Exhibit
10.2


 


EXECUTION
COPY


 


SECOND AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT


 


Dated as of March 17, 2009


 


by and among


 


GGRC CORP.,


 


as Seller,


 


THE FINANCIAL INSTITUTIONS SIGNATORY HERETO FROM TIME TO
TIME,


 


as Purchasers,


 


and


 


GENERAL ELECTRIC CAPITAL CORPORATION,


 


as a Purchaser and as Administrative
Agent




 





 


GE CAPITAL MARKETS, INC.

as Sole Lead Arranger and Sole Bookrunner


 

















 


	
  ARTICLE I.

  	
  DEFINITIONS AND INTERPRETATION

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
   

  	
  2

  
	
  Section 1.02.

  	
  Rules of Construction

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  AMOUNTS AND TERMS OF PURCHASES

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Purchases

  	
   

  	
  2

  
	
  Section 2.02.

  	
  Optional Reductions in Maximum Purchase Limit

  	
   

  	
  2

  
	
  Section 2.03.

  	
  Procedures for Making Capital Purchases

  	
   

  	
  3

  
	
  Section 2.04.

  	
  Conveyance of Receivables

  	
   

  	
  6

  
	
  Section 2.05.

  	
  Facility Termination Date

  	
   

  	
  6

  
	
  Section 2.06.

  	
  Daily Yield; Charges

  	
   

  	
  6

  
	
  Section 2.07.

  	
  Fees

  	
   

  	
  7

  
	
  Section 2.08.

  	
  Application of Collections; Time and Method of
  Payments

  	
   

  	
  7

  
	
  Section 2.09.

  	
  Capital Requirements; Additional Costs

  	
   

  	
  11

  
	
  Section 2.10.

  	
  Breakage Costs

  	
   

  	
  12

  
	
  Section 2.11.

  	
  Increase in Maximum Purchase Limit

  	
   

  	
  12

  
	
  Section 2.12.

  	
  Non-Funding Purchasers

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  CONDITIONS PRECEDENT

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Conditions to Effectiveness of Agreement

  	
   

  	
  15

  
	
  Section 3.02.

  	
  Conditions Precedent to Purchases

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Representations and Warranties of the Seller

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  GENERAL COVENANTS OF THE SELLER

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Affirmative Covenants of the Seller

  	
   

  	
  26

  
	
  Section 5.02.

  	
  Reporting Requirements of the Seller

  	
   

  	
  28

  
	
  Section 5.03.

  	
  Negative Covenants of the Seller

  	
   

  	
  28

  
	
  Section 5.04.

  	
  Breach of Representations, Warranties or Covenants

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  ACCOUNTS

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Establishment of Lockbox Accounts

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  GRANT OF SECURITY INTERESTS

  	
   

  	
  33

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Seller’s Grant of Security Interest

  	
   

  	
  33

  
	
  Section 7.02.

  	
  Seller’s Agreements

  	
   

  	
  35

  
	
  Section 7.03.

  	
  Delivery of Collateral

  	
   

  	
  35

  
	
  Section 7.04.

  	
  Seller Remains Liable

  	
   

  	
  35

  
	
  Section 7.05.

  	
  Covenants of the Seller Regarding the Seller
  Collateral

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  TERMINATION EVENTS

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Termination Events

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  REMEDIES

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Actions Upon Termination Event

  	
   

  	
  42

  
	
  Section 9.02.

  	
  Exercise of Remedies

  	
   

  	
  43

  
					



 

















 


	
  Section 9.03.

  	
  Power of Attorney

  	
   

  	
  43

  
	
  Section 9.04.

  	
  Continuing Security Interest

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  INDEMNIFICATION

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Indemnities by the Seller

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI.

  	
  ADMINISTRATIVE AGENT

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Authorization and Action

  	
   

  	
  46

  
	
  Section 11.02.

  	
  Reliance

  	
   

  	
  46

  
	
  Section 11.03.

  	
  GE Capital and Affiliates

  	
   

  	
  47

  
	
  Section 11.04.

  	
  Purchaser Credit Decision

  	
   

  	
  47

  
	
  Section 11.05.

  	
  Indemnification

  	
   

  	
  47

  
	
  Section 11.06.

  	
  Successor Administrative Agent

  	
   

  	
  48

  
	
  Section 11.07.

  	
  Setoff and Sharing of Payments

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII.

  	
  MISCELLANEOUS

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Notices

  	
   

  	
  49

  
	
  Section 12.02.

  	
  Binding Effect; Assignability

  	
   

  	
  50

  
	
  Section 12.03.

  	
  Termination; Survival of Seller Obligations Upon
  Facility Termination Date

  	
   

  	
  52

  
	
  Section 12.04.

  	
  Costs, Expenses and Taxes

  	
   

  	
  52

  
	
  Section 12.05.

  	
  Confidentiality

  	
   

  	
  54

  
	
  Section 12.06.

  	
  Complete Agreement; Modification of Agreement

  	
   

  	
  55

  
	
  Section 12.07.

  	
  Amendments and Waivers

  	
   

  	
  55

  
	
  Section 12.08.

  	
  No Waiver; Remedies

  	
   

  	
  56

  
	
  Section 12.09.

  	
  GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
  JURY TRIAL

  	
   

  	
  57

  
	
  Section 12.10.

  	
  Counterparts

  	
   

  	
  58

  
	
  Section 12.11.

  	
  Severability

  	
   

  	
  58

  
	
  Section 12.12.

  	
  Section Titles

  	
   

  	
  58

  
	
  Section 12.13.

  	
  Further Assurances

  	
   

  	
  58

  
	
  Section 12.14.

  	
  Servicer

  	
   

  	
  59

  
	
  Section 12.15.

  	
  Amendment and Restatement

  	
   

  	
  59

  
	
  Section 12.16.

  	
  Georgia Gulf Corporation, Georgia Gulf
  Chemicals & Vinyls, LLC, Georgia Gulf Lake Charles, LLC and Royal
  Mouldings Limited

  	
   

  	
  59

  
					



 


ii

















 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 2.02(a)

  	
   

  	
  Form of
  Commitment Reduction Notice

  
	
  Exhibit 2.02(b)

  	
   

  	
  Form of
  Commitment Termination Notice

  
	
  Exhibit 2.03(a)

  	
   

  	
  Form of
  Capital Purchase Request

  
	
  Exhibit 2.03(g)

  	
   

  	
  Form of
  Capital Investment Reduction Notice

  
	
  Exhibit 2.04(a)

  	
   

  	
  Form of
  Purchase Assignment

  
	
  Exhibit 5.02(b)

  	
   

  	
  Form of
  Investment Base Certificate

  
	
  Exhibit 9.03

  	
   

  	
  Form of
  Power of Attorney

  
	
  Exhibit 12.02(b)

  	
   

  	
  Form of
  Assignment Agreement

  
	
  Exhibit A

  	
   

  	
  Credit
  and Collection Policy

  
	
   

  	
   

  	
   

  
	
  Schedule
  4.01(b)

  	
   

  	
  Jurisdiction
  of Organization; Executive Offices; Legal Names; Identification Numbers

  
	
  Schedule
  4.01(i)

  	
   

  	
  Tax
  Matters/Seller

  
	
  Schedule
  4.01(q)

  	
   

  	
  Deposit
  and Disbursement Accounts

  
	
  Schedule
  8.01

  	
   

  	
  Financial
  Tests

  
	
   

  	
   

  	
   

  
	
  Annex
  5.02(a)

  	
   

  	
  Reporting Requirements of
  the Seller (including Forms of Monthly Report, Weekly Report and Daily Report)

  
	
  Annex
  W

  	
   

  	
  Administrative
  Agent’s Account/Purchasers’ Accounts

  
	
  Annex
  X

  	
   

  	
  Definitions
  and Interpretation

  
	
  Annex
  Y

  	
   

  	
  Schedule
  of Documents

  
	
  Annex
  Z

  	
   

  	
  Special
  Concentration Percentages

  



 


iii

















 


THIS SECOND AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT (as amended, restated, supplemented or
otherwise modified and in effect from time to time, the “Purchase Agreement”
or the “Agreement”) is entered into as of March 17, 2009 by and among GGRC CORP., a
Delaware corporation (the “Seller”), the financial institutions signatory
hereto from time to time as purchasers (the “Purchasers”), GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation, as a Purchaser and as
administrative agent for the Purchasers hereunder (in such capacity, the “Administrative
Agent”) and, solely for purposes of Section 12.16 hereof, GEORGIA
GULF CORPORATION, GEORGIA GULF CHEMICALS & VINYLS, LLC, ROYAL
MOULDINGS LIMITED and GEORGIA GULF LAKE CHARLES, LLC.


 


RECITALS


 


A.            The Seller, Georgia Gulf
Corporation, Georgia Gulf Chemicals & Vinyls, LLC, Georgia Gulf Lake
Charles, LLC, Royal Mouldings Limited, GE Capital (as assignee of Variable
Asset Funding Corporation, Victory Receivables Corporation, Wachovia Bank,
National Association and The Bank of Tokyo-Mitsubuishi, Ltd., New York Branch)
and the Administrative Agent (as successor to Wachovia Bank, National
Association) are parties to the Amended and Restated Receivables Purchase
Agreement dated as of November 12, 2004 (as amended or supplemented from
time to time prior to the date hereof, the “Existing Purchase Agreement”).


 


B.            The parties hereto have, on
the terms and conditions set forth herein, agreed to amend and restate the
Existing Purchase Agreement in its entirety as set forth herein.


 


C.            The Seller is a special
purpose corporation.


 


D.            The Seller was formed for
the purpose of purchasing, or otherwise acquiring by capital contribution,
Receivables of the Parent and Subsidiaries of the Parent.


 


E.             The Seller intends to sell,
subject to the terms and conditions hereof, undivided percentage interests in
such Receivables, from time to time, as described herein.


 


F.             The Administrative Agent has
been requested and is willing to act as administrative agent on behalf of each
of the Purchasers in connection with making the purchases of such undivided
interests in such Receivables.


 


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 herein and not otherwise defined 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.



AMOUNTS AND TERMS OF PURCHASES


 


Section 2.01.          Purchases.


 


(a)           From and after the Closing Date and until the Facility
Termination Date and subject to the terms and conditions hereof, each Purchaser
severally agrees to purchase, such Purchaser’s Pro Rata Share of each Purchaser
Interest (each such purchase hereunder, a “Purchase”) from the Seller
from time to time and the Seller agrees to sell such Purchaser Interests to the
Purchasers. Each Purchaser agrees that if a Purchase is requested, such
Purchaser shall make available in accordance with Section 2.04(b) hereof,
an amount equal to such Purchaser’s Pro Rata Share of such Purchase.  Each Purchase shall consist of either (i) a
Purchase made with new funds provided by such Purchasers (each, a “Capital
Purchase”) or (ii) a Purchase made with funds consisting of
Collections allocated to the Purchaser Interests pursuant to the terms of this
Agreement (each, a “Reinvestment Purchase”).  On each Business Day following the Closing
Date until the Facility Termination Date, but subject to Section 3.02
hereof, each Purchaser holding a Purchaser Interest at such time shall be
automatically deemed to have made a Reinvestment Purchase with the amount of
funds to be distributed to the Seller pursuant to Section 2.08, if
any.


 


(b)           Each Purchaser’s obligation hereunder shall be
several, such that the failure of any Purchaser to make a payment in connection
with any Purchase hereunder shall not relieve any other Purchaser of its
obligation hereunder to make payment for such Purchase.


 


(c)           Notwithstanding the foregoing, under no circumstances
shall a Purchaser make any Purchase if, after giving effect thereto, a Purchase
Excess would exist.


 


Section 2.02.          Optional Reductions in Maximum Purchase
Limit.


 


(a)           The Seller may partially reduce the Maximum Purchase
Limit permanently from time to time; provided, that (i) the Seller
shall give three days prior written notice of any such reduction to the
Administrative Agent substantially in the form of Exhibit 2.02(a) (each
such notice, a “Commitment Reduction Notice”), (ii) any partial
reduction of the Maximum Purchase Limit shall be in a minimum amount of
$25,000,000 or an integral multiple thereof, (iii) no such partial
reduction shall reduce the Maximum Purchase Limit below the Capital Investment
at such 


 


2

















 


time and (iv) the
Seller shall pay any amounts owed under Section 2.02(d) in
connection therewith.  Any such reduction
in the Maximum Purchase Limit shall result in a reduction in each Purchaser’s
Commitment in an amount equal to such Purchaser’s Pro Rata Share of the amount
by which the Maximum Purchase Limit is being reduced.


 


(b)           The Seller may, at any time, on at least three days’
prior written notice by the Seller to the Administrative Agent, irrevocably
terminate the Maximum Purchase Limit; provided, that (i) such
notice of termination shall be substantially in the form of Exhibit 2.02(b) (the
“Commitment Termination Notice”), (ii) the Seller shall reduce the
Capital Investment to zero and make all payments required by Section 2.03(g) at
the time and in the manner specified therein and (iii) the Seller shall
pay any amounts owed under Section 2.02(d) in connection
therewith.  Upon such termination, the
Seller’s right to request that any Purchaser make Purchases hereunder shall in
each case simultaneously terminate and the Facility Termination Date shall
automatically occur.


 


(c)           Each written notice required to be delivered pursuant
to Sections 2.02(a) and (b) shall be irrevocable and
shall be effective (i) on the day of receipt if received by the
Administrative Agent and the Purchasers not later than 4:00 p.m. (New York
time) on any Business Day and (ii) on the immediately succeeding Business
Day if received by the Administrative Agent and the Purchasers after such time
on such Business Day or if any such notice is received on a day other than a
Business Day (regardless of the time of day such notice is received).  Each such notice of reduction shall specify
the amount of, or the amount of the proposed reduction in, the Maximum Purchase
Limit.


 


(d)           If Seller (i) partially reduces the Maximum
Purchase Limit in accordance with Section 2.02(a) hereof or (ii) terminates
the Maximum Purchase Limit, in each case, before the Final Purchase Date,
whether voluntarily or involuntarily and whether before or after acceleration
of the Seller Obligations or if the Commitments are otherwise terminated,
Seller shall pay to Administrative Agent, for the benefit of Purchasers as
liquidated damages and compensation for the costs of being prepared to make
funds available hereunder an amount equal to the Termination Percentage multiplied
by (ii) (A) in the case of the partial reduction, the amount of
the reduction in the Maximum Purchase Limit, and (B), in the case of the
termination of the Maximum Purchase Limit, the amount of the Maximum Purchase
Limit on the date that the Maximum Purchase Limit is terminated (prior to
giving effect to such termination).  The
parties agree that the amounts calculated pursuant to this Section 2.02(d) are
a reasonable calculation of Purchasers’ lost profits in view of the
difficulties and impracticality of determining actual damages resulting from an
early termination of the Commitments.


 


Section 2.03.          Procedures for Making Capital Purchases.


 


(a)           Capital Purchase Requests. 
Each Capital Purchase shall be made upon notice by the Seller to the
Administrative Agent in the manner provided herein.  No notice to any party is required in
connection with a Reinvestment Purchase. 
Any Capital Purchase request notice must be given in writing so that it
is received no later than (1) 10:00 a.m. (New York time) on the
Business Day preceding the proposed Purchase Date set forth therein.  Each such notice (a “Capital Purchase
Request”) shall (i) be substantially in the form of Exhibit 2.03(a),
(ii) be irrevocable and (iii) specify the amount of the requested
increase in the Capital Investment 


 


3

















 


(which shall be in a
minimum amount of $1,000,000 or an integral multiple of $100,000 in excess of
$1,000,000) and the proposed Purchase Date (which shall be a Business
Day).  Unless a LIBOR Rate Disruption
Event shall have occurred, each Purchase shall be a LIBOR Rate Purchase.


 


(b)           Capital Purchases; Payments. 
The Administrative Agent shall, promptly after receipt of a Capital
Purchase Request and in any event prior to 11:00 a.m. (New York time) on
the date such Capital Purchase Request is deemed received, by telecopy,
telephone or other similar form of communication notify the Purchasers of its
receipt of such Capital Purchase Request, and the Purchasers shall make the
amount of such requested increase in the Capital Investment available to the
Administrative Agent in same day funds by wire transfer to the Administrative
Agent’s account as set forth in Annex W not later than 3:00 p.m.
(New York time) on the requested Purchase Date. 
After receipt of such wire transfers (or, in the Administrative Agent’s
sole discretion in accordance with Section 2.03(c), before receipt
of such wire transfers), subject to the terms hereof (including, without
limitation, the satisfaction of the conditions precedent set forth in Section 3.02),
the Administrative Agent shall make available to the Seller by deposit into the
Seller Account (or, with the Administrative Agent’s consent, any other account
designated by the Seller) on the Purchase Date therefor, the lesser of (x) the
amount of the requested increase in the Capital Investment and (y) the
Availability.  All payments by each
Purchaser under this Section 2.03(b) shall be made without
setoff, counterclaim or deduction of any kind.


 


(c)           Funding Capital Purchases. 
The Administrative Agent may assume that each Purchaser will make its
Pro Rata Share of each increase in the Capital Investment in connection with a
Capital Purchase available to the Administrative Agent on each Purchase
Date.  If the Administrative Agent has
made available to the Seller such Purchaser’s Pro Rata Share of any such
increase in Capital Investment but such Pro Rata Share is not, in fact, paid to
the Administrative Agent by such Purchaser when due, the Administrative Agent
will be entitled to recover such amount on demand from such Purchaser without
set-off, counterclaim or deduction of any kind. 
If any Purchaser fails to pay the amount of its Pro Rata Share forthwith
upon the Administrative Agent’s demand, the Administrative Agent shall promptly
notify the Seller and the Seller shall promptly repay such amount to the
Administrative Agent.  Nothing in this Section 2.03(c) or
elsewhere in this Agreement or the other Related Documents shall be deemed to
require the Administrative Agent to advance funds to the Seller on behalf of
any Purchaser or to relieve any Purchaser from its obligation to fulfill its
Commitment hereunder or to prejudice any rights that the Seller may have
against any Purchaser as a result of any default by such Purchaser hereunder.  To the extent that the Administrative Agent
advances funds to the Seller on behalf of any Purchaser and is not reimbursed
therefor on the same Business Day as such increase in Capital Investment is
made, the Administrative Agent shall be entitled to retain for its account all
Daily Yield accrued on such increase in Capital Investment from the date of
such increase in Capital Investment to the date such increase in Capital
Investment is reimbursed by the applicable Purchaser or the Seller, as the case
may be.


 


(d)           Return of Payments.  (i)  If
the Administrative Agent pays an amount to a Purchaser under this Agreement in
the belief or expectation that a related payment has been or will be received
by the Administrative Agent from the Seller and such related payment is not
received by the Administrative Agent, then the Administrative Agent will be
entitled to recover 


 


4

















 


such amount from such
Purchaser on demand without set-off, counterclaim or deduction of any kind.


 


(ii)           If at any time any amount received by the
Administrative Agent under this Agreement must be returned to the Seller or
paid to any other Person pursuant to any insolvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement or any other
Related Document, the Administrative Agent will not be required to distribute
any portion thereof to any Purchaser.  In
addition, each Purchaser will repay to the Administrative Agent on demand any
portion of such amount that the Administrative Agent has distributed to such
Purchaser, together with interest at such rate, if any, as the Administrative
Agent is required to pay to the Seller or such other Person, without set-off,
counterclaim or deduction of any kind.


 


(e)           Non-Funding Purchasers.  The failure
of any Non-Funding Purchaser to make any increase in Capital Investment to be
made by it on the date specified therefor shall not relieve any other Purchaser
(each such other Purchaser, an “Other Purchaser”) of its obligations to
make any increase in Capital Investment to be made by it, but neither any Other
Purchaser nor the Administrative Agent shall be responsible for the failure of
any Non-Funding Purchaser to make any increase in Capital Investment to be made
by such Non-Funding Purchaser.


 


(f)            Actions in Concert.  Anything in
this Agreement to the contrary notwithstanding, each Purchaser hereby agrees
with each other Purchaser that no Purchaser shall take any action to protect or
enforce its rights arising out of this Agreement or the Purchase Assignment
(including exercising any rights of set-off) without first obtaining the prior
written consent of the Administrative Agent or the Requisite Purchasers, it
being the intent of the Purchasers that any such action to protect or enforce
rights under this Agreement and the Purchase Assignment shall, subject to any
provision herein requiring that each Purchaser consent to a particular action,
be taken in concert and at the direction or with the consent of the
Administrative Agent or the Requisite Purchasers.


 


(g)           Principal Repayments.  On each
Business Day, Collections on deposit in the Agent Accounts shall be applied in
accordance with Section 2.08(a) or Section 2.08(b),
as applicable.  The Seller may also at
any time reduce the Capital Investment out of Collections, or out of proceeds
from any sale or refinancing of the Receivables, excluding any refinancing the
funds for which are provided by Parent or any other Originator; provided, that (i) the Seller shall
give prior written notice of any such reduction to the Administrative Agent
substantially in the form of Exhibit 2.03(g) (each such
notice, a “Reduction Notice”), (ii) such notice must have been
received by the Administrative Agent no later than 2:00 p.m. (New York
time) on the Business Day immediately preceding the date of the proposed
reduction, (iii) each such notice shall be irrevocable, (iv) each
such notice shall specify the amount of the requested reduction in the Capital
Investment and the proposed date of such reduction (which shall be a Business
Day) and (v) no later than 2:00 p.m. (New York time) on the date of
the proposed reduction, in accordance with Section 2.08(c), the
Seller shall pay to the Master Agent Account (A) the amount of Capital
Investment to be reduced, (B) all Daily Yield accrued and unpaid on the
Capital Investment being reduced through but excluding the date of such
reduction and (C) the costs, if any, required by Section 2.10.


 


5














 


Section 2.04.          Conveyance of Receivables.


 


(a)           Purchase Assignment.  On or prior
to the Closing Date, the Seller shall complete, execute and deliver to the
Administrative Agent, for the benefit of the Purchasers, an assignment
substantially in the form of Exhibit 2.04(a) (the “Purchase
Assignment”) in order to evidence the Purchases.


 


(b)           Vesting of Ownership.


 


(i)            Effective on and as of each Purchase Date, the
Purchasers shall own the Purchaser Interests sold by the Seller hereunder on
such Purchase Date. The Seller shall not take any action inconsistent with such
ownership and shall not claim any ownership interest in such Purchaser
Interests.  Each Purchaser hereby
appoints the Administrative Agent as its agent for purposes of perfecting its
ownership interest in the Purchaser Interests.


 


(ii)           The Seller shall indicate in its Records that
interests in the Transferred Receivables have been sold hereunder and that
ownership of such interests is vested in the Administrative Agent on behalf of
the Purchasers. In addition, the Seller shall respond to any inquiries with
respect to the ownership of any Transferred Receivable by stating that
interests therein have been sold hereunder and that ownership of such interests
is vested in the Purchasers. The Seller and the Servicer shall hold all
Contracts and other documents relating to such Transferred Receivables in trust
for the benefit of the Administrative Agent on behalf of the Purchasers, and
for the sole purpose of facilitating the servicing of such Transferred Receivables.
The Seller hereby acknowledges that its retention and possession of such
Contracts and documents shall at all times be at the sole discretion of the
Administrative Agent and in a custodial capacity for the Administrative Agent’s
(on behalf of the Purchasers) benefit only.


 


(c)           Repurchases of Transferred Receivables. 
If an Originator is required to repurchase Transferred Receivables from
the Seller pursuant to Section 4.04 of the Sale Agreement, upon
payment by such Originator to a Lockbox Account of the applicable repurchase
price thereof (which repurchase price shall not be less than an amount equal to
the Billed Amount of such Transferred Receivable minus Collections
received in respect thereof, the lien of the Administrative Agent, on behalf of
itself and the other Specified Parties, as well as the Purchaser Interests and
any other related rights or interests in the Transferred Receivables being so
repurchased shall automatically be released.


 


Section 2.05.          Facility Termination Date. 
Notwithstanding anything to the contrary set forth herein, no Purchaser
shall have any obligation to purchase any additional Purchaser Interests from
and after the Facility Termination Date.


 


Section 2.06.          Daily Yield; Charges.


 


(a)           The Seller shall pay Daily Yield to the Administrative
Agent, for the ratable benefit of the Purchasers, with respect to the
outstanding amount of Capital Investment maintained by each Purchaser, in
arrears on each applicable Settlement Date, at the applicable Daily Yield Rate
as in effect from time to time during the period applicable to such Settlement 


 


6

















 


Date.  Daily Yield for each Purchase shall be
calculated based upon actual days elapsed during the applicable calendar month
or other period, for a 360 day year based upon actual days elapsed since the
last Settlement Date.  Unless a LIBOR
Rate Disruption Event shall have occurred, each Purchase shall be a LIBOR Rate
Purchase.


 


(b)           The Administrative Agent is authorized to, and at its
sole election may, charge to the Seller as an increase in Capital Investment
and cause to be paid all Fees, expenses, charges, costs, interest and
principal, owing by the Seller under this Agreement or any of the other Related
Documents if and to the extent the Seller fails to pay any such amounts as and
when due, and any charges so made shall constitute part of the Capital
Investment hereunder even if such charges would cause the aggregate balance of
the Capital Investment to exceed the Investment Base.


 


Section 2.07.          Fees.


 


(a)           On the Effective Date, the Seller shall pay to the
Administrative Agent, for the account of itself and the Purchasers, as
applicable, the fees set forth in the Fee Letter that are payable upon the
effectiveness of this Agreement.


 


(b)           From and after the Closing Date, as additional
compensation for the Purchasers, the Seller agrees to pay to Administrative
Agent, for the ratable benefit of such Purchasers, monthly in arrears, on each
Settlement Date prior to the Facility Termination Date and on the Facility
Termination Date, the accrued and unpaid Unused Commitment Fee.


 


(c)           On each Settlement Date, the Seller shall pay to the
Servicer or to the Successor Servicer, as applicable, the Servicing Fee or the
Successor Servicing Fees and Expenses, respectively, in each case to the extent
of available funds therefor pursuant to Section 2.08.


 


Section 2.08.          Application of Collections; Time and
Method of Payments.


 


(a)           On each Business Day, the Administrative Agent shall
allocate (or, in the case of Section 2.08(a)(iv), apply) amounts on
deposit in the Agent Accounts on such day and not previously allocated under
this subsection (a) as follows, in the following order of priority:


 


(i)            first, to be retained in the applicable Agent Account for payment,
in accordance with clause (i) of the following subsection (b),
an amount equal to the aggregate Fees accrued and unpaid through such date and
all unreimbursed expenses of the Administrative Agent which are reimbursable
pursuant to the terms hereof;


 


(ii)           second, to be retained in the applicable Agent Account for
payment in accordance with clause (ii) of the following subsection
(b), an amount equal to the aggregate Daily Yield accrued and unpaid
through such date;


 


(iii)          third, to be retained in the applicable Agent Account for
payment in accordance with clause (iii) of the following subsection (b),
an amount equal to the aggregate accrued and unpaid Servicing Fees through such
date payable to the Servicer;


 


7

















 


(iv)          fourth, an amount equal to any Purchase Excess (determined
after giving effect to any Reinvestment Purchase to be made pursuant to Section 2.01(a) out
of funds deemed to have been distributed to Seller in connection with such
Reinvestment Purchase) to be paid on such Business Day in reduction of Capital
Investment, to the Purchasers ratably based on the amount of their respective
Capital Investment, together with amounts payable with respect thereto under Section 2.10,
if any;


 


(v)           fifth, if any of the conditions precedent set forth in Section 3.02
shall not be satisfied as of such Business Day, all such remaining amounts to
the extent not greater than the Capital Investment to be retained in the
applicable Agent Account until paid in accordance with the following subsection
(b) or all such conditions are satisfied;


 


(vi)          sixth, to be retained in the applicable Agent Account and
paid in accordance with the applicable provisions of the following subsection
(b), an amount equal to the aggregate amount of all other accrued and
unpaid Seller Obligations which are then required to be paid, including,
without limitation, the expenses of the Purchasers reimbursable under Section 12.04;
and


 


(vii)         seventh, unless a Termination Event or Incipient Termination
Event has occurred and is continuing, any remaining amounts on deposit in the
applicable Agent Account, to be paid to the Seller Account (or, with the
Administrative Agent’s consent, any other account designated by the
Seller).  For the avoidance of doubt, if
a Termination Event or Incipient Termination Event has occurred and is
continuing, such amounts shall remain in an Agent Account.


 


(b)           On each Settlement Date until the Termination Date,
the Administrative Agent shall, except as otherwise provided in Section 2.12,
withdraw amounts on deposit in the Agent Accounts and pay such amounts as
follows in the following order of priority:


 


(i)            first, to the extent then due and payable, pro rata, to the payment of all Fees
accrued and unpaid through such date and all unreimbursed expenses of the
Administrative Agent which are reimbursable pursuant to the terms hereof;


 


(ii)           second, to the payment of accrued and unpaid Daily Yield, pro rata;


 


(iii)          third, to the payment of the aggregate accrued and unpaid
Servicing Fees through such date payable to the Servicer; provided, that
if the Servicer owes the Seller any amounts, such amounts shall be set-off from
the Servicing Fees owed and only the net amount of Servicing Fees shall be
paid;


 


(iv)          fourth, an amount equal to any Purchase Excess to be applied
in reduction of the Capital Investment, to the Purchasers ratably based on the
amount of their respective Capital Investment, together with amounts payable
with respect thereto under Section 2.10, if any, pro rata;


 


(v)           fifth, if any of the conditions precedent set forth in Section 3.02
shall not be satisfied as of such Settlement Date, to the payment of the
Capital Investment, together with amounts payable with respect thereto under Section 2.10,
if any, pro rata;


 


8

















 


(vi)          sixth, to the extent then due and payable, pro rata, to the payment of all other
obligations of the Seller accrued and unpaid hereunder, including, without
limitation, the expenses of the Purchasers reimbursable under Section 12.04
and any accrued and unpaid Servicing Fees not paid pursuant to clause third
above; and


 


(vii)         seventh, to be paid to the Seller Account (or, with the
Administrative Agent’s consent, any other account designated by the Seller).


 


(c)           If and to the extent a Purchase Excess exists on any
Business Day and the amounts on deposit in the Agent Accounts are not
sufficient to eliminate such Purchase Excess in accordance with Section 2.08(a)(iv),
the Seller shall deposit an amount equal to the amount of such Purchase Excess
in the Master Agent Account by no later than 11:00 a.m. (New York time) on
the Business Day immediately succeeding the earlier of the day that the Seller
was notified of such Purchase Excess or the day the Seller first knew of such
Purchase Excess, which amount shall be applied by the Administrative Agent as
an immediate reduction of Capital Investment (together with amounts payable
with respect thereto under Section 2.10).


 


(d)           To the extent that amounts on deposit in the Agent
Accounts on any day are insufficient to pay amounts due on such day in respect
of the any Purchase Excess, any matured Daily Yield, Fees or any other amounts
due and payable as of such day by the Seller hereunder, the Seller shall pay,
upon notice from the Administrative Agent, the amount of such insufficiency to
the Administrative Agent in Dollars, in immediately available funds (for the
account of the Administrative Agent, or the applicable Purchasers, Affected
Parties or Indemnified Persons, as the case may be) not later than 11:00 a.m.
(New York time) on such day.  Any such
payment made on such date but after such time shall be deemed to have been made
on, and Daily Yield shall continue to accrue and be payable thereon at the
Daily Yield Rate, until the next succeeding Business Day.


 


(e)           The Seller hereby irrevocably waives the right to
direct the application of any and all payments received from or on behalf of
the Seller, and the Seller hereby irrevocably agrees that any and all such
payments shall be applied by the Administrative Agent in accordance with this Section 2.08.


 


(f)            All payments in reduction of Capital Investment and
all payments of Daily Yield, Fees and other amounts payable by the Seller
hereunder shall be made in Dollars, in immediately available funds.  If any such payment becomes due on a day
other than a Business Day, the maturity thereof will be extended to the next
succeeding Business Day and Daily Yield shall accrue thereon at the Daily Yield
Rate shall be payable during such extension. 
Payments received at or prior to 2:00 p.m. (New York time) on any
Business Day shall be deemed to have been received on such Business Day.  Payments received after 2:00 p.m. (New
York time) on any Business Day or on a day that is not a Business Day shall be
deemed to have been received on the following Business Day.


 


(g)           Any and all payments by the Seller hereunder shall be
made in accordance with this Section 2.08 without setoff or
counterclaim and free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, Charges or withholdings,
excluding taxes imposed on or measured by the net income, gross receipts or
franchise taxes of 


 


9

















 


any Affected Party by the
jurisdictions under the laws of which such Affected Party is organized (or by
any political subdivisions thereof) or is doing business other than solely as a
result of this Agreement or any Related Document (such non-excluded taxes,
levies, imposts, deductions, Charges and withholdings being “Indemnified
Taxes”).  If the Seller shall be
required by law to deduct any Indemnified Taxes from or in respect of any sum
payable hereunder, (i) the sum payable shall be increased as much as shall
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.08) the
Affected Party entitled to receive any such payment receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Seller shall make such deductions, and (iii) the Seller shall pay the full
amount deducted to the relevant taxing or other authority in accordance with
applicable law.  Within 30 days after the
date of any payment of Indemnified Taxes, the Seller shall furnish to the
Administrative Agent the original or a certified copy of a receipt evidencing
payment thereof.  The Seller shall
indemnify any Affected Party from and against, and, within ten days of demand
therefor, pay any Affected Party for, the full amount of Indemnified Taxes
(together with any taxes imposed by any jurisdiction on amounts payable under
this Section 2.08) paid by such Affected Party and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Indemnified Taxes were correctly or legally
asserted.


 


(h)           Upon receipt of written evidence in accordance with Section 7.03(b) of
the Sale Agreement, the Administrative Agent shall, if such amounts have not
been applied previously to the Seller Obligations, segregate the Unrelated
Amounts and the same shall not be deemed to constitute Collections on
Transferred Receivables.


 


(i)            Termination Procedures.


 


(i)            On the earlier of (i) the first Business Day after
the Facility Termination Date on which the Capital Investment has been reduced
to zero or (ii) the Final Purchase Date, if the obligations to be paid
pursuant to Section 2.08(b) have not been paid in full, the
Seller shall immediately deposit in the Master Agent Account an amount
sufficient to make such payments in full.


 


(ii)           On the Termination Date, all ownership interests or
Liens of the Purchasers in and to all Transferred Receivables and all Liens of
the Purchasers and the Administrative Agent in and to the Seller Collateral
shall be released by each Purchaser and the Administrative Agent.


 


(iii)          Seller acknowledges that it is not authorized to file
any financing statement or amendment or termination statement with respect to
any financing statement without the written consent of Administrative Agent and
agrees that it will not do so without the prior written consent of
Administrative Agent; provided that the Administrative Agent shall
immediately authorize and consent to the filing of UCC-3 termination statements
when and as requested by the Seller (or any Affiliate of the Seller) on or
after the Termination Date.


 


(j)            Notwithstanding anything herein to the contrary,
amounts required to be retained in any Agent Account or withdrawn from any
Agent Account on any date shall be first retained 


 


10

















 


in, or withdrawn from, as
applicable, the Master Agent Account and then from the other Agent
Accounts.  If the sum of (1) the
aggregate Seller Obligations required to be paid on any date and (2) the
aggregate amounts required to be retained in the Agent Accounts on any date
exceeds the available amounts on deposit in the Master Agent Account on such
day, the Administrative Agent shall withdraw an amount equal to such excess
from one or more of the other Agent Accounts to pay such Seller Obligations or
retain such amounts, as applicable.


 


Section 2.09.          Capital Requirements; Additional Costs.


 


(a)           If any Affected Party shall have determined that,
after the date hereof, the adoption of or any change in any law, treaty,
governmental (or quasi governmental) rule, regulation, guideline or order
regarding capital adequacy, reserve requirements or similar requirements or
compliance by such Affected Party with any request or directive regarding
capital adequacy, reserve requirements or similar requirements (whether or not
having the force of law) from any central bank or other Governmental Authority
increases or would have the effect of increasing the amount of capital, reserves
or other funds required to be maintained by such Affected Party against
commitments made by it under this Agreement or any other Related Document and
thereby reducing the rate of return on such Affected Party’s capital as a
consequence of its commitments hereunder or thereunder, then the Seller shall
from time to time upon demand by the Administrative Agent pay to the
Administrative Agent on behalf of such Affected Party additional amounts
sufficient to compensate such Affected Party for such reduction together with
interest thereon from the date of any such demand until payment in full at the
Index Rate.  A certificate as to the
amount of that reduction and showing the basis of the computation thereof
submitted by the Affected Party to the Administrative Agent and the Seller
shall be final, binding and conclusive on the parties hereto (absent manifest
error) for all purposes.


 


(b)           If, due to any Regulatory Change, there shall be any
increase in the cost to any Affected Party of agreeing to make or making, funding
or maintaining any commitment hereunder or under any other Related Document,
including with respect to any Purchases or Capital Investment, or any reduction
in any amount receivable by such Affected Party hereunder or thereunder,
including with respect to any Purchases or Capital Investment (any such
increase in cost or reduction in amounts receivable are hereinafter referred to
as “Additional Costs”), then the Seller shall, from time to time upon
demand by the Administrative Agent, pay to the Administrative Agent on behalf
of such Affected Party additional amounts sufficient to compensate such
Affected Party for such Additional Costs together with interest thereon from
the date demanded until payment in full thereof at the Index Rate.  Each Affected Party agrees that, as promptly
as practicable after it becomes aware of any circumstance referred to above
that would result in any such Additional Costs, it shall, to the extent not
inconsistent with its internal policies of general application, use reasonable
commercial efforts to minimize costs and expenses incurred by it and payable to
it by the Seller pursuant to this Section 2.09(b).


 


(c)           Determinations by any Affected Party for purposes of
this Section 2.09 of the effect of any Regulatory Change on its
costs of making, funding or maintaining any commitments hereunder or under any
other Related Documents or on amounts payable to it hereunder or thereunder or
of the additional amounts required to compensate such Affected Party in respect
of any Additional Costs shall be set forth in a written notice to the
Administrative 


 


11

















 


Agent and the Seller in
reasonable detail and shall be final, binding and conclusive on the parties
hereto (absent manifest error) for all purposes.


 


(d)           Notwithstanding anything to the contrary contained
herein, if 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 any
Purchaser to agree to make or to make or to continue to fund or maintain any
LIBOR Rate Purchase, then, unless that Purchaser is able to make or to continue
to fund or to maintain such LIBOR Rate Purchase at another branch or office of
that Purchaser without, in that Purchaser’s reasonable opinion, adversely
affecting it or its Capital Investment or the income obtained therefrom, on
notice thereof and demand therefor by such Purchaser to the Seller through the
Administrative Agent, (i) the obligation of such Purchaser to agree to
make or to make or to continue to fund or maintain LIBOR Rate Purchases shall
terminate and (ii) Seller shall forthwith prepay in full all outstanding
LIBOR Rate Purchases owing to such Purchaser, together with Daily Yield accrued
thereon, unless Seller, within five (5) Business Days after the delivery
of such notice and demand, converts all such LIBOR Rate Purchases into Index
Rate Purchases.


 


Section 2.10.          Breakage Costs.  The Seller
shall pay to the Administrative Agent for the account of the applicable
Purchaser, upon request of such Purchaser, such amount or amounts as shall
compensate such Purchaser for any loss, cost or expense incurred by such
Purchaser (as reasonably determined by such Purchaser) as a result of any
reduction by the Seller in the Capital Investment (and accompanying loss of
Daily Yield thereon) other than on a Settlement Date, which compensation shall
include an amount equal to any loss or expense incurred by such Purchaser
during the period from the date of such reduction to (but excluding) such
maturity date if the rate of interest obtainable by such Purchaser upon the
redeployment of funds in an amount equal to such reduction is less than the
interest rate applicable to such financing source (any such loss, cost or
expense, “Breakage Costs”). The determination by such Purchaser of the
amount of any such loss or expense shall be set forth in a written notice to
the Administrative Agent and the Seller in reasonable detail and shall be
final, binding and conclusive on the parties hereto (absent manifest error) for
all purposes. For the purpose of calculating amounts payable under this Section 2.10,
each Purchaser shall be conclusively deemed to have actually funded its Capital
Investment through the purchase of a deposit bearing interest at the applicable
LIBOR Rate used in calculating the Daily Yield Rate with respect to its Capital
Investment and maturing on a Settlement Date; provided
that each Purchaser may fund its Capital Investment in any manner it sees fit,
and the foregoing assumption shall be utilized only for the calculation of
amounts payable under this Section 2.10.


 


Section 2.11.          Increase in Maximum Purchase Limit.


 


(a)           Provided there exists no Termination Event or
Incipient Termination Event, with the consent of the Administrative Agent and
the Requisite Lenders, the Seller may from time to time, request in writing an
increase in the Maximum Purchase Limit by an amount (for all such requests) not
exceeding $25,000,000.  At the time of
making such request, the Seller (in consultation with the Administrative Agent)
shall specify the time period within which each Purchaser is requested to
respond.


 


12

















 


(b)           Each Purchaser shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Commitment
and, if so, whether by an amount equal to, greater than, or less than its Pro
Rata Share of such requested increase. 
Any Purchaser not responding within such time period shall be deemed to
have declined to increase its Commitment.


 


(c)           The Administrative Agent shall promptly notify the
Seller and each Purchaser of the Purchasers’ responses to each request made
hereunder.  To achieve the full amount of
a requested increase and subject to the approval of the Administrative Agent,
the Seller may also invite additional Persons to become Purchasers pursuant to
a joinder agreement in form and substance reasonably satisfactory to the Administrative
Agent.


 


(d)           If the Aggregate Commitment is increased in accordance
with this Section 2.11, the Administrative Agent and the Seller
shall determine the effective date (the “Increase Effective Date”) and the final allocation of such
increase.  The Administrative Agent shall
promptly notify the Seller and the Purchasers of the final allocation of such
increase and the Increase Effective Date.


 


(e)           As a condition precedent to such increase, the Seller
shall deliver to the Administrative Agent a certificate of the Seller dated as
of the Increase Effective Date signed by an Authorized Officer (i) certifying
and attaching the resolutions adopted by the Seller approving or consenting to
such increase, and (ii) certifying that, before and after giving effect to
such increase, (A) the representations and warranties contained herein and
the other Transaction Documents are true and correct on and as of the Increase
Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and (B) no Termination Event or Incipient
Termination Event exists.  The Seller
shall prepay any Advances outstanding on the Increase Effective Date to the
extent necessary to keep the outstanding Advances ratable with any revised Pro
Rata Shares arising from any nonratable increase in the Commitments under this Section 2.11.


 


(f)            In addition to the other terms and conditions set
forth herein for increasing the Maximum Purchase Limit, any increase in the
Maximum Purchase Limit pursuant to this Section 2.11 shall be
subject to the additional condition that the Administrative Agent shall approve
all up-front fees and other compensation paid to any additional institution
which becomes a Purchaser hereunder or which increases its Commitment
hereunder, and that no up-front fees or other compensation, regardless of how
characterized, shall be paid to any such additional institution at a level
greater than that received by the existing Purchasers unless each existing
Purchaser concurrently receives such incremental compensation.  For purposes of the immediately preceding
sentence, (x) any up-front fees or similar compensation paid to any
Purchaser shall be deemed to equal a per annum rate (the “Attributable Rate”)
equal to (i) the total dollar number of up-front fees or similar
compensation paid to such Purchaser divided by (ii) the dollar amount of
such Purchaser’s Commitment multiplied by (iii) a fraction, the numerator
of which equals 360 and the denominator of which equals the number of days
between the date of such Purchaser’s Commitment and the Final Purchase Date; (y) if
the Attributable Rate paid to any new or increasing Purchaser exceeds the
Attributable Rate for any existing Purchaser, the incremental fees owed to such
existing Purchaser shall equal to the amount of such difference times such
existing Purchaser’s Commitment and (z) any up-front fees 


 


13

















 


or similar compensation
shall be deemed to exclude any underwriting fees, arrangement fees, closing
fees, administration fees or structuring fees paid in connection with the
initial closing of the transactions contemplated hereby.


 


(g)           This Section 2.11 shall supersede any
provisions in this Agreement to the contrary.


 


Section 2.12.          Non-Funding
Purchasers.  (a) If a Purchaser becomes a Non-Funding
Purchaser, then, so long as such Purchaser remains a Non-Funding Purchaser in
accordance with clause (b) below, notwithstanding any other
provisions of this Agreement, any amount paid by the Seller for the account of
such Non-Funding Purchaser under this Agreement (whether on account of Capital
Investment, Daily Yield, Fees, Breakage Costs, indemnity payments or other
amounts) will not be paid or distributed to such Non-Funding Purchaser, but
will, so long as such Purchaser is a Non-Funding Purchaser, instead be retained
by the Administrative Agent in a segregated non-interest bearing account, until
the Termination Date and will be applied by the Administrative Agent, to the
fullest extent permitted by law, to the making of payments from time to time in
the following order of priority (and the Non-Funding Purchaser shall have no
claims against the Seller, the Administrative Agent or any Purchaser for making
such redirected payments): first to the payment of any amounts, if any,
due and owing by such Non-Funding Purchaser to the Administrative Agent under
this Agreement, together with interest thereon owing at the Index Rate; second
to the payment of Daily Yield due and payable to the Other Purchasers, ratably
among them in accordance with the amounts of such Daily Yield then due and
payable to them; third to the payment of fees then due and payable to
the Other Purchasers, ratably among them in accordance with the amounts of such
fees then due and payable to them; fourth, if as of any Settlement Date
the Capital Investment of any Other Purchaser exceeds its Pro Rata Share (as
determined without giving effect to the proviso in the definition thereof) of
the total Capital Investments, to repay the Capital Investments of each such
Other Purchaser in the amount necessary to eliminate such excess, pro rata
based on the Capital Investments of the Other Purchasers; fifth, to make
any other mandatory reductions of Capital Investments of the Other Purchasers
required under Section 2.08, pro rata based on the Capital Investment of
such Other Purchasers; sixth to the ratable payment of other amounts
then due and payable to the Other Purchasers; and seventh to pay any
Daily Yield, Capital Investment or other amounts owing under this Agreement to
such Non-Funding Purchaser in the order of priority set forth in Section 2.08(b) hereof
or as a court of competent jurisdiction may otherwise direct.


 


(b)           If the Seller and the Administrative
Agent agree in writing in their discretion that a Non-Funding Purchaser should
no longer be deemed to be a Non-Funding Purchaser, the Administrative Agent
will so notify the other parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which
may include arrangements with respect to any amounts then held in the
segregated account referred to in Section 2.12(a), such Non-Funding
Purchaser shall, to the extent applicable, purchase such portion of outstanding
Capital Investment of the Other Purchasers and/or make such other adjustments
as the Administrative Agent may determine to be necessary to cause the Capital
Investment of all of the Purchasers to be on a pro rata basis in accordance
with their respective Commitments, whereupon such Purchaser will cease to be a
Non-Funding Purchaser, provided that no adjustments will be made
retroactively with respect to Fees accrued or payments made by or on behalf of
the Seller while such Purchaser was a Non-Funding Purchaser; and provided,



 


14

















 


further, that except to the extent otherwise
expressly agreed by the affected parties, such notification will not constitute
a waiver or release of any claim of any party hereunder arising from such
Purchaser’s having been a Non-Funding Purchaser.


 


ARTICLE III.



CONDITIONS PRECEDENT


 


Section 3.01.          Conditions to Effectiveness of Agreement. 
This Agreement shall not be effective until the date on which each of
the following conditions have been satisfied, in the sole discretion of, or
waived in writing by, the Purchasers and the Administrative Agent (such date,
the “Effective Date”):


 


(a)           Purchase Agreement; Other Related Documents. 
This Agreement shall have been duly executed by, and delivered to, the
parties hereto and the Purchasers and the Administrative Agent shall have
received such other documents, instruments, agreements and legal opinions as
each Purchaser and the Administrative Agent shall reasonably request in
connection with the transactions contemplated by this Agreement, including all
those listed 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),
each in form and substance satisfactory to each Purchaser and the
Administrative Agent.


 


(b)           Governmental Approvals.  The
Purchasers and the Administrative Agent shall have received (i) satisfactory
evidence that the Seller, the Servicer and the Existing Originators 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 or thereby or (ii) an Officer’s
Certificate from each of the Seller and the Servicer in form and substance
satisfactory to the Purchasers and the Administrative Agent affirming that no
such consents or approvals are required.


 


(c)           Compliance with Laws.  The Seller
and the Transaction Parties shall be in compliance with all applicable foreign,
federal, state and local laws and regulations, including, without limitation,
those specifically referenced in Section 5.01(a), except to the
extent noncompliance could not reasonably be expected to have a Material
Adverse Effect.


 


(d)           Payment of Fees.  The Seller
shall have paid all fees required to be paid by it on or before the Effective
Date, including all fees required hereunder and under the Fee Letter and the
fee letter dated February 5, 2009 among the Parent, GE Capital and GE
Capital Markets, Inc., and shall have reimbursed the Administrative Agent for
all reasonable fees, costs and expenses of closing the transactions
contemplated hereunder and under the other Related Documents, including the
Administrative Agent’s reasonable legal and audit expenses, and other document
preparation costs.


 


(e)           Representations and Warranties. 
Each representation and warranty by the Seller and each Transaction
Party contained herein and in each other Related Document shall be true 


 


15

















 


and correct as of the
Effective Date, except to the extent that such representation or warranty
expressly relates solely to an earlier date.


 


(f)            No Termination Event.  No Incipient
Termination Event or Termination Event hereunder or any “Event of Default”
or “Default” (each as defined in the Credit Agreement) shall have
occurred and be continuing or would result after giving effect to any of the
transactions contemplated on the Closing Date.


 


(g)           Audit.  The
Administrative Agent shall have completed a prefunding audit of the Receivables
as of the Closing Date, the scope and results of which are satisfactory to the
Administrative Agent and each Purchaser in its sole discretion.


 


(h)           Material Adverse Change.  Since Parent’s
last audited financial statements there shall have been (i) no material
adverse change, individually or in the aggregate, in the business, financial or
other condition of the Parent and its Subsidiaries, taken as a whole, the
industry in which the Originators operate, or the Transferred Receivables or in
the prospects or projections of the Parent and its Subsidiaries, taken as a
whole or of the Seller; (ii) no litigation has commenced that, if
successful, would have a material adverse impact on the Parent and its
Subsidiaries, taken as a whole, its or their business or ability to service the
Transferred Receivables, or that would challenge the Transactions contemplated
by the Related Documents; and (iii) no material increase in the
liabilities, liquidated or contingent, of the Parent and its Subsidiaries,
taken as a whole.


 


Section 3.02.          Conditions Precedent to Purchases. 
No Purchaser shall be obligated to make any Purchases hereunder
(including any Reinvestment Purchase) on any date if, as of the date thereof:


 


(a)           any representation or warranty of the Seller, the
Servicer or any Originator contained herein or in any of the other Related
Documents shall be untrue or incorrect in any material respect as of such date,
either before or after giving effect to the Purchase of Purchaser Interests on
such date and to the application of the proceeds therefrom, except to the
extent that such representation or warranty expressly relates to an earlier
date and except for changes therein expressly permitted by this Agreement;


 


(b)           any event shall have occurred, or would result from
the Purchase of Purchaser Interests on such Purchase Date or from the
application of the proceeds therefrom, that constitutes an Incipient
Termination Event or a Termination Event;


 


(c)           the Facility Termination Date shall have occurred;


 


(d)           either before or after giving effect to such Purchase
and to the application of the proceeds therefrom, the Capital Investment divided
by the Investment Base would exceed 100%; or


 


(e)           on or prior to such date, the Seller or the Servicer
shall have failed to deliver any Monthly Report, Weekly Report or Investment
Base Certificate required to be delivered in accordance with Section 5.02
hereof or the Sale Agreement and such failure shall be continuing.


 


16














 


The delivery by the Seller
of a Capital Purchase Request and the acceptance by the Seller of the funds
from such Capital Purchase or any Reinvestment Purchase on any Purchase Date
shall be deemed to constitute, as of any such Purchase Date, a representation
and warranty by the Seller that the conditions in this Section 3.02
have been satisfied.


 


ARTICLE IV.



REPRESENTATIONS AND WARRANTIES


 


Section 4.01.          Representations and Warranties of the Seller. 
To induce each Purchaser to purchase the Purchaser Interests and the
Administrative Agent to take any required or permitted actions hereunder, the
Seller makes the following representations and warranties to each Purchaser and
the Administrative Agent as of the Closing Date and, except to the extent
provided otherwise below, as of each Purchase Date, each and all of which shall
survive the execution and delivery of this Agreement.


 


(a)           Existence; Compliance with Law. 
The Seller (i) is a corporation duly formed, validly existing and
in good standing under the laws of its jurisdiction of organization, is a “registered
organization” as defined in the UCC of such jurisdiction and is not organized
under the laws of any other jurisdiction; (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 be so qualified could not reasonably
be expected to have a Material Adverse Effect; (iii) has the requisite
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; (v) is in compliance with its
by-laws; and (vi) subject to specific representations set forth herein
regarding ERISA, tax and other laws, is in compliance with all applicable
provisions of law, except where the failure to comply, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.


 


(b)           Executive Offices; Collateral Locations; Corporate or
Other Names; FEIN.  The state of organization and the
organization identification number of the Seller and current location of the
Seller’s chief executive office, the premises within which any Seller
Collateral is stored or located, and the locations of its records concerning
the Seller Collateral are set forth in Schedule 4.01(b) and the
jurisdiction of its organization has not changed within the past 12 months (or
such shorter time as the Seller has been in existence).  During the prior five years (or such shorter
time as the Seller has been in existence), except as set forth in Schedule
4.01(b), the Seller has not been known as or used any fictitious or trade
name.  In addition, Schedule 4.01(b) lists
the federal employer identification number of the Seller.


 


(c)           Power, Authorization, Enforceable Obligations. 
The execution, delivery and performance by the Seller of this Agreement
and the other Related Documents to which it is a party, and the creation and
perfection of all Liens and ownership interests provided for herein and
therein: (i) are within the Seller’s corporate power; (ii) have been
duly authorized by all 


 


17

















 


necessary or proper
actions; (iii) do not contravene any provision of the Seller’s 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, 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 the Seller or any
Originator is a party or by which the Seller or any Originator or any of the
property of the Seller or any Originator is bound; (vi) do not result in
the creation or imposition of any Adverse Claim upon any of the property of the
Seller or any Originator; and (vii) do not require the consent or approval
of any Governmental Authority or any other Person, except those which have been
duly obtained, made or complied with prior to the Effective Date as provided in
Section 3.01(b).  The
exercise by each of the Seller, the Purchasers or the Administrative Agent of
any of its rights and remedies under any Related Document to which it is a
party do not require the consent or approval of any Governmental Authority or
any other Person, except those which will have been duly obtained, made or
complied with prior to the Closing Date as provided in Section 3.01(b).  On or prior to the Effective Date, each of
the Related Documents to which the Seller is a party shall have been duly
executed and delivered by the Seller and each such Related Document shall then
constitute a legal, valid and binding obligation of the Seller enforceable
against it in accordance with its terms.


 


(d)           No Litigation.  No Litigation
is now pending or, to the knowledge of the Seller, threatened against the
Seller that (i) challenges the Seller’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, sale, pledge or
contribution 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.  There is no Litigation pending or, to Seller’s
or Parent’s knowledge, threatened that seeks damages or injunctive relief
against, or alleges criminal misconduct by, the Seller.


 


(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 or current transaction costs by the Seller in connection with the
foregoing, the Seller is and will be Solvent.


 


(f)            Material Adverse Effect.  Since December 31,
2007, (i) the Seller has not incurred any obligations, contingent or
non-contingent liabilities, liabilities for Charges, long-term leases or
unusual forward or long-term commitments, other than in connection with the
transactions contemplated by the Related Documents, (ii) no contract,
lease or other agreement or instrument has been entered into by the Seller or
has become binding upon the Seller’s assets, other than in connection with the
Related Documents, and no law or regulation applicable to the Seller has been
adopted that has had or could reasonably be expected to have a Material Adverse
Effect and (iii) the Seller is not in default and no third party is in
default under any material contract, lease or other agreement or instrument to
which the Seller is a party.  Since the
date of the Seller’s 


 


18

















 


organization, no event
has occurred with respect to the Seller that alone or together with other
events could reasonably be expected to have a Material Adverse Effect.


 


(g)           Ownership of Property; Liens. 
None of the properties and assets (including the Transferred
Receivables) of the Seller are subject to any Adverse Claims other than
Permitted Encumbrances not attaching to Transferred Receivables, and there are
no facts, circumstances or conditions known to the Seller that may result in (i) with
respect to the Transferred Receivables, any Adverse Claims (including Adverse
Claims arising under environmental laws) and (ii) with respect to its
other properties and assets, any Adverse Claims (including Adverse Claims
arising under environmental laws) other than Permitted Encumbrances.  The Seller 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 the
Seller’s right, title and interest in and to the Transferred Receivables and
its other properties and assets.  No
effective financing statement or other similar instrument are of record in any
filing office listing the Seller or any Originator as debtor and covering any
of the Transferred Receivables or the other Seller Collateral (except with
respect to the Liens granted under this Agreement, the Sale Agreement, the
Existing Purchase Agreement or the Existing Sale Agreement), and the Liens
granted to the Purchaser pursuant to Section 7.01 are and will be
at all times fully perfected first priority Liens in and to the Seller
Collateral.


 


(h)           Ventures, Subsidiaries and Affiliates; Outstanding
Stock and Indebtedness.  The Seller has no
Subsidiaries, and is not engaged in any joint venture or partnership with any
other Person.  The Seller has no
Investments in any Person other than Permitted Investments.  There are no outstanding rights to purchase
or options, warrants or similar rights or agreements pursuant to which the
Seller may be required to issue, sell, repurchase or redeem some or all of its
Stock.  Other than the Subordinated
Loans, the Seller has no outstanding Debt on the Effective Date.


 


(i)            Taxes.  All tax
returns, reports and statements, including information returns, required by any
Governmental Authority to be filed by the Seller and all material tax returns,
reports and statements, including information returns, required by any
Governmental Authority to be filed by any Affiliate of the Seller, have in each
case 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 5.01(e).  Proper and accurate amounts have been
withheld by the Seller or such Affiliate from its respective employees for all
periods in full and complete compliance with all applicable federal, state,
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 Effective Date (i) those taxable
years for which the Seller’s or such Affiliates’ 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 any such audit or
otherwise currently outstanding.  Except
as described on Schedule 4.01(i), as of the Effective Date, neither the
Seller nor any such Affiliate 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.  As of the Effective Date, neither the Seller
nor any of its Affiliates included in the Parent Group has agreed or been
requested to make any adjustment 


 


19

















 


under IRC 481(a), by
reason of a change in accounting method or otherwise, that could reasonably be
expected to have a Material Adverse Effect.


 


(j)            Full Disclosure.  All
information provided by or on behalf of Seller pursuant to this Agreement, any
Investment Base Certificate, any Monthly Report, Weekly Report, Daily Report or
any of the other Related Documents, or any other written statement or information
furnished by or on behalf of the Seller to any Purchaser or the Administrative
Agent relating to this Agreement, the Transferred Receivables or any of the
other Related Documents taken as a whole, is true and accurate, as of its date,
in every material respect, and none of this Agreement, any Investment Base
Certificate, any Monthly Report, Weekly Report, Daily Report or any of the
other Related Documents, or any other written statement or information
furnished by or on behalf of the Seller to any Purchaser or the Administrative
Agent relating to this Agreement or any of the other Related Documents, as of
its date, contains any untrue statement of a material fact or omitted, omits or
will omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made.  All
information provided by or on behalf of Seller pursuant to this Agreement
contained in this Agreement, any Investment Base Certificate, any Monthly
Report, Weekly Report, Daily Report or any of the other Related Documents, or
any other written statement or information furnished to any Purchaser or the
Administrative Agent has been prepared in good faith by the management of the
Seller with the exercise of reasonable diligence.


 


(k)           ERISA.  The Seller
and its ERISA Affiliates are in material compliance with ERISA (or, in the case
of any Canadian Originator, applicable pension benefits standards) 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
(or, in the case of any Canadian Originator, Canadian pension legislation).


 


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


 


(m)          Margin Regulations.  The Seller is
not engaged in the business of extending credit for the purpose of “purchasing”
or “carrying” any “margin security,” as such terms are defined in Regulation U
of the Federal Reserve Board as now and from time to time hereafter in effect
(such securities being referred to herein as “Margin Stock”).  The Seller owns no Margin Stock, and no
portion of the proceeds of the Purchases made hereunder 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.  The Seller will not take or permit to be
taken any action that might cause any Related Document to violate any
regulation of the Federal Reserve Board.


 


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


 


20

















 


(o)           Government Regulation.  The Seller is
not 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..


 


(p)           Nonconsolidation.  The Seller is
operated in such a manner that the separate corporate existence of the Seller,
on the one hand, and any member of the Parent Group, on the other hand, would
not be disregarded in the event of the bankruptcy or insolvency of any member
of the Parent Group and, without limiting the generality of the foregoing:


 


(i)            the Seller is a limited purpose corporation whose
activities are restricted in its articles of incorporation to those activities
expressly permitted hereunder and under the other Related Documents and the
Seller has not engaged, and does not presently engage, in any business or other
activity other than those activities expressly permitted hereunder and under
the other Related Documents, nor has the Seller entered into any agreement
other than this Agreement, the other Related Documents to which it is a party
and, with the prior written consent of the Administrative Agent, any other
agreement necessary to carry out more effectively the provisions and purposes
hereof or thereof;


 


(ii)           the Seller has duly appointed a board of directors and
its business is managed solely by its own officers and directors, each of whom
when acting for the Seller shall be acting solely in his or her capacity as an
officer or director of the Seller and not as an officer, director, employee or
agent of any member of the Parent Group;


 


(iii)          (A) Seller shall compensate all employees (if
any), consultants and agents directly or indirectly through reimbursement of
the Parent, from its own funds, for services provided to the Seller by such
employees (if any), consultants and agents and, to the extent any employee (if
any), consultant or agent of the Seller is also an employee, consultant or
agent of such member of the Parent Group on a basis which reflects the
respective services rendered to the Seller and such member of the Parent Group
and (B) Seller shall not have any employees;


 


(iv)          Seller shall pay its own incidental administrative
costs and expenses from its own funds, and shall allocate all other shared
overhead expenses (including, without limitation, telephone and other utility
charges, the services of shared consultants and agents, and reasonable legal
and auditing expenses) which are not reflected in the Servicing Fee, and other
items of cost and expense shared between the Seller and the Parent on the basis
of actual use to the extent practicable and, to the extent such allocation is
not practicable, on a basis reasonably related to actual use or the value of
services rendered; except as otherwise expressly permitted hereunder, under the
other Related Documents and under the Seller’s organizational documents, no
member of the Parent Group (A) pays the Seller’s expenses, (B) guarantees
the Seller’s obligations, or (C) advances funds to the Seller for the
payment of expenses or otherwise;


 


(v)           other than the purchase and acceptance through capital
contribution of Transferred Receivables pursuant to the Sale Agreement, the
acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of
distributions and the return of capital to the Member, the payment of Servicing
Fees to the Servicer under the Sale 


 


21

















 


Agreement, the Seller engages and has engaged in no
intercorporate transactions with any member of the Parent Group;


 


(vi)          the Seller maintains records and books of account
separate from that of each member of the Parent Group, holds regular meetings
of its board of directors and otherwise observes corporate formalities;


 


(vii)         (A) the financial statements (other than
consolidated financial statements) and books and records of the Seller and each
member of the Parent Group reflect the separate existence of the Seller, (B) the
consolidated financial statements of the Parent Group shall contain disclosure
to the effect that the Seller’s assets are not available to the creditors of
any member of the Parent Group and (C) the Parent’s public bond indentures
and the Credit Agreement expressly permit sales of Receivables to the Seller on
the understanding that the Seller is a separate entity from the Parent Group;


 


(viii)        (A) the Seller maintains its assets separately
from the assets of each member of the Parent Group (including through the
maintenance of separate bank accounts and except for any Records to the extent
necessary to assist the Servicer in connection with the servicing of the
Transferred Receivables), (B) the Seller’s funds (including all money,
checks and other cash proceeds) and assets, and records relating thereto, have
not been and are not commingled with those of any member of the Parent Group
and (C) the separate creditors of the Seller will be entitled, on the
winding-up of the Seller, to be satisfied out of the Seller’s assets prior to
any value in the Seller becoming available to the Member;


 


(ix)           all business correspondence and other communications
of the Seller are conducted in the Seller’s own name, on its own stationery,
invoice and checks and through a separately-listed telephone number;


 


(x)            the Seller has and shall maintain separate office
space from the offices of any member of the Parent Group and identify such
office by a sign in its own name;


 


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


 


(xii)          the Seller does not act as agent for any member of the
Parent Group, but instead presents itself to the public as a legal entity
separate from each such member and independently engaged in the business of
purchasing and financing Receivables;


 


(xiii)         the Seller maintains at least one independent director
who (A) is not a Stockholder, director, officer, employee or associate, or
any relative of the foregoing, of any member of the Parent Group (other than
the Seller), all as provided in its certificate of incorporation, (B) has (1) prior
experience as an independent director for an entity whose organizational
documents required the unanimous consent of all independent directors thereof
before such corporation could consent to the institution of bankruptcy or
insolvency proceedings against it or could file a petition seeking relief under
any 


 


22

















 


applicable federal or state law relating to bankruptcy
and (2) at least three years of employment experience with one or more
entities that provide, in the ordinary course of their respective businesses,
advisory, management, independent director services or placement services to
issuers of securitization or structured finance instruments, agreements or
securities, and (C) is otherwise acceptable to the Administrative Agent,
and the retention arrangement with such independent directors requires them to
consider the interest of Seller;


 


(xiv)        the certificate of incorporation of the Seller
requires the affirmative vote of each independent director before a voluntary
petition under the Bankruptcy Code or any other applicable federal, state,
provincial or foreign bankruptcy or other similar law, including the BIA or the
CCAA, may be filed by the Seller;


 


(xv)         Seller shall maintain (1) correct and complete
books and records of account and (2) minutes of the meetings and other
proceedings of its members and board of directors;


 


(xvi)        Seller shall not hold out its credit as being
available to satisfy obligations of others;


 


(xvii)       Seller shall not acquire obligations or Stock of any
member of the Parent Group;


 


(xviii)      Seller shall correct any known misunderstanding
regarding its separate identity; and


 


(xix)         Seller shall maintain adequate capital in light of its
contemplated business operations.


 


(q)           Deposit and Disbursement Accounts.  Schedule
4.01(q) lists all banks and other financial institutions at which the
Seller maintains deposit or other bank accounts as of the Closing Date,
including any Lockbox Account, 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.  Each Lockbox Account
constitutes a deposit account within the meaning of the applicable UCC.  The Seller (or the Servicer on its behalf)
has delivered to the Administrative Agent a fully executed agreement pursuant
to which each Lockbox Account Bank (with respect to each Lockbox Account) has
agreed to comply with all instructions originated by the Administrative Agent
directing the disposition of funds in the Lockbox Accounts without further
consent by the Seller, the Servicer or any Originator.  No Lockbox Account is in the name of any
person other than the Seller or the Administrative Agent, and the Seller has
not consented to any Bank following the instructions of any Person other than the
Administrative Agent.  Accordingly, the
Administrative Agent has a first priority perfected security interest in each
Lockbox Account, and all funds on deposit therein.


 


23

















 


(r)            Transferred Receivables.


 


(i)            Transfers.  Each
Transferred Receivable was purchased by or contributed to the Seller on the
relevant Transfer Date pursuant to the Sale Agreement.


 


(ii)           Eligibility.  Each
Transferred Receivable designated as an Eligible Receivable in each Investment
Base Certificate, Monthly Report, Weekly Report or Daily Report, as the case
may be, constitutes an Eligible Receivable as of the date specified in such
Investment Base Certificate, Monthly Report or Weekly Report, as applicable.


 


(iii)          No Material Adverse Effect. 
The Seller has no actual knowledge of any fact (including any defaults
by the Obligor thereunder on any other Receivable) that would cause it or
should have caused it to expect that any payments on any Transferred Receivable
designated as an Eligible Receivable in any Investment Base Certificate,
Monthly Report, Weekly Report or Daily Report, as applicable, will not be paid
in full when due or that has caused it to expect any material adverse effect on
any such Transferred Receivable.


 


(iv)          Nonavoidability of Transfers. 
The Seller shall (A) have received each Contributed Receivable as a
contribution to the capital of the Seller by the Parent as the sole shareholder
of the Seller and (B) (1) have purchased each Sold Receivable from
the applicable Originator for cash consideration or with the proceeds of a
Subordinated Loan and (2) have accepted assignment of any Eligible
Receivables transferred pursuant to clause (b) of Section 4.04
of the Sale Agreement, in each case in an amount that constitutes fair
consideration and reasonably equivalent value therefor.  No Sale or contribution has been made for or
on account of an antecedent debt owed by any Originator to the Seller and no
such Sale or contribution is or may be avoidable or subject to avoidance under
any bankruptcy laws, rules or regulations.


 


(s)           Assignment of Interest in Related Documents. 
The Seller’s interests in, to and under the Sale Agreement and each
Originator Support Agreement, if any, have been assigned by the Seller to the
Administrative Agent (for the benefit of itself and the Purchasers) as security
for the Seller Obligations.  No license
or approval is required for the Administrative Agent’s use of any programs used
by the Servicer in the servicing of the Transferred Receivables other than
those which have been obtained and which remain in full force and effect.


 


(t)            Notices to Obligors.  Each Obligor
of Transferred Receivables has been directed to remit all payments with respect
to such Receivables for deposit in a Lockbox or Lockbox Account.


 


(u)           Representations and Warranties in Other Related
Documents.  Each of the representations and warranties of
the Seller contained in the Related Documents (other than this Agreement) is
true and correct in all respects as of the date made or deemed made and the
Seller hereby makes each such representation and warranty to, and for the
benefit of, the Purchasers and the Administrative Agent as if the same were set
forth in full herein.


 


24

















 


(v)           Supplementary Representations.


 


(i)            Receivables; Lockbox Accounts.  (A) Each
Transferred Receivable constitutes (1) an “account” or a “payment
intangible” within the meaning of the applicable UCC and (2) in the case
of any Transferred Receivable generated by any Canadian Originator, an “account”
within the meaning of the PPSA and (C) each Lockbox Account constitutes a “deposit
account” within the meaning of the applicable UCC.


 


(ii)           Creation of Security Interest. 
The Seller owns and has good and marketable title to the Transferred
Receivables, Lockbox Accounts and Lockboxes, free and clear of any Adverse
Claim (other than in favor of the Administrative Agent for the benefit of the
Purchasers).  This Agreement creates a
valid and continuing security interest (as defined in the applicable UCC and,
in the case of any Canadian Originator, the PPSA) in the Transferred
Receivables, Lockbox Accounts and Lockboxes in favor of the Administrative
Agent (on behalf of itself and the other Specified Parties), which security
interest is prior to all other Adverse Claims and is enforceable as such as
against any creditors of and purchasers from the Seller.


 


(iii)          Perfection.  On or prior
to the Effective Date: (A) the Seller has 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 Seller pursuant to the Sale Agreement and the security
interest granted by the Seller to the Administrative Agent (on behalf of itself
and the other Specified Parties) in the Transferred Receivables hereunder; and (B) with
respect to each Lockbox Account, the Seller has delivered to the Administrative
Agent (on behalf of itself and the other Specified Parties), a fully executed
Lockbox Account Agreement pursuant to which the applicable Lockbox Account Bank
has agreed to comply with all instructions given by the Administrative Agent
with respect to all funds on deposit in the Lockbox Accounts and the related
Lockboxes, without further consent by the Seller, the Servicer or any
Originator.


 


(iv)          Priority.  (A) Other
than (1) the transfer of the Transferred Receivables by the Originators to
the Seller pursuant to the Sale Agreement, and (2) the grant of security
interest by the Seller to the Administrative Agent (on behalf of itself and the
other Specified Parties) in the Transferred Receivables, the Lockbox Accounts
and the Lockboxes hereunder, neither the Seller nor any Originator has pledged,
assigned, sold, conveyed, or otherwise granted a security interest in any of
such Receivables, the Lockbox Accounts and the Lockboxes to any other Person,
except for any security interest from an Originator granted pursuant to the
Credit Agreement or subordinated to such security interest which is, in either
case, released automatically upon the conveyance to Buyer under the Sale
Agreement.  (B) Neither the Seller
nor any Originator has authorized, or is aware of, any filing of any financing
statement against the Seller or any Originator that include a description of
collateral covering the Transferred Receivables or all other collateral pledged
to the Administrative Agent (on behalf of itself and the other Specified
Parties) pursuant to the Related Documents, other than (1) any financing 


 


25

















 


statement filed pursuant to the Sale Agreement and
this Agreement, (2) any financing statement filed pursuant to the “Domestic
Security Agreement” or “Canadian Security Agreement” referred to in the Credit
Agreement or (3) financing statements that have been validly terminated
prior to the date hereof.  (C) The
Seller is not aware of any judgment, ERISA or tax lien filings against either
the Seller or any Originator.  (D) None
of the Lockbox Accounts or Lockboxes is in the name of any Person other than
the Seller or the Administrative Agent. 
Neither the Seller, the Servicer or any 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
shall be continuing, and remain in full force and effect until the Termination
Date.


 


ARTICLE V.



GENERAL COVENANTS OF THE SELLER


 


Section 5.01.          Affirmative Covenants of the Seller. 
The Seller covenants and agrees that from and after the Effective Date
and until the Termination Date:


 


(a)           Compliance with Agreements and Applicable Laws. 
The Seller shall (i) perform each of its obligations under this
Agreement and the other Related Documents and (ii) comply with all
federal, state and local laws and regulations applicable to it and the
Transferred Receivables, including, to the extent applicable, 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, solely with respect to this clause (ii),
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.


 


(b)           Maintenance of Existence and Conduct of Business. 
The Seller 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 (1) the terms of its
certificate of incorporation and by-laws, (2) Section 4.01(p) and
(3) the assumptions set forth in the opinion letter of Jones Day in
connection with the Related Agreements relating to true sale and
nonconsolidation matters; (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; and (iv) transact
business only in the name of GGRC Corp.


 


(c)           Deposit of Collections.  The Seller
shall 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 with respect to any Transferred Receivable.


 


26














 


(d)           Use of Proceeds.  The Seller
shall utilize the proceeds of the Purchases made hereunder solely for (i) the
repayment of any obligations of the Seller hereunder, (ii) the purchase of
Transferred Receivables from the Originators pursuant to the Sale Agreement, (iii) the
payment of distributions to the Parent, (iv) the repayment of Subordinated
Loans, and (iv) the payment of administrative fees or Servicing Fees or
expenses to the Servicer or routine administrative or operating expenses, in
each case only as expressly permitted by and in accordance with the terms of
this Agreement and the other Related Documents.


 


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


 


(i)            Subject to Section 5.01(e)(ii), the Seller 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 thereof shall become past due.


 


(ii)           The Seller may in good faith contest, by appropriate
proceedings, the validity or amount of any charges or claims described in Section 5.01(e)(i); provided,
that (A) adequate reserves with respect to such contest are maintained on
the books of the Seller, 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 Seller reasonably
believes that failure to pay or to discharge such claims or charges could not
reasonably be expected to have or result in a Material Adverse Effect.


 


(f)            ERISA.  The Seller
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 on any Seller
Collateral under Section 412 of the IRC or Section 302 or 4068 of
ERISA, or (ii) could reasonably be expected to result in the incurrence by
Seller or its ERISA Affiliates of any liabilities under Title IV of ERISA
(other than premium payments arising in the ordinary course of business).


 


(g)           Seller to Maintain Perfection and Priority. 
In order to evidence the interests of the Administrative Agent and the
Purchasers under this Agreement, the Seller shall, from time to time take such
action, or execute and deliver such instruments necessary or advisable
(including, such actions as are reasonably requested by the Administrative
Agent) to maintain and perfect, as a first-priority interest, the
Administrative Agent’s (on behalf of itself and the other Specified Parties)
security interest in the Transferred Receivables and all other collateral
pledged to the Administrative Agent (on behalf of itself and the other
Specified Parties) pursuant to the Related Documents.  The Seller shall, from time to time and
within the time limits established by law, prepare and present to the
Administrative Agent upon request for the Administrative Agent’s authorization
and approval all financing statements, amendments, continuations or initial
financing statements in lieu of a continuation statement or other filings
necessary to continue, maintain and perfect the Administrative Agent’s (on
behalf of itself and the other Specified 


 


27

















 


Parties) security
interest in the Transferred Receivables and all other collateral pledged to the
Administrative Agent (on behalf of itself and the other Specified Parties)
pursuant to the Related Documents as a first-priority interest. The Seller
hereby authorizes the Administrative Agent to file such financing statements
under the UCC and the PPSA. 
Notwithstanding anything else in the Related Documents to the contrary,
neither the Seller, 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 Administrative
Agent.


 


(h)           Wachovia Account. 
The Seller shall:


 


(i)            (A) deliver evidence satisfactory to the
Administrative Agent that account XXXXXXXXXXXXX maintained at Wachovia Bank,
National Association has been closed on or before September 17, 2009 and (B) establish
a new Lockbox Account on or before September 17, 2009 that is subject to a
Lockbox Account Agreement reasonably acceptable to the Administrative Agent; or


 


(ii)           cause Wachovia Bank, National Association to deliver,
on or before September 17, 2009, an amendment, in form and substance
acceptable to the Administrative Agent, to the Deposit Account Control
Agreement dated the date hereof among the Seller, Wachovia Bank, National
Association and the Administrative Agent.


 


Section 5.02.          Reporting Requirements of the Seller. 
The Seller hereby agrees that from and after the Effective Date until
the Termination Date, it shall furnish or cause to be furnished to the
Administrative Agent and the Purchasers:


 


(a)           The financial statements, notices, reports and other
information at the times, to the Persons and in the manner set forth in Annex
5.02(a).


 


(b)           At the same time each Monthly Report, Weekly Report or
Daily Report, as applicable, is required to be delivered pursuant to the terms
of clause (a) of Annex 5.02(a), a completed certificate in
the form attached hereto as Exhibit 5.02(b) (each, a “Investment
Base Certificate”), provided, that if (i) a Termination
Event shall have occurred and be continuing or (ii) the Administrative
Agent, in good faith, believes that a Termination Event is imminent, then Daily
Reports shall be delivered daily; and each Investment Base Certificate shall be
prepared by the Seller or the Servicer as of the last day of the previous month
or week, in the event Investment Base Certificates are required to be delivered
on a monthly or weekly basis, and as of the close of business on the previous
Business Day, in the event Daily Reports are required to be delivered on each
Business Day.


 


(c)           Such other reports, statements and reconciliations
with respect to the Investment Base or Seller Collateral as the Administrative
Agent shall from time to time request in its reasonable discretion.


 


Section 5.03.          Negative Covenants of the Seller. 
The Seller covenants and agrees that, without the prior written consent
of the Requisite Purchasers and the Administrative Agent, from and after the
Effective Date until the Termination Date:


 


28

















 


(a)           Sale of Stock and Assets. 
The Seller shall not sell, transfer, convey, assign or otherwise dispose
of, or assign any right to receive income in respect of, any of its properties
or other assets or any of its capital Stock (whether in a public or a private
offering or otherwise), any Transferred Receivable or Contract therefor or any
of its rights with respect to any Lockbox or any Lockbox Account, any Agent
Account or any other deposit account in which any Collections of any
Transferred Receivable are deposited except as otherwise expressly permitted by
this Agreement or any of the other Related Documents.


 


(b)           Liens.  The Seller
shall not create, incur, assume or permit to exist (i) any Adverse Claim
on or with respect to its Transferred Receivables or (ii) any Adverse
Claim on or with respect to its other properties or assets (whether now owned
or hereafter acquired) except for Permitted Encumbrances.  In addition, the Seller shall not become a
party to any agreement, note, indenture or instrument or take any other action
that would prohibit the creation of a Lien on any of its properties or other
assets in favor of the Purchasers as additional collateral for the Seller
Obligations, except as otherwise expressly permitted by this Agreement or any
of the other Related Documents.


 


(c)           Modifications of Receivables or Credit and Collection
Policies.  The Seller shall not, without the prior
written consent of the Administrative Agent, (i) extend, amend, forgive,
discharge, compromise, waive, cancel or otherwise modify the terms of any
Transferred Receivable, provided that the Seller may authorize the
Servicer to take such actions as are expressly permitted by the terms of the
Sale Agreement and the Credit and Collection Policies (it being understood that
any Receivables which cease to be Eligible Receivables after giving effect to
any such action shall be not included in the calculation of the Investment
Base), or (ii) amend, modify or waive any term or provision of the Credit
and Collection Policies.


 


(d)           Changes in Instructions to Obligors. 
The Seller shall not make any change in its instructions to Obligors
regarding the deposit of Collections with respect to the Transferred
Receivables, except to the extent the Administrative Agent consents in writing
to such change.


 


(e)           Capital Structure and Business. 
The Seller shall not (i) make any changes in any of its business
objectives, purposes or operations, (ii) make any change in its capital
structure, including the issuance of any Stock, warrants or other securities
convertible into Stock or any revision of the terms of its outstanding shares
of Stock, (iii) amend, waive or modify any term or provision of its
certificate of incorporation or by-laws, (iv) make any change to its name
indicated on the public records of its jurisdiction of organization or (v) change
its jurisdiction of organization.  The
Seller shall not engage in any business other than as provided in its
certificate of incorporation, by-laws and the Related Documents.


 


(f)            Mergers, Subsidiaries, Etc. 
The Seller shall not directly or indirectly, by operation of law or
otherwise, (i) form or acquire any Subsidiary, or (ii) merge with,
consolidate with, acquire all or substantially all of the assets or capital
Stock of, or otherwise combine with or acquire, any Person.


 


(g)           Sale Treatment.  The Seller (i) will
not, and will not permit any Originator to, account for (other than for United
States federal tax purposes), or otherwise treat, the transactions contemplated
by the Sale Agreement in any manner other than (A) with respect to 


 


29

















 


each Sale of each Sold
Receivable effected pursuant to the Sale Agreement as a true sale and absolute
assignment of the title to and sole record and beneficial ownership interest of
Receivables by the Originators to the Seller and (B) with respect to each
contribution of Contributed Receivables thereunder, as an increase in the
capital of the Seller, and (ii) will not account for (other than for tax
purposes) or otherwise treat the transactions contemplated hereby in any manner
other than as a sale of Transferred Receivables by the Seller to the
Purchasers.  In addition, the Seller
shall, and shall cause each Originator to, disclose (in a footnote or
otherwise) in all of its financial statements (including any such financial statements
consolidated with any other Persons’ financial statements) the existence and
nature of the transaction contemplated hereby and by the Sale Agreement, as
applicable, and the interest of the Seller (in the case of the Originators’
financial statements) and the Purchasers (in the case of the Seller’s financial
statements) in the Receivables and Seller Collateral.  The Seller, the Purchasers and the
Administrative Agent will treat the Purchases made hereunder as indebtedness
for United States federal tax purposes.


 


(h)           Restricted Payments.  Except for
the amounts outstanding under the Subordinated Notes, the Seller shall not
enter into any lending transaction with any other Person.  The Seller shall not at any time (i) advance
credit to any Person or (ii) declare any distributions, repurchase any
Stock, return any capital, or make any other payment or distribution of cash or
other property or assets in respect of the Seller’s outstanding Stock or make a
repayment with respect to any Subordinated Loans if, after giving effect to any
such advance or distribution, a Purchase Excess, Incipient Termination Event or
Termination Event would exist or otherwise result therefrom.


 


(i)            Indebtedness.  The Seller
shall not create, incur, assume or permit to exist any Debt, except (i) Debt
of the Seller to any Affected Party, Indemnified Person, the Servicer or any
other Person expressly permitted by this Agreement or any other Related
Document, (ii) Subordinated Loans pursuant to the Subordinated Notes, (iii) deferred
taxes, and (iv) endorser liability in connection with the endorsement of
negotiable instruments for deposit or collection in the ordinary course of
business.


 


(j)            Prohibited Transactions.  The Seller
shall not enter into, or be a party to, any transaction with any Person except
as expressly permitted hereunder or under any other Related Document.


 


(k)           Investments.  Except as
otherwise expressly permitted hereunder or under the other Related Documents,
the Seller shall not make any investment in, or make or accrue loans or
advances of money to, any Person, including the Parent, any director, officer
or employee of the Seller, the Parent or any of the Parent’s other
Subsidiaries, through the direct or indirect lending of money, holding of
securities or otherwise, except with respect to Transferred Receivables and
Permitted Investments.


 


(l)            Commingling.  The Seller
shall not deposit or permit the deposit of any funds that do not constitute
Collections of Transferred Receivables into any Lockbox Account, except as
otherwise contemplated under Section 4.02(l) of the Sale
Agreement.  If funds that are not
Collections are deposited into a Lockbox Account, the Seller shall, or shall
cause the Servicer to notify the Administrative Agent in writing promptly upon
discovery thereof, and, the Administrative Agent shall promptly remit (or
direct the applicable Lockbox Account Bank to 


 


30

















 


remit) any such amounts
that are not Collections to the applicable Originator or other Person
designated in such notice.


 


(m)          ERISA.  The Seller
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 on any Seller
Collateral under Section 412 of the IRC or Section 302 or 4068 of
ERISA, or (ii) could reasonably be expected to result in the incurrence by
Seller of any liabilities under Title IV of ERISA (other than premium payments
arising in the ordinary course of business).


 


(n)           Related Documents.  The Seller
shall not amend, modify or waive any term or provision of any Related Document
without the prior written consent of the Administrative Agent.


 


(o)           Board Policies.  The Seller
shall not modify the terms of any policy or resolutions of its board of directors
if such modification could reasonably be expected to have or result in a
Material Adverse Effect.


 


Section 5.04.          Breach of Representations, Warranties or Covenants. 
Upon discovery by any Administrative Agent of any breach of
representation, warranty or covenant described in Section 4.01(g), 4.01(r),
4.01(t), 4.01(v), 5.01(c), 5.01(g), 5.03(a),
5.03(b), 5.03(c), 5.03(d), 5.03(g) and 5.03(l) by
the Seller with respect to any Transferred Receivable, the Administrative Agent
shall give prompt written notice thereof to the other parties hereto.  The Seller shall, if requested by such notice
from the Administrative Agent, on the first Business Day following receipt of
such notice, either (a) repurchase the affected Transferred Receivable
from the Purchasers for cash remitted to the applicable Lockbox Account or (b) transfer
ownership of a new Eligible Receivable or new Eligible Receivables to the
Purchasers on such Business Day, in each case, in an amount equal to the Billed
Amount of such affected Transferred Receivable minus the Collections received
in respect thereof (the “Rejected Amount”).  Seller shall, or shall cause the Servicer to,
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 VI.



ACCOUNTS


 


Section 6.01.          Establishment of Lockbox Accounts.


 


(a)           Lockbox Accounts.


 


(i)            The Seller or the Originators have established with
each Lockbox Account Bank one or more Lockbox Accounts subject, in each case,
to a fully executed Lockbox Account Agreement. 
Each Originator has assigned its right, title and interest to each
Lockbox Account established by it to the Seller.  The Seller agrees that the Administrative
Agent shall have exclusive dominion and control of each Lockbox Account and all
monies, instruments and other property from time to time on deposit
therein.  The Seller shall not make or
cause to be made, or have any ability to make or 


 


31

















 


cause to be made, any withdrawals from any Lockbox
Account except as provided in Section 6.01(b)(ii).


 


(ii)           The Seller (or the Servicer on Seller’s behalf) has
instructed all existing Obligors of Transferred Receivables, and shall instruct
all future Obligors of such Receivables, to make payments in respect thereof
only (A) by check or money order mailed to one or more lockboxes or post
office boxes under the control of the Administrative Agent (each a “Lockbox”
and collectively the “Lockboxes”) or (B) by wire transfer or
moneygram directly to a Lockbox Account. 
The Seller (or the Servicer on the Seller’s behalf) has instructed all
Lockbox Account Banks to deposit all items sent to a Lockbox directly into a
Lockbox Account.  Schedule 4.01(q) lists
all Lockboxes and all Lockbox Account Banks at which the Seller maintains
Lockbox Accounts as of the Effective Date, and such schedule correctly
identifies (1) with respect to each such Lockbox Account Bank, the name,
address and telephone number thereof, (2) with respect to each Lockbox
Account, the name in which such account is held and the complete account number
therefor, and (3) with respect to each Lockbox, the lockbox number and
address thereof.  The Seller (or the
Servicer on Seller’s behalf) shall endorse, to the extent necessary, all checks
or other instruments received in any Lockbox so that the same can be deposited
in the Lockbox Account, in the form so received (with all necessary
endorsements), on the first Business Day after the date of receipt
thereof.  In addition, the Seller shall
deposit or cause to be deposited into a Lockbox Account all cash, checks, money
orders or other proceeds of Transferred Receivables or Seller Collateral
received by it other than in a Lockbox or a Lockbox Account, in the form so
received (with all necessary endorsements), not later than the close of
business on the first Business Day following the date of receipt thereof, and
until so deposited all such items or other proceeds shall be held in trust for
the benefit of the Administrative Agent. 
The Seller shall not make and shall not permit the Servicer to make any
deposits into a Lockbox or any Lockbox Account except in accordance with the
terms of this Agreement or any other Related Document.


 


(iii)          If, for any reason, a Lockbox Account Agreement
terminates or any Lockbox Account Bank fails to comply with its obligations
under the Lockbox Account Agreement to which it is a party, then the Seller
shall promptly notify all Obligors of Transferred Receivables who had
previously been instructed to make wire payments to a Lockbox Account
maintained at any such Lockbox Account Bank to make all future payments to a
new Lockbox Account in accordance with this Section 6.01(a)(iii).  The Seller shall not close any Lockbox
Account unless it shall have (A) received the prior written consent of the
Administrative Agent, (B) established a new account with the same Lockbox
Account Bank or with a new depositary institution satisfactory to the
Administrative Agent, (C) entered into an agreement covering such new
account with such Lockbox Account Bank or with such new depositary institution
substantially in the form of the predecessor Lockbox Account Agreement or that
is satisfactory in all respects to the Administrative Agent (whereupon, for all
purposes of this Agreement and the other Related Documents, such new account
shall become a Lockbox Account, such new agreement shall become a Lockbox
Account Agreement and any new depositary institution shall become a Lockbox
Account Bank), and (D) taken all such action as the Administrative Agent
shall reasonably require to grant and perfect a first priority Lien in 


 


32

















 


such new Lockbox Account to the Administrative Agent
under Section 7.01 of this Agreement.  Except as permitted by this Section 6.01(a),
the Seller shall not, and shall not permit the Servicer to, open any new
Lockbox or Lockbox Account without the prior written consent of the
Administrative Agent.


 


(iv)          Except as otherwise agreed by the Administrative
Agent, the Seller (or the Servicer on Seller’s behalf) has instructed all
Lockbox Account Banks that on a daily basis all collected and available funds
on deposit in each Lockbox Account are to be automatically transferred to an
Agent Account.


 


(b)           Agent Accounts.


 


(i)            The Administrative Agent has established and shall
maintain the Agent Accounts with the applicable Depositaries.  Each Agent Account shall be registered in the
name of the Administrative Agent and the Administrative Agent shall, subject to
the terms of this Agreement, have exclusive dominion and control thereof and of
all monies, instruments and other property from time to time on deposit
therein.


 


(ii)           If, for any reason, any Depositary wishes to resign as
depositary of the Agent Account or fails to carry out the instructions of the
Administrative Agent, then the Administrative Agent shall promptly notify the
Purchasers.  Neither the Purchasers nor
the Administrative Agent shall close any Agent Account unless (i) (A) a
new deposit account has been established with a new depositary institution, (B) the
Purchasers and the Administrative Agent have entered into an agreement covering
such new account with such new depositary institution satisfactory in all
respects to the Administrative Agent (whereupon such new account shall become
the Agent Account and such new depositary institution shall become the
Depositary for all purposes of this Agreement and the other Related Documents),
and (C) the Purchasers and the Administrative Agent have taken all such
action as the Administrative Agent shall require to grant and perfect a first
priority Lien in such new Agent Account to the Administrative Agent (on behalf
of itself and the other Specified Parties) or (ii) the Seller has directed
each applicable Lockbox Account Bank to cause all amounts that were previously
being transferred to such Agent Account on a periodic basis to instead be
transferred to a different Agent Account.


 


ARTICLE VII.



GRANT OF SECURITY INTERESTS


 


Section 7.01.          Seller’s Grant of Security Interest. 
The parties hereto intend that each Purchase of undivided percentage
ownership interests in the Transferred Receivables to be made hereunder shall
constitute a purchase and sale of undivided percentage ownership interests in
the Transferred Receivables and not a loan. 
Notwithstanding the foregoing, in addition to and not in derogation of
any rights now or hereafter acquired by any Purchaser or the Administrative
Agent hereunder, the parties hereto intend that this Agreement shall constitute
a security agreement under applicable law. In such regard and, in any event, to
secure the prompt and complete payment, performance and observance of all
Seller Obligations, and to induce the Purchasers to enter into this Agreement
and perform the obligations required to be performed by them 


 


33

















 


hereunder in accordance
with the terms and conditions hereof, the Seller hereby reaffirms the grant of
any security interest under the Existing Purchase Agreement and grants,
assigns, conveys, pledges, hypothecates and transfers to the Administrative
Agent, for the benefit of itself and the Purchasers, a Lien upon and security
interest in all of Seller’s right, title and interest in, to and under, but
none of its obligations arising from, the following property, whether now owned
by or owing to, or hereafter acquired by or arising in favor of, the Seller
(including under any trade names, styles or derivations of the Seller, if any),
and regardless of where located (all of which being hereinafter collectively
referred to as the “Seller Collateral”):


 


(a)           all Receivables;


 


(b)           the Sale Agreement, all Lockbox Account Agreements and
all other Related Documents now or hereafter in effect relating to the
purchase, servicing, processing or collection of Receivables (collectively, the
“Seller Assigned Agreements”), including (i) all rights of the
Seller to receive moneys due and to become due thereunder or pursuant thereto, (ii) all
rights of the Seller to receive proceeds of any insurance, indemnity, warranty
or guaranty with respect thereto, (iii) all claims of the Seller for
damages or breach with respect thereto or for default thereunder and (iv) the
right of the Seller to amend, waive or terminate the same and to perform and to
compel performance and otherwise exercise all remedies thereunder;


 


(c)           all of the following (collectively, the “Seller
Account Collateral”):


 


(i)            the Lockbox Accounts, the Lockboxes, and all funds on
deposit therein and all certificates and instruments, if any, from time to time
representing or evidencing the Lockbox Accounts, the Lockboxes or such funds,


 


(ii)           the Seller Account and all funds on deposit therein
and all certificates and instruments, if any, from time to time representing or
evidencing the Seller Account or such funds,


 


(iii)          all notes, certificates of deposit and other
instruments from time to time delivered to or otherwise possessed by any
Purchaser or any assignee or agent on behalf of any Purchaser in substitution
for or in addition to any of the then existing Seller Account Collateral, and


 


(iv)          all interest, dividends, cash, instruments, investment
property and other property from time to time received, receivable or otherwise
distributed with respect to or in exchange for any and all of the then existing
Seller Account Collateral;


 


(d)           all other property relating to the Receivables that
may from time to time hereafter be granted and pledged by the Seller or by any
Person on its behalf whether under this Agreement or otherwise, including any
deposit with any Purchaser or the Administrative Agent of additional funds by
the Seller;


 


(e)           all other personal property of the Seller of every
kind and nature not described above including without limitation all goods
(including inventory, equipment and any accessions thereto), instruments
(including promissory notes), documents, accounts, chattel paper (whether
tangible or electronic), deposit accounts, letter-of-credit rights, commercial
tort claims, securities 


 


34

















 


and all other investment
property, supporting obligations, any other contract rights or rights to the
payment of money, insurance claims and proceeds, and all general intangibles
(including all payment intangibles); and


 


(f)            to the extent not otherwise included, all proceeds and
products of the foregoing and all accessions to, substitutions and replacements
for, and profits of, each of the foregoing Seller Collateral (including
proceeds that constitute property of the types described in Sections 7.01(a) through
(e)).


 


Section 7.02.          Seller’s Agreements.  The Seller
hereby (a) assigns, transfers and conveys the benefits of the
representations, warranties and covenants of each Originator made to the Seller
under the Sale Agreement to the Administrative Agent for the benefit of the
Purchasers hereunder; (b) acknowledges and agrees that the rights of the
Seller to require payment of a Rejected Amount from an Originator under the
Sale Agreement may be enforced by the Purchasers and the Administrative Agent;
and (c) certifies that the Sale Agreement provides that the
representations, warranties and covenants described in Sections 4.01, 4.02
and 4.03 thereof, the indemnification and payment provisions of Article V
thereof and the provisions of Sections 4.03(j), 6.12, 6.14
and 6.15 thereof shall survive the sale of the Transferred Receivables
(and undivided percentage ownership interests therein) and the termination of
the Sale Agreement and this Agreement.


 


Section 7.03.          Delivery of Collateral.  All
certificates or instruments representing or evidencing all or any portion of
the Seller Collateral shall be delivered to and held by or on behalf of the
Administrative Agent and shall be in suitable form for transfer by delivery or
shall be accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance reasonably satisfactory to the Administrative
Agent.  The Administrative Agent shall
have the right (a) at any time to exchange certificates or instruments
representing or evidencing Seller Collateral for certificates or instruments of
smaller or larger denominations and (b) at any time in its discretion
following the occurrence and during the continuation of a Termination Event and
without notice to the Seller, to transfer to or to register in the name of the
Administrative Agent or its nominee any or all of the Seller Collateral.


 


Section 7.04.          Seller Remains Liable.  It is
expressly agreed by the Seller that, anything herein to the contrary
notwithstanding, the Seller shall remain liable under any and all of the
Transferred Receivables, the Contracts therefor, the Seller Assigned Agreements
and any other agreements constituting the Seller Collateral to which it is a party
to observe and perform all the conditions and obligations, if any, to be
observed and performed by it thereunder. 
The Purchasers and the Administrative Agent shall not have any
obligation or liability under any such Receivables, Contracts or agreements by
reason of or arising out of this Agreement or the granting herein or therein of
a Lien thereon or the receipt by the Administrative Agent or the Purchasers of
any payment relating thereto pursuant hereto or thereto.  The exercise by any Purchaser or the
Administrative Agent of any of its respective rights under this Agreement shall
not release any Originator, the Seller or the Servicer from any of their
respective duties or obligations under any such Receivables, Contracts or
agreements.  None of the Purchasers or
the Administrative Agent shall be required or obligated in any manner to
perform or fulfill any of the obligations of any Originator, the Seller or the
Servicer (except to the extent any such Person has been appointed as Successor
Servicer under the Related Documents in accordance with the Sale 


 


35

















 


Agreement) under or
pursuant to any such Receivable, Contract or agreement, 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, Contract or agreement, 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 7.05.          Covenants of the Seller Regarding the
Seller Collateral.


 


(a)           Offices and Records.  The Seller
shall maintain its jurisdiction of organization and chief executive office and
the office at which it stores its Records at the respective locations specified
in Schedule 4.01(b) or, upon 30 days’ prior written notice to the
Administrative Agent, at such other location in a jurisdiction where all
actions reasonably requested by the Administrative Agent pursuant to Section 12.13
shall have been taken with respect to the Seller Collateral.  The Seller shall, and shall cause the
Servicer to at its own cost and expense, maintain adequate and complete records
of the Transferred Receivables and the Seller Collateral, including records of
any and all payments received, credits granted and merchandise returned with
respect thereto and all other dealings therewith.  The Seller shall, and shall cause the
Servicer to, by no later than the Effective Date, mark conspicuously with a
legend, in form and substance satisfactory to the Administrative Agent, 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, to evidence this Agreement and the
assignment and Liens granted pursuant to this Article VII.  Upon the occurrence and during the
continuance of a Termination Event, the Seller shall, and shall cause the
Servicer to, deliver and turn over such books and records to the Administrative
Agent or its representatives at any time on demand of the Administrative
Agent.  Prior to the occurrence of a
Termination Event and upon notice from the Administrative Agent, the Seller
shall, and shall cause the Servicer to, permit any representative of the
Administrative Agent to inspect such books and records and shall provide
photocopies thereof to the Administrative Agent as more specifically set forth
in Section 7.05(b).


 


(b)           Access.  The Seller
shall, and shall cause the Servicer to, at its or the Servicer’s own expense
(provided Seller or Servicer shall only be required to pay for such visits
three (3) times a year so long as no Incipient Termination Event or a
Termination Event shall have occurred and be continuing), during normal
business hours, from time to time upon three Business Days’ prior notice as
frequently as the Administrative Agent determines to be appropriate: (i) provide
the Purchasers, the Administrative Agent and any of their respective officers,
employees and agents access to its properties (including properties utilized in
connection with the collection, processing or servicing of the Transferred
Receivables), facilities, advisors and employees (including officers) and to
the Seller Collateral, (ii) permit the Purchasers, the Administrative
Agent and any of their respective officers, employees and agents to inspect,
audit and make extracts from its books and records, including all Records, (iii) permit
each of the Purchasers and the Administrative Agent and their respective
officers, employees and agents to inspect, review and evaluate the Transferred
Receivables and the Seller Collateral and (iv) permit each of the Purchasers
and the Administrative Agent and their respective officers, employees and
agents to discuss matters relating to the Transferred Receivables or its
performance under this Agreement or the other Related Documents or its affairs,
finances and 


 


36

















 


accounts 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 is continuing
or the Administrative Agent notifies Seller that, in good faith, it believes
that a Termination Event may have occurred and may be continuing, then the
Seller shall, and shall cause the Servicer to, at its own expense, (A) provide
such access during normal business hours without prior notice from the
Administrative Agent, (B) make available to the Administrative Agent and
its counsel, as quickly as is possible under the circumstances, originals or
copies of all books and records, including Records, that the Administrative
Agent may reasonably request and (C) deliver any document or instrument
necessary for the Administrative Agent, as the Administrative Agent may from time
to time reasonably request, to obtain records from any service bureau or other
Person that maintains records for the Seller or the Servicer, and shall
maintain duplicate records or supporting documentation on media, including
computer tapes and discs owned by the Seller or the Servicer.


 


(c)           [Intentionally Reserved].


 


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


 


(e)           Performance of Seller Assigned Agreements. 
The Seller shall, and shall cause the Servicer to, (i) perform and
observe all the terms and provisions of the Seller Assigned 


 


37

















 


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
Administrative Agent in order to accomplish the foregoing, and (ii) upon
the request of and as directed by the Administrative Agent, make such demands
and requests to any other party to the Seller Assigned Agreements as are
permitted to be made by the Seller or the Servicer thereunder.


 


(f)            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 Seller hereby grants to
the Administrative Agent on behalf of the Purchasers a limited license to use,
without charge, the Seller’s and 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 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 hereto, and the Seller
agrees that its rights under all licenses and franchise agreements shall inure
to the Administrative Agent’s benefit (on behalf of itself and the other
Specified Parties) for purposes of the license granted herein.  Except upon the occurrence and during the
continuation of a Termination Event, the Administrative Agent and the
Purchasers agree not to use any such license without giving the written consent
of the Seller.


 


ARTICLE VIII.



TERMINATION EVENTS


 


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


 


(a)           the Seller shall fail to make any payment of any
monetary Seller Obligation (including, without limitation, any obligation to
pay any Purchase Excess hereunder) when due and payable and the same shall
remain unremedied for two (2) Business Day or more; or


 


(b)           (i)            the Seller shall fail to deliver when due
any of the reports required to be delivered pursuant to Section 5.02
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 (ii) the Seller, any Originator, the Servicer or the
Parent shall fail or neglect to perform, keep or observe any covenant or 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 Seller becoming
aware of such breach and the Seller’s receipt of notice thereof; or


 


38














 


(c)           (i) an Originator, the Seller or the Parent shall
fail to make any payment with respect to any of its Debts which, (x) except
with respect to the Seller, is in an aggregate principal amount in excess of
$20,000,000 or (y) in the case of the Seller, is in an aggregate principal
amount equal to or in excess of $13,475, in any case, when due, and the same
shall remain unremedied after any applicable grace period with respect thereto;
or (ii) a default or breach or other occurrence shall occur under any agreement,
document or instrument to which an Originator, the Seller or the Parent is a
party or by which it or its property is bound (other than a Related Document)
which relates to a Debt which, (x) except with respect to the Seller, is
in an aggregate principal amount in excess of $20,000,000 or (y) in the
case of the Seller, is in an aggregate principal amount equal to or in excess
of $13,475, in any case, which event has not been waived or shall remain
unremedied within the applicable grace period with respect thereto, and the
effect of such default, breach or occurrence is to cause or to permit the
holder or holders then to cause such Debt to become or be declared due prior to
their stated maturity; or


 


(d)           a case or proceeding shall have been commenced against
an Originator, the Seller or the Parent seeking a decree or order in respect of
any such Person under the Bankruptcy Code, the BIA or the CCAA or any other
applicable federal, state, provincial or foreign bankruptcy or other similar
law, (i) 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 (ii) ordering the winding up
or liquidation of the affairs of any such Person, and, so long as the Seller is
not a debtor in any such case or proceedings, such case or proceeding continues
for 60 days unless dismissed or discharged; provided, however,
that such 60-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 (d) or (y) any
of the events described in Section 8.01(e) shall have
occurred; or


 


(e)           an Originator, the Seller or the Parent 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 for any substantial part of such Person’s
assets, (iii) make an assignment for the benefit of creditors, or (iv) take
any corporate or limited liability company, as applicable, action in
furtherance of any of the foregoing; or


 


(f)            any Originator, the Seller or the Parent (i) 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 (ii) is not Solvent; or


 


(g)           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 any Originator or the Parent (other
than the Seller) 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


 


39

















 


(h)           a judgment or order for the payment of money in an
amount equal to or in excess of $13,475 shall be rendered against the Seller;
or


 


(i)            (i) any information contained in any Investment
Base Certificate or any Capital Purchase Request is untrue or incorrect in any
material respect, or (ii) any representation or warranty of any Originator
or the Seller herein or in any other Related Document or in any written
statement, report, financial statement or certificate (other than a Investment
Base Certificate or any Capital Purchase Request) made or delivered by or on
behalf of such Originator or the Seller to any Affected Party hereto or thereto
is untrue or incorrect in a material respect as of the date when made or deemed
made; provided, that the inaccuracy of information in any Daily Report,
if made without actual knowledge of such inaccuracy, shall not constitute a
Termination Event if such information is corrected by delivery of a new Daily
Report within two Business Days of the untrue or inaccurate information; or


 


(j)            any Governmental Authority (including the IRS or the
PBGC) shall file notice of a Lien with regard to any assets of any Originator,
the Parent or any of their respective ERISA Affiliates (other than a Lien (i) limited
by its terms to assets other than Receivables and (ii) not materially
adversely affecting the financial condition of such Originator, the Parent or
any such ERISA Affiliate or the ability of the Servicer to perform its duties
hereunder or under the Related Documents) and such lien shall not have been
released within seven (7) days; or


 


(k)           the Administrative Agent shall have reasonably
determined (and so notified the Seller) that any event or condition that has
had or could reasonably be expected to have or result in a Material Adverse
Effect has occurred; or


 


(l)            the Sale Agreement shall for any reason cease to
evidence the transfer to the Seller of the legal and equitable title to, and
ownership of, the Transferred Receivables; or


 


(m)          except as otherwise expressly provided herein or in
any Related Document, such Related Document shall have been modified, amended
or terminated without the prior written consent of the Administrative Agent; or


 


(n)           an Event of Servicer Termination shall have occurred;
or


 


(o)           (i) the Seller shall cease to hold valid and
properly perfected title to and sole legal and beneficial ownership in the
Transferred Receivables or (ii)  the Administrative Agent (on behalf of
the Purchasers) shall cease to hold either (A) valid and properly
perfected title to and sole legal and beneficial ownership in the Purchaser
Interests (subject to the interests of the Purchasers hereunder) or (B) a
first priority, perfected Lien in the Transferred Receivables or any of the
Seller Collateral; or


 


(p)           a Change of Control shall occur; or


 


(q)           the Seller shall amend its certificate of
incorporation or by-laws without the express prior written consent of the Administrative
Agent; or


 


(r)            the Seller shall have received an Election Notice
pursuant to Section 2.01(d) of the Sale Agreement; or


 


40

















 


(s)           (i) the Defaulted Receivable Trigger Ratio shall
exceed 2.35%; (ii) the Delinquency Trigger Ratio shall exceed 3.25%; (iii) the
Dilution Trigger Ratio shall exceed 6.50%; or (iv) the Turnover Days shall
exceed 50 days; or


 


(t)            any material provision of any Related Document shall
for any reason cease to be a valid, binding and enforceable obligation of any
of the Seller, the Servicer, or any Originator party thereto in accordance with
its terms (or any Originator or the Seller shall challenge the enforceability
of any Related Document or shall assert in writing, or engage in any action or
inaction based on any such assertion, that any provision of any of the Related
Documents has ceased to be or otherwise is not valid, binding and enforceable
in accordance with its terms); or


 


(u)           any failure to make any installment or other payment
under Title IV of ERISA by the Parent, any Originator or the Servicer or any of
their ERISA Affiliates, in excess of $10,000,000 or the occurrence of any
Reportable Event with respect to any Plan that could reasonably be expected to
give rise to a liability to the PBGC in excess of $10,000,000; or


 


(v)           a Purchase Excess exists at any time and the Seller
has not repaid the amount of such Purchase Excess within one (1) Business
Day in accordance with Section 2.08 hereof;


 


(w)          the Parent shall fail to satisfy one or more of the
financial tests set forth on Part B of Schedule 8.01 hereto;
or


 


(x)            any “Event of Default” under the Credit Agreement
shall occur; or


 


(y)           the sum of (i) cash and cash equivalents of the
Transaction Parties that is not subject to any Lien or otherwise encumbered and
(ii) the undrawn funding availability under the Credit Agreement shall be
less than $15,000,000; or


 


(z)            in the case of any Canadian Originator, there is a
solvency liability or potential wind up liability with respect to a defined
benefit pension plan under applicable Canadian federal or provincial pension
benefits standards legislation in excess of $10,000,000, or required
contributions are not paid to such plan when due;


 


then,
and in any such event, the Administrative Agent, may, and shall, at the request
of the Requisite Purchasers, by notice to the Seller, declare the Facility
Termination Date to have occurred without demand, protest or further notice of
any kind, all of which are hereby expressly waived by the Seller; provided,
that the Facility Termination Date shall automatically occur upon the
occurrence of any of the Termination Events related to the Seller described in Sections
8.01(d) or (e), in each case without demand, protest or any
notice of any kind, all of which are hereby expressly waived by the
Seller.  Upon the occurrence of the
Facility Termination Date, all Seller Obligations shall automatically be and become due and
payable in full, without any action to be taken on the part of any Person.  In addition, if any Event of Servicer
Termination shall have occurred, then, the Administrative Agent may, and shall,
at the request of the Requisite Purchasers, by delivery of a Servicer
Termination Notice to Seller and the Servicer, terminate the servicing responsibilities
of the Servicer under the Sale Agreement in accordance with the terms thereof.


 


41

















 


ARTICLE IX.



REMEDIES


 


Section 9.01.          Actions Upon Termination Event. 
If any Termination Event shall have occurred and be continuing or the
Facility Termination Date shall be deemed to have occurred pursuant to Section 8.01,
then the Administrative Agent may exercise in respect of the Seller Collateral,
in addition to any and all other rights and remedies granted to it hereunder,
under any other Related Document or under any other instrument or agreement
securing, evidencing or relating to the Seller Obligations or otherwise
available to it, all of the rights and remedies of a secured party upon default
under the UCC and the PPSA, as applicable (such rights and remedies to be
cumulative and nonexclusive), and, in addition, may take the following actions:


 


(a)           The Administrative Agent may, without notice to the
Seller except as required by law and at any time or from time to time, (i) charge,
offset or otherwise apply amounts payable to the Seller from any Agent Account
or any Lockbox Account against all or any part of the Seller Obligations and (ii) without
limiting the terms of Section 7.05(d), notify any Obligor under any
Transferred Receivable or obligors under the Seller Assigned Agreements of the
transfer of the Transferred Receivables to the Seller and the pledge of such
Transferred Receivables or Seller Assigned Agreements, as the case may be, to
the Administrative Agent on behalf of the Specified Parties hereunder and
direct that payments of all amounts due or to become due to the Seller
thereunder be made directly to the Administrative Agent or any servicer,
collection agent or lockbox or other account designated by the Administrative
Agent.


 


(b)           If the Facility Termination Date has occurred pursuant
to Section 8.01 by declaration or otherwise, Administrative Agent
may, without notice except as specified below, solicit and accept bids for and
sell the Seller Collateral or any part thereof in one or more parcels at public
or private sale, at any exchange, broker’s board or any of the Purchasers’ or
the Administrative Agent’s offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable.  The
Administrative Agent shall have the right to conduct such sales on the Seller’s
premises or elsewhere and shall have the right to use any of the Seller’s
premises without charge for such sales at such time or times as the
Administrative Agent deems necessary or advisable.  The Seller agrees that, to the extent notice
of sale shall be required by law, ten days’ notice to the Seller of the time
and place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. 
The Administrative Agent shall not be obligated to make any sale of
Seller Collateral regardless of notice of sale having been given.  The Administrative Agent may adjourn any
public or private sale from time to time by announcement at the time and place
fixed for such sale, and such sale may, without further notice, be made at the
time and place to which it was so adjourned. 
Every such sale shall operate to divest all right, title, interest,
claim and demand whatsoever of the Seller in and to the Seller Collateral so
sold, and shall be a perpetual bar, both at law and in equity, against each
Originator, the Seller, any Person claiming any right in the Seller Collateral
sold through any Originator or the Seller, and their respective successors or
assigns.  The Administrative Agent shall
deposit the net proceeds of any such sale in the Master Agent Account and such
proceeds shall be applied against all or any part of the Seller Obligations in
accordance with Section 2.08(b).


 


42

















 


(c)           Upon the completion of any sale under Section 9.01(b),
the Seller shall deliver or cause to be delivered to the purchaser or
purchasers at such sale on the date thereof, or within a reasonable time
thereafter if it shall be impracticable to make immediate delivery, all of the
Seller Collateral sold on such date, but in any event full title and right of
possession to such property shall vest in such purchaser or purchasers upon the
completion of such sale.  Nevertheless,
if so requested by the Administrative Agent or by any such purchaser, the
Seller shall confirm any such sale or transfer by executing and delivering to
such purchaser all proper instruments of conveyance and transfer and releases
as may be designated in any such request.


 


(d)           At any sale under Section 9.01(b), any
Purchaser or the Administrative Agent may bid for and purchase the property
offered for sale and, upon compliance with the terms of sale, may hold, retain
and dispose of such property without further accountability therefor.


 


(e)           The Administrative Agent may (but in no event shall be
obligated to) exercise, at the sole cost and expense of the Seller, any and all
rights and remedies of the Seller under or in connection with the Seller
Assigned Agreements or the other Seller Collateral, including any and all
rights of the Seller to demand or otherwise require payment of any amount
under, or performance of any provisions of, the Seller Assigned
Agreements.  Without limiting the
foregoing, the Administrative Agent shall, upon the occurrence of any Event of
Servicer Termination, have the right to name any Successor Servicer (including
itself) pursuant to Article VIII of the Sale Agreement.


 


Section 9.02.          Exercise of Remedies.  No failure or
delay on the part of the Administrative Agent or any Purchaser in exercising
any right, power or privilege under this Agreement and no course of dealing
between any Originator, the Seller or the Servicer, on the one hand, and the
Administrative Agent or any Purchaser, on the other hand, shall operate as a
waiver of such right, power or privilege, nor shall any single or partial
exercise of any right, power or privilege under this Agreement preclude any other
or further exercise of such right, power or privilege or the exercise of any
other right, power or privilege. The rights and remedies under this Agreement
are cumulative, may be exercised singly or concurrently, and are not exclusive
of any rights or remedies that the Administrative Agent or any Purchaser would
otherwise have at law or in equity.  No
notice to or demand on any party hereto shall entitle such party to any other
or further notice or demand in similar or other circumstances, or constitute a
waiver of the right of the party providing such notice or making such demand to
any other or further action in any circumstances without notice or demand.


 


Section 9.03.          Power of Attorney.  On the
Closing Date, the Seller shall execute and deliver a power of attorney
substantially in the form attached hereto as Exhibit 9.03 (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 Seller
Obligations are indefeasibly paid or otherwise satisfied in full.  The powers conferred on the Administrative
Agent under each Power of Attorney are solely to protect the Liens of the
Administrative Agent and the Purchasers upon and interests in the Seller
Collateral and shall not impose any duty upon the Administrative Agent to
exercise any such powers.  The
Administrative Agent shall not be accountable for any amount other than amounts
that it actually receives as a result of the exercise of such powers and none
of the Administrative Agent’s officers, directors, employees, agents or
representatives shall be responsible to the Seller, any Originator, the
Servicer or any other Person 


 


43

















 


for any act or failure to
act, except to the extent of damages attributable to their own gross negligence
or willful misconduct as finally determined by a court of competent
jurisdiction.  Notwithstanding any other
provision herein or in any other Related Document to the contrary, the
Administrative Agent shall not exercise any powers pursuant to any Power of
Attorney unless a Termination Event shall have occurred and be continuing.


 


Section 9.04.          Continuing Security Interest. 
This Agreement shall create a continuing Lien in the Seller Collateral
until the date such security interest is released by Administrative Agent; provided,
that such Lien shall be released automatically on the Termination Date (and the
Administrative Agent shall acknowledge such release in writing to the Seller).


 


ARTICLE X.



INDEMNIFICATION


 


Section 10.01.          Indemnities by the Seller.


 


(a)           Without limiting any other rights that the Purchasers
or the Administrative Agent or any of their respective officers, directors,
employees, agents, transferees, successors or assigns (each, an “Indemnified
Person”) may have hereunder or under applicable law, the Seller hereby
agrees to indemnify and hold harmless each Indemnified Person from and against
any and all Indemnified Amounts that may be claimed or asserted against or
incurred by any such Indemnified Person in connection with or arising out of
the transactions contemplated under this Agreement or under any other Related
Document or 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; provided, that the Seller shall not be liable for any
indemnification to an Indemnified Person to the extent that any such
Indemnified Amount (x) results from such Indemnified Person’s gross
negligence or willful misconduct, in each case as finally determined by a court
of competent jurisdiction, (y) constitutes recourse for uncollectible or
uncollected Transferred Receivables as a result of the insolvency, bankruptcy
or the failure (without cause or justification triggered by the actions of
Seller or any Affiliate thereof) or inability on the part of the related
Obligor to perform its obligations thereunder or (z) income taxes or
franchise taxes imposed on any Indemnified Person by the jurisdictions under
the laws of which such Indemnified Person is organized or is doing business
other than solely as a result of, this Agreement or any Related Document.  Subject to clauses (x), (y) and (z) of
the proviso in the immediately preceding sentence, but without limiting the
generality of the foregoing, the Seller shall pay on demand to each 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 Seller (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 Seller pursuant hereto or thereto that shall have been
incorrect when made or deemed made or delivered;


 


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(ii)           the failure by the Seller 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 any Privacy Laws, or the nonconformity of any Transferred Receivable
or the Contract therefor with any such applicable law, rule or regulation;


 


(iii)          (1) the failure to vest and maintain vested in
the Seller 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 and all other Seller Collateral, free
and clear of any Adverse Claim and (2) the failure to maintain or transfer
to the Administrative Agent, for the benefit of itself and other Specified
Parties, a first priority, perfected Lien in any portion of the Seller
Collateral;


 


(iv)          any dispute, claim, offset or defense of any Obligor
(other than its discharge in bankruptcy) to the payment of any Transferred
Receivable (including a defense based on any Dilution Factor or 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), or any other claim resulting from the sale of the merchandise or
services giving rise to such Receivable or the furnishing of 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
of the Seller’s Affiliates acting as 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 with respect to any Transferred Receivable;


 


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


 


(vii)         any failure by the Seller to cause the filing of, or
any delay in filing, financing statements or other similar instruments or
documents under the UCC or the PPSA, as applicable, of any applicable
jurisdiction or any other applicable laws with respect to any Transferred
Receivable that is the subject of a Purchase hereunder, whether at the time of
any such Purchase or at any subsequent time to the extent such filing is
necessary to maintain the perfection and priority of the interests of the
Administrative Agent, for the benefit of the Purchasers, in the Transferred
Receivables;


 


(viii)        any investigation, litigation or proceeding related to
this Agreement or any other Related Document or the ownership of Receivables or
Collections with respect thereto or any other investigation, litigation or
proceeding relating to the Seller, 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;


 


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


 


(x)            any Termination Event described in Section 8.01(d) or
(e) relating to Seller;


 


(xi)           any failure of the Seller to give reasonably
equivalent value to the applicable Originator under the Sale Agreement in
consideration of the transfer by such Originator of any Receivable, or any
attempt by any Person to void any transfer of a Receivable by such Originator
to the Seller under statutory provisions or common law or equitable action;


 


(xii)          any action or omission by Seller or any Transaction
Party which reduces or impairs the rights of the Administrative Agent or the
Specified Parties with respect to any Receivable or the value of any such
Receivable;


 


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


 


(xiv)        any withholding, deduction or Charge imposed upon any
payments with respect to any Transferred Receivable, any Seller Assigned
Agreement or any other Seller Collateral.


 


(b)           Any Indemnified Amounts subject to the indemnification
provisions of this Section 10.01 not paid in accordance with Section 2.08
shall be paid by the Seller to the Indemnified Person entitled thereto within
five Business Days following demand therefor.


 


ARTICLE XI.



ADMINISTRATIVE AGENT


 


Section 11.01.          Authorization and Action.


 


(a)           The Administrative Agent may take such action and
carry out such functions under this Agreement as are authorized to be performed
by it pursuant to the terms of this Agreement, any other Related Document or
otherwise contemplated hereby or thereby or are reasonably incidental thereto; provided,
that the duties of the Administrative Agent set forth in this Agreement shall
be determined solely by the express provisions of this Agreement, and, other
than the duties set forth in Section 11.02, any permissive right of
the Administrative Agent hereunder shall not be construed as a duty.


 


Section 11.02.          Reliance.  None of the
Administrative Agent, any of its Affiliates or any of their respective
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by any of them under or in connection with this
Agreement or the other Related Documents, except for damages solely caused by
its or their own gross negligence or willful misconduct as finally determined
by a court of competent jurisdiction. 
Without limiting the generality of the foregoing, and notwithstanding
any term or provision hereof to the contrary, the Seller and each Purchaser
hereby acknowledge and agree that the Administrative Agent as 


 


46

















 


such (a) has no
duties or obligations other than as set forth expressly herein, and has no
fiduciary obligations to any person, (b) acts as a representative
hereunder for the Purchasers and has no duties or obligations to, shall incur
no liabilities or obligations to, and does not act as an agent in any capacity
for, the Seller (other than, with respect to the Administrative Agent, under
the Power of Attorney with respect to remedial actions) or the Originators, (c) may
consult with legal counsel, independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts, (d) makes no representation or warranty hereunder
to any Affected Party and shall not be responsible to any such Person for any
statements, representations or warranties made in or in connection with this
Agreement or the other Related Documents, (e) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement or the other Related Documents
on the part of the Seller, the Servicer, any Originator, the Parent or any
Purchaser, or to inspect the property (including the books and records) of the
Seller, the Servicer, any Originator, the Parent or any Purchaser, (f) shall
not be responsible to the Seller, the Servicer, any Purchaser or any other
Person for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or the other Related Documents or any
other instrument or document furnished pursuant hereto or thereto, (g) shall
incur no liability under or in respect of this Agreement or the other Related
Documents by acting upon any notice, consent, certificate or other instrument
or writing believed by it to be genuine and signed, sent or communicated by the
proper party or parties and (h) shall not be bound to make any
investigation into the facts or matters stated in any notice or other
communication hereunder and may conclusively rely on the accuracy of such facts
or matters.


 


Section 11.03.          GE Capital and Affiliates. 
GE Capital and its Affiliates may generally engage in any kind of
business with any Obligor, the Parent, the Originators, the Seller, the
Servicer, any Purchaser, any of their respective Affiliates and any Person who may
do business with or own securities of such Persons or any of their respective
Affiliates, all as if GE Capital were not the Administrative Agent and without
the duty to account therefor to any Obligor, the Parent, any Originator, the
Seller, the Servicer, any Purchaser or any other Person.


 


Section 11.04.          Purchaser Credit Decision. 
Each Purchaser acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Purchaser, and based upon
such documents and information as it has deemed appropriate, made its own
credit and financial analysis of the Seller and its own decision to enter into
this Agreement.  Each Purchaser also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Purchaser and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.


 


Section 11.05.          Indemnification.  Each of the
Purchasers severally agrees to indemnify the Administrative Agent (to the
extent not reimbursed by the Seller and without limiting the obligations of the
Seller hereunder), ratably according to their respective Pro Rata Shares, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any other Related Document or any action taken or omitted by the 


 


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Administrative Agent in
connection herewith or therewith; provided, however, that no
Purchaser shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Administrative Agent’s gross negligence
or willful misconduct as finally determined by a court of competent
jurisdiction.  Without limiting the
foregoing, each Purchaser agrees to reimburse the Administrative Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement
and each other Related Document, to the extent that the Administrative Agent is
not reimbursed for such expenses by the Seller.


 


Section 11.06.          Successor Administrative Agent. 
The Administrative Agent may resign at any time by giving not less than
thirty (30) days’ prior written notice thereof to each of the Purchasers and
the Seller.  Upon any such resignation,
the Requisite Purchasers shall have the right to appoint a successor
Administrative Agent, subject to the written consent of the Seller.  If no successor Administrative Agent shall
have been so appointed by the Requisite Purchasers and shall have accepted such
appointment within 30 days after the resigning the Administrative Agent’s
giving notice of resignation, then the resigning Administrative Agent may, on
behalf of the Purchasers, appoint a successor Administrative Agent, which shall
be a Purchaser, if a Purchaser is willing to accept such appointment, or,
subject to the written consent of the Seller, otherwise shall be a commercial
bank or financial institution or a subsidiary of a commercial bank or financial
institution which commercial bank or financial institution is organized under
the laws of the United States of America or of any State thereof which has a
long-term debt rating from S&P of “A—” or better and Moody’s of “A3” or
better and has a combined capital and surplus of at least $300,000,000.  If no successor Administrative Agent has been
appointed pursuant to the foregoing, by the 30th day after the date such notice
of resignation was given by the resigning Administrative Agent, such
resignation shall become effective and the Requisite Purchasers shall
thereafter perform all the duties of the Administrative Agent hereunder until
such time, if any, as the Requisite Purchasers appoint a successor
Administrative Agent as provided above. 
Upon the acceptance of any appointment as the Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall succeed to and become vested with all the rights, powers,
privileges and duties of the resigning Administrative Agent.  Upon the earlier of the acceptance of any
appointment as the Administrative Agent hereunder by a successor Administrative
Agent or the effective date of the resigning Administrative Agent’s
resignation, the resigning Administrative Agent shall be discharged from its
duties and obligations under this Agreement and the other Related Documents,
except that any indemnity rights or other rights in favor of such resigning
Administrative Agent shall continue. 
After any resigning Administrative Agent’s resignation hereunder, the
provisions of this Article XI shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative
Agent under this Agreement and the other Related Documents.


 


Section 11.07.          Setoff and Sharing of Payments. 
In addition to any rights now or hereafter granted under applicable law
and not by way of limitation of any such rights, upon the occurrence and during
the continuance of any Termination Event, each Purchaser is hereby authorized
at any time or from time to time, without notice to the Seller or to any other
Person,


 


48














 


any such notice being
hereby expressly waived (but subject to Section 2.03(b)), to set
off and to appropriate and to apply any and all balances held by it at any of
its offices for the account of the Seller (regardless of whether such balances
are then due to the Seller) and any other properties or assets any time held or
owing by that Purchaser or that holder to or for the credit or for the account
of the Seller against and on account of any of the Seller Obligations which are
not paid when due.  Any Purchaser
exercising a right to set off or otherwise receiving any payment on account of
the Seller Obligations in excess of its Pro Rata Share thereof shall purchase
for cash (and the other Purchasers or holders shall sell) such participations
in each such other Purchaser’s or holder’s Pro Rata Share of the Seller
Obligations as would be necessary to cause such Purchaser to share the amount
so set off or otherwise received with each other Purchaser or holder in
accordance with their respective Pro Rata Shares.  The Seller agrees, to the fullest extent
permitted by law, that (a) any Purchaser or holder may exercise its right
to set off with respect to amounts in excess of its Pro Rata Share of the
Seller Obligations and may sell participations in such amount so set off to
other Purchasers and holders and (b) any Purchaser or holders so
purchasing a participation in the Capital Investment or Seller Obligations held
by other Purchasers or holders may exercise all rights of set off, bankers’
lien, counterclaim or similar rights with respect to such participation as
fully as if such Purchaser or holder were a direct holder of the Capital
Investment and the Seller Obligations in the amount of such participation.  Notwithstanding the foregoing, if all or any
portion of the set-off amount or payment otherwise received is thereafter
recovered from the Purchaser that has exercised the right of set-off, the
purchase of participations by that Purchaser shall be rescinded and the
purchase price restored without interest.


 


ARTICLE XII.



MISCELLANEOUS


 


Section 12.01.          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 (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 12.01), (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 to the address or
facsimile number set forth on the signature pages hereto (or any
Assignment Agreement) or to such other address (or facsimile number) as may be
substituted by notice given as herein provided. 
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
any Purchaser and the Administrative Agent) designated in any written notice
provided hereunder to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, 


 


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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 12.02.          Binding Effect; Assignability.


 


(a)           This Agreement shall be binding upon and inure to the
benefit of the Seller, each Purchaser and the Administrative Agent and their
respective successors and permitted assigns. 
The Seller may not assign, transfer, hypothecate or otherwise convey any
of its rights or obligations hereunder or interests herein without the express
prior written consent of the Requisite Purchasers and the Administrative
Agent.  Any such purported assignment,
transfer, hypothecation or other conveyance by the Seller without the prior
express written consent of the Requisite Purchasers and the Administrative
Agent shall be void.


 


(b)           The Seller hereby consents to any Purchaser’s
assignment or pledge of, and/or sale of participations in, at any time or times
after the Effective Date of the Related Documents, Capital Investment and any
Commitment or of any portion thereof or interest therein, including any
Purchaser’s rights, title, interests, remedies, powers or duties thereunder,
whether evidenced by a writing or not, made in accordance with this Section 12.02(b).  Any assignment by a Purchaser shall (i) require
the execution of an assignment agreement (an “Assignment Agreement”)
substantially in the form attached hereto as Exhibit 12.02(b) or
otherwise in form and substance satisfactory to the Administrative Agent, and
acknowledged by, the Administrative Agent, a copy of which is delivered to the
Seller, and other than in the case of an assignment by a Purchaser to one of
its Affiliates, the written consent of the Administrative Agent and, only if
and so long as no Termination Event has occurred and is continuing, the Seller
(which consent shall not be unreasonably withheld or delayed); (ii) if a
partial assignment, be in an amount at least equal to $5,000,000 and, after
giving effect to any such partial assignment, the assigning Purchaser shall
have retained Commitments in an amount at least equal to $5,000,000; (iii) require
the delivery to the Seller and Administrative Agent by the assignee or
participant, as the case may be, of any forms, certificates or other evidence
with respect to United States tax withholding matters, and (iv) other than
in the case of an assignment by a Purchaser to one of its Affiliates, include a
payment to the Administrative Agent by the assignor or assignee Purchaser of an
assignment fee of $3,500; and (v) any assignment by a Non-Funding
Purchaser (including to any Affiliate thereof) shall require the prior written
consent of the Administrative Agent.  In
the case of an assignment by a Purchaser under this Section 12.02,
the assignee shall have, to the extent of such assignment, the same rights,
benefits and obligations as it would if it were a Purchaser hereunder.  The assigning Purchaser shall be relieved of
its obligations hereunder with respect to its Commitments or assigned portion
thereof from and after the date of such assignment.  The Seller hereby acknowledges and agrees
that any assignment made in accordance with this Section 12.02(b) will
give rise to a direct obligation of the Seller to the assignee and that the
assignee shall thereupon be a “Purchaser” for all purposes.  In all instances, each Purchaser’s obligation
to make Purchases and maintain Capital Investment hereunder shall be several
and not joint and shall be limited to such Purchaser’s Pro Rata Share of the
applicable Commitment.  Notwithstanding
the foregoing provisions of this Section 12.02(b), any Purchaser
may at any time pledge or assign all or any portion of such Purchaser’s 


 


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rights under this
Agreement and the other Related Documents to any Federal Reserve Bank or to any
holder or trustee of such Purchaser’s securities; provided, however,
that no such pledge or assignment to any Federal Reserve Bank, holder or
trustee shall release such Purchaser from such Purchaser’s obligations
hereunder or under any other Related Document and no such holder or trustee
shall be entitled to enforce any rights of such Purchaser hereunder unless such
holder or trustee becomes a Purchaser hereunder through execution of an
Assignment Agreement as set forth above.


 


(c)           In addition to the foregoing right, any Purchaser may,
without notice to or consent from the Administrative Agent or the Seller, (x) grant
to a SPV that is administered by such Purchaser or is an Affiliate of such
Purchaser the option to make all or any part of any Purchase that such
Purchaser would otherwise be required to make hereunder (and the exercise of
such option by such SPV and the making of Loans pursuant thereto shall satisfy
the obligation of such Purchaser to make such Loans hereunder); (y) assign
to an SPV all or a portion of its rights (but not its obligations) under the
Related Documents, including a sale of any Purchaser Interests, Capital
Investment or Seller Obligations hereunder and such Purchaser’s right to
receive payment with respect to any such Purchaser Interests, Capital
Investment or Seller Obligations and (z) sell participations to one or
more Persons in or to all or a portion of its rights and obligations under the
Related Documents (including all its rights and obligations with respect to the
Purchases and the Capital Investment); provided, however, that (x) no
such SPV or participant shall have a commitment, or be deemed to have made an
offer to commit, to make Purchases hereunder, and none shall be liable to any
Person for any obligations of such Purchaser hereunder (it being understood
that nothing in this Section 12.02(c) shall limit any rights
the Purchaser may have as against such SPV or participant under the terms of
the applicable option, sale or participation agreement between or among such
parties); and (y) no such SPV or holder of any such participation shall be
entitled to require such Purchaser to take or omit to take any action hereunder
except actions directly affecting (i) any reduction in the principal
amount of, or interest rate or Fees payable with respect to, any Purchase in
which such holder participates, and (ii) any release of all or
substantially all of the Seller Collateral (other than in accordance with the
terms of this Agreement or the other Related Documents).  Solely for purposes of Sections 2.08, 2.09,
2.10, and 10.01, Seller acknowledges and agrees that each such
sale or participation shall give rise to a direct obligation of the Seller to
the participant or SPV and each such participant or SPV shall be considered to
be a “Purchaser” for purposes of such sections. 
Except as set forth in the preceding sentence, such Purchaser’s rights
and obligations, and the rights and obligations of the other Purchasers and the
Administrative Agent towards such Purchaser under any Related Document shall
remain unchanged and none of the Seller, the Administrative Agent or any
Purchaser (other than the Purchaser selling a participation or assignment to an
SPV) shall have any duty to any participant or SPV and may continue to deal
solely with the assigning or selling Purchaser as if no such assignment or sale
had occurred.


 


(d)           Except as expressly provided in this Section 12.02,
no Purchaser shall, as between the Seller and that Purchaser, or between the
Administrative Agent and that Purchaser, be relieved of any of its obligations
hereunder as a result of any sale, assignment, transfer or negotiation of, or
granting of participation in, all or any part of the Purchaser Interests, the
Capital Investment or Seller Obligations owed to such Purchaser.


 


51

















 


(e)           The Seller shall assist any Purchaser permitted to
sell assignments or participations under this Section 12.02 as
reasonably required to enable the assigning or selling Purchaser to effect any
such assignment or participation, including the execution and delivery of any
and all agreements, notes and other documents and instruments as shall be
reasonably requested and the participation of management in meetings with
potential assignees or participants.  The
Seller shall, if the Administrative Agent so requests in connection with an
initial syndication of the Commitments hereunder, assist in the preparation of
informational materials for such syndication.


 


(f)            A Purchaser may furnish any information concerning the
Seller, the Originator, the Servicer and/or the Receivables in the possession
of such Purchaser from time to time to assignees and participants (including
prospective assignees and participants). 
Each Purchaser shall obtain from all prospective and actual assignees or
participants confidentiality covenants substantially equivalent to those
contained in Section 12.05.


 


Section 12.03.          Termination; Survival of Seller
Obligations Upon Facility Termination Date.


 


(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 any Affected Party under this Agreement
shall in any way affect or impair the obligations, duties and liabilities of
the Seller or the rights of any Affected Party relating to any unpaid portion
of the Seller Obligations, 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 the Seller and all rights of any Affected Party 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, that the rights
and remedies provided for herein with respect to any breach of any
representation or warranty made by the Seller pursuant to Article IV, the
indemnification and payment provisions of Article X and Sections
11.05, 12.05 and 12.14 shall be continuing and shall survive
the Termination Date.


 


Section 12.04.          Costs, Expenses and Taxes.  (a) 
The Seller shall reimburse the Administrative Agent for all reasonable out of
pocket expenses incurred in connection with the negotiation and preparation of
this Agreement and the other Related Documents (including the reasonable fees
and expenses of all of its special counsel, advisors, consultants and auditors
retained in connection with the transactions contemplated thereby and advice in
connection therewith).  The Seller shall
reimburse each Purchaser and the Administrative Agent for all fees, costs and
expenses, including the fees, costs and expenses of counsel or other advisors
(including environmental and management consultants and appraisers) for advice,
assistance, or other representation in connection with:


 


52

















 


(i)            the forwarding to the Seller or any other Person on
behalf of the Seller by any Purchaser of any payments for Purchases made by it
hereunder;


 


(ii)           any amendment, modification or waiver (whether or not
consummated) of, consent with respect to, or termination of this Agreement or
any of the other Related Documents or advice in connection with the
administration hereof or thereof or their respective rights hereunder or
thereunder;


 


(iii)          any Litigation, contest or dispute (whether instituted
by the Seller, any Purchaser, the Administrative Agent or any other Person as a
party, witness, or otherwise) in any way relating to the Seller Collateral, any
of the Related Documents or any other agreement to be executed or delivered in
connection herewith or therewith, including any Litigation, contest, dispute,
suit, case, proceeding or action, and any appeal or review thereof, in
connection with a case commenced by or against the Seller, the Servicer or any
other Person that may be obligated to any Purchaser or the Administrative Agent
by virtue of the Related Documents, including any such Litigation, contest,
dispute, suit, proceeding or action arising in connection with any work-out or
restructuring of the transactions contemplated hereby during the pendency of
one or more Termination Events;


 


(iv)          any attempt to enforce any remedies of a Purchaser or
the Administrative Agent against the Seller, the Servicer or any other Person
that may be obligated to them by virtue of any of the Related Documents,
including any such attempt to enforce any such remedies in the course of any
work-out or restructuring of the transactions contemplated hereby during the
pendency of one or more Termination Events;


 


(v)           any work-out or restructuring of the transactions
contemplated hereby during the pendency of one or more Termination Events; and


 


(vi)          efforts to (A) monitor the Purchases or any of
the Seller Obligations, (B) evaluate, observe or assess the Originators,
the Parent, the Seller or the Servicer or their respective affairs, and (C) verify,
protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise
dispose of any of the Seller Collateral;


 


including all reasonable
attorneys’ and other professional and service providers’ fees arising from such
services, including those in connection with any appellate proceedings, and all
reasonable expenses, costs, charges and other fees incurred by such counsel and
others in connection with or relating to any of the events or actions described
in this Section 12.04, all of which shall be payable, on demand, by
the Seller to the applicable Purchaser or the Administrative Agent, as
applicable.  Without limiting the
generality of the foregoing, such expenses, costs, charges and fees may
include: reasonable fees, costs and expenses of accountants, environmental
advisors, appraisers, investment bankers, management and other consultants and
paralegals; court costs and expenses; photocopying and duplication expenses;
court reporter fees, costs and expenses; long distance telephone charges; air
express charges; telegram or facsimile charges; secretarial overtime charges;
and expenses for travel, lodging and food paid or incurred in connection with
the performance of such legal or other advisory services.


 


53

















 


(b)           In addition, the Seller shall pay on demand any and
all stamp, sales, excise and other taxes (excluding income taxes imposed by the
jurisdiction under the laws of which such Person is organized), gross receipts
or franchise taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing or recording of this Agreement or any
other Related Document, and the Seller agrees to indemnify and save each
Indemnified Person harmless from and against any and all liabilities with
respect to or resulting from any delay or failure to pay such taxes and fees.


 


Section 12.05.          Confidentiality.


 


(a)           The Seller 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 other Related Documents without the prior written consent of the Requisite
Purchasers and the Administrative Agent (which consent shall not be
unreasonably withheld) unless such news release or public announcement is
required by law, in which case the Seller shall consult with the Administrative
Agent and any Purchasers specifically referenced therein prior to the issuance
of such news release or public announcement. 
The Seller may, however, disclose the general terms of the transactions
contemplated by this Agreement and the other 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)           The Administrative Agent and each Purchaser agrees to
maintain the confidentiality of the Information (as defined below), and will
not use such confidential Information for any purpose or in any matter except
in connection with this Agreement, except that Information may be disclosed (1) to
(i) each Affected Party (ii) its and each Affected 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 and (iii) industry trade organizations for inclusion in league
table measurements, (2) any regulatory authority (it being understood that
it will to the extent reasonably practicable provide the Seller 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 this Agreement, (5) to
the extent required in connection with the exercise of any remedies hereunder
or any suit, action or 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 of (or participant in), or any prospective assignee of
(or participant in), any of its rights or obligations under this Agreement, (7) with
the consent of the Seller or (8) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or
any other confidentiality agreement to which it is party with the Seller or the
Parent or any subsidiary thereof or (ii) becomes available to the
Administrative Agent, or any Purchaser on a nonconfidential basis from a source
other than the Parent or any subsidiary thereof.  For the purposes of this Section, “Information” means all information
received from the Seller and 


 


54

















 


Servicer relating to the
Seller, the Servicer, the Parent or any subsidiary thereof or their businesses,
or any Obligor, other than any such information that is available to the
Administrative Agent or any Purchaser on a nonconfidential basis prior to
disclosure by Seller or Servicer; provided that in the case of
information received from the Seller or Servicer after the date hereof, such
information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


Section 12.06.          Complete Agreement; Modification of Agreement. 
This Agreement and the other Related Documents constitute the complete
agreement among the parties hereto 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 12.07.


 


Section 12.07.          Amendments and Waivers.


 


(a)           Except for actions expressly permitted to be taken by
the Administrative Agent, no amendment, modification, termination or waiver of
any provision of this Agreement or any Note, or any consent to any departure by
the Seller therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Seller and by the Administrative Agent, the
Requisite Purchasers or, to the extent required under clause (b) below,
by all affected Purchasers and, to the extent required under clause (b) or
clause (c) below, by the Administrative Agent.  Except as set forth in clause (b) below,
all amendments, modifications, terminations or waivers requiring the consent of
any Purchasers without specifying the required percentage of Purchasers shall
require the written consent of the Requisite Purchasers.


 


(b)           (i) No amendment, modification, termination or
waiver of any provision of this Agreement or any of the other Related
Documents, or any consent to any departure by the Seller therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Requisite Purchasers, the Administrative Agent and the Seller; provided, that that no such amendment, modification,
termination or waiver shall, without the consent of each affected Purchaser
(excluding any Non-Funding Purchaser), (i) extend the date of payment on or
deposit into any Lockbox Account of Collections by the Seller or Servicer, (ii) reduce
the rate or extend the payment of Daily Yield, (iii) change the amount of
Capital Investment of any Purchaser (except as contemplated by Section 2.03(c)),
any Purchaser’s Pro Rata Share of the Purchaser Interests or any Purchaser’s
Commitment, (iv) amend, modify or waive any provision of the definition of
“Requisite Purchasers” or this Section 12.07, (v)  change the
definition of “Eligible Receivable”, “Investment Base”, “Dynamic Advance Rate”
or (vi) amend or modify any defined term (or any defined term used
directly or indirectly in any such defined term) used in clauses (i) through
(v) above in any manner that would circumvent the intention of the
restrictions set forth in such clauses; and provided, that no such
amendment, modification, termination or waiver shall, without the consent of
any affected Non-Funding Purchaser, increase the amount of such Non-Funding
Purchaser’s Commitment or except as otherwise provided in Section 2.12,
reduce the rate or extend the payment of Daily Yield owed to such Non-Funding
Purchaser or reduce the amount of Capital Investment owing to such Non-Funding
Purchaser.


 


55

















 


(ii)           Each amendment, modification, termination or waiver
shall be effective only in the specific instance and for the specific purpose
for which it was given.  No amendment,
modification, termination or waiver shall be required for the Administrative
Agent to take additional Seller Collateral pursuant to any Related Document. No
notice to or demand on the Seller in any case shall entitle the Seller to any
other or further notice or demand in similar or other circumstances.


 


(c)           If, in connection with any proposed amendment, modification,
waiver or termination (a “Proposed Change”) requiring the consent of all
affected Purchasers, the consent of Requisite Purchasers is obtained, but the
consent of other Purchasers whose consent is required is not obtained (any such
Purchaser whose consent is not obtained as described this clause (c) being
referred to as a “Non-Consenting Purchaser”), then, so long as the
Administrative Agent is not a Non-Consenting Purchaser, at the Seller’s request
the Administrative Agent, or a Person acceptable to the Administrative Agent,
shall have the right with the Administrative Agent’s consent and in the
Administrative Agent’s sole discretion (but shall have no obligation) to
purchase from such Non-Consenting Purchasers, and such Non-Consenting Purchasers
agree that they shall, upon the Administrative Agent’s request, sell and assign
to the Administrative Agent or such Person, all of the Commitments and
Purchaser Interests of such Non-Consenting Purchaser for an amount equal to the
Capital Investment held by the Non-Consenting Purchaser and all accrued Daily
Yield and Fees with respect thereto through the date of sale, such purchase and
sale to be consummated pursuant to an executed Assignment Agreement.


 


(d)           Upon indefeasible payment in full in cash and performance
of all of the Seller Obligations (other than indemnification obligations under Section 10.01),
termination of the aggregate Commitments of all Purchasers in their entirety
and a release of all claims against the Administrative Agent and Purchasers,
and so long as no suits, actions, proceedings or claims are pending or
threatened against any Indemnified Person asserting any damages, losses or
liabilities that are Indemnified Liabilities, the Administrative Agent shall
deliver to the Seller termination statements and other documents necessary or
appropriate to evidence the termination of the Liens securing payment of the
Seller Obligations.


 


Section 12.08.          No Waiver; Remedies.  The failure
by any Purchaser or the Administrative Agent, at any time or times, to require
strict performance by the Seller or the Servicer of any provision of this
Agreement, any Receivables Assignment or any other Related Document shall not
waive, affect or diminish any right of any Purchaser or the Administrative
Agent 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 the
Seller or the Servicer contained in this Agreement, any Receivables Assignment
or any other Related Document, and no breach or default by the Seller or the
Servicer hereunder or thereunder, shall be deemed to have been suspended or
waived by any Purchaser or the Administrative Agent unless such waiver or
suspension is by an instrument in writing signed by an officer of or other duly
authorized signatory of the applicable Purchasers and the Administrative Agent
and directed to the Seller or the Servicer, as applicable, specifying such
suspension or waiver.  The rights and
remedies of the Purchasers and the Administrative 


 


56

















 


Agent under this
Agreement and the other Related Documents shall be cumulative and nonexclusive
of any other rights and remedies that the Purchasers and the Administrative
Agent may have hereunder, thereunder, under any other agreement, by operation
of law or otherwise.  Neither the
Administrative Agent nor any of the Purchasers shall be obligated to exhaust
its recourse to or any remedy related to the Seller Collateral prior to its
enforcement of its rights and remedies against the Seller hereunder.


 


Section 12.09.          GOVERNING
LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.


 


(a)           THIS AGREEMENT AND EACH
OTHER 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 PERFECTION, EFFECT OF PERFECTION
OR PRIORITY OF THE INTERESTS OF THE ADMINISTRATIVE AGENT 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
OTHER 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
THAT NOTHING IN THIS AGREEMENT SHALL BE
DEEMED OR OPERATE TO PRECLUDE ANY PURCHASER OR THE ADMINISTRATIVE AGENT FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE
ON THE SELLER COLLATERAL OR ANY OTHER SECURITY FOR THE SELLER OBLIGATIONS, OR
TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE PURCHASERS OR THE
ADMINISTRATIVE AGENT.  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 


 


57

















 


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 PROVIDED FOR IN SECTION 12.01
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 OTHER RELATED DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


Section 12.10.          Counterparts.  This
Agreement may be executed in any number of separate counterparts, each of which
shall collectively and separately constitute one agreement.


 


Section 12.11.          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.


 


Section 12.12.          Section Titles.  The section,
titles and table of contents contained in this Agreement are 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 12.13.          Further Assurances.


 


(a)           The Seller shall, or shall cause the Servicer to, at
its sole cost and expense, upon request of any of the Purchasers or the
Administrative Agent, promptly and duly execute and deliver any and all further
instruments and documents and take such further action that may be necessary or
desirable or that any of the Purchasers or the Administrative Agent may request
to (i) perfect, protect, preserve, continue and maintain fully the Liens
granted to the Administrative


 


58














 


Agent for the benefit of
itself and the Purchasers under this Agreement, (ii) enable the Purchasers
or the Administrative Agent to exercise and enforce its rights under this
Agreement or any of the other Related Documents or (iii) otherwise carry
out more effectively the provisions and purposes of this Agreement or any other
Related Document.  Without limiting the
generality of the foregoing, the Seller shall, upon request of any of the
Purchasers or the Administrative Agent, (A) execute and file such financing
or continuation statements, or amendments thereto or assignments thereof, and
such other instruments or notices that may be necessary or desirable or that
any of the Purchasers or the Administrative Agent may request to perfect,
protect and preserve the Liens granted pursuant to this Agreement, free and
clear of all Adverse Claims, (B) mark, or cause the Servicer to mark, each
Contract evidencing each Transferred Receivable with a legend, acceptable to
each Purchaser and the Administrative Agent evidencing that the Seller has
purchased such Transferred Receivables and that the Administrative Agent, for
the benefit of the Purchasers, has a security interest in and lien thereon, (C) mark,
or cause the Servicer to mark, its master data processing records evidencing
such Transferred Receivables with such a legend and (D) notify or cause
the Servicer to notify Obligors of the Liens on the Transferred Receivables
granted hereunder.


 


(b)           Without limiting the generality of the foregoing, the
Seller hereby authorizes the Purchasers and the Administrative Agent, and each
of the Purchasers hereby authorizes the Administrative Agent, to file one or
more financing or continuation statements, or amendments thereto or assignments
thereof, relating to all or any part of the Transferred Receivables, including
Collections with respect thereto, or the Seller Collateral without the
signature of the Seller or, as applicable, the Purchasers, as applicable, to
the extent permitted by applicable law (including, for administrative
convenience, financing statements with respect to the Seller describing the
collateral covered by any such UCC-1 financing statement and PPSA, as
applicable, as “all assets” or language similar thereto).  A carbon, photographic or other reproduction
of this Agreement or of any notice or financing statement covering the
Transferred Receivables, the Seller Collateral or any part thereof shall be
sufficient as a notice or financing statement where permitted by law.


 


Section 12.14.          Servicer.  The
Administrative Agent and each of the Purchasers hereby acknowledge the
authorizations provided by the Buyer to the Servicer in Section 7.03(c) of
the Sale Agreement.


 


Section 12.15.          Amendment and Restatement. 
Effective as of the date hereof, (a) this Agreement shall amend and
restate in its entirety the Existing Purchase Agreement but shall not
constitute a novation thereof and (b) each reference to the Existing
Purchase 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.


 


Section 12.16.          Georgia Gulf Corporation, Georgia Gulf Chemicals &
Vinyls, LLC, Georgia Gulf Lake Charles, LLC and Royal Mouldings Limited. 
Upon the effectiveness hereof, (i) the terms and the provisions
related to the servicing of the Transferred Receivables shall be set forth in
the Sale Agreement, (ii) each of Georgia Gulf Corporation, Georgia Gulf
Chemicals & Vinyls, LLC, Georgia Gulf Lake Charles, LLC and Royal
Mouldings Limited shall cease to be a party to this Agreement and (iii) this
Agreement may be amended, supplemented, amended and restated or otherwise
modified without the consent of Georgia Gulf Corporation, Georgia Gulf 


 


59

















 


Chemicals &
Vinyls, LLC, Georgia Gulf Lake Charles, LLC or Royal Mouldings Limited.  Without limiting the terms of Section 12.15
above, nothing in this Section 12.16 shall be deemed to release, or
otherwise excuse any of Georgia Gulf Corporation, Georgia Gulf Chemicals &
Vinyls, LLC, Georgia Gulf Lake Charles, LLC or Royal Mouldings Limited from the
performance of any of its obligations under the Sale Agreement or under the
Existing Agreement, which obligations shall survive the termination of this Agreement
and are hereby reaffirmed by each of Georgia Gulf Corporation, Georgia
Chemicals & Vinyls, LLC, Georgia Gulf Lake Charles, LLC and Royal
Mouldings Limited.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


60

















 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by as of
the date first above written.


 


	
   

  	
  GGRC CORP., as the Seller

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Mark E.
  Buckis

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  
	
   

  	
  GGRC Corp.

  
	
   

  	
  1011 Centre Road,
  Suite 322,

  
	
   

  	
  Wilmington, DE 19805

  
	
   

  	
  Attention:  James W. Whalen, Jr.

  
	
   

  	
  Facsimile:  (302) 658-0463

  
	
   

  	
  Telephone:  (302) 655-8894

  



 

















 


	
  Commitment:
  $175,000,000

  	
  GENERAL
  ELECTRIC CAPITAL

  CORPORATION, as a Purchaser

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  David
  C. Johnson

  
	
   

  	
  Name:

  	
  David
  C. Johnson

  
	
   

  	
  Title:

  	
  Duly
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  Address:

  

  General Electric Capital Corporation

  401 Merritt 7

  Norwalk, Connecticut 06851

  Attention:  Vice President,
  Securitization

  Telephone:  (203) 229-5000

  Facsimile:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GENERAL
  ELECTRIC CAPITAL

  CORPORATION, as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  David
  C. Johnson

  
	
   

  	
  Name:

  	
  David
  C. Johnson

  
	
   

  	
  Title:

  	
  Duly
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  Address:

  

  General Electric Capital Corporation

  401 Merritt 7

  Norwalk, Connecticut 06851

  Attention:  Vice President,
  Securitization

  Telephone:  (203) 229-5000

  Facsimile:

  



 

















 


Acknowledged and Agreed to:


 


	
  GEORGIA
  GULF CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/  Gregory
  Thompson

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  GEORGIA
  GULF CHEMICALS & VINYLS, LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/  Gregory
  Thompson

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ROYAL
  MOULDINGS LIMITED

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/  Gregory
  Thompson

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  GEORGIA
  GULF LAKE CHARLES, LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/  Gregory
  Thompson

  	
   

  
	
  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
# XXXXXXX 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 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.


 


2

















 


“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) 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.


 


3

















 


“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 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);


 


4

















 


(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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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.


 


5

















 


“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.


 


“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.


 


6

















 


“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 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:


 


7

















 


(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).


 


“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).


 


8

















 


“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.


 


“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”.


 


9

















 


“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;


 


(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 


 


10

















 


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 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;


 


11














 


(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;


 


(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), 


 


12

















 


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 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 


 


13

















 


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 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:


 


14

















 




	
  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 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 


 


15

















 


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.


 


“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.


 


16

















 


“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:


 


(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.


 


17

















 


“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


 


(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.


 


18

















 


“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 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;


 


19

















 


(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.


 


“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;


 


20

















 


 minus


 


(b)           the Excess Concentration Amount;


 


 minus


 


(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”.


 


21














 


“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.


 


“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;


 


22

















 


(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;


 


(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 


 


23

















 


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 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:


 


24

















 


	
  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:


 


(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 


 


25

















 


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.


 


“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 


 


26

















 


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 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.


 


27

















 


“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;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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

  



 


28

















 


	
  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 XXXXXXXXXXXXX maintained by the
Seller at Wachovia Bank, National Association.


 


“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 


 


29

















 


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.


 


“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.


 


30














 


“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.


 


“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.


 


31

















 


“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.


 


“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.


 


32

















 


“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
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.


 


33

















 


“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 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 


 


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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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