
insolvency with respect to such Obligor or (c) constitute taxes imposed on
or measured by the net income, gross receipts or franchise taxes of Buyer or
any Affected Party by the laws of the jurisdictions under whose laws Buyer or
such Affected Party is organized or is doing business other than solely as a
result of entering into the Transaction Documents, or any political subdivision
of any such jurisdiction.  Subject to clauses (a),  (b) and
(c) of the proviso in the immediately preceding sentence, but otherwise
without limiting the generality of the foregoing, each Originator shall pay on
demand to each Buyer Indemnified Person any and all Indemnified Amounts
relating to or resulting from:


 


(i)            reliance on any representation or warranty made or
deemed made by such Originator (or any of its officers) under or in connection
with this Agreement or any other Related Document (without regard to any
qualifications concerning the occurrence or non-occurrence of a Material
Adverse Effect or similar concepts of materiality) or on any other information
delivered by such Originator pursuant hereto or thereto that shall have been
incorrect when made or deemed made or delivered;


 


(ii)           the failure by such Originator to comply with any
term, provision or covenant contained in this Agreement, any other Related
Document or any agreement executed in connection herewith or therewith (without
regard to any qualifications concerning the occurrence or non-occurrence of a
Material Adverse Effect or similar concepts of materiality), any applicable
law, rule or regulation with respect to any Transferred Receivable or the
Contract therefor, including, in the case of any Canadian 


 


24

















 


Originator, Privacy Laws (as defined in Section 4.01(c)(iv)),
or the nonconformity of any Transferred Receivable or the Contract therefor
with any such applicable law, rule or regulation;


 


(iii)          the failure to vest and maintain vested in Buyer, or
to Transfer to Buyer, valid and properly perfected title to and sole legal and
beneficial ownership of the Receivables that constitute Transferred
Receivables, together with all Collections in respect thereof, free and clear
of any Adverse Claim;


 


(iv)          any dispute, claim, offset or defense of any Obligor
(other than its discharge in bankruptcy) to the payment of any Receivable that
is the subject of a Transfer hereunder (including a defense based on any
Dilution Factor not reimbursed under Section 2.04 or based on such
Receivable or the Contract therefor not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its terms
(other than as a result of a discharge in bankruptcy), or any other claim
resulting from the sale of the merchandise or services giving rise to such
Receivable or the furnishing or failure to furnish such merchandise or services
or relating to collection activities with respect to such Receivable (if such
collection activities were performed by any Originator or any Affiliate thereof
acting as the Servicer or a Sub-Servicer);


 


(v)           any products liability claim or other claim arising
out of or in connection with merchandise, insurance or services that is the
subject of any Contract related to any Transferred Receivable;


 


(vi)          the commingling of Collections with respect to
Transferred Receivables by any Originator at any time with its other funds or
the funds of any other Person;


 


(vii)         any failure by such Originator to cause the filing of,
or any delay in filing, financing statements or to cause the effectiveness of
other similar instruments or documents under the UCC of any applicable
jurisdiction or any other applicable laws with respect to any Transferred
Receivable that is the subject of a Transfer hereunder, any Collections in
respect thereof, the Lockbox Accounts or the Lockboxes, whether at the time of
any such Transfer or at any subsequent time, in each case, to the extent such
filing or effectiveness is necessary to maintain the perfection and priority of
Buyer’s interest in such property;


 


(viii)        any investigation, litigation or proceeding related to
this Agreement or any other Related Document or the ownership of Transferred
Receivables or Collections with respect thereto or any other investigation,
litigation or proceeding relating to the Buyer, the Servicer or any Originator
brought against any Indemnified Person as a result of any of the transactions
contemplated hereby or by any other Related Document;


 


(ix)           any claim brought by any Person other than a Buyer
Indemnified Person arising from any activity by such Originator or any of its
Affiliates in servicing, administering or collecting any Transferred Receivables;


 


25

















 


(x)            any failure of 
a Lockbox Account Bank to comply with the terms of the applicable
Lockbox Account Agreement;


 


(xi)           any action or omission by such Originator which
reduces or impairs the rights of the Buyer or any of its assigns with respect
to any Transferred Receivable or the value of any such Receivable;


 


(xii)          any attempt by any Person to void any Transfer or the
Lien granted hereunder under statutory provisions or common law or equitable
action;


 


(xiii)         any withholding, deduction or Charge imposed upon any
payments with respect to any Transferred Receivable, any Seller Assigned
Agreement or any other Seller Collateral, including any failure by any Canadian
Originators or Royal Mouldings Limited to collect and remit as required by law
any taxes, including without limitation, consumption, sales, use or value added
taxes or other personal property taxes, payable to a Canadian Originator or
Royal Mouldings Limited by an Obligor in connection with any Receivable or the
related Contract or any collateral with respect thereto; or


 


(xiv)        the failure of any Lockbox Account to be titled in the
name of the Buyer.


 


(b)           Any Indemnified Amounts subject to the indemnification
provisions of this Section 5.01 shall be paid by the applicable
Originator to the Buyer Indemnified Person entitled thereto within five
Business Days following demand therefor.


 


Section 5.02.          Indemnities by the Servicer.


 


(a)           Without limiting any other rights that a Buyer
Indemnified Person may have hereunder or under applicable law, the Servicer
hereby agrees to indemnify and hold harmless each Buyer Indemnified Person from
and against any and all Indemnified Amounts that may be claimed or asserted
against or incurred by any such Buyer Indemnified Person in connection with or
arising out of the Servicer’s performance of, or failure to perform, its
obligations hereunder or out of any breach by the Servicer of its obligations
hereunder or under any other Related Document; provided, that the
Servicer shall not be liable for any indemnification to a Buyer Indemnified
Person to the extent that any such Indemnified Amount (x) results from
such Buyer Indemnified Person’s gross negligence or willful misconduct, in each
case as finally determined by a court of competent jurisdiction, or (y) constitutes
recourse for uncollectible or uncollected Transferred Receivables as a result
of the insolvency, bankruptcy or the failure (without cause or justification)
or inability on the part of the related Obligor to perform its obligations
thereunder.  Without limiting the
generality of the foregoing, the Servicer shall pay on demand to each Buyer
Indemnified Person any and all Indemnified Amounts relating to or resulting
from:


 


(i)            reliance on any representation or warranty made or
deemed made by the Servicer (or any of its officers) under or in connection
with this Agreement or any other Related Document (without regard to any
qualifications concerning the occurrence or non-occurrence of a Material Adverse
Effect or similar concepts of materiality) or on any other information
delivered by the Servicer pursuant hereto or thereto that shall have been
incorrect when made or deemed made or delivered;


 


26














 


(ii)           the failure by the Servicer to comply with any term,
provision or covenant contained in this Agreement, any other Related Document
or any agreement executed in connection herewith or therewith (without regard
to any qualifications concerning the occurrence or non-occurrence of a Material
Adverse Effect or similar concepts of materiality), any applicable law, rule or
regulation with respect to any Transferred Receivable or the Contract therefor,
or the nonconformity of any Transferred Receivable or the Contract therefor
with any such applicable law, rule or regulation;


 


(iii)          the imposition of any Adverse Claim or any dispute,
claim, offset or defense with respect to any Transferred Receivable or the
Seller Collateral as a result of any action taken by the Servicer; or


 


(iv)          the commingling of Collections with respect to
Transferred Receivables by the Servicer at any time with its other funds or the
funds of any other Person;


 


(v)           any investigation, litigation or proceeding relating
to the Servicer in which any Buyer Indemnified Person becomes involved as a
result of any of the transactions contemplated by the Related Documents;


 


(vi)          any action or omission by the Servicer which reduces
or impairs the rights of the Buyer, the Administrative Agent or any Specified
Party with respect to any Transferred Receivable or the value of any
Transferred Receivable; or


 


(vii)         any claim brought by any Person other than a Buyer
Indemnified Person arising from any activity by the Servicer or any of its
Affiliates in servicing, administering or collecting an Transferred
Receivables.


 


(b)           Any Indemnified Amounts subject to the indemnification
provisions of this Section 5.02 
shall be paid by the Servicer to the Buyer Indemnified Person entitled
thereto within five Business Days following demand therefor.


 


ARTICLE
VI

MISCELLANEOUS


 


Section 6.01.          Notices.  Except as
otherwise provided herein, whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall or
may be given to or served upon any of the parties by any other parties, or
whenever any of the parties desires to give or serve upon any other parties any
communication with respect to this Agreement, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and shall be deemed to have been validly served, given or delivered (a) upon
the earlier of actual receipt and three Business Days after deposit in the
United States Mail, registered or certified mail, return receipt requested,
with proper postage prepaid, (b) upon transmission, when sent by email of
the signed notice in PDF form or facsimile transmission (with such email or
facsimile promptly confirmed by delivery of a copy by personal delivery or
United States Mail as otherwise provided in this Section 6.01), (c) one
Business Day after deposit with a reputable overnight courier with all charges
prepaid or (d) when delivered, if hand-delivered by messenger, all of
which shall be addressed to the party to be notified and sent 


 


27

















 


to the address or
facsimile number set forth below in this Section 6.01 or to such
other address (or facsimile number) as may be substituted by notice given
as herein provided:


 


	
   

  	
  Each Originator:

  	
  Georgia Gulf Corporation

  
	
   

  	
   

  	
  115 Perimeter Center
  Place, Suite 460

  
	
   

  	
   

  	
  Atlanta, GA 30346

  
	
   

  	
   

  	
  Attention: Joel I. Beerman

  
	
   

  	
   

  	
  Phone No.: 770-390-9673

  
	
   

  	
   

  	
  Facsimile No.:
  770-395-4523

  
	
   

  	
   

  	
   

  
	
   

  	
  Buyer:

  	
  GGRC Corp.

  
	
   

  	
   

  	
  1011 Centre Road,
  Suite 322

  
	
   

  	
   

  	
  Wilmington, DE 19805

  
	
   

  	
   

  	
  Attention: James W.
  Whalen, Jr.

  
	
   

  	
   

  	
  Phone No.: 302-658-0463

  
	
   

  	
   

  	
  Facsimile No.:
  302-655-8894

  
	
   

  	
   

  	
   

  
	
   

  	
  Parent:

  	
  Georgia Gulf Corporation

  
	
   

  	
   

  	
  115 Perimeter Center
  Place, Suite 460

  
	
   

  	
   

  	
  Atlanta, GA 30346

  
	
   

  	
   

  	
  Attention: Joel I. Beerman

  
	
   

  	
   

  	
  Phone No.: 770-390-9673

  
	
   

  	
   

  	
  Facsimile No.:
  770-395-4523

  



 


Without limiting the
generality of the foregoing, all notices to be provided to the Buyer hereunder
shall be delivered to both the Buyer and the Administrative Agent under the
Purchase Agreement, and shall be effective only upon such delivery to the
Administrative Agent in accordance with the terms of the Purchase
Agreement.  The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice.  Failure or delay in
delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to any Person (other than Buyer) designated
in any written communication provided hereunder to receive copies shall in no
way adversely affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.  Notwithstanding the foregoing, whenever it is
provided herein that a notice is to be given to any other party hereto by a
specific time, such notice shall only be effective if actually received by such
party prior to such time, and if such notice is received after such time or on
a day other than a Business Day, such notice shall only be effective on the
immediately succeeding Business Day.


 


Section 6.02.          No Waiver; Remedies.  Buyer’s
failure, at any time or times, to require strict performance by the Originators
of any provision of this Agreement or any Receivables Assignment shall not
waive, affect or diminish any right of Buyer thereafter to demand strict
compliance and performance herewith or therewith.  Any suspension or waiver of any breach or
default hereunder shall not suspend, waive or affect any other breach or
default whether the same is prior or subsequent thereto and whether the same or
of a different type.  None of the
undertakings, agreements, warranties, covenants and representations of any
Originator contained in this Agreement or any Receivables Assignment, and no
breach or default by any Originator hereunder or thereunder, shall be deemed to
have been suspended or waived by Buyer unless 


 


28

















 


such waiver or suspension
is by an instrument in writing signed by an officer of or other duly authorized
signatory of Buyer and directed to such Originator specifying such suspension
or waiver.  Buyer’s rights and remedies
under this Agreement shall be cumulative and nonexclusive of any other rights
and remedies that Buyer may have under any other agreement, including the other
Related Documents, by operation of law or otherwise.  Recourse to the Receivables shall not be
required.


 


Section 6.03.          Successors and Assigns.  This
Agreement shall be binding upon and shall inure to the benefit of each
Originator, Servicer and Buyer and their respective successors and permitted assigns,
except as otherwise provided herein.  No
Originator nor the Servicer may assign, transfer, hypothecate or otherwise
convey its rights, benefits, obligations or duties hereunder without the prior
express written consent of Buyer.  Any
such purported assignment, transfer, hypothecation or other conveyance by any
Originator without the prior express written consent of Buyer, shall be
void.  Each Originator and the Servicer
acknowledges that Buyer has assigned to the Administrative Agent for the
benefit of the Purchasers all of its rights granted hereunder, including the
benefit of any indemnities under Article V, and the Administrative
Agent has, to the extent of such assignment, all rights of Buyer hereunder and,
to the extent permitted under the Purchase Agreement, may in turn assign such
rights.  Each Originator and the Servicer
agrees that the Administrative Agent may enforce directly, without joinder of
Buyer, the rights set forth in this Agreement. 
Each of the Administrative Agent and the Specified Parties shall be
third party beneficiaries of, and shall be entitled to enforce Buyer’s rights
and remedies under, this Agreement to the same extent as Buyer or any of its
designated representatives may do.  The
terms and provisions of this Agreement are for the purpose of defining the
relative rights and obligations of each Originator, the Servicer and Buyer with
respect to the transactions contemplated hereby and, except for the Specified
Parties and the Administrative Agent, no Person shall be a third party
beneficiary of any of the terms and provisions of this Agreement.


 


Section 6.04.          Termination; Survival of Obligations.


 


(a)           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 the Termination Date.


 


(b)           Except as otherwise expressly provided herein or in
any other Related Document, no termination or cancellation (regardless of cause
or procedure) of any commitment made by Buyer under this Agreement shall in any
way affect or impair the obligations, duties and liabilities of any Originator,
the Servicer or the rights of Buyer relating to any unpaid portion of any and
all recourse and indemnity obligations of such Originator or the Servicer to
Buyer, including those set forth in Sections 2.04, 4.04, 5.01,
5.01, 6.12, 6.13 and 6.14, due or not due,
liquidated, contingent or unliquidated or any transaction or event occurring
prior to such termination, or any transaction or event, the performance of
which is required after the Facility Termination Date.  Except as otherwise expressly provided herein
or in any other Related Document, all undertakings, agreements, covenants,
warranties and representations of or binding upon each Originator and the
Servicer, and all rights of Buyer hereunder, all as contained in the Related
Documents, shall not terminate or expire, but rather shall survive any such
termination or cancellation and shall continue in full force and effect until
the Termination Date; provided, 


 


29

















 


that the rights and
remedies pursuant to Sections 4.04, the indemnification and payment
provisions of Article V, and the provisions of Sections 4.03(k),
6.12, 6.14 and 6.15 shall be continuing and shall survive any termination
of this Agreement.


 


Section 6.05.          Complete Agreement; Modification of Agreement. 
This Agreement and the other Related Documents constitute the complete
agreement between the parties with respect to the subject matter hereof and
thereof, supersede all prior agreements and understandings relating to the
subject matter hereof and thereof, and may not be modified, altered or amended
except as set forth in Section 6.06.


 


Section 6.06.          Amendments and Waivers.  No amendment,
modification, termination or waiver of any provision of this Agreement, or any
consent to any departure by any Originator or the Servicer therefrom, shall in
any event be effective unless the same shall be in writing and signed by each
of the parties hereto; provided, that, prior to the Termination Date, no
amendment, modification, termination or waiver of any provision of this
Agreement, or any consent to any departure by any Originator or the Servicer
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent. 
No consent or demand in any case shall, in itself, entitle any party to
any other consent or further notice or demand in similar or other
circumstances.


 


Section 6.07.          Governing Law; Consent to Jurisdiction; Waiver of Jury
Trial.


 


(a)           THIS AGREEMENT AND EACH
RELATED DOCUMENT (EXCEPT TO THE EXTENT THAT ANY RELATED DOCUMENT EXPRESSLY
PROVIDES TO THE CONTRARY) AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER
SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAWS BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES),
EXCEPT TO THE EXTENT THAT THE VALIDITY, THE PERFECTION, THE EFFECT OF
PERFECTION OR NON-PERFECTION, AND THE PRIORITY, OF THE INTERESTS OF THE BUYER
IN THE RECEIVABLES OR REMEDIES HEREUNDER OR THEREUNDER, IN RESPECT THEREOF, ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND
ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.


 


(b)           EACH PARTY HERETO HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF
MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR
TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED
DOCUMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE
BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER, 


 


30

















 


THAT
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE BUYER FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE
ON THE RECEIVABLES OR ANY OTHER SECURITY FOR THE OBLIGATIONS OF THE ORIGINATORS
ARISING HEREUNDER, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
BUYER.  EACH PARTY HERETO SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS
AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY SUCH COURT.  EACH
PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH IN SECTION 6.01 HEREOF AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTY’S ACTUAL RECEIPT
THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE
PREPAID.  NOTHING IN THIS SECTION SHALL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.


 


(c)           BECAUSE DISPUTES ARISING
IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS.  THEREFORE, TO ACHIEVE
THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION,
THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


Section 6.08.          Counterparts.  This
Agreement may be executed in any number of separate counterparts, each of which
shall collectively and separately constitute one agreement.


 


Section 6.09.          Severability.  Wherever
possible, each provision of this Agreement shall be interpreted in such a
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the
remaining provisions of this Agreement.


 


31

















 


Section 6.10.          Section Titles.  The section
titles and table of contents contained in this Agreement are provided for ease
of reference only and shall be without substantive meaning or content of any
kind whatsoever and are not a part of the agreement between the parties hereto.


 


Section 6.11.          No Setoff.  Each
Originator’s obligations under this Agreement shall not be affected by any
right of setoff, counterclaim, recoupment, defense or other right such
Originator might have against Buyer, all of which rights are hereby expressly
waived by such Originator.


 


Section 6.12.          Confidentiality.


 


(a)           Each Originator and the Servicer agrees that it shall
not (and shall not permit any of its Subsidiaries to) issue any news release or
make any public announcement pertaining to the transactions contemplated by
this Agreement and the Related Documents without the prior written consent of
Buyer (which consent shall not be unreasonably withheld) unless such news
release or public announcement is required by law, in which case such
Originator or the Servicer shall consult with Buyer prior to the issuance of
such news release or public announcement. 
Any Originator or the Servicer may, however, disclose the general terms
of the transactions contemplated by this Agreement and the Related Documents to
trade creditors, suppliers and other similarly-situated Persons so long as such
disclosure is not in the form of a news release or public announcement.


 


(b)           Except to the extent otherwise required by applicable
law, or in connection with any judicial or administrative proceedings, as
required to be filed publicly with the Securities Exchange Commission, or
unless the Originators and the Servicer otherwise consent in writing, the Buyer
agrees (i) to maintain the confidentiality of (A) this Agreement (and
all drafts hereof and documents ancillary hereto) and (B) all other
confidential proprietary information with respect to the Originators, the
Servicer and their respective Affiliates and each of their respective
businesses obtained by the Buyer in connection with the structuring,
negotiation and execution of the transactions contemplated herein and in the
other documents ancillary hereto, in each case, in its communications with
third parties other than any Originator or the Servicer, and (ii) not to
disclose, deliver, or otherwise make available to any third party (other than
its directors, officers, employees, accountants or counsel) the original or any
copy of all or any part of this Agreement (or any draft hereof and documents
ancillary hereto) except to any Originator. 
Notwithstanding the foregoing, Buyer shall be permitted to disclose
copies of this Agreement and the confidential proprietary information described
above to (1) each Specified Party and each Specified Party’s and their
respective Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information, will be instructed to keep such Information
confidential and to not disclose or use such Information in violation of
Regulation FD (17 C.F.R. § 243.100-243.103)) and will be required to agree to
such nondisclosure as a condition to receipt of such confidential Information;  (2) any regulatory authority (it being
understood that it will to the extent reasonably practicable provide the
Originators and/or the Servicer with an opportunity to request confidential
treatment from such regulatory authority), (3) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (4) to
any other party to the Purchase Agreement, (5) to the extent required in
connection with the exercise of any remedies hereunder or any suit, action or 


 


32

















 


proceeding relating to
this Agreement or any other Related Document or the enforcement of rights
hereunder or thereunder, (6) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee or pledgee of
(or participant in), or any prospective assignee or pledgee of (or participant
in), any of its rights or obligations under this Agreement, (7) with the
consent of the applicable Originator or Servicer or (8) to the extent such
Agreement or other information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to
the Buyer or Specified Party on a nonconfidential basis from a source other
than the Parent or any Subsidiary thereof.


 


Section 6.13.          Further Assurances.


 


(a)           Each Originator shall, at its sole cost and expense,
upon request of Buyer, promptly and duly execute and deliver any and all
further instruments and documents and take such further actions that may be
necessary or desirable or that Buyer may reasonably request to carry out more
effectively the provisions and purposes of this Agreement or any other Related
Document or to obtain the full benefits of this Agreement and of the rights and
powers herein granted, including filing any financing or continuation
statements under the UCC or the PPSA, as applicable, with respect to the
ownership interests or Liens granted hereunder or under any other Related
Document.  Each Originator hereby
authorizes Buyer, to file any such financing or continuation statements.  A carbon, photographic or other reproduction
of this Agreement or of any notice or financing statement covering the
Transferred Receivables or any part thereof shall be sufficient as a notice or
financing statement where permitted by law. 
If any amount payable under or in connection with any of the Transferred
Receivables is or shall become evidenced by any instrument, such instrument,
other than checks and notes received in the ordinary course of business, shall
be duly endorsed in a manner satisfactory to Buyer immediately upon such
Originator’s receipt thereof and promptly delivered to Buyer.


 


(b)           If any Originator fails to perform any agreement or
obligation under this Section 6.13, Buyer may (but shall not be
required to) itself perform, or cause performance of, such agreement or
obligation, and the reasonable expenses of Buyer incurred in connection
therewith shall be payable by such Originator upon demand of Buyer.


 


Section 6.14.          Fees and Expenses. 
In addition to its indemnification obligations pursuant to Article V,
each Originator agrees, jointly and severally, to pay on demand all costs and
expenses incurred by Buyer in connection with the negotiation, preparation,
execution and delivery of this Agreement and the other Related Documents,
including the reasonable fees and out-of-pocket expenses incurred by Buyer,
(including any such amounts owed by Buyer in connection with its financing of
the Transfers hereunder), for counsel, advisors, consultants and auditors
retained in connection with the transactions contemplated hereby and advice in
connection therewith, and each Originator agrees, jointly and severally, to pay
all costs and expenses, if any (including reasonable attorneys’ fees and
expenses but excluding any costs of enforcement or collection of the
Transferred Receivables), in connection with the enforcement of this Agreement
and the other Related Documents.


 


Section 6.15.          Nonrecourse Obligations. 
Notwithstanding any provision in any other Section of this
Agreement to the contrary, any obligation of Buyer to pay any amounts payable
to the Originators pursuant to this Agreement shall be without recourse to the
Buyer except to the 


 


33

















 


extent that funds from
Purchases or Collections are available to the Buyer pursuant to the terms of
the Purchase Agreement for such payment (collectively, the “Buyer Available
Amounts”), in the event that amounts payable to the Originators pursuant to
this Agreement exceed the Buyer Available Amounts, the excess of the amounts
due hereunder (and subject to this Section 6.15) over the Buyer
Available Amounts paid shall not constitute a “claim” under Section 101(5) of
the Bankruptcy Code against Buyer until such time as the Buyer has Buyer
Available Amounts.


 


Section 6.16.          Interpretation.  References
herein to the “security interest” of the Buyer in the Transferred Receivables
shall be given the meaning ascribed thereto in Section 1-201(37) of the
UCC and, in the case of any Canadian Originator, the meaning ascribed thereto
under the PPSA, in each case in the context of a security interest in accounts
receivable, and accordingly shall refer to a lien or ownership interest, as
applicable, consistent with the requirements of Section 2.02.


 


Section 6.17.          Amendment and Restatement. 
Effective as of the date hereof, (a) this Agreement shall amend and
restate in its entirety the Existing Sale Agreement but shall not constitute a
novation thereof and (b) each reference to the Existing Sale Agreement in
any of the Related Documents, or any other document, instrument or agreement
delivered in connection therewith shall mean and be a reference to this
Agreement.


 


ARTICLE
VII

SERVICER PROVISIONS


 


Section 7.01.          Appointment of the Servicer. 
Buyer hereby appoints the Servicer as its agent to service the
Transferred Receivables on behalf of the Buyer and the Purchasers and, in
accordance with the Related Documents, to enforce Buyer’s and the Purchasers’
rights and interests in and under each Transferred Receivable and Contract
therefor and to serve in such capacity until the termination of its
responsibilities pursuant to Sections 8.01 or 9.01.  In connection therewith, the Servicer hereby
accepts such appointment and agrees to perform the duties and obligations set
forth herein.  The Servicer may, with the
prior written consent of the Administrative Agent, subcontract with a
Sub-Servicer for the collection, servicing or administration of the Transferred
Receivables; provided that no such consent shall be needed for the
Servicer to subcontract with a Sub-Servicer that is also an Originator; and further provided,
that (i) the Servicer shall remain liable for the performance of the
duties and obligations of such Sub-Servicer pursuant to the terms hereof, (ii) any
Sub-Servicing Agreement that may be entered into and any other transactions or
services relating to the Transferred Receivables involving a Sub-Servicer shall
be deemed to be between the Sub-Servicer and the Servicer alone, and none of
the Buyer or any Specified Party shall be deemed a party thereto and shall have
no obligations, duties or liabilities with respect to the Sub-Servicer, (iii) each
Sub-Servicing Agreement shall expressly provide that it shall automatically
terminate upon the termination of the Servicer’s responsibilities hereunder in
accordance with the terms hereof and (iv) each Originator acting as a
Sub-Servicer hereby acknowledges that its rights as a Sub-Servicer shall
terminate automatically, upon the termination of the Servicer’s
responsibilities hereunder.


 


34














 


Section 7.02.          Duties and Responsibilities of the Servicer.


 


(a)           Subject to the provisions of this Agreement, the
Servicer shall conduct the servicing, administration and collection of the
Transferred Receivables and shall take, or cause to be taken, all actions that (i) may
be necessary or advisable to service, administer and collect each Transferred
Receivable from time to time, (ii) the Servicer would take if the
Transferred Receivables were owned by the Servicer, and (iii) are
consistent with the Credit and Collection Policies and with a level of care no
less diligent than that employed by the Servicer with respect to similar
accounts receivable owned by it or its Affiliates.


 


(b)           In addition to the foregoing, in order to ensure that
the Buyer has adequate funding for the purchase of Receivables hereunder, the
Servicer shall be responsible for the following:


 


(i)            preparation and delivery on behalf of Buyer all
Capital Purchase Requests, Capital Investment Reduction Notices, Investment
Base Certificates, Monthly Reports and Weekly Reports required to be delivered
under the Purchase Agreement;


 


(ii)           calculation and monitoring of the Investment Base and
the components thereof, and whether the Receivables included in the calculation
of the Net Receivables Balance are in fact Eligible Receivables; and


 


(iii)          establishment, maintenance and administration of the
Lockbox Accounts and the Seller Account in accordance with Article VI of
the Purchase Agreement.


 


(c)           The Servicer shall remain a non-resident of Canada for
purposes of, and shall not register with any Governmental Authority in Canada
in any manner that would subject it to the requirement to collect, Canadian
federal goods and services tax, harmonized sales tax, Quebec sales tax or any
other value added tax imposed by any Governmental Authority in Canada, and
shall engage Canadian Originator to act as Sub-servicer for purposes of
carrying on any servicing activities in Canada.


 


Section 7.03.          Collections on Receivables.


 


(a)           In the event that the Servicer is unable to determine
the specific Transferred Receivables on which Collections have been received
from the Obligor thereunder, the parties agree that such Collections shall be
deemed to have been received on such Receivables in the order in which they were
originated with respect to such Obligor. 
In addition, if an Obligor is an obligor on Transferred Receivables and
any other Receivables or indebtedness owed to any Originator, the Parent or any
of their respective Affiliates then, unless otherwise required by applicable
law, Collections on such Transferred Receivables or other Receivables or
indebtedness shall be treated first, as a Collection of any Transferred
Receivables of such Obligor, in the order in which they were originated, before
being applied to any other Receivables or other indebtedness of such
Obligor.  In the event that the Servicer
is unable to determine the specific Transferred Receivables on which discounts,
offsets or other non-cash reductions have been granted or made with respect to
the Obligor thereunder, the parties agree for purposes of this Agreement only
that such reductions shall be deemed to have been granted or made (i) prior
to a Termination Event, on such Receivables as determined by the Servicer, and 


 


35

















 


(ii) from and after
the occurrence of a Termination Event, in the reverse order in which they were
originated with respect to such Obligor.


 


(b)           If the Servicer determines that amounts unrelated to
the Transferred Receivables (the “Unrelated Amounts”) have been
deposited in any Lockbox Account, then the Servicer shall provide written
evidence thereof to the Buyer and the Administrative Agent no later than the
first Business Day following the day on which the Servicer had actual knowledge
thereof, which evidence shall be provided in writing and shall be otherwise
satisfactory to Buyer.


 


(c)           Authorization of the Servicer. 
Buyer hereby authorizes the Servicer to take any and all reasonable
steps in its name and on its behalf necessary or desirable and not inconsistent
with the rights of the Buyer hereunder, in the determination of the Servicer,
to (a) collect all amounts due under any Transferred Receivable, including
endorsing the applicable name on checks and other instruments representing
Collections on such Receivable, and executing and delivering any and all
instruments of satisfaction or cancellation or of partial or full release or
discharge and all other comparable instruments with respect to any such
Receivable and (b) after any Transferred Receivable becomes a Delinquent
Receivable or a Defaulted Receivable and to the extent permitted under and in
compliance with applicable law and regulations, commence proceedings with
respect to the enforcement of payment of any such Receivable and the Contract
therefor and adjust, settle or compromise any payments due thereunder, in each
case to the same extent as the applicable Originator could have done if it had
continued to own such Receivable.  The
Seller shall furnish the Servicer with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder. 
Notwithstanding anything to the contrary contained herein, the Buyer (or
the Administrative Agent, as the Buyer’s Assignee) shall, following the
occurrence of an Event of Servicer Termination, have the absolute and unlimited
right to direct the Servicer (at the Servicer’s expense) (i) to commence
or settle any legal action to enforce collection of any Transferred Receivable
or (ii) to foreclose upon, repossess or take any other action that the
Buyer  (or the Administrative Agent, as
Buyer’s assignee) deems necessary or advisable with respect thereto.  In no event shall the Servicer be entitled to
make Buyer or any Specified Party a party to any Litigation without, as the
case may be, Buyer’s or such Specified Party’s express prior written consent.


 


(d)           Servicing Fees.  As
compensation for its servicing activities and as reimbursement for its reasonable
expenses in connection therewith, the Servicer shall be entitled to receive the
Servicing Fees monthly on each Settlement Date. 
Such Servicing Fees shall be payable from available funds in accordance
with Section 2.07 and 2.08 of the Purchase Agreement.  The Servicer shall be required to pay for all
expenses incurred by it in connection with its activities hereunder (including
any payments to accountants, counsel or any other Person) and shall not be
entitled to any payment therefor other than the Servicing Fees.


 


Section 7.04.          Covenants of the Servicer. 
The Servicer covenants and agrees that from and after the Effective Date
and until the Termination Date:


 


(a)           Compliance with Agreements and Applicable Laws. 
The Servicer shall perform each of its obligations under this Agreement
and the other Related Documents.  The
Servicer shall comply with all federal, state, provincial and local laws and
regulations applicable to it and 


 


36

















 


the Transferred Receivables,
including those relating to truth in lending, retail installment sales, fair
credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices, privacy, licensing, taxation, ERISA and labor matters and
environmental laws and environmental permits, except, in each case, where the
failure to so comply could not reasonably be expected to result in a Material
Adverse Effect.


 


(b)           Maintenance of Existence and Conduct of Business. 
The Servicer shall:  (i) do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence; (ii) continue to conduct its business
substantially as now conducted or as otherwise permitted hereunder and in
accordance with the terms of its certificate or articles of incorporation and
by-laws; and (iii) at all times maintain, preserve and protect all of its
assets and properties used or useful in the conduct of its business, including
all licenses, permits, charters and registrations, and keep the same in good repair,
working order and condition in all material respects (taking into consideration
ordinary wear and tear) and from time to time make, or cause to be made, all
necessary or appropriate repairs, replacements and improvements thereto
consistent with industry practices, except to the extent that the failure to
comply with this clause (iii) could not reasonably be expected to
have a Material Adverse Effect.


 


(c)           ERISA.  The Servicer
shall give the Administrative Agent prompt written notice of any event that (i) could
reasonably be expected to result in the imposition of a Lien under Section 412
of the IRC or Section 302 or 4068 of ERISA or applicable Canadian federal
or provincial pension benefits standards legislation, or (ii) could
reasonably be expected to result in the incurrence by Servicer of any
liabilities under Title IV of ERISA (other than premium payments arising in the
ordinary course of business) or, wind up liabilities with respect to a defined
benefit pension plan under applicable Canadian federal or provincial pension
benefits standards legislation.


 


(d)           Compliance with Credit and Collection Policies. 
The Servicer shall comply with the Credit and Collection Policies with
respect to each Transferred Receivable and the Contract therefor.  The Servicer shall not extend, amend,
forgive, discharge, compromise, waive, cancel or otherwise modify the terms of
any Transferred Receivable or amend, modify or waive any term or condition of
any Contract related thereto, except that the Servicer may (i) reduce the
Outstanding Balance of a Receivable as required to reflect any Dilution Factors
and (ii) take such actions, to the extent permitted by the Credit and
Collection Policies, as the Servicer may deem reasonably necessary or desirable
in order to maximize Collections with respect to any past-due Receivable so
long as, after giving effect to any such action, no Receivables which
constituted Eligible Receivables prior to such action would no longer
constitute Eligible Receivables as a result of such action.  The Servicer shall not without the prior
written consent of the Buyer amend, modify or waive any term or provision of
the Credit and Collection Policies.


 


(e)           Ownership of Transferred Receivables; Servicing
Records.  The Servicer shall (i) identify the Transferred
Receivables clearly and unambiguously in its Servicing Records to reflect that
such Transferred Receivables are the property of the Buyer and that a Lien on
such Transferred Receivables has been granted to the Administrative Agent for
the benefit of the Purchasers and that undivided interests therein have been
transferred pursuant to the Purchase Agreement; (ii) maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing such Receivables in the
event of the 


 


37

















 


destruction of any
originals thereof) as are reasonably necessary or advisable in accordance with
industry practice (1) to reflect promptly (a) all payments received
and all credits and extensions granted with respect to such Receivables, (b) the
return, rejection, repossessions, or stoppage in transit of any
merchandise the sale of which has given rise to any such Receivable and (c) any
other reductions in the Outstanding Balance of the Receivables on account of
Dilution Factors; and (2) to determine no less frequently than the date
each Daily Report, Weekly Report or Monthly Report is due, whether each
Transferred Receivable then outstanding qualifies as an Eligible Receivable; (iii) by
no later than the Effective Date (or, in the case of records relating solely to
a New Originator, by no later than the applicable Initial Sale Date), mark
conspicuously its books and records (including computer records) and credit files
pertaining to the Seller Collateral, and its file cabinets or other storage
facilities where it maintains information pertaining thereto with the following
legend “The accounts receivable and other obligations set forth herein,
together with certain related property interests, have been sold to GGRC Corp.,
and interests therein have been further transferred to certain purchasers for
whom General Electric Capital Corporation acts as agent.”, to evidence the
assignment of the Receivables under this Agreement and the assignment and Liens
granted pursuant to the Purchase Agreement. 
Upon the occurrence and during the continuance of a Termination Event,
the Servicer shall deliver and turn over such books and records to the Buyer
(or the Administrative Agent, as the Buyer’s assignee) or its representatives
at any time on demand.


 


(f)            Payment and Performance of Charges and other
Obligations.


 


(i)            Subject to Section 7.04(f)(ii), the
Servicer shall pay, perform and discharge or cause to be paid, performed and
discharged promptly all charges and claims payable by it, including (A) Charges
imposed upon it, its income and profits, or any of its property (real, personal
or mixed) and all Charges with respect to tax, social security and unemployment
withholding with respect to its employees, and (B) lawful claims for
labor, materials, supplies and services or otherwise before any amount thereof
shall become past due.


 


(ii)           The Servicer may in good faith contest, by appropriate
proceedings, the validity or amount of any charges or claims described in Section 7.04(f)(i);
provided that (A) adequate reserves with respect to such contest
are maintained on the books of the Servicer, in accordance with GAAP, (B) such
contest is maintained and prosecuted continuously and with diligence, (C) none
of the Seller Collateral becomes subject to forfeiture or loss as a result of
such contest, (D) no Lien shall be imposed to secure payment of such
charges or claims other than inchoate tax liens and (E) the Administrative
Agent has not advised the Servicer in writing that it reasonably believes that
failure to pay or to discharge such claims or charges could have or result in a
Material Adverse Effect.


 


(g)           Access.  The Servicer
agrees to provide Buyer (or the Administrative Agent, as the Buyer’s assignee)
and the Buyer’s (or the Administrative Agent’s, as the Buyer’s assignee)
officers, employees, directors, agents and representatives with all access that
the Originators have covenanted and agreed to provide to the Buyer in Section 4.02(b).


 


(h)           [Intentionally Reserved.]


 


38

















 


(i)            Collection of Transferred Receivables. 
In connection with the collection of amounts due or to become due under
the Transferred Receivables, the Seller Assigned Agreements and any other
Seller Collateral, the Servicer shall take such action as it and, from and
after the occurrence and during the continuance of a Termination Event, the
Buyer (or the Administrative Agent, as the Buyer’s assignee) may deem necessary
or desirable to enforce collection of the Transferred Receivables, the Seller
Assigned Agreements and the other Seller Collateral; provided that applicable
Originator may, rather than commencing any such action or taking any other
enforcement action, at its option, elect to pay to the Buyer, for deposit into
an Agent Account, an amount equal to the Outstanding Balance of any such
Transferred Receivable.  If  an Incipient Termination Event or a
Termination Event shall have occurred and be continuing the Buyer (or the
Administrative Agent, as the Buyer’s assignee) may, without prior notice to any
Originator or the Servicer, (x) exercise any rights with respect to
exclusive ownership and control of the Collections and the Lockbox Accounts in
accordance with the terms of the applicable Lockbox Account Agreements (in
which case the Servicer shall be required to deposit any Collections it then
has in its possession or at any time thereafter receives, immediately in an
Agent Account) and (y) notify any Obligor under any Transferred Receivable
or obligors under the Seller Assigned Agreements of the sale to Buyer of such
Transferred Receivables and of the pledge of such Transferred Receivables or
Seller Assigned Agreements, as the case may be, to the Administrative Agent and
direct that payments of all amounts due or to become due to the Buyer
thereunder be made directly to the Buyer or any servicer, collection agent or
Lockbox or other account designated by the Buyer (or the Administrative Agent,
as the Buyer’s assignee) and the Buyer (or the Administrative Agent, as the
Buyer’s assignee) may enforce collection of any such Transferred Receivable or
the Seller Assigned Agreements and adjust, settle or compromise the amount or
payment thereof.  The Buyer shall provide
prompt notice to the Servicer of any such notification of assignment, pledge or
direction of payment to the Obligors under any Transferred Receivables.


 


(j)            Performance of Seller Assigned Agreements. 
The Servicer shall (i) perform and observe all the terms and provisions
of the Seller Assigned Agreements to be performed or observed by it, maintain
the Seller Assigned Agreements in full force and effect, enforce the Seller
Assigned Agreements in accordance with their terms and take all action as may
from time to time be requested by the Buyer (or the Administrative Agent, as
the Buyer’s assignee) in order to accomplish the foregoing, and (ii) upon
the request of and as directed by the Buyer (or the Administrative Agent, as
the Buyer’s assignee) , make such demands and requests to any other party to
the Seller Assigned Agreements as are permitted to be made by the Servicer
thereunder.


 


(k)           License for Use of Software and Other Intellectual
Property.  Unless expressly prohibited by the licensor
thereof or any provision of applicable law, if any, the Servicer hereby grants
to the Buyer (and to the Administrative Agent on behalf of the Purchasers as
assignee of the Buyer) a limited license to use, without charge, the Servicer’s
computer programs, software, printouts and other computer materials, technical
knowledge or processes, data bases, materials, trademarks, registered
trademarks, trademark applications, service marks, registered service marks,
service mark applications, patents, patent applications, trade names, rights of
use of any name, labels, fictitious names, inventions, designs, trade secrets,
goodwill, registrations, copyrights, copyright applications, permits, licenses,
franchises, customer lists, credit files, correspondence, and advertising
materials or any property of a similar nature, as it pertains to the 


 


39

















 


Transferred Receivables
and the other Seller Collateral, or any rights to any of the foregoing, only as
reasonably required in connection with the collection of the Transferred
Receivables and the advertising for sale, and selling any of the Seller
Collateral, or exercising of any other remedies with respect thereto, and the
Servicer agrees that its rights under all licenses and franchise agreements shall
inure to the Buyer (and to the Administrative Agent on behalf of the Purchasers
as assignee of the Buyer) for purposes of the license granted herein.  Except upon the occurrence and during the
continuation of a Termination Event, the Buyer agrees not to use (and shall
cause the Administrative Agent to covenant not to use) any such license without
the consent of the Servicer.  The
Servicer represents and warrants that no third-party licenses or approvals are
required for Buyer or the Administrative Agent to use any programs used by the
Servicer to service the Receivables other than those which have been obtained
and are in full force and effect.


 


(l)            Deposit of Collections.  The Servicer
shall (and shall cause each of its Affiliates to) (i) instruct all Obligors
to remit all payments with respect to any Transferred Receivables directly into
a Lockbox or a Lockbox Account, and (ii) deposit or cause to be deposited
promptly into a Lockbox or a Lockbox Account, and in any event no later than
the first Business Day after receipt thereof, all Collections it may receive in
respect of Transferred Receivables (and until so deposited, all such
Collections shall be held in trust for the benefit of Buyer and its assigns
(including the Administrative Agent and the Purchasers).  The Servicer shall not make or permit to be
made deposits into a Lockbox or a Lockbox Account other than in accordance with
this Agreement and the other Related Documents. 
Without limiting the generality of the foregoing, the Servicer shall use
commercially reasonable efforts to ensure that no Collections or other proceeds
with respect to a Receivable reconveyed to any Originator pursuant to Section 4.04
hereof are paid or deposited into any Lockbox or Lockbox Account.


 


(m)          Commingling.  The Servicer
shall not (and shall cause each other member of the Parent Group not to)
deposit or permit the deposit of any funds that do not constitute Collections
of Transferred Receivables into any Lockbox or Lockbox Account except as
otherwise permitted by Section 4.03(o) hereof.  If any funds not constituting Collections of
Transferred Receivables are nonetheless deposited into a Lockbox or Lockbox
Account and the Servicer so notifies Buyer, Buyer shall promptly remit any such
amounts to the applicable Originator.  So
long as any Transferred Receivables of an Obligor remain unpaid, the Servicer
shall not instruct such Obligor to remit Collections of any Receivables to any
Person or account other than to a Lockbox or Lockbox Account.


 


(n)           Separate Identity.  The Servicer
shall comply with Section 4.02(i) to the same extent as if it
were an Originator.


 


Section 7.05.          Reporting Requirements of the Servicer. 
The Servicer hereby agrees that, from and after the Effective Date and
until the Termination Date, it shall prepare and deliver or cause to be
prepared and delivered to the Purchasers and the Administrative Agent, on
behalf of the Buyer, the financial statements, notices, reports, and other
information set forth in Annex 5.02(a) to the Purchase Agreement at the
times, to the Persons and in the manner set forth in Annex 5.02(a) of the
Purchase Agreement.


 


40

















 


ARTICLE
VIII

EVENTS OF SERVICER TERMINATION


 


Section 8.01.          Events of Servicer Termination. 
If any of the following events (each, an “Event of Servicer
Termination”) shall occur (regardless of the reason therefor) and be
continuing:


 


(a)           the Servicer shall (i) fail to make any payment
or deposit hereunder when due and payable and the same shall remain unremedied
for two (2) Business Days or more; (ii) fail to deliver when due any
of the reports required to be delivered pursuant to Section 7.05 or
any other report related to the Transferred Receivables as required by the
other Related Documents and the same shall remain unremedied for five (5) Business
Days or more; or (iii) fail or neglect to perform, keep or observe any
other provision of this Agreement or the other Related Documents (other than
any provision embodied in or covered by any other clause of this Section 8.01)
and the same shall remain unremedied for ten (10) Business Days or more
following the earlier to occur of an Authorized Officer of the Servicer
becoming aware of such breach and the Servicer’s receipt of notice thereof; or


 


(b)           (i) the Servicer shall fail to make any payment
with respect to any of its Debts which is in an aggregate principal amount in
excess of $20,000,000 when due, and the same shall remain unremedied for any
applicable grace period with respect thereto; or (ii) a default or breach shall
occur under any agreement, document or instrument to which the Servicer is a
party or by which the Servicer or its property is bound (other than a Related
Document), and such default or breach has not been waived or shall remain
unremedied after any applicable grace period with respect thereto and which
involves a Debt which is in an aggregate principal amount in excess of
$20,000,000; or


 


(c)           a case or proceeding shall have been commenced against
the Servicer or any Affiliate which acts as a Sub-Servicer seeking a decree or
order in respect of any such Person (i) under the Bankruptcy Code or any
other applicable federal, state, provincial or foreign bankruptcy or other
similar law, including the BIA or the CCAA, (ii) appointing a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or similar official)
for any such Person or for any substantial part of such Person’s assets, or (iii) ordering
the winding-up or liquidation of the affairs of any such Person, and such case
or proceeding continues for 45 days unless dismissed or discharged; provided,
however, that such 45-day period shall be deemed terminated immediately
if (x) a decree or order is entered by a court of competent jurisdiction
with respect to a case or proceeding described in this subsection (c),
or (y) any of the events described in Section 8.01(d) shall
have occurred; or


 


(d)           the Servicer or any Affiliate which acts as a
Sub-Servicer shall (i) file a petition seeking relief under the Bankruptcy
Code, the BIA or the CCAA or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) consent or fail to object in a
timely and appropriate manner to the institution of any proceedings under the
Bankruptcy Code, the BIA or the CCAA or any other applicable federal, state or
foreign bankruptcy or similar law or to the filing of any petition thereunder
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or similar official) for any
such Person or 


 


41

















 


for any substantial part
of such Person’s assets, (iii) make an assignment for the benefit of
creditors, or (iv) take any corporate action in furtherance of any of the
foregoing; or


 


(e)           the Servicer or any Affiliate which acts as a
Sub-Servicer generally does not pay its debts as such debts become due or
admits in writing its inability to, or is generally unable to, pay its debts as
such debts become due; or


 


(f)            a final judgment or judgments for the payment of money
in excess of $10,000,000 in the aggregate (net of insurance proceeds) at any
time outstanding shall be rendered against the Servicer or any other Subsidiary
of the Parent which acts as a Sub-Servicer and either (i) enforcement
proceedings shall have been commenced upon any such judgment or (ii) the
same shall not, within 30 days after the entry thereof, have been discharged or
execution thereof stayed or bonded pending appeal, or shall not have been
discharged prior to the expiration of any such stay; or


 


(g)           (i) any information contained in any Investment
Base Certificate, Daily Report, Monthly Report or Weekly Report is untrue or
incorrect in any material respect as of its date or (ii) any
representation or warranty of the Servicer herein or in any other Related
Document or in any written statement, report, financial statement or
certificate (other than a Investment Base Certificate) made or delivered by the
Servicer to any Specified Party hereto or thereto is untrue or incorrect in any
material respect as of the date when made or deemed made and such
representation and warranty, if relating to any Transferred Receivable, has not
been cured by the repurchase of any such Transferred Receivable pursuant to Section 4.04;
provided, that the inaccuracy of information in any Daily Report, if
made without actual knowledge of such inaccuracy, shall not constitute an Event
of Servicer Termination if such information is corrected by delivery of a new
Daily Report within two Business Days of the untrue or inaccurate information;
or


 


(h)           the Buyer shall have reasonably determined that any
event or condition has occurred that has resulted, or could reasonably be
expected to result, in a Material Adverse Effect described in clause (b) of
the definition thereof; or


 


(i)            a Termination Event shall have occurred or this
Agreement shall have been terminated prior to the repayment in full of all
Seller Obligations; or


 


(j)            the Servicer shall assign or purport to assign any of
its obligations hereunder without the prior written consent of the Buyer; or


 


(k)           a Change of Control shall occur;


 


then, and in any such event,
the Buyer may, by delivery of a Servicer Termination Notice to the Servicer,
terminate the servicing responsibilities of the Servicer hereunder, without
demand, protest or further notice of any kind, all of which are hereby waived
by the Servicer.  Upon the delivery of
any such notice, all authority and power of the Servicer under this Agreement
shall pass to and be vested in the Successor Servicer acting pursuant to Section 9.02;
provided, that notwithstanding anything to the contrary herein, the
Servicer agrees to continue to follow the procedures set forth in Section 7.02
with respect to Collections on the Transferred Receivables 


 


42

















 


until a Successor Servicer
has assumed the responsibilities and obligations of the Servicer in accordance
with Section 9.02.


 


ARTICLE
IX

SUCCESSOR SERVICER PROVISIONS


 


Section 9.01.          Servicer Not to Resign.  The Servicer
shall not resign from the obligations and duties hereby imposed on it except
upon a determination that (a) the performance of its duties hereunder has
become impermissible under applicable law or regulation and (b) there is
no reasonable action that the Servicer could take to make the performance of
its duties hereunder become permissible under applicable law.  Any such determination shall (i) with
respect to clause (a) above, be evidenced by an opinion of counsel
to such effect and (ii) with respect to clause (b) above, be
evidenced by an Officer’s Certificate to such effect, in each case delivered to
the Buyer and the Administrative Agent. 
No such resignation shall become effective until a Successor Servicer
shall have assumed the responsibilities and obligations of the Servicer in
accordance with Section 9.02.


 


Section 9.02.          Appointment of the Successor Servicer. 
In connection with the termination of the Servicer’s responsibilities or
the resignation by the Servicer under this Agreement pursuant to Sections 8.01
or 9.01, respectively, the Buyer may at any time appoint a successor
servicer to the Servicer that shall be acceptable to the Administrative Agent
and shall succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Servicer under this Agreement (the Administrative Agent,
in such capacity, or such successor servicer being referred to as the “Successor
Servicer”); provided, that the Successor Servicer shall have no
responsibility for any actions of the Servicer prior to the date of its
appointment or assumption of duties as Successor Servicer.  In selecting a Successor Servicer, the Buyer
may (but shall not be required to) obtain bids from any potential Successor
Servicer and may agree to any bid it deems appropriate.  The Successor Servicer shall accept its
appointment by executing, acknowledging and delivering to the Buyer an
instrument in form and substance acceptable to the Buyer and the Administrative
Agent.


 


Section 9.03.          Duties of the Servicer.  The Servicer
covenants and agrees that, following the appointment of, or assumption of
duties by, a Successor Servicer:


 


(a)           The Servicer shall terminate its activities as
Servicer hereunder in a manner that facilitates the transfer of servicing
duties to the Successor Servicer and is otherwise acceptable to the Buyer and
the Administrative Agent and, without limiting the generality of the foregoing,
shall, at its own expense, timely deliver (i) any funds to the
Administrative Agent that were required to be remitted to the Administrative
Agent for deposit in an Agent Account under the Purchase Agreement and (ii) copies
of all Servicing Records and other information with respect to the Transferred
Receivables to the Successor Servicer at a place selected by the Successor
Servicer.  The Servicer shall cooperate
with the Successor Servicer in effecting the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement
and shall account for all funds and shall execute and deliver such instruments
and do such other things as may be required to vest and confirm in the
Successor Servicer all rights, powers, duties, responsibilities, obligations
and liabilities of the Servicer.  All
reasonable costs and expenses (including reasonable attorneys’ fees) incurred
in connection with transferring all files and other 


 


43

















 


documents in respect of
the Transferred Receivables to the Successor Servicer shall be for the account
of the predecessor Servicer.


 


(b)           The Servicer shall terminate each existing
Sub-Servicing Agreement and the Successor Servicer shall not be deemed to have
assumed any of the Servicer’s interests therein or to have replaced the
Servicer as a party thereto.


 


(c)           In the event that the Servicer is terminated as
Servicer hereunder but no Successor Servicer has been appointed, the Servicer
shall timely deliver to the Administrative Agent or its designee, at a place
designated by the Administrative Agent or such designee, all Servicing Records
and other information with respect to the Transferred Receivables which
otherwise would be required to be delivered to the Successor Servicer under Section 9.03(a) above,
and all reasonable costs and expenses (including reasonable attorneys’ fees)
incurred in connection with transferring such files and other documents to the
Administrative Agent shall be for the account of the predecessor Servicer.


 


Section 9.04.          Effect of Termination or Resignation. 
Any termination of or resignation by the Servicer hereunder shall not
affect any claims that the Buyer or its assigns may have against the Servicer
for events or actions taken or not taken by the Servicer arising prior to any
such termination or resignation.


 


Section 9.05.          Power of Attorney.  On the
Closing Date, the Servicer shall execute and deliver a power of attorney in
substantially in the form attached hereto as Exhibit 9.05 (a “Power
of Attorney”).  The Power of Attorney
is a power coupled with an interest and shall be irrevocable until this
Agreement has terminated in accordance with its terms and all of the
Transferred Receivables have been indefeasibly paid or otherwise written off as
uncollectible.  The powers conferred on
the Buyer and the Administrative Agent under each Power of Attorney are solely
to protect the interests of the Buyer in the Transferred Receivables and the
ability of the Successor Servicer to assume the servicing rights, powers and
responsibilities of the Servicer hereunder and shall not impose any duty upon
the Buyer, the Administrative Agent or the Successor Servicer to exercise any
such powers.


 


Section 9.06.          No Proceedings.  Each
Originator and Servicer agrees that, from and after the Closing Date and until
the date one year plus one day following the Termination Date, it will not,
directly or indirectly, institute or cause to be instituted against Buyer any
proceeding of the type referred to in Sections 8.01(d) and 8.01(e) of
the Purchase Agreement.  This Section 9.06
shall survive the termination of this Agreement.


 


[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK]


 


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IN
WITNESS WHEREOF, the parties have caused this Amended and Restated Receivables
Sale and Servicing Agreement to be executed by their respective duly authorized
representatives, as of the date first above written.


 


	
   

  	
  GEORGIA GULF CORPORATION, as an Originator and as
  Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Gregory Thompson

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GEORGIA GULF CHEMICALS & VINYLS, LLC, as
  an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Gregory Thompson

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GEORGIA GULF LAKE CHARLES, LLC as an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Gregory Thompson

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROYAL MOULDINGS LIMITED, as an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Gregory Thompson

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
  ROYAL
  GROUP, INC., as an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Gregory Thompson

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  



 

















 


	
   

  	
  ROYAL WINDOW AND DOOR PROFILES PLANT 12 INC., as
  an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Gregory Thompson

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROYAL WINDOW AND DOOR PROFILES PLANT 13 INC., as
  an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Gregory Thompson

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROYAL WINDOW AND DOOR PROFILES PLANT 14 INC., as
  an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Gregory Thompson

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROYAL OUTDOOR PRODUCTS, INC., as an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Gregory Thompson

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PLASTIC TRENDS, INC., as an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Gregory Thompson

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  



 

















 


	
   

  	
  GGRC CORP., as Buyer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/   Mark E. Buckis

  
	
   

  	
  Name

  	
   

  
	
   

  	
  Title

  	
   

  



 

















 


[EXHIBITS, SCHEDULES AND ALL ANNEXES, EXCEPT ANNEX X,
OMITTED]


 














 


ANNEX X


 


to


 


AMENDED AND RESTATED RECEIVABLES SALE
AGREEMENT


 


and


 


SECOND AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT


 


dated as of


 


March 17, 2009


 


Definitions and Interpretation


 


SECTION 1.  Definitions and Conventions.  Capitalized terms used in the Sale Agreement
(as defined below) and the Purchase Agreement (as defined below) shall have
(unless otherwise provided elsewhere therein) the following respective
meanings:


 


“Additional
Amounts” shall mean any amounts payable to any Affected Party under Sections
2.09 or 2.10 of the Purchase Agreement.


 


“Additional
Costs” shall have the meaning assigned to it in Section 2.09(b) of
the Purchase Agreement.


 


“Administrative
Agent” shall have the meaning set forth in the Preamble of the Purchase
Agreement.


 


“Adverse
Claim” shall mean any claim of ownership or any Lien, other than any
ownership interest or Lien created under any Related Document, the Existing
Purchase Agreement or the Existing Sale Agreement.


 


“Affected
Party” shall mean each of the following Persons: each Purchaser, the
Administrative Agent, the Depositary, each Affiliate of the foregoing Persons,
and any SPV or participant with the rights of a Purchaser under Section 12.02(c) of
the Purchase Agreement and their respective successors, transferees and
permitted assigns.


 


“Affiliate”
shall mean, with respect to any Person, (a) each Person that, directly or
indirectly, owns or controls, whether beneficially, or as a trustee, guardian
or other fiduciary, five percent (5%) or more of the Stock having ordinary
voting power in the election of directors of such Person, (b) each Person
that controls, is controlled by or is under common control with such Person, or
(c) each of such Person’s officers, directors, joint venturers and
partners.  For the purposes of this
definition, “control” of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise.


 


1

















 


“Agent
Account” shall mean (i) the Master Agent Account and (ii) account
# XXXXXXXX established at Royal Bank of Canada in the name of the
Administrative Agent.


 


“Appendices”
shall mean, with respect to any Related Document, all exhibits, schedules,
annexes and other attachments thereto, or expressly identified thereto.


 


“Applicable
Index Rate Margin” shall mean 3.00% per annum.


 


“Applicable
LIBOR Margin” shall mean 4.50% per annum.


 


“Assignment
Agreement” shall mean an assignment agreement in the form of Exhibit
12.02 attached to the Purchase Agreement.


 


“Attributable
Rate” shall have the meaning assigned to it in Section 2.11 of the
Purchase Agreement.


 


“Authorized
Officer” shall mean, with respect to any corporation or limited liability
company, the Chairman or Vice-Chairman of the Board, the President, any Vice
President, the General Counsel, the Secretary, the Treasurer, the Controller,
any Assistant Secretary, any Assistant Treasurer, any manager or managing
member and each other officer of such corporation or limited liability company
specifically authorized to sign agreements, instruments or other documents on
behalf of such corporation or limited liability company in connection with the
transactions contemplated by the Sale Agreement, the Purchase Agreement and the
other Related Documents.


 


“Availability”
shall mean, as of any date of determination, the amount, if any, by which the
Investment Base exceeds the Capital Investment, in each case as of the end of
the immediately preceding day.


 


“Bankruptcy
Code” shall mean the provisions of title 11 of the United States Code, 11
U.S.C. § § 101 et seq.


 


“BIA”
means the Bankruptcy and Insolvency Act (Canada), as amended from time to time,
and any regulations promulgated thereunder.


 


“Billed
Amount” shall mean, with respect to any Receivable, the Dollar Equivalent
Amount billed on the Billing Date to the Obligor thereunder.


 


“Billing
Date” shall mean, with respect to any 
Receivable, the date on which the invoice with respect thereto was
generated.


 


“Breakage
Costs” shall have the meaning assigned to it in Section 2.10 of
the Purchase Agreement.


 


“Business
Day” shall mean any day that is not a Saturday, a Sunday or a day on which
banks are required or permitted to be closed in the State of New York or, with
respect to any 


 


2

















 


remittances to be made by any Lockbox Account Bank to any related
Lockbox Account, in the jurisdiction(s) in which the Accounts maintained
by such Banks are located.


 


“Buyer”
shall have the meaning assigned to it in the preamble to the Sale
Agreement.


 


“Buyer
Available Amounts” shall have the meaning assigned to it in Section 6.15
of the Sale Agreement.


 


“Buyer
Indemnified Person” shall have the meaning assigned to it in Section 5.01
of the Sale Agreement.


 


“Canadian
Dollar Receivable” has the meaning set forth in clause (d) of the
definition of “Eligible Receivable”.


 


“Canadian
Originator” means (i) Royal Group, Inc. and (ii) any other
Originator that is organized under the laws of Canada or any province thereof.


 


“Canadian
Receivables Excess Amount” shall mean, as of any date of determination, an
amount (without duplication) equal to the sum of the following:


 


(i)                                     the
amount by which the aggregate Outstanding Balance of Eligible Receivables that
are Canadian Dollar Receivables exceeds 30% of the Modified Net Receivables
Balance (or such lesser amount designated by the Administrative Agent in
writing to the Seller prior to the Initial Sale Date for Royal Group, Inc.);


 


(ii)                                  the
amount by which the aggregate Outstanding Balance of Eligible Receivables that
are Canadian Dollar Receivables that are owing by Obligors organized under the
laws of the United States (or any state or subdivision thereof) exceeds 10% of
the Modified Net Receivables Balance (or such lesser amount designated by the
Administrative Agent in writing to the Seller prior to the Initial Sale Date
for Royal Group, Inc.); and


 


(iii)                               the
amount by which the sum of (A) the aggregate Outstanding Balance of
Eligible Receivables that are Canadian Dollar Receivables and (B) the
aggregate Outstanding Balance of Eligible Receivables that are owing by
Obligors organized under the laws of Canada but are not Canadian Dollar
Receivables exceeds 50% of the Modified Net Receivables Balance (or such lesser
amount designated by the Administrative Agent in writing to the Seller prior to
the Initial Sale Date for Royal Group, Inc.).


 


“Capital
Investment” shall mean, as of any date of determination, the amount equal
to (a) the aggregate Purchases made by the Purchasers under the Purchase
Agreement on or before such date, minus (b) the aggregate amounts
disbursed to any Purchaser in reduction of Capital Investment pursuant to the
Purchase Agreement on or before such date; provided, that references to
the Capital Investment of any Purchaser shall mean an amount equal to (x) the
Purchases made by such Purchaser pursuant to the Purchase Agreement on or
before such date, minus (y) 


 


3

















 


the aggregate amounts disbursed to such Purchaser in reduction of the
Capital Investment pursuant to the Purchase Agreement on or before such date
and not required to be returned as preference payments or otherwise and provided,
further that if any repayment of Capital Investment is rescinded or is
required to be returned as a preference or for any other reason, then Capital
Investment shall include the amount so rescinded or returned.


 


“Capital
Lease” shall mean, with respect to any Person, any lease of any property
(whether real, personal or mixed) by such Person as lessee that, in accordance
with GAAP, would be required to be classified and accounted for as a capital
lease on a balance sheet of such Person.


 


“Capital
Lease Obligation” shall mean, with respect to any Capital Lease of any
Person, the amount of the obligation of the lessee thereunder that, in
accordance with GAAP, would appear on a balance sheet of such lessee in respect
of such Capital Lease.


 


“Capital
Purchase” shall have the meaning assigned to it in Section 2.01
of the Purchase Agreement.


 


“Capital
Purchase Request” shall have the meaning assigned to it in Section 2.03(b) of
the Purchase Agreement.


 


“CCAA”
means the Companies’ Creditors Arrangement Act (Canada), as amended from time
to time.


 


“Change of
Control” means an event or series of events by which:


 


(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 30% of the Equity Interests of the Parent entitled
to vote for members of the board of directors or equivalent governing body of
the Parent on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any
option right);


 


(b)                                 during
any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Parent 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 


 


4

















 


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)                                  the
occurrence of a “Change of Control” (or any comparable term) under, and as
defined in, the 2006 Senior Subordinated Notes Documents (as defined in the
Credit Agreement as in effect as of the Closing Date);


 


(d)                                 the
occurrence of a “Change of Control” (or any comparable term) under, and as
defined in, the 2006 Senior Notes Documents (as defined in the Credit Agreement
as in effect as of the Closing Date);


 


(e)                                  the
failure of the Parent to own 100% of the issued and outstanding capital stock
of the Seller, free and clear of any Lien other than the Lien granted in favor
of Bank of America, N.A., as Administrative Agent in connection with the Credit
Agreement; or


 


(f)                                    any
Transaction Party has sold, transferred, conveyed, assigned or otherwise
disposed of all or substantially all of its assets (other than such a sale of
assets from one Originator to another Originator).


 


“Charges”
shall mean (i) all federal, state, provincial, county, city, municipal,
local, foreign or other governmental taxes (including taxes owed to the PBGC at
the time due and payable); (ii) all levies, assessments, charges, or
claims of any governmental entity or any claims of statutory lienholders, the
nonpayment of which could give rise by operation of law to a Lien on Seller
Collateral or any other property of the Seller or any Originator and (iii) any
such taxes, levies, assessment, charges or claims which constitute a lien or
encumbrance on any property of the Seller or any Originator.


 


“Class”
shall mean, with respect to an Obligor, at any time of determination the
classification of such Obligor as a “Class A Obligor” or “Class B
Obligor”.


 


“Class A
Obligor” and “Class B Obligor”, respectively, shall mean at any
time of determination, an Obligor having an unsecured long-term debt rating and
equivalent short-term rating from each of S&P and Moody’s as described
below:


 


	
  Class of Obligor

  	
   

  	
  Short-Term

  Rating

  	
   

  	
  Long-Term

  Rating of Obligor

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class A Obligor

  	
   

  	
  A-3/P-3 or higher

  	
   

  	
  BBB-/Baa3 or higher

  



 


5

















 


	
  Class of Obligor

  	
   

  	
  Short-Term

  Rating

  	
   

  	
  Long-Term

  Rating of Obligor

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Class B Obligor

  	
   

  	
  Not rated or lower than those required for a Class A Obligor

  	
   

  	
  Not rated or lower than those required for a Class A Obligor

  



 


For purposes
of calculating the foregoing, (i) an Obligor’s short term rating from
S&P and/or Moody’s shall govern, (ii) an Obligor which does not have a
short-term rating from S&P and/or Moody’s but which has the equivalent
long-term debt rating from such Rating Agency as described above shall be
deemed to have the related short-term rating, and (iii) if an Obligor’s
short-term rating results in two different “Classes of Obligor” (because of
differences in the short-term ratings assigned by each of S&P and Moody’s,
the Class for such Obligor shall be based upon the lower of the short-term
ratings.


 


“Closing
Date” shall mean March 17, 2009.


 


“Collections”
shall mean, with respect to any Receivable, all cash collections and other
proceeds of such Receivable (including late charges, fees and interest arising
thereon, and all recoveries with respect thereto that have been written off as
uncollectible) and any amounts required to be paid by an Originator pursuant to
Section 2.04 of the Sale Agreement.


 


“Commitment”
shall mean as to any Purchaser, the maximum amount which such Purchaser is
obligated to pay under the Purchase Agreement on account of all Purchases, as
set forth in the signature page to the Purchase Agreement or in the most
recent Assignment Agreement executed by such Purchaser, as such amount may be
adjusted, if at all, from time to time in accordance with the Purchase
Agreement.


 


“Commitment
Reduction Notice” shall have the meaning assigned to it in Section 2.02(a) of
the Purchase Agreement.


 


“Commitment
Termination Notice” shall have the meaning assigned to it in Section 2.02(b) of
the Purchase Agreement.


 


“Concentration
Percentage” shall mean, with respect to an Obligor as of any date of
determination, the General Concentration Percentage or, if applicable, the
Special Concentration Percentage for such Obligor at such date of
determination.


 


“Contract”
shall mean any agreement or invoice pursuant to, or under which, an Obligor
shall be obligated to make payments with respect to any Receivable.


 


“Contributed
Receivables” shall have the meaning assigned to it in Section 2.01(d) of
the Sale Agreement.


 


6

















 


“Credit
Agreement” shall mean that certain Credit Agreement, dated as of October 3,
2006, among the Parent, Royal Group, Inc., the subsidiaries of the Parent
from time to time party thereto, the lenders and financial institutions from
time to time party thereto, and Bank of America, National Association, as
Domestic Administrative Agent, Domestic Collateral Agent and Domestic L/C
Issuer and as in effect on Closing Date together with all amendments,
restatements, supplements or modifications thereto that are in effect on the
Closing Date or adopted from time to time thereafter to the extent not
prohibited under the Related Documents, and any refinancings, replacements or
refundings thereof that (a) are agreed to by (i) the Administrative
Agent and Requisite Purchasers or (b) (i) have terms and conditions
no less favorable (as determined by the Administrative Agent, in the exercise
of its reasonable credit judgment) to the Administrative Agent or any Purchaser
than the terms and conditions of the existing Credit Agreement and (ii) with
respect to which an intercreditor agreement having terms and conditions
acceptable to the Administrative Agent and the Purchasers.


 


“Credit and
Collection Policies” shall mean the written credit, collection, customer
relations and service policies of the Originators in effect on the Closing Date
and attached as Exhibit A to the Purchase Agreement, as the same
may from time to time be amended, restated, supplemented or otherwise modified
with the prior written consent of the Administrative Agent.


 


“Daily
Report” shall have the meaning assigned to it in paragraph (a) of
Annex 5.02(a) to the Purchase Agreement.


 


“Daily
Yield” shall mean, for any day, the aggregate of the following for each
portion of the Capital Investment: the product of (a) the portion of
Capital Investment outstanding on such day at a given Daily Yield Rate
multiplied by (b) the Daily Yield Rate for such portion of Capital
Investment on such day.


 


“Daily
Yield Rate” shall mean, (i) for an Index Rate Purchase, the Index Rate
and (ii) for a LIBOR Rate Purchase, the LIBOR Rate plus, in each
case, 3.00% per annum if a Termination Event has occurred and is continuing.


 


“Debt”
of any Person shall mean, without duplication, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of property
or services payment for which is deferred 90 days or more, but excluding
obligations to trade creditors incurred in the ordinary course of business that
are not overdue by more than 90 days unless being contested in good faith, (b) all
reimbursement and other obligations with respect to letters of credit, bankers’
acceptances and surety bonds, whether or not matured, (c) all obligations
evidenced by notes, bonds, debentures or similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e) all
Capital Lease Obligations, (f) all obligations of such Person under
commodity purchase or option agreements or other commodity price hedging
arrangements, in each case whether contingent or matured, (g) all obligations
of such Person under any foreign exchange contract, currency swap agreement,
interest rate swap, cap or collar agreement or other similar agreement or
arrangement designed to alter the risks of that Person arising from
fluctuations in currency values or interest 


 


7

















 


rates, in each case whether contingent or matured, (h) all
liabilities of such Person under Title IV of ERISA (except for premium payments
arising in the ordinary course of business), (i) all Guaranteed
Indebtedness of such Person, (j) all indebtedness referred to in clauses
(a) through (i) above secured by (or for which the holder
of such indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property or other assets (including accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such indebtedness, (k) all “Indebtedness”
as such term is defined in the Credit Agreement, (l) all “Loans” and other
obligations of the Parent and its Subsidiaries under the Credit Agreement
(which shall only be Debt of the Parent, its Subsidiaries and any Person who
guarantees such Debt), and (m) the Seller Obligations.


 


“Defaulted
Receivable” shall mean any Transferred Receivable (a) with respect to
which any payment, or part thereof, remains unpaid for more than sixty (60)
days after its Maturity Date or (b) that otherwise has been or should be
written off in accordance with the Credit and Collection Policies.


 


“Defaulted
Receivable Ratio” shall mean, as of the last day of any Settlement Period,
the ratio (expressed as a percentage) of:


 


(a)                                  the
sum of (without duplication) (i) the aggregate Outstanding Balance of all
Defaulted Receivables and (ii) the Outstanding Balance of all Receivables
written off during such Settlement Period (as of the date such Transferred
Receivables were written off);


 


to


 


(b)                                 the
aggregate Outstanding Balance of all Receivables.


 


“Defaulted
Receivable Trigger Ratio” shall mean, as of any date of determination, the
rolling average of the Defaulted Receivable Ratios for the three Settlement
Periods then most recently ended.


 


“Delinquency
Ratio” shall mean, as of the last day of any Settlement Period, the ratio
(expressed as a percentage) of:


 


(a)                                  the
aggregate Outstanding Balance of all Transferred Receivables with respect to
which any payment, or part thereof, became between thirty-one (31) and sixty
(60) days past due during such Settlement Period;


 


to


 


(b)                                 the
aggregate Billed Amount of all Transferred Receivables generated during the
Settlement Period ended three Settlement Periods before the Settlement Period
ending on such date (so that if the Settlement Period referenced in (a) was
the April Settlement Period, the Settlement Period referenced in (b) would
be the January Settlement Period).


 


8

















 


“Delinquency
Trigger Ratio” shall mean, as of any date of determination, the rolling
average of the Delinquency Ratios for the three Settlement Periods then most
recently ended.


 


“Depositary”
shall mean any bank or other financial institution at which one or more Agent
Accounts are maintained.


 


“Dilution
Factors” shall mean, with respect to any Receivable, any portion of which (a) was
reduced, canceled or written-off as a result of (i) any credits, rebates,
freight charges, cash discounts, volume discounts, cooperative advertising
expenses, royalty payments, warranties, cost of parts required to be maintained
by agreement (either express or implied), allowances for early payment,
warehouse and other allowances, defective, rejected, returned or repossessed
merchandise or services, or any failure by any Originator to deliver any
merchandise or services or otherwise perform under the underlying Contract or
invoice, (ii) any change in or cancellation of any of the terms of the
underlying Contract or invoice or any cash discount, rebate, retroactive price
adjustment or any other adjustment by the applicable Originator which reduces
the amount payable by the Obligor on the related Receivable except to the
extent based on credit related reasons, or (iii) any setoff in respect of
any claim by the Obligor thereof (whether such claim arises out of the same or
a related transaction or an unrelated transaction) or (b) is subject to
any specific dispute, offset, counterclaim or defense whatsoever (except
discharge in bankruptcy of the Obligor thereof).


 


“Dilution
Ratio” shall mean a ratio computed as of the last day of each Settlement
Period by dividing:


 


(a)                                  the
aggregate Dilution Factors for all Transferred Receivables during the
Settlement Period ending on such date;


 


to


 


(b)                                 the
aggregate Billed Amount of all Transferred Receivables originated during the
one Settlement Period preceding the Settlement Period ending on such date (so
that if the Settlement Period referenced in (a) was the March Settlement
Period, the Settlement Period referenced in (b) would be the February Settlement
Period).


 


“Dilution
Reserve Rate” shall mean, as of any Settlement Period, an amount equal to
the product of (i) 2 and (ii) the Dilution Reserve Ratio as of the
last day of such Settlement Period.


 


“Dilution
Reserve Ratio” shall mean, as of any date of determination, the highest
Dilution Trigger Ratio occurring during the twelve most recent Settlement
Periods preceding such date.


 


“Dilution
Trigger Ratio” shall mean, as of any date of determination, the rolling
average of the Dilution Ratios for the three Settlement Periods then most
recently ended.


 


“Dollars”
or “$”  shall mean lawful currency
of the United States of America.


 


9

















 


“Dollar
Equivalent Amount” means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in Canadian Dollars or another currency, the equivalent amount
thereof in Dollars as determined by the Administrative Agent at such time on
the basis of the Spot Rate for the purchase of Dollars with such currency at
such time.


 


“Dynamic
Advance Rate” shall mean, as of any date of determination, a percentage
equal to the lesser of (i) 75% and (ii) 100% minus the sum of (A) the
Dilution Reserve Rate, (B) the Loss Reserve Rate, (C) the Yield
Reserve Rate and (D) the Servicing Fee Reserve Rate.


 


“Effective
Date” shall have the meaning assigned to it in Section 3.01 of
the Purchase Agreement.


 


“Election
Notice” shall have the meaning assigned to it in Section 2.01(d) of
the Sale Agreement.


 


“Eligible
Originator” means (i) each Existing Originator, (ii) each New
Originator in respect of which the Initial Sale Date for such New Originator
has occurred following the satisfaction of the conditions precedent set forth
in Section 3.03 of the Sale Agreement and (iii) any other
Originator designated in a written agreement among the Seller, the
Administrative Agent and the Requisite Purchasers as an “Eligible Originator”.


 


“Eligible
Receivable” shall mean, as of any date of determination, a Transferred
Receivable:


 


(a)                                  that
is (i) due and payable within seventy-five (75) days of the Billing Date
thereof and (ii) not a Defaulted Receivable;


 


(b)                                 that
is not a liability of an Excluded Obligor or an Obligor with respect to which
more than 35% of the aggregate Outstanding Balance of all Receivables owing by
such Obligor are Defaulted Receivables;


 


(c)                                  that
is not a liability of an Obligor organized under the laws of any jurisdiction
outside of the United States of America (including the District of Columbia but
otherwise excluding its territories and possessions) or Canada;


 


(d)                                 that
is denominated and payable in Dollars or (solely, if such Receivable was
originated by a Canadian Originator) Canadian Dollars in the United States of
America and is not represented by a note or other negotiable instrument or by
chattel paper; provided, that if such Transferred Receivable is
denominated and payable in Canadian Dollars (a “Canadian Dollar Receivable”),
the Seller shall have entered into a cross currency hedging arrangement in form
and substance acceptable to Administrative Agent to ensure, in the
Administrative Agent’s reasonable determination, that the Seller has sufficient
Dollars to repay the outstanding Seller Obligations;


 


10














 


(e)                                  that
is not subject to any right of rescission, dispute, offset (including, without
limitation, as a result of customer promotional allowances, discounts, rebates,
or claims for damages), hold back defense, adverse claim or other claim (with
only the portion of any such Receivable subject to any such right of
rescission, dispute, offset (including, without limitation, as a result of
customer promotional allowances, discounts, rebates, or claims for damages),
hold back defense, adverse claim or other claim being considered an Ineligible
Receivable by virtue of this clause (e)), whether arising out of transactions
concerning the Contract therefor or otherwise;


 


(f)                                    that
is not an Unapproved Receivable;


 


(g)                                 that
does not represent “billed but not yet shipped” goods or merchandise, partially
performed or unperformed services (including any “milestone billed”
Receivable), consigned goods or “sale or return” goods and does not arise from
a transaction for which any additional performance by the Originator thereof,
or acceptance by or other act of the Obligor thereunder, including any required
submission of documentation, remains to be performed as a condition to any
payments on such Receivable or the enforceability of such Receivable under
applicable law;


 


(h)                                 the
representations and warranties of Sections 4.01(v)(ii) through (iv) of
the Sale Agreement are true and correct in all respects as of the Transfer Date
therefor;


 


(i)                                     that
is not the liability of an Obligor that has any claim against or affecting the
Originator thereof or the property of such Originator which gives rise to a
right of set-off against such Receivable (with only that portion of Receivables
owing by such Obligor equal to the amount of such claim being an Ineligible
Receivable);


 


(j)                                     that
was originated in accordance with and satisfies in all material respects all
applicable requirements of the Credit and Collection Policies;


 


(k)                                  that
represents the genuine, legal, valid and binding obligation of the Obligor
thereunder enforceable by the holder thereof in accordance with its terms;


 


(l)                                     that
is entitled to be paid pursuant to the terms of the Contract therefor and has
not been paid in full or been compromised, adjusted, extended, reduced,
satisfied, subordinated, rescinded or modified (except for adjustments to the
Outstanding Balance thereof to reflect Dilution Factors made in accordance with
the Credit and Collection Policies);


 


(m)                               that
does not contravene any laws, rules or regulations applicable thereto
(including laws, rules and regulations relating to usury, consumer
protection, truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy) and with
respect to which no party to the Contract therefor is in violation of any such
law, rule or regulation;


 


(n)                                 with
respect to which no proceedings or investigations are pending or threatened
before any Governmental Authority (i) asserting the invalidity of such
Receivable or the 


 


11

















 


Contract therefor, (ii) asserting
the bankruptcy or insolvency of the Obligor thereunder, (iii) seeking
payment of such Receivable or payment and performance of such Contract or (iv) seeking
any determination or ruling that could reasonably be expected to materially and
adversely affect the validity or enforceability of such Receivable or such
Contract;


 


(o)                                 (i) that
is an “account” or a “payment intangible” within the meaning of the UCC (or any
other applicable legislation) of the jurisdictions in which the each of the
Originators, the Parent and the Seller are “located” (within the meaning of Article 9
of the UCC), (ii) under the terms of the related Contract, the right to
payment thereof may be freely assigned, including as a result of compliance
with applicable law (or with respect to which, the prohibition on the
assignment of rights to payment are made fully ineffective under applicable
law) and (iii) in the case of any Receivable generated by any Canadian
Originator, that is an “account” within the meaning of the PPSA;


 


(p)                                 that
is payable solely and directly to an Originator and not to any other Person
(including any shipper of the merchandise or goods that gave rise to such
Receivable), except to the extent that payment thereof may be made to a Lockbox
or otherwise as directed pursuant to Article VI of the Purchase
Agreement;


 


(q)                                 with
respect to which all material consents, licenses, approvals or authorizations
of, or registrations with, any Governmental Authority required to be obtained,
effected or given in connection with the creation of such Receivable or the
Contract therefor have been duly obtained, effected or given and are in full
force and effect;


 


(r)                                    that
is created through the provision of merchandise, goods or services by the Originator
thereof in the ordinary course of its business;


 


(s)                                  that
is not the liability of an Obligor that, under the terms of the Credit and
Collection Policies, is receiving or should receive merchandise, goods or
services on a “cash on delivery” basis;


 


(t)                                    that
does not constitute a rebilled amount arising from a deduction taken by an
Obligor with respect to a previously arising Receivable;


 


(u)                                 as
to which the Seller has a first priority perfected ownership interest and in
which the Administrative Agent has a first priority perfected security
interest, in each case not subject to any Lien, right, claim, security interest
or other interest of any other Person (other than, in the case of the Seller,
the Lien of the Administrative Agent for the benefit of the Specified Parties);


 


(v)                                 to
the extent such Transferred Receivable represents consumption, sales, use or
value added taxes, such portion of such Receivable shall not be an Eligible
Receivables;


 


(w)                               that
does not represent the balance owed by an Obligor on a Receivable in respect of
which the Obligor has made partial payment;


 


12

















 


(x)                                   with
respect to which no check, draft or other item of payment was previously
received that was returned unpaid or otherwise;


 


(y)                                 as
to which an invoice has been submitted to the Obligor thereof;


 


(z)                                   the
Obligor of which is not a Governmental Authority, unless (i) each transfer
of such Receivable pursuant to the Related Documents is in compliance with all
assignment of claims statutes and regulations applicable to such Governmental
Authority’s Receivables or such other agreements have been entered into which
are satisfactory to the Administrative Agent in its sole discretion, (ii) such
Governmental Authority is a United States Governmental Authority (including any
Governmental Authority of a State or local government that is a political
subdivision of the United States) and (iii) the Administrative Agent shall
have received evidence, to its reasonable satisfaction, that no Governmental
Authority has a right of setoff against the Originator thereof or any of its
Affiliates that can be exercised against such Receivables;


 


(aa)                            that
was originated by an Eligible Originator;


 


(bb)                          the
Obligor of which is neither (i) a resident in the Province of Québec, nor (ii) required
by the Contract to make payments at a location situated in the Province of
Québec; and


 


(cc)                            that
complies with such other criteria and requirements as the Administrative Agent
may reasonably determine to be necessary from time to time in its reasonable
credit judgment following a collateral audit and in consultation with the
Borrower.


 


“Equity
Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests
in) such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of
determination.


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974 and any
regulations promulgated thereunder and for a Canadian Originator shall mean
applicable Canadian federal or provincial pension benefits standards
legislation.


 


“ERISA
Affiliate” shall mean, with respect to any Originator, any trade or
business (whether or not incorporated) that, together with such Originator, are
treated as a single employer within the meaning of Sections 414(b), (c), (m) or
(o) of the IRC.


 


“ERISA
Event” shall mean, with respect to any Originator or any ERISA Affiliate,
the occurrence of one or more of the following events:  (a) any event described in Section 4043(c) of
ERISA with respect to a Title IV Plan unless the 30-day requirement with
respect thereto has been waived pursuant to the regulations under Section 4043
of ERISA; (b) the withdrawal of any 


 


13

















 


Originator or ERISA Affiliate from a Title IV 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; (c) the complete or
partial withdrawal of any Originator or any ERISA Affiliate from any
Multiemployer Plan; (d) the filing of a notice of intent to terminate a
Title IV Plan or the treatment of a plan amendment as a termination under Section 4041
of ERISA; (e) the institution of proceedings to terminate a Title IV Plan
or Multiemployer Plan by the PBGC; (f) the failure by any Originator or
ERISA Affiliate to make when due required contributions to a Multiemployer Plan
or Title IV Plan unless such failure is cured within 30 days; (g) any
other event or condition that might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan
or for the imposition of liability under Section 4069 or 4212(c) of
ERISA; (h) the termination of a Multiemployer Plan under Section 4041A
of ERISA or the reorganization or insolvency of a Multiemployer Plan under Section 4241
of ERISA; or (i) the loss of a Qualified Plan’s qualification or tax
exempt status.  With respect to a
Canadian Originator, the references to specific provisions of ERISA shall be
interpreted to mean comparable provisions of applicable pension benefits
standards legislation.


 


“Event of
Servicer Termination” shall have the meaning assigned to it in Section 8.01
of the Sale Agreement.


 


“Excess
Concentration Amount” shall mean, with respect to any Obligor of a
Receivable and as of any date of determination after giving effect to all
Eligible Receivables transferred on such date, the amount by which the
Outstanding Balance of Eligible Receivables owing by such Obligor exceeds (i) the
Concentration Percentage for such Obligor multiplied by (ii) the
Outstanding Balance of all Eligible Receivables on such date; provided, however,
that in the case of an Obligor which is an Affiliate of other Obligors, the
Excess Concentration Amount for such Obligor shall be calculated as if such
Obligor and such one or more affiliated Obligors were one Obligor.


 


“Excluded
Obligor” shall mean any Obligor (a) that is an Affiliate of any
Originator, the Parent or the Seller, (b) that is designated as an
Excluded Obligor, based on the Administrative Agent’s reasonable credit
judgment of such Obligor, upon ten (10) Business Days’ prior written
notice from the Administrative Agent to the Seller, the Servicer and the Parent
or (c) that, under the terms of the Credit and Collection Policies, is
receiving or should be receiving merchandise, good or services on cash payment
terms basis.


 


“Existing
Originator” has the meaning specified in the Recitals to the Sale
Agreement.


 


“Existing
Purchase Agreement” has the meaning set forth the Recitals to the Purchase
Agreement.


 


“Existing
Sale Agreement” has the meaning specified in the Recitals to the Sale
Agreement.


 


“Facility
Termination Date” shall mean the earliest of (a) the date so
designated pursuant to Section 8.01 of the Purchase Agreement, (b) the
Final Purchase Date, and (c) the date of 


 


14

















 


termination of the Maximum Purchase Limit specified in a notice from
the Seller to the Purchasers delivered pursuant to and in accordance with Section 2.02(b) of
the Purchase Agreement.


 


“Federal
Funds Rate” shall mean, for any day, a floating rate equal to the weighted
average of the rates on overnight federal funds transactions among members of
the Federal Reserve System, as determined by the Administrative Agent.


 


“Federal
Reserve Board” shall mean the Board of Governors of the Federal Reserve
System.


 


“Fee Letter”
shall mean that certain letter agreement dated the Closing Date between the
Seller and the Administrative Agent and acknowledged by the Parent and GE
Capital Markets, Inc.


 


“Fees”
shall mean any and all fees payable to the Administrative Agent or any
Purchaser pursuant to the Purchase Agreement or any other Related Document,
including, without limitation, the Unused Commitment Fee.


 


“Final
Purchase  Date” shall mean March 17,
2011, as such date may be extended with the consent of the Seller, the
Purchasers and the Administrative Agent.


 


“GAAP”
shall mean generally accepted accounting principles in the United States of
America, or with respect to any Canadian Originator, generally accepted
accounting principles in Canada, in each case as in effect from time to time,
consistently applied as such term is further defined in Section 2(a) of
this Annex X.


 


“GE Capital”
shall mean General Electric Capital Corporation, a Delaware corporation.


 


“General
Concentration Percentage” shall mean at any time of determination with
respect to any Class of Obligor, an amount equal to the highest applicable
percentage listed opposite such Class of Obligor times the aggregate
Outstanding Balance of Eligible Receivables as of such time of determination:


 


	
  Class of Obligor

  	
   

  	
  Applicable

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Class A Obligor

  	
   

  	
  10.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Class B Obligor

  	
   

  	
  5.0

  	
  %

  



 


“General
Trial Balance” shall mean, with respect to any Originator and as of any
date of determination, such Originator’s accounts receivable trial balance
(whether in the form of a computer printout, magnetic tape or diskette) as of
such date, listing Obligors and the Receivables owing by such Obligors as of
such date together with the aged Outstanding Balances 


 


15

















 


of such Receivables, in form and substance satisfactory to the Seller
and the Administrative Agent.


 


“Governmental
Authority” shall mean any nation or government, any state, province or
other political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.


 


“Guaranteed
Indebtedness” shall mean, as to any Person, any obligation of such Person
guaranteeing any indebtedness, lease, dividend, or other obligation (“primary
obligation”) of any other Person (the “primary obligor”) in any
manner, including any obligation or arrangement of such Person to (a) purchase
or repurchase any such primary obligation, (b) advance or supply funds (i) for
the purchase or payment of any such primary obligation or (ii) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet condition of the
primary obligor, (c) purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, or (d) indemnify
the owner of such primary obligation against loss in respect thereof.  The amount of any Guaranteed Indebtedness at
any time shall be deemed to be the amount equal to the lesser at such time of (x) the
stated or determinable amount of the primary obligation in respect of which
such Guaranteed Indebtedness is incurred and (y) the maximum amount for
which such Person may be liable pursuant to the terms of the instrument
embodying such Guaranteed Indebtedness; or, if not stated or determinable, the
maximum reasonably anticipated liability (assuming full performance) in respect
thereof.


 


“Incipient
Servicer Termination Event” shall mean any event that, with the passage of
time or notice or both, would, unless cured or waived, become an Event of
Servicer Termination.


 


“Incipient
Termination Event” shall mean any event that, with the passage of time or
notice or both, would, unless cured or waived, become a Termination Event.


 


“Increase Effective Date” shall
have the meaning assigned to it in Section 2.11 of the Purchase
Agreement.


 


“Indemnified
Amounts” shall mean, with respect to any Person, any and all suits,
actions, proceedings, claims, damages, losses, liabilities and reasonable
expenses (including, but not limited to, reasonable attorneys’ fees and disbursements
and other costs of investigation or defense, including those incurred upon any
appeal).


 


“Indemnified
Person” shall have the meaning assigned to it in Section 10.01(a) of
the Purchase Agreement.


 


“Indemnified
Taxes” shall have the meaning assigned to it in Section 2.08(g) of
the Purchase Agreement.


 


16

















 


“Index Rate”
shall mean, for any day, a floating rate equal to the highest determined by the
Administrative Agent equal to the Applicable Index Rate Margin plus the
greatest of:


 


(i)                                     the
Prime Rate;


 


(ii)                                  the
Federal Funds Rate plus 3.00% per annum;


 


and


 


(iii)                               the
sum of:


 


(a)                                  1.50%
per annum;


 


and


 


(b)(1)                   the offered
rate for deposits in United States Dollars as of such date for a three month
period in United States Dollars which appears on Reuters Screen LIBOR01 Page as
of 11:00 a.m., London time, on the second full LIBOR Business Day
preceding such day; divided by (b) a number equal to 1.0 minus
the aggregate (but without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on the day which is two (2) LIBOR
Business Days to such day (including basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve system or other governmental authority having jurisdiction with
respect thereto, as now and from time to time in effect) for Eurocurrency
funding (currently referred to as “Eurocurrency liabilities” in Regulation D of
such Board) which are required to be maintained by a member bank of the Federal
Reserve System;


 


provided
that in no event shall the Index Rate for any day be less than the LIBOR Rate
for the Yield Period in which such day occurs.


 


Each change in
any interest rate provided for in the Purchase Agreement based upon the Index
Rate shall take effect at the time of such change in the Index Rate.


 


“Index Rate
Purchase” shall mean a Purchase or portion thereof accruing Daily Yield by
reference to the Index Rate.  Unless a
LIBOR Rate Disruption Event shall have occurred, each Purchase shall be a LIBOR
Rate Purchase.


 


“Ineligible
Receivable” shall mean any Receivable (or portion thereof) which fails to
satisfy all of the requirements of an “Eligible Receivable” set forth in the
definition thereof.


 


“Initial
Sale Date” means, as to any New Originator, the initial date on which such
New Originator sells Receivables to the Seller under the Sale Agreement.


 


“Investment
Base” shall mean, as of any date of determination, the amount equal to the
lesser of:


 


17

















 


(a)                                  the
Maximum Purchase Limit;


 


and


 


(b)                                 an
amount equal to the positive difference, if any, of:


 


(i)                                     the
product of (1) the Dynamic Advance Rate multiplied by (2) the
Net Receivables Balance;


 


minus


 


(ii)                                  such
other reserves as the Administrative Agent may reasonably determine from time
to time based upon its reasonable credit judgment following a collateral audit
and in consultation with the Borrower;


 


in each case
as disclosed in the most recently submitted Daily Report, Weekly Report,
Monthly Report, Investment Base Certificate or Capital Purchase Request or as
otherwise determined by the Administrative Agent based on Seller Collateral
information available to it, including any information obtained from any audit
or from any other reports with respect to the Seller Collateral, which
determination shall be final, binding and conclusive on all parties to the
Purchase Agreement (absent manifest error).


 


“Investment
Base Certificate” shall have the meaning assigned to it in Section 5.02(b) of
the Purchase Agreement.


 


“Investment
Company Act” shall mean the provisions of the Investment Company Act of
1940, 15 U.S.C. § § 80a et seq., and any regulations
promulgated thereunder.


 


“Investments”
shall mean, with respect to any Seller Account Collateral, the certificates,
instruments, investment property or other investments in which amounts
constituting such collateral are invested from time to time.


 


“IRC”
shall mean the Internal Revenue Code of 1986 and any regulations promulgated
thereunder.


 


“IRS”
shall mean the Internal Revenue Service.


 


“LIBOR
Business Day” shall mean a Business Day on which banks in the city
of London are generally open for interbank or foreign exchange transactions.


 


“LIBOR Rate”
shall mean, for any Yield Calculation Period, a per annum rate of interest
determined by the Administrative Agent equal to the Applicable LIBOR Margin plus
the greater of:


 


(i)                                     2.50%;


 


and


 


18

















 


(ii)                                  (a) the
offered rate for deposits in United States Dollars for a three month period
which appears on Reuters Screen LIBOR01 Page as of 11:00 a.m., London
time, on the second full LIBOR Business Day next preceding the first day of
such Yield Calculation Period; divided by


 


                                                (b)                                 a
number equal to 1.0 minus the aggregate (but without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on
the day which is two (2) LIBOR Business Days prior to the beginning of
such Yield Calculation Period (including basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve system or other governmental authority having jurisdiction with
respect thereto, as now and from time to time in effect) for Eurocurrency
funding (currently referred to as “Eurocurrency liabilities” in Regulation D of
such Board) which are required to be maintained by a member bank of the Federal
Reserve System;


 


provided,
that if (i) the introduction of or any change in any law or regulation (or
any change in the interpretation thereof) shall make it unlawful, or any
central bank or other Governmental Authority shall assert that it is unlawful,
for a Purchaser to agree to make or to make or to continue to fund or maintain
any Purchases or Capital Investment at the LIBOR Rate or (ii) a LIBOR Rate
Disruption Event shall have occurred, the LIBOR Rate shall in all such cases be
equal to the Index Rate.  For the
avoidance of doubt, except as provided in the immediately preceding proviso,
the LIBOR Rate determined for any calendar month shall remain fixed for such
calendar month.


 


If such
interest rates shall cease to be available from Reuters News Service, the LIBOR
Rate shall be determined from such financial reporting service or other
information as shall be mutually acceptable to the Administrative Agent and the
Seller.


 


“LIBOR Rate
Disruption Event” shall mean, for any Purchaser, notification by such
Purchaser to the Seller and the Administrative Agent of any of the following:  (i) determination by such Purchaser that
it would be contrary to law or the directive of any central bank or other
governmental authority to obtain United States dollars in the London interbank
market to fund or maintain its Purchases or Capital Investment, (ii) the
inability of such Purchaser, by reason of circumstances affecting the London
interbank market generally, to obtain United States dollars in such market to
fund its Purchases or Capital Investment or (iii) a determination by such
Purchaser that the maintenance of its Purchases or Capital Investment will not
adequately and fairly reflect the cost to such Purchaser of funding such
investment at such rate.


 


“LIBOR Rate
Purchase” shall mean a Purchase or portion thereof accruing Daily Yield by
reference to the LIBOR Rate. Unless a LIBOR Rate Disruption Event shall have
occurred, each Purchase shall be a LIBOR Rate Purchase.


 


“Lien”
shall mean any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, lien, charge, claim, security interest, easement or
encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having 


 


19

















 


substantially the same economic effect as any of the foregoing, and the
filing of, or agreement to give, any financing statement perfecting a security
interest under the UCC or the PPSA or comparable law of any jurisdiction).


 


“Litigation”
shall mean, with respect to any Person, any action, claim, lawsuit, demand,
investigation or proceeding pending or threatened against such Person before
any court, board, commission, agency or instrumentality of any federal, state,
local or foreign government or of any agency or subdivision thereof or before
any arbitrator or panel of arbitrators.


 


“Lockbox”
shall have the meaning assigned to it in Section 6.01(a)(ii) of
the Purchase Agreement.


 


“Lockbox
Account” shall mean any deposit account established by or assigned to the
Seller for the deposit of Collections pursuant to and in accordance with Section 6.01(a) of
the Purchase Agreement.


 


“Lockbox
Account Agreement” shall mean any agreement among an Originator, the
Seller, the Administrative Agent, and a Lockbox Account Bank with respect to a
Lockbox and/or a Lockbox Account that provides, among other things, that the
Administrative Agent has “control” (within the meaning of Article 9 of the
UCC) over such Lockbox Account and is otherwise in form and substance
acceptable to the Administrative Agent.


 


“Lockbox
Account Bank” shall mean any bank or other financial institution at which
one or more Lockbox Accounts are maintained.


 


“Loss
Reserve Rate” shall mean 10%.


 


“Material
Adverse Effect” shall mean a material adverse effect on:


 


(a)                                  the
business, assets, liabilities, operations, prospects or financial or other
condition of (i) any Originator or the Originators considered as a whole, (ii) the
Seller, (iii) the Servicer or (iv) the Parent and its Subsidiaries
considered as a whole;


 


(b)                                 the
ability of any Originator, the Seller, the Parent or the Servicer to perform
any of its obligations under the Related Documents in accordance with the terms
thereof;


 


(c)                                  the
validity or enforceability of any Related Document or the rights and remedies
of the Seller, the Purchasers or the Administrative Agent under any Related
Document;


 


(d)                                 the
federal income tax attributes of the sale, contribution or pledge of the
Transferred Receivables pursuant to any Related Document; or


 


(e)                                  the
Transferred Receivables (or collectibility thereof), the Contracts therefor,
the Seller Collateral (in each case, taken as a whole) or the ownership
interests or Liens of the Seller or the Purchasers or the Administrative Agent
thereon or the priority of such interests or Liens.


 


20














 


“Master
Agent Account” shall mean account # XXXXXXXX established at Deutsche
Bank Trust Company Americas in the name of the Administrative Agent.


 


“Maturity
Date” shall mean, with respect to any Receivable, the due date for payment
therefor specified in the Contract therefor, or, if no date is so specified, 30
days from the Billing Date.


 


“Maximum
Purchase Limit” shall mean One Hundred Seventy Five Million Dollars
($175,000,000) on the Closing Date, as such amount may be adjusted, if at all,
from time to time in accordance with the Purchase Agreement.


 


“Modified
Net Receivables Balance” shall mean, as of any date of determination, an
amount equal to the following:


 


MNRB =  DAR * (OBER – ECA);


 


where:


 


MNRB = the
Modified Net Receivables Balance;


 


DAR = the Dynamic
Advance Rate;


 


OBER  = the Outstanding Balance of Eligible
Receivables; and


 


ECA = the
Excess Concentration Amount in respect of all Obligors.


 


“Monthly
Report” shall have the meaning assigned to it in paragraph (a) of
Annex 5.02(a) to the Purchase Agreement.


 


“Moody’s”
shall mean Moody’s Investors Service, Inc. or any successor thereto.


 


“Multiemployer
Plan” shall mean a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA or under applicable Canadian federal or provincial pension benefits
standards legislation with respect to which any Originator or ERISA Affiliate
is making, is obligated to make, or has made or been obligated to make,
contributions on behalf of participants who are or were employed by any of
them.


 


“Net
Receivables Balance” shall mean, as of any date of determination, the
amount equal to:


 


(a)                                  the
Outstanding Balance of Eligible Receivables;


 


minus


 


(b)                                 the
Excess Concentration Amount;


 


minus


 


21

















 


(c)                                  the
Canadian Receivables Excess Amount;


 


in each case
as disclosed in the most recently submitted Daily Report, Weekly Report,
Monthly Report, Investment Base Certificate or Capital Purchase Request or as
otherwise determined by the Administrative Agent based on Seller Collateral
information available to it, including any information obtained from any audit
or from any other reports with respect to the Seller Collateral, which
determination shall be final, binding and conclusive on all parties to the
Purchase Agreement (absent manifest error).


 


“Net Worth”
shall mean as of any date of determination, the excess, if any, of (a) the
aggregate Outstanding Balance of the Receivables at such time, over (b) the
sum of (i) the Capital Investment at such time, plus (ii) the
aggregate outstanding principal balance of the Subordinated Loans (including
any Subordinated Loan proposed to be made on the date of determination).


 


“New
Originator” has the meaning specified in the Recitals to the Sale
Agreement.


 


“Non-Consenting
Purchaser” shall have the meaning assigned to it in Section 12.07(c) of
the Purchase Agreement.


 


“Non-Funding
Purchaser” means any Purchaser: (a) that has failed for three or more
Business Days to fund any payments required to be made by it under this
Agreement, (b) that has given verbal or written notice to the Seller or
the Administrative Agent or has otherwise publicly announced that such
Purchaser believes it will fail to fund all increases in Capital Investment and
other payments required to be funded by it under this Agreement as of any
Settlement Date; (c) that has, for three or more Business Days, failed to
confirm in writing to the Administrative Agent, in response to a written
request of the Administrative Agent, that it will comply with its funding
obligations hereunder; (d) that has defaulted in fulfilling its
obligations (as a purchaser, lender, agent or letter of credit issuer) under
one or more other syndicated receivables purchaser, loan or credit facilities
or (e) with respect to which one or more Purchaser-Related Distress Events
has occurred.


 


“Obligor”
shall mean, with respect to any Receivable, the Person primarily obligated to
make payments in respect thereof.


 


“Officer’s
Certificate” shall mean, with respect to any Person, a certificate signed
by an Authorized Officer of such Person.


 


“Originator”
shall mean any Person that is from time to time party to the Sale Agreement as
an “Originator”.


 


“Originator
Support Agreement” shall mean an agreement substantially in the form of Schedule
3.01 to the Sale Agreement made by Parent in favor of the Seller.


 


“Other
Purchaser” shall have the meaning assigned to it in Section 2.03(e) of
the Purchase Agreement.


 


22

















 


“Outstanding
Balance” shall mean, with respect to any Receivable, as of any date of
determination, the Dollar Equivalent Amount (which amount shall not be less
than zero) equal to (a) the Billed Amount thereof, minus (b) all
Collections received from the Obligor thereunder, minus (c) all
discounts to, or any other modifications by, the Originator, the Seller or the
Servicer that reduce such Billed Amount; provided, that if the
Administrative Agent or the Servicer makes a good faith determination that all
payments by such Obligor with respect to such Billed Amount have been made, the
Outstanding Balance shall be zero.


 


“Parent”
shall mean Georgia Gulf Corporation.


 


“Parent
Group” shall mean the Parent and each of its Affiliates other than the
Seller.


 


“PBGC”
shall mean the Pension Benefit Guaranty Corporation.


 


“PCAOB”
shall mean the Public Company Accounting Oversight Board.


 


“Pension
Plan” shall mean a Plan described in Section 3(2) of ERISA.


 


“Permitted
Encumbrances” shall mean the following encumbrances: (a) Liens for
taxes or assessments or other governmental charges or levies not yet due and
payable; (b) pledges or deposits securing obligations under workmen’s
compensation, unemployment insurance, social security or public liability laws
or similar legislation; (c) pledges or deposits securing bids, tenders, government
contracts, contracts (other than contracts for the payment of money) or
leases to which any Originator, the Seller or the Servicer is a party as lessee
made in the ordinary course of business; (d) deposits securing statutory
obligations of any Originator, the Seller or the Servicer; (e) inchoate
and unperfected workers’, mechanics’, suppliers’ or similar Liens arising in
the ordinary course of business; (f) carriers’, warehousemen’s or other
similar possessory Liens arising in the ordinary course of business; (g) deposits
securing, or in lieu of, surety, appeal or customs bonds in proceedings to
which any Originator, the Seller or the Servicer is a party; (h) any
judgment Lien not constituting a Termination Event under Section 8.01(g) of
the Purchase Agreement; and (i) presently existing or hereinafter created
Liens in favor of the Buyer, the Seller, the Purchasers or the Administrative
Agent under the Purchase Agreement and the Related Documents.


 


“Permitted
Investments” shall mean any of the following:


 


(a)                                  obligations
of, or guaranteed as to the full and timely payment of principal and interest
by, the United States of America or obligations of any agency or
instrumentality thereof if such obligations are backed by the full faith and
credit of the United States of America, in each case with maturities of not
more than 90 days from the date acquired;


 


(b)                                 repurchase
agreements on obligations of the type specified in clause (a) of
this definition; provided, that the short-term debt obligations of the
party agreeing to repurchase are rated at least A-1 or the equivalent by
S&P and P-1 or the equivalent by Moody’s;


 


23

















 


(c)                                  federal
funds, certificates of deposit, time deposits and bankers’ acceptances of any
depository institution or trust company incorporated under the laws of the
United States of America or any state, in each case with original maturities of
not more than 90 days or, in the case of bankers’ acceptances, original
maturities of not more than 365 days; provided, that the short-term
obligations of such depository institution or trust company are rated at least
A-1 or the equivalent by S&P and P-1 or the equivalent by Moody’s;


 


(d)                                 commercial
paper of any corporation incorporated under the laws of the United States of
America or any state thereof with original maturities of not more than 180 days
that on the date of acquisition are rated at least A-1 or the equivalent by
S&P and P-1 or the equivalent by Moody’s; and


 


(e)                                  securities
of money market funds rated at least A-1 or the equivalent by S&P and P-1
or the equivalent by Moody’s.


 


“Person”
shall mean any individual, sole proprietorship, partnership, joint venture,
unincorporated organization, trust, association, corporation (including a business
trust), limited liability company, institution, public benefit corporation,
joint stock company, Governmental Authority or any other entity of whatever
nature.


 


“Plan”
shall mean, at any time during the preceding five years, an “employee benefit
plan,” as defined in Section 3(3) of ERISA, that any Originator or
ERISA Affiliate maintains, contributes to or has an obligation to contribute to
on behalf of participants who are or were employed by any Originator or ERISA
Affiliate.


 


“PPSA”
means the Personal Property Security Act (Ontario), as amended from time to
time, and any regulations promulgated thereunder.


 


“Power of
Attorney” shall have the meaning assigned to it in Section 9.05
of the Sale Agreement or Section 9.03 of the Purchase Agreement, as
applicable.


 


“Prime Rate”
means, as of any date, the rate last quoted by The Wall Street Journal as the “Prime
Rate” in the United States or, if The Wall Street Journal ceases to quote such
rate, the highest per annum interest rate published by the Federal Reserve
Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest
Rates) as the “bank prime loan” rate, or, if such rate is no longer quoted
therein, any similar rate quoted therein (as determined by the Administrative
Agent) or any similar release by the Federal Reserve Board (as determined by
the Administrative Agent).


 


“Privacy
Laws” shall have the meaning assigned to it in Section 4.01(c) of
the Purchase Agreement.


 


“Pro Rata
Share” shall mean with respect to all matters relating to any Purchaser,
the percentage obtained by dividing (i) the Commitment of that Purchaser
by (ii) the Maximum Purchase Limit, as such percentage may be adjusted by
assignments permitted pursuant to Section 12.02 of the Purchase Agreement;
provided, however, if all of the Commitments are 


 


24

















 


terminated pursuant to the terms of the Purchase Agreement, then “Pro
Rata Share” shall mean with respect to all matters relating to any Purchaser,
the percentage obtained by dividing (x) the sum of (A) the Capital
Investment funded by such Purchaser, by (y) the Capital Investment funded
by all Purchasers.


 


“Proposed
Change” shall have the meaning assigned to it in Section 12.07(c) of
the Purchase Agreement.


 


“Purchase”
shall have the meaning assigned to it in Section 2.01 of the
Purchase Agreement.  Unless a LIBOR Rate
Disruption Event shall have occurred, each Purchase shall be a LIBOR Rate
Purchase.


 


“Purchase
Agreement” shall mean the Second Amended and Restated Receivables Purchase
Agreement dated as of the Closing Date, by and among the Seller, the Purchasers
and the Administrative Agent.


 


“Purchase
Assignment” shall mean that certain Purchase Assignment dated as of the
Closing Date by and between the Seller and the Administrative Agent in the form
attached as Exhibit 2.04(a) to the Purchase Agreement.


 


“Purchase
Date” shall mean each day on which any Purchase is made.


 


“Purchase
Excess” shall mean, as of any date of determination, the extent to which
the Capital Investment exceeds the Investment Base, in each case as disclosed
in the most recently submitted Investment Base Certificate, Capital Purchase
Request, Monthly Report, Weekly Report, Daily Report or as otherwise reasonably
determined by the Administrative Agent based on Seller Collateral information
available to it, including any information obtained from any audit or from any
other reports with respect to the Seller Collateral, which determination shall
be final, binding and conclusive on all parties to the Purchase Agreement
(absent manifest error).


 


“Purchaser”
shall have the meaning assigned to it in the preamble of the Purchase
Agreement.


 


“Purchaser
Interest” shall mean the undivided percentage ownership interest of the
Purchasers in the Transferred Receivables. 
The Purchaser Interest of the Purchasers shall be expressed as a
fraction of the total Transferred Receivables computed as follows:


 


25

















 


	
   

  	
  PI

  	
  =

  	
   

  	
  C
 IB

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  where:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PI

  	
  =

  	
   

  	
  the Purchaser Interest at the time of
  determination;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  C

  	
  =

  	
   

  	
  the aggregate Capital Investment at such
  time; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  IB

  	
  =

  	
   

  	
  the Investment Base at such time.

  



 


The Purchaser
Interest shall be calculated (or deemed to be calculated) on each Business Day
from the Closing Date through the Facility Termination Date.


 


“Purchaser-Related
Distress Event” means, with respect to any Purchaser, that the following
has occurred with respect to such Purchaser or with respect to any Person that
directly or indirectly controls such Purchaser (each a “Distressed Person”):
(i) a voluntary or involuntary case with respect to such Distressed Person
under the Bankruptcy Code or any similar bankruptcy laws of its jurisdiction of
formation; (ii) a custodian, conservator, receiver or similar official is
appointed for such Distressed Person or any substantial part of such Distressed
Person’s assets; (iii) such Distressed Person is subject to a forced
liquidation, merger, sale or other change of control supported in whole or in
part by guaranties or other support (including, without limitation, the
nationalization or assumption of majority ownership or operating control by)
from the U.S. government or other Governmental Authority; or (iv) such
Distressed Person makes a general assignment for the benefit of creditors or is
otherwise adjudicated as, or determined by any Governmental Authority having
regulatory authority over such Distressed Person or its assets to be,
insolvent, bankrupt, or deficient in meeting any capital adequacy or liquidity
standard of any such Governmental Authority.


 


“Qualified
Plan” shall mean a Pension Plan that is intended to be tax-qualified under Section 401(a) of
the IRC.


 


“Rating
Agencies” shall mean Moody’s and S&P.


 


“Ratios”
shall mean, collectively, Dilution Ratio, the Defaulted Receivable Ratio, the
Defaulted Receivable Trigger Ratio, Delinquency Trigger Ratio, the Dilution
Reserve Ratio, the Dilution Trigger Ratio and the Turnover Days.  For purposes of calculating the Dynamic
Advance Rate, the Sale Price, or whether any Termination Event or Incipient
Termination Event has occurred, each Ratio applicable at any time shall be as
calculated in the most recently submitted Monthly Report, or as otherwise
determined by the Administrative Agent based on Seller Collateral information
available to it, including any information obtained from any audit or from any
other reports with respect to the Seller Collateral, which determination shall
be final, binding and conclusive on all parties to the Purchase Agreement
(absent manifest error).


 


“Receivable”
shall mean, with respect to any Obligor:


 


26

















 


(a)                                  indebtedness
of such Obligor (whether constituting an account, chattel paper, document,
instrument or general intangible (under which the Obligor’s principal
obligation is a monetary obligation) and whether or not earned by performance)
arising from the provision of merchandise, goods or services by an Originator,
or other Person approved by the Administrative Agent in its sole discretion, to
such Obligor, including the right to payment of any interest or finance charges
and other obligations of such Obligor with respect thereto;


 


(b)                                 all
Liens and property subject thereto from time to time securing or purporting to
secure any such indebtedness of such Obligor;


 


(c)                                  to
the extent relating to such indebtedness, all right, title and interest in and
to the Contracts giving rise thereto;


 


(d)                                 all
guaranties, indemnities and warranties, insurance policies, financing
statements, supporting obligations and other agreements or arrangements of
whatever character from time to time supporting or securing payment of any such
indebtedness;


 


(e)                                  all
right, title and interest of any Originator, the Parent or the Seller in and to
any goods (including returned, repossessed or foreclosed goods) the sale of
which gave rise to a Receivable;


 


(f)                                    all
Collections with respect to any of the foregoing;


 


(g)                                 all
Records with respect to any of the foregoing; and


 


(h)                                 all
proceeds with respect to any of the foregoing.


 


Notwithstanding
the foregoing, no such indebtedness or other obligations that arises from, or
otherwise relates to, the provision of merchandise or goods shipped by an
Originator from, or services performed by an Originator in, the Province of
Québec, shall constitute a “Receivable” hereunder.


 


“Receivables
Assignment” shall have the meaning assigned to it in Section 2.01(a) of
the Sale Agreement.


 


“Records”
shall mean all Contracts and other documents, books, records and other
information (including customer lists, credit files, computer programs, tapes,
disks, data processing software and related property and rights) prepared and
maintained by any Originator, the Servicer, any Sub-Servicer or the Seller with
respect to the Receivables and the Obligors thereunder and the Seller
Collateral.


 


“Reduction
Notice” shall have the meaning assigned to it in Section 2.03(g) of
the Purchase Agreement.


 


“Registered
Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Parent as prescribed by the Securities Laws.


 


27

















 


“Regulatory
Change” shall mean any change after the Closing Date in any federal, state
or foreign law, regulation (including Regulation D of the Federal Reserve Board),
pronouncement by the Financial Accounting Standards Board or the adoption or
making after such date of any interpretation, directive or request under any
federal, state or foreign law or regulation (whether or not having the force of
law) by any Governmental Authority, the Financial Accounting Standards Board,
or any central bank or comparable agency, charged with the interpretation or
administration thereof that, in each case, is applicable to any Affected Party.


 


“Reinvestment
Purchase” shall have the meaning assigned to it in Section 2.01
of the Purchase Agreement.


 


“Rejected
Amount” shall have the meaning assigned to it in Section 4.04
of the Sale Agreement.


 


“Related
Documents” shall mean each Lockbox Account Agreement, the Sale Agreement,
the Purchase Agreement, each Purchase Assignment, the Existing Sale Agreement,
each Receivables Assignment, the Subordinated Notes, each Originator Support
Agreement and all other agreements, instruments, documents and certificates
identified in the Schedule of Documents and including all other pledges, powers
of attorney, consents, assignments, contracts, notices, and all other written
matter whether heretofore, now or hereafter executed by or on behalf of any
Person, or any employee of any Person, and delivered in connection with the
Sale Agreement, the Purchase Agreement or the transactions contemplated
thereby.  Any reference in the Sale
Agreement, the Purchase Agreement or any other Related Document to a Related
Document shall include all Appendices thereto, and all amendments,
restatements, supplements or other modifications thereto, and shall refer to
such Related Document as the same may be in effect at any and all times such
reference becomes operative.


 


“Reportable
Event” shall mean any of the events set forth in Section 4043(c) of
ERISA.


 


“Required
Capital Amount” shall mean, as of any date of determination, an amount
equal to the greater of (i) 3% of the Maximum Purchase Limit as of such
date of determination and (ii) the product of (A) 1.5, (B) the
Defaulted Receivable Ratio as of the Settlement Period most recently ended and (C) the
Outstanding Balance of all Transferred Receivables as of such date of
determination.


 


“Requisite Purchasers” shall mean:


 


(i)                                     if
there is one Purchaser, such Purchaser;


 


(ii)                                  if
there are two Purchasers, both Purchasers (or, if one Purchaser is a
Non-Funding Purchaser, the Other Purchaser shall constitute the “Required
Purchasers”); and


 


(iii)                               if
there are more than two Purchasers, two or more Purchasers having in the
aggregate more than sixty-six and two thirds percent (66 2/3%) of the
aggregate Commitments of all Purchasers, or (b) if the Commitments have
been terminated, two or 


 


28

















 


more Purchasers having in the aggregate more than sixty-six and two
thirds percent (66 2/3%)  aggregate
Capital Investment; provided that so long as any Purchaser is a
Non-Funding Purchaser, the Commitments and Capital Investments of such
Non-Funding Purchaser will not be taken into account in determining the
calculation of which Purchasers constitute Requisite Purchasers.


 


“Retiree
Welfare Plan” shall mean, at any time, a Welfare Plan that provides for
continuing coverage or benefits for any participant or any beneficiary of a
participant after such participant’s termination of employment, other than
continuation coverage provided pursuant to Section 4980B of the IRC and at
the sole expense of the participant or the beneficiary of the participant.


 


“S&P”
shall mean Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.


 


“Sale”
shall mean with respect to a sale of receivables under the Sale Agreement, a
sale of Receivables by an Originator to the Seller in accordance with the terms
of the Sale Agreement.


 


“Sale
Agreement” shall mean the Amended and Restated Receivables Sale and
Servicing Agreement dated as of the Closing Date, by and among each of the “Originators”
from time to time party thereto, the Servicer and the Seller, as the Buyer
thereunder.


 


“Sale Price”
shall mean, with respect to any Sale of any Sold Receivables on any  Business Day, a price calculated in
accordance with the following formula:


 


	
   

  	
  SP

  	
  =

  	
   

  	
  AOB - (AOB × FMVD);

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  where:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SP

  	
  =

  	
   

  	
  the Sale Price,

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AOB

  	
  =

  	
   

  	
  the aggregate Outstanding Balance of all Receivables that were
  generated by such Seller since the immediately preceding Business Day;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FMVD

  	
  =

  	
   

  	
  a Fair Market Value Discount Factor equal to the sum of the LD + CD;

  



 


29

















 


	
   

  	
  LD

  	
  =

  	
   

  	
  a Loss Discount equal to the ratio, calculated in the most recent
  Monthly Report and expressed as a percentage, of (i) the dollar amount
  of all Transferred Receivables written off as uncollectible during the period
  of twelve (12) consecutive Settlement Periods ending prior to the date of
  such Monthly Report, divided by (ii) the aggregate Collections on all
  Transferred Receivables received during such period; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CD

  	
  =

  	
   

  	
  a Cost Discount, calculated in the most recent Monthly Report, equal
  to a per annum percentage that equals (x) the sum of (i) the Index
  Rate in effect at the time of such Monthly Report, plus (ii) the
  Servicing Fee Rate plus (iii) 0.75% times (y) a fraction, the
  numerator of which is Turnover Days as of the end of the Settlement Period
  immediately preceding such Monthly Report and the denominator of which is
  360.

  



 


“Sale Price
Credit” shall have the meaning assigned to it in Section 2.04
of the Sale Agreement.


 


“Schedule
of Documents” shall mean the schedule, including all appendices, exhibits
or schedules thereto, listing certain documents and information to be delivered
in connection with the Sale Agreement, the Purchase Agreement and the other
Related Documents and the transactions contemplated thereunder, substantially
in the form attached as Annex Y to the Purchase Agreement and the Sale
Agreement.


 


“SEC”
shall mean the Securities and Exchange Commission.


 


“Securities
Act” shall mean the provisions of the Securities Act of 1933, 15 U.S.C.
Sections 77a et seq., and any regulations promulgated thereunder.


 


“Securities
Exchange Act” shall mean the provisions of the Securities Exchange Act of
1934, 15 U.S.C. Sections 78a et seq., and any regulations
promulgated thereunder.


 


“Securities
Laws” shall mean the Securities Act, the Securities Exchange Act,
Sarbanes-Oxley and the applicable accounting and auditing principles, rules,
standards and practices promulgated, approved or incorporated by the SEC or the
PCAOB, as each of the foregoing may be amended and in effect on any applicable
date hereunder.


 


“Seller”
shall have the meaning assigned to it in the preamble to the Purchase
Agreement.


 


“Seller
Account” shall mean account number XXXXXXXX maintained by the Seller
at Wachovia Bank, National Association.


 


30














 


“Seller
Account Collateral” shall have the meaning assigned to it in Section 7.01(c) of
the Purchase Agreement.


 


“Seller
Assigned Agreements” shall have the meaning assigned to it in Section 7.01(b) of
the Purchase Agreement.


 


“Seller
Collateral” shall have the meaning assigned to it in Section 7.01
of the Purchase Agreement.


 


“Seller
Obligations” shall mean all loans, advances, debts, liabilities,
indemnities and obligations for the performance of covenants, tasks or duties
or for payment of monetary amounts (whether or not such performance is then
required or contingent, or such amounts are liquidated or determinable) owing
by the Seller to any Specified Party under the Purchase Agreement, any other
Related Document and any document or instrument delivered pursuant thereto, and
all amendments, extensions or renewals thereof, and all covenants and duties
regarding such amounts, of any kind or nature, present or future, whether or
not evidenced by any note, agreement or other instrument, arising thereunder, including
the Capital Investment, Daily Yield, Unused Commitment Fees, amounts payable in
respect of Purchase Excess, Successor Servicing Fees and Expenses, Additional
Amounts, Additional Costs and Indemnified Amounts.  This term includes all principal, Daily Yield
(including all Daily Yield that accrues after the commencement of any case or
proceeding by or against the Seller in bankruptcy, whether or not allowed in
such case or proceeding), fees, charges, expenses, attorneys’ fees and any
other sum chargeable to the Seller under any of the foregoing, whether now
existing or hereafter arising, voluntary or involuntary, whether or not jointly
owed with others, direct or indirect, absolute or contingent, liquidated or
unliquidated, and whether or not from time to time decreased or extinguished
and later increased, created or incurred, and all or any portion of such
obligations that are paid to the extent all or any portion of such payment is
avoided or recovered directly or indirectly from any Purchaser or the
Administrative Agent or any assignee of any Purchaser or the Administrative
Agent as a preference, fraudulent transfer or otherwise.


 


“Servicer”
shall have the meaning assigned to it in the Preamble to the Sale Agreement.


 


“Servicer
Termination Notice” shall mean any notice by the Administrative Agent to
the Servicer that (a) an Event of Servicer Termination has occurred and (b) the
Servicer’s appointment under the Purchase Agreement has been terminated.


 


“Servicing
Fee” shall mean, for any day within a Settlement Period, the amount equal
to (a) (i) the Servicing Fee Rate divided by (ii) 360, multiplied
by (b) the Outstanding Balance of Transferred Receivables on such day.


 


“Servicing
Fee Rate” shall mean 1.00%.


 


“Servicing
Fee Reserve Rate” shall mean, as of any date of determination, an amount
equal to the product of (i) the Servicing Fee Rate and (ii) a
fraction, the numerator of which is the higher of (a) 30 and (b) the
Turnover Days as of the end of the Settlement Period immediately preceding such
date multiplied by 2, and the denominator of which is 360.


 


31

















 


“Servicing
Officer” shall mean any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Transferred Receivables and whose
name appears on any Officer’s Certificate listing servicing officers furnished
to the Administrative Agent by the Servicer, as such certificate may be amended
from time to time.


 


“Servicing
Records” shall mean all Records prepared and maintained by the Servicer
with respect to the Transferred Receivables and the Obligors thereunder.


 


“Settlement
Date” shall mean (i) the first Business Day of each calendar
month  and (ii) from and after the
occurrence of a Termination Event, any other Business Day designated as such by
the Administrative Agent in its sole discretion.


 


“Settlement
Period” shall mean (a) solely for purposes of determining the Ratios, (i) with
respect to all Settlement Periods other than the final Settlement Period, each
calendar month, whether occurring before or after the Closing Date, and (ii) with
respect to the final Settlement Period, the period ending on the Termination
Date and beginning with the first day of the calendar month in which the
Termination Date occurs, and (b) for all other purposes, (i) with
respect to the initial Settlement Period, the period from and including the
Closing Date through and including the last day of the calendar month in which
the Closing Date occurs, (ii) with respect to the final Settlement Period,
the period ending on the Termination Date and beginning with the first day of
the calendar month in which the Termination Date occurs, and (iii) with
respect to all other Settlement Periods, each calendar month.


 


“Sold
Receivable” shall have the meaning assigned to it in Section 2.01(b) of
the Sale Agreement.


 


“Solvent”
shall mean, with respect to any Person on a particular date, that on such date (a) the
fair value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person; (b) the
present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on
its Debts as they become absolute and matured; (c) such Person does not
intend to, and does not believe that it will, incur Debts or liabilities beyond
such Person’s ability to pay as such Debts and liabilities mature; and (d) such
Person is not engaged in a business or transaction, and is not about to engage
in a business or transaction, for which such Person’s property would constitute
an unreasonably small capital.  The
amount of contingent liabilities (such as Litigation, guaranties and pension
plan liabilities) at any time shall be computed as the amount that, in light of
all the facts and circumstances existing at the time, represents the amount
that can reasonably be expected to become an actual or matured liability.


 


“Special
Concentration Percentage” shall mean, with respect to any Obligor, that
percentage, if any, set forth in Annex Z to the Purchase Agreement with
respect to such Obligor, or, with respect to any such Obligor or any other
Obligor, such other percentage as the Administrative Agent may at any time and
from time to time designate in its sole discretion with respect to such Obligor
in a written notification to the Seller and the Servicer.


 


32

















 


“Specified
Parties” shall mean each of the Purchasers, the Administrative Agent, each
Indemnified Person and each other Affected Party.


 


“Spot Rate”
for, as of any date, a currency means the rate determined by the Administrative
Agent to be the spot rate for the purchase of such currency with another
currency through its principal foreign exchange trading office at approximately
10:00 a.m. on the date two Business Days prior to the date as of which the
foreign exchange computation is made; provided that the Administrative
Agent may obtain such spot rate from another financial institution designated
by the Administrative Agent if the Administrative Agent does not have as of the
date of determination a spot buying rate for any such currency.


 


“SPV”
shall mean any special purpose funding vehicle which acquires any interest in a
Purchaser’s Capital Investment under the Purchase Agreement.


 


“Stock”
shall mean all shares, options, warrants, member interests, general or limited
partnership interests or other equivalents (regardless of how designated) of or
in a corporation, limited liability company, partnership or equivalent entity
whether voting or nonvoting, including common stock, preferred stock or any
other “equity security” (as such term is defined in Rule 3a11-1 of the
General Rules and Regulations promulgated by the Securities and Exchange
Commission under the Securities Exchange Act).


 


“Stockholder”
shall mean, with respect to any Person, each holder of Stock of such Person.


 


“Subordinated
Loan” shall have the meaning given such term in Section 2.01(c) of
the Sale Agreement.


 


“Subordinated
Note” shall have the meaning given such term in Section 2.01(c) of
the Sale Agreement.


 


“Sub-Servicer”
shall mean any Person with whom the Servicer enters into a Sub-Servicing
Agreement.


 


“Sub-Servicing
Agreement” shall mean any written contract entered into between the
Servicer and any Sub-Servicer pursuant to and in accordance with Section 7.01
of the Sale Agreement relating to the servicing, administration or collection
of the Transferred Receivables.


 


“Subsidiary”
shall mean, with respect to any Person, any corporation or other entity (a) of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by such Person or (b) that
is directly or indirectly controlled by such Person within the meaning of
control under Section 15 of the Securities Act.


 


“Successor
Servicer” shall have the meaning assigned to it in Section 9.02
of the Sale Agreement.


 


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“Successor
Servicing Fees and Expenses” shall mean the fees and expenses payable to
the Successor Servicer as agreed to by the Seller, the Purchasers and the
Administrative Agent; provided, that, if the Servicer is replaced in
accordance with the terms of the Related Documents, the “Successor Servicing
Fees and Expenses” shall not exceed 110% of such Successor Servicer’s
reasonable estimate of costs of collections.


 


“Termination
Date” shall mean the date on which (a) the Capital Investment has been
permanently reduced to zero, (b) all other Seller Obligations under the
Purchase Agreement and the other Related Documents have been indefeasibly
repaid in full and completely discharged and (c) the Commitments have been
irrevocably terminated in accordance with the provisions of Section 2.02(b) of
the Purchase Agreement.


 


“Termination
Event” shall have the meaning assigned to it in Section 8.01 of
the Purchase Agreement.


 


“Termination
Percentage” shall mean (i) before the first anniversary of the Closing
Date, 2.0% and (ii) thereafter, 1.0%.


 


“Title IV
Plan” shall mean a Pension Plan (other than a Multiemployer Plan) that is
covered by Title IV of ERISA and that any Originator or ERISA Affiliate
maintains, contributes to or has an obligation to contribute to on behalf of
participants who are or were employed by any of them.


 


“Transaction
Parties” shall mean the Originators, the Servicer and, if the Parent is not
the Servicer, the Parent.


 


“Transfer”
shall mean any Sale or contribution (or purported Sale or contribution) of
Transferred Receivables by any Originator to the Seller pursuant to the terms
of the Sale Agreement.


 


“Transfer
Date” shall have the meaning assigned to it in Section 2.01(a) of
the Sale Agreement.


 


“Transferred
Receivable” shall mean any Sold Receivable or Contributed Receivable; provided,
that any Receivable repurchased by an Originator thereof pursuant to Section 4.04
of the Sale Agreement shall not be deemed to be a Transferred Receivable from
and after the date of such repurchase unless such Receivable has subsequently
been repurchased by or contributed to the Seller.


 


“Turnover
Days” shall mean, as of any date of determination, the amount (expressed in
days) equal to:


 


(a)                                  a fraction, (i) the numerator of which
is equal to the aggregate Outstanding Balance of Transferred Receivables on the
first day of the three (3) Settlement Periods immediately preceding such
date and (ii) the denominator of which is equal to aggregate 


 


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Collections received during such three (3) Settlement
Periods with respect to all Transferred Receivables;


 


multiplied by


 


(b)                                 the
average number of days per period contained in such three (3) Settlement
Periods.


 


“UCC”
shall mean, with respect to any jurisdiction, the Uniform Commercial Code as
the same may, from time to time, be enacted and in effect in such jurisdiction.


 


“Unapproved
Receivable” shall mean any receivable (a) with respect to which the
Originator’s customer relationship with the Obligor thereof arises as a result
of the acquisition by such Originator of another Person after the date of the
Purchase Agreement or (b) that was originated in accordance with standards
established by another Person acquired by an Originator after the date of the
Purchase Agreement, in each case, solely with respect to any such acquisitions
that have not been approved in writing by the Administrative Agent and then
only for the period prior to any such approval.


 


“Unrelated
Amounts” shall have the meaning assigned to it in Section 7.03
of the Sale Agreement.


 


“Unused
Commitment Fee” shall mean a fee in respect of each day of determination
prior to the Facility Termination Date equal to the product of (i) the
amount by which the Maximum Purchase Limit exceeds the Capital Investment (in
each case, as of such date of determination) and (ii) a per annum margin
equal to 1.00%.


 


“Weekly
Report” shall have the meaning assigned to it in paragraph (a) of
Annex 5.02(a) to the Purchase Agreement.


 


“Welfare
Plan” shall mean a Plan described in Section 3(i) of ERISA.


 


“Yield
Calculation Period” shall mean, any calendar month, commencing with the
first Business Day of such calendar month, and ending with the last day of such
calendar month (or if the last day of such calendar month is not a Business
Day, the next succeeding business day of the following calendar month).


 


“Yield
Reserve Rate” shall mean, as of any date of determination, an amount equal
to the product of (i) 1.5, (ii) the Prime Rate and (iii) a
fraction, the numerator of which is the higher of (a) 30 and (b) the
Turnover Days as of the end of the Settlement Period immediately preceding such
date multiplied by 2, and the denominator of which is 360.


 


SECTION 2.                                Other
Terms and Rules of Construction.


 


(a)                                  Accounting
Terms.  Unless otherwise specifically
provided therein, any accounting term used in any Related Document shall have
the meaning customarily given such term in accordance with GAAP, and all
financial computations thereunder shall be computed in 


 


35

















 


accordance with GAAP consistently applied.  That certain items or computations are
explicitly modified by the phrase “in accordance with GAAP” shall in no way be
construed to limit the foregoing.


 


(b)                                 Other
Terms.  All other undefined terms
contained in any of the Related Documents shall, unless the context indicates
otherwise, have the meanings provided for by the UCC as in effect in the State
of New York to the extent the same are used or defined therein.


 


(c)                                  Rules of
Construction.  Unless otherwise
specified, references in any Related Document or any of the Appendices thereto
to a Section, subsection or clause refer to such Section, subsection or clause
as contained in such Related Document. 
The words “herein,” “hereof” and “hereunder” and other words of similar
import used in any Related Document refer to such Related Document as a whole,
including all annexes, exhibits and schedules, as the same may from time to
time be amended, restated, modified or supplemented, and not to any particular
section, subsection or clause contained in such Related Document or any such
annex, exhibit or schedule.  Any
reference to any amount on any date of determination means such amount as of
the close of business on such date of determination.  Any reference to or definition of any
document, instrument or agreement shall, unless expressly noted otherwise,
include the same as amended, restated, supplemented or otherwise modified from
time to time.  Wherever from the context
it appears appropriate, each term stated in either the singular or plural shall
include the singular and the plural, and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, feminine and neuter
genders.  The words “including,” “includes”
and “include” shall be deemed to be followed by the words “without limitation”;
the word “or” is not exclusive; references to Persons include their respective
successors and assigns (to the extent and only to the extent permitted by the
Related Documents) or, in the case of Governmental Authorities, Persons
succeeding to the relevant functions of such Persons; and all references to
statutes and related regulations shall include any amendments of the same and
any successor statutes and regulations.


 


(d)                                 Rules of
Construction for Determination of Ratios. 
The Ratios as of the last day of the Settlement Period immediately
preceding the Closing Date shall be established by the Administrative Agent on
or prior to the Closing Date and the underlying calculations for periods
immediately preceding the Closing Date to be used in future calculations of the
Ratios shall be established by the Administrative Agent on or prior to the
Closing Date in accordance with the form of Monthly Report.  For purposes of calculating the Ratios, (i) averages
shall be computed by rounding to the second decimal place and (ii) the
Settlement Period in which the date of determination thereof occurs shall not
be included in the computation thereof and the first Settlement Period
immediately preceding such date of determination shall be deemed to be the
Settlement Period immediately preceding the Settlement Period in which such
date of determination occurs.


 


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