Exhibit 10.47





Exhibit 10.47




PURCHASE AND SALE AGREEMENT




Dated as of November 30, 2001




between




UGI ENERGY SERVICES, INC.




and




ENERGY SERVICES FUNDING CORPORATION




THIS DESK COPY INCORPORATES AMENDMENTS 1 THROUGH 3 TO THE PURCHASE AND SALE AGREEMENT. THIS DESK
COPY IS FOR ADMINISTRATIVE PURPOSES ONLY. THE EXECUTED PURCHASE AND SALE AGREEMENT AND AMENDMENTS
SHOULD BE USED FOR ALL OTHER PURPOSES. MORGAN, LEWIS & BOCKIUS LLP MAKES NO REPRESENTATIONS AS TO
THE ACCURACY OR COMPLETENESS OF THIS DESK COPY.


 


 









 





THIS PURCHASE AND SALE AGREEMENT (this “Agreement”), dated as of November 30, 2001, is
entered into between UGI ENERGY SERVICES, INC. (the “Originator”), a Pennsylvania
corporation, and ENERGY SERVICES FUNDING CORPORATION, a Delaware corporation (the
“Company”).



DEFINITIONS




Unless otherwise indicated herein, capitalized terms used in this Agreement are defined in
Exhibit I to the Receivables Purchase Agreement of even date herewith (as the same may be amended,
supplemented or otherwise modified from time to time, the “Receivables Purchase Agreement”)
among the Company, as the Seller; UGI Energy Services, Inc. (individually, “UGI”), as the
initial Servicer; Market Street Funding Corporation; and PNC Bank, National Association, as the
Administrator. All references herein to months are to calendar months unless otherwise expressly
indicated.



BACKGROUND:




1. The Company is a special purpose corporation, the issued and outstanding shares of which
are owned by the Originator;




2. The Originator generates Receivables in the ordinary course of its business;



3. The Originator, in order to finance its business, wishes to sell or contribute, as the case
may be, Receivables to the Company, and the Company is willing to purchase or accept Receivables,
as the case may be, from the Originator, on the terms and subject to the conditions set forth
herein; and



4. The Originator and the Company intend this transaction to be an absolute and irrevocable
true sale and conveyance of Receivables by the Originator to the Company, providing the Company
with the full benefits of ownership of the Receivables, and the Originator and the Company do not
intend the transactions hereunder to be characterized as a loan from the Company to the Originator.



NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained,
the parties hereto agree as follows:



ARTICLE I

AGREEMENT TO PURCHASE AND SELL




SECTION 1.1 Agreement To Purchase and Sell. On the terms and subject to the
conditions set forth in this Agreement, the Originator, severally and for itself, agrees to sell to
the Company, and the Company agrees to purchase from the Originator, from time to time on or after
the Closing Date, but before the Purchase and Sale Termination Date, all of the Originator’s right,
title and interest in and to:



(a) each Receivable of the Originator that existed and was owing to the Originator at the
closing of the Originator’s business on December 3, 2001 (the “Cut-off Date”) other than
Receivables contributed pursuant to Section 3.1 (the “Contributed Receivables”);


 


 









 





(b) each Receivable generated by the Originator from and including the Cut-off Date to and
including the Purchase and Sale Termination Date (other than any Receivable later contributed
pursuant to the second sentence of Section 3.1);




(c) all rights to, but not the obligations of the Originator under, all Related Security;




(d) all monies due or to become due to the Originator with respect to any of the foregoing;



(e) all books and records of the Originator related to any of the foregoing, and all rights,
remedies, powers, privileges, title and interest of the Originator in each lock-box and related
lock-box address and account to which Collections are sent, all amounts on deposit therein, all
certificates and instruments, if any, from time to time evidencing such accounts and amounts on
deposit therein, and all related agreements between the Originator and each Lock-Box Bank; and



(f) all collections and other proceeds and products of any of the foregoing (as defined in the
applicable UCC) that are or were received by the Originator on or after the Cut-off Date,
including, without limitation, all funds which either are received by the Originator, the Company
or the Servicer from or on behalf of the Obligors in payment of any amounts owed (including,
without limitation, invoice price, finance charges, interest and all other charges) in respect of
Receivables, or are applied to such amounts owed by the Obligors (including, without limitation,
any insurance payments that the Originator or the Servicer applies in the ordinary course of its
business to amounts owed in respect of any Receivable, and net proceeds of sale or other
disposition of repossessed goods or other collateral or property of the Obligors in respect of
Receivables or any other parties directly or indirectly liable for payment of such Receivables).



All purchases and contributions hereunder are absolute and irrevocable and shall be made without
recourse except as expressly provided in Sections 3.3, 3.4 and 9.1, but
shall be made pursuant to, and in reliance upon, the representations, warranties and covenants of
the Originator set forth in this Agreement and each other Transaction Document. No obligation or
liability to any Obligor on any Receivable is intended to be, or shall be, assumed by the Company
hereunder, and any such assumption is expressly disclaimed. The Company’s foregoing commitment to
purchase Receivables and the proceeds and rights described in clauses (c) through
(f) (collectively, the “Related Rights”) is herein called the “Purchase
Facility.”



In connection with the transfer of ownership or the grant of the security interest in the
Receivables and Related Rights, by signing this Agreement in the space provided, the Originator
hereby authorizes the filing of all applicable UCC financing statements in all necessary
jurisdictions.


 


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SECTION 1.2 Timing of Purchases.



(a) Closing Date Purchases. The Originator’s entire right, title and interest in, to
and under (i) each Receivable that existed and was owing to the Originator at the Cut-off Date
(other than Contributed Receivables), (ii) all Receivables created by the Originator from and
including the Cut-off Date, to and including the Closing Date (other than Contributed Receivables),
and (iii) all Related Rights with respect thereto automatically shall be deemed to have been sold
by the Originator to the Company on the Closing Date.



(b) Subsequent Purchases. After the Closing Date, until the Purchase and Sale
Termination Date, each Receivable and the Related Rights generated by the Originator shall be, and
shall be deemed to have been, sold by the Originator to the Company immediately (and without
further action) upon the creation of such Receivable.



SECTION 1.3 Consideration for Purchases. On the terms and subject to the conditions
set forth in this Agreement, the Company agrees to make Purchase Price payments to the Originator
in accordance with Article III and to reflect all contributions in accordance with Section
3.1.



SECTION 1.4 Purchase and Sale Termination Date. The “Purchase and Sale Termination
Date” shall be the earlier to occur of (a) the date the Purchase Facility is terminated pursuant to
Section 8.2 and (b) the Facility Termination Date.



SECTION 1.5 Intention of the Parties. It is the express intent of the parties hereto
that the transfers of the Receivables, Contributed Receivables and Related Rights by the Originator
to the Company, as contemplated by this Agreement, be treated as true, final, absolute and
irrevocable sales or contributions, as applicable (without recourse except as expressly provided in
Sections 3.3, 3.4 and 9.1), of all of the Originator’s legal and equitable
right, title and interest in, to and under the Receivables or the Contributed Receivables, as
applicable, and Related Rights. If, however, notwithstanding the intent of the parties, such
transactions are deemed to be loans, the Originator hereby grants to the Company a first priority
security interest in all of the Originator’s right, title and interest in and to: (i) the
Receivables, Contributed Receivables and the Related Rights now existing and hereafter created by
the Originator, (ii) all monies due or to become due and all amounts received with respect thereto,
(iii) all books and records of the Originator related to any of the foregoing, and all rights,
remedies, powers, privileges, title and interest of the Originator in each lock-box and related
lock-box address and account to which Collections are sent, all amounts on deposit therein, all
certificates and instruments, if any, from time to time evidencing such accounts and amounts on
deposit therein, and all related agreements between the Originator and each Lock-Box Bank, and (iv)
all proceeds and products of any of the foregoing to secure all of the Originator’s obligations
hereunder.


 


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ARTICLE II

PURCHASE REPORT; CALCULATION OF PURCHASE PRICE




SECTION 2.1 Purchase Report. On the Closing Date and on each Settlement Date, the
Servicer shall deliver to the Company and the Originator a report in substantially the form of
Exhibit A (each such report being herein called a “Purchase Report”) setting forth,
among other things:



(a) Receivables purchased by the Company from the Originator on the Closing Date (in the case
of the Purchase Report to be delivered on the Closing Date);



(b) Receivables purchased by the Company from the Originator during the period commencing on,
and including, the Settlement Date immediately preceding such Settlement Date to (but not
including) such Settlement Date (in the case of each subsequent Purchase Report); and



(c) the calculations of reductions of the Purchase Price for any Receivables as provided in
Section 3.3 (a) and (b).



SECTION 2.2 Calculation of Purchase Price. The “Purchase Price” to be paid to
the Originator (or in the case of Contributed Receivables, the amount to be recognized as a capital
contribution) for the Receivables that are hereunder purchased from or contributed by, as the case
may be, the Originator shall be determined in accordance with the following formula:



	 	 	 	 	 
	PP

	 	=
	 	OB x FMVD
	 
	 	 	 	 
	where:
	 	 	 	 
	 
	 	 	 	 
	PP

	 	=
	 	Purchase Price for each Receivable as calculated on the
relevant Payment Date.
	 
	 	 	 	 
	OB

	 	=
	 	The Outstanding Balance of such Receivable on the relevant
Payment Date.
	 
	 	 	 	 
	FMVD

	 	=
	 	Fair Market Value Discount, as measured on such Payment
Date, which is equal to the quotient (expressed as
percentage) of (a) one divided by (b) the sum of (i) one,
plus (ii) a fraction, the numerator of which is 6% and the
denominator of which is 12.






“Payment Date” means (i) the Closing Date and (ii) each Business Day thereafter that the
Originator is open for business.



“Prime Rate” means a per annum rate equal to the “Prime Rate” as published in
the “Money Rates” section of The Wall Street Journal or if such information ceases to be published
in The Wall Street Journal, such other publication as determined by the Administrator in its
reasonable discretion.


 


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ARTICLE III

PAYMENT OF PURCHASE PRICE




SECTION 3.1 Contribution of Receivables and Initial Purchase Price Payment. (a) On
the Closing Date, UGI shall, and hereby does, irrevocably and absolutely contribute to the capital
of the Company Receivables and Related Rights consisting of each Receivable of UGI that existed and
was owing to UGI on the Closing Date beginning with the oldest of such Receivables and continuing
chronologically thereafter such that the aggregate Outstanding Balance of all such Contributed
Receivables shall be not less than $4,000,000. Notwithstanding anything in this Agreement to the
contrary, UGI shall not be prevented from contributing
Receivables to the Company from time to time. Contributions made in connection with the
immediately preceding sentence (i) shall have no effect on the aggregate Purchase Price of any
Receivables sold by UGI to the Company on the date of such contribution and (ii) shall not affect
the aggregate outstanding balance of any Company Note.



(b) On the terms and subject to the conditions set forth in this Agreement, the Company agrees
to pay to the Originator the Purchase Price for the purchase to be made from the Originator on the
Closing Date partially in cash (in an amount to be agreed between the Company and the Originator
and set forth in the initial Purchase Report) and partially by issuing a promissory note in the
form of Exhibit B to the Originator with an initial principal balance equal to the
remaining Purchase Price (each such promissory note, as it may be amended, supplemented, endorsed
or otherwise modified from time to time, together with all promissory notes issued from time to
time in substitution therefor or renewal thereof in accordance with the Transaction Documents, each
being herein called a “Company Note”).



SECTION 3.2 Subsequent Purchase Price Payments. On each Payment Date subsequent to
the Closing Date, on the terms and subject to the conditions set forth in this Agreement, the
Company shall pay to the Originator the Purchase Price for the Receivables generated by the
Originator on such Payment Date and sold to the Company hereunder:




(a) First, in cash to the extent the Company has cash available therefor; and



(b) Second, to the extent any portion of the Purchase Price remains unpaid, the principal
amount outstanding under the applicable Company Note shall be increased by an amount equal to such
remaining Purchase Price.



The Servicer shall make all appropriate record keeping entries with respect to each of the
Company Notes to reflect the foregoing payments and reductions made pursuant to Section
3.3, and in the absence of manifest error the Servicer’s books and records shall constitute
rebuttable presumptive evidence of the principal amount of, and accrued interest on, each of the
Company Notes at any time. Furthermore, the Servicer shall hold the Company Notes for the benefit
of the Originator. The Originator hereby irrevocably authorizes the Servicer to mark the Company
Notes “CANCELED” and to return such Company Notes to the Company upon the final payment thereof
after the occurrence of the Purchase and Sale Termination Date.




SECTION 3.3 Settlement as to Specific Receivables and Dilution.



(a) If, on the day of purchase or contribution of any Receivable from the Originator
hereunder, any of the representations or warranties set forth in Sections 5.4 and
5.12 are not true with respect to such Receivable or as a result of any action or inaction
of the Originator, on any subsequent day, any of such representations or warranties set forth in
Sections 5.4 and 5.12 are no longer true with respect to such Receivable,
then the Purchase Price (or in the case of a Contributed Receivable, the capital contribution with
respect to such Receivable (the “Contributed Value”)), with respect to such Receivable
shall be reduced by an amount equal to the Outstanding Balance of such Receivable and shall be
accounted to the Originator as provided in clause (c) below; provided, that if the
Company thereafter receives payment on account of
Collections due with respect to such Receivable, the Company promptly shall deliver such funds
to the Originator.


 


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(b) If, on any day, the Outstanding Balance of any Receivable (including any Contributed
Receivable) purchased or contributed hereunder is reduced or adjusted as a result of any defective,
rejected, returned goods or services, or any discount or other adjustment made by the Originator,
the Company or the Servicer or any setoff or dispute between the Originator or the Servicer and an
Obligor as indicated on the books of the Company (or, for periods prior to the Closing Date, the
books of the Originator), then the Purchase Price or Contributed Value, as the case may be, with
respect to such Receivable shall be reduced by the amount of such net reduction and shall be
accounted to the Originator as provided in clause (c) below.



(c) Any reduction in the Purchase Price or Contributed Value of any Receivable pursuant to
clause (a) or (b) above shall be applied as a credit for the account of the Company
against the Purchase Price of Receivables subsequently purchased by or contributed to the Company
from the Originator hereunder; provided, however if there have been no purchases of
Receivables from the Originator (or insufficiently large purchases of Receivables) to create a
Purchase Price sufficient to so apply such credit: (i) shall be paid in cash to the Company by the
Originator in the manner and for application as described in the following proviso, or (ii) shall
be deemed to be a payment under, and shall be deducted from the principal amount outstanding under,
the Company Note payable to the Originator; against, the amount of such credit shall be paid in
cash to the Company by the Originator in the manner and for application as described in the
following proviso;



provided, further, that at any time (y) when a Termination Event or Unmatured Termination Event
exists under the Receivables Purchase Agreement or (z) on or after the Purchase and Sale
Termination Date, the amount of any such credit shall be paid by the Originator to the Company by
deposit in immediately available funds into the relevant Lock-Box Account for application by the
Servicer to the same extent as if Collections of the applicable Receivable in such amount had
actually been received on such date.



SECTION 3.4 Reconveyance of Receivables. In the event that the Originator has paid to
the Company the full Outstanding Balance of any Receivable pursuant to Section 3.3, the
Company shall reconvey such Receivable to the Originator, without representation or warranty, but
free and clear of all liens, security interests, charges, and encumbrances created by the Company.


 


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ARTICLE IV

CONDITIONS OF PURCHASES




SECTION 4.1 Conditions Precedent to Initial Purchase. The initial purchase hereunder
is subject to the condition precedent that the Servicer (on the Company’s behalf) shall have
received, on or before the Closing Date, the following, each (unless otherwise indicated) dated the
Closing Date, and each in form and substance satisfactory to the Servicer (acting on the Company’s
behalf):



(a) An Originator Assignment Certificate in the form of Exhibit C from the Originator, duly
completed, executed and delivered by the Originator;



(b) A copy of the resolutions of the Board of Directors of the Originator approving the
Transaction Documents to be delivered by it and the transactions contemplated hereby and thereby,
certified by the Secretary or Assistant Secretary of the Originator;



(c) Good standing or validly subsisting certificates for the Originator issued as of a recent
date acceptable to the Servicer by the Secretary of State of the jurisdiction of the Originator’s
organization and each jurisdiction where the Originator is qualified to transact business;



(d) A certificate of the Secretary or Assistant Secretary of the Originator certifying the
names and true signatures of the officers authorized on such Person’s behalf to sign the
Transaction Documents to be delivered by it (on which certificate the Servicer and the Company may
conclusively rely until such time as the Servicer shall receive from such Person a revised
certificate meeting the requirements of this clause (d));



(e) Copies of the certificate or articles of incorporation or other organizational document of
the Originator duly certified by the Secretary of State of the jurisdiction of the Originator’s
organization as of a recent date, together with a copy of the by-laws of the Originator, each duly
certified by the Secretary or an Assistant Secretary of the Originator;



(f) Originals of the proper financing statements (Form UCC-1) that have been duly executed and
name the Originator as the debtor/seller and the Company as the secured party/purchaser (and the
Issuer, as assignee of the Company) of the Receivables generated by the Originator as may be
necessary or, in the Servicer’s or the Administrator’s opinion, desirable under the UCC of all
appropriate jurisdictions to perfect the Company’s ownership interest in all Receivables and such
other rights, accounts, instruments and moneys (including, without limitation, Related Security) in
which an ownership or security interest may be assigned to it hereunder;



(g) A written search report from a Person satisfactory to the Servicer listing all effective
financing statements that name the Originator as debtor or seller and that are filed in the
jurisdictions in which filings were made pursuant to the foregoing clause (f), together
with copies of such financing statements (none of which, except for those described in the
foregoing clause (f), shall cover any Receivable or any Related Rights which are to be sold
to the Company hereunder), and tax and judgment lien search reports from a Person satisfactory to
the Servicer showing no evidence of such liens filed against the Originator;



(h) A favorable opinion of Morgan, Lewis & Bockius LLP, counsel to the Originator, in form and
substance satisfactory to the Servicer and the Administrator;




(i) [Intentionally Omitted.]


 


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(j) A certificate from an officer of the Originator to the effect that the Servicer and the
Originator have placed on the most recent, and have taken all steps reasonably necessary to ensure
that there shall be placed on each subsequent, data processing report that the
Originator generates which are of the type that a proposed purchaser or lender would use to
evaluate the Receivables, the following legend (or the substantive equivalent thereof): “THE
RECEIVABLES DESCRIBED HEREIN HAVE BEEN CONTRIBUTED OR SOLD BY UGI ENERGY SERVICES, INC. TO ENERGY
SERVICES FUNDING CORPORATION PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF NOVEMBER 30,
2001, AS MAY BE AMENDED FROM TIME TO TIME, BETWEEN UGI ENERGY SERVICES, INC. AND ENERGY SERVICES
FUNDING CORPORATION, AS PURCHASER; AND AN UNDIVIDED, FRACTIONAL OWNERSHIP INTEREST IN THE
RECEIVABLES DESCRIBED HEREIN HAS BEEN SOLD TO MARKET STREET FUNDING CORPORATION PURSUANT TO A
RECEIVABLES PURCHASE AGREEMENT, DATED AS OF NOVEMBER 30, 2001 AS MAY BE AMENDED FROM TIME TO TIME,
AMONG ENERGY SERVICES FUNDING CORPORATION, AS SELLER, UGI ENERGY SERVICES, INC., AS SERVICER,
MARKET STREET FUNDING CORPORATION, AND PNC BANK, NATIONAL ASSOCIATION, AS ADMINISTRATOR”; and



(k) Such other approvals, opinions or documents as the Administrator or the Issuer may
reasonably request.



SECTION 4.2 Certification as to Representations and Warranties. The Originator, by
accepting the Purchase Price related to each purchase of Receivables generated by the Originator,
shall be deemed to have certified that the representations and warranties contained in Article V
are true and correct on and as of such day, with the same effect as though made on and as of such
day.



SECTION 4.3 Additional Originators. Additional Persons may be added as Originators
hereunder, with the consent of the Company and the Administrator, provided that the
following conditions are satisfied on or before the date of such addition:



(a) The Servicer shall have given the Administrator and the Company at least thirty days prior
written notice of such proposed addition and the identity of the proposed additional Originator and
shall have provided such other information with respect to such proposed additional Originator as
the Administrator may reasonably request;



(b) such proposed additional Originator has executed and delivered to the Company and the
Administrator an agreement substantially in the form attached hereto as Exhibit D (a
“Joinder Agreement”);



(c) such proposed additional Originator has delivered to the Company and the Administrator
each of the documents with respect to the Originator described in Sections 4.1 and
4.2;



(d) the Administrator shall have received a written statement from each of Moody’s and
Standard & Poor’s confirming that the addition of the Originator will not result in a downgrade or
withdrawal of the current ratings of the Notes; and



(e) the Purchase and Sale Termination Date shall not have occurred.


 


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ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR




In order to induce the Company to enter into this Agreement and to make purchases hereunder,
the Originator hereby makes, with respect to itself, the representations and warranties set forth
in this Article V.



SECTION 5.1 Organization and Valid Subsistence. The Originator has been duly
incorporated or formed and is validly existing or subsisting as a corporation, limited liability
company or partnership, as applicable, in good standing under the laws of its jurisdiction of
incorporation or formation, with corporate power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is presently conducted.



SECTION 5.2 Due Qualification. The Originator is located and is qualified to transact
business as a foreign corporation, limited liability company or partnership, as applicable, in good
standing in all jurisdictions in which (a) the ownership or lease of its property or the conduct of
its business requires such licensing or qualification (except for the District of Columbia and the
State of New York, in which jurisdictions the Originator shall be qualified within 90 days after
the Closing Date) and (b) the failure to be so licensed or qualified would be reasonably likely to
have a Material Adverse Effect.



SECTION 5.3 Power and Authority; Due Authorization. The Originator has (a) all
necessary corporate power, authority and legal right (i) to execute and deliver, and perform its
obligations under, each Transaction Document to which it is a party (including the use of the
proceeds of the Purchase Price) and (ii) to generate, own, sell, contribute and assign Receivables
on the terms and subject to the conditions herein and therein provided; and (b) duly authorized
such execution and delivery and such sale, contribution and assignment and the performance of such
obligations by all necessary corporate action.



SECTION 5.4 Valid Sale; Binding Obligations. Each sale or contribution, as the case
may be, of Receivables made by the Originator pursuant to this Agreement is and shall constitute an
irrevocable and absolute valid sale or contribution, as the case may be, transfer, and assignment
of Receivables to the Company, enforceable against creditors of, and purchasers from, the
Originator; and this Agreement constitutes, and each other Transaction Document to be signed by the
Originator, when duly executed and delivered by the Originator, will constitute, a legal, valid,
and binding obligation of the Originator, enforceable against the Originator in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors’ rights generally and by general principles of
equity, regardless of whether such enforceability is considered in a proceeding in equity or at
law.


 


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SECTION 5.5 No Violation. The consummation by the Originator of the transactions
contemplated by this Agreement and the other Transaction Documents to be signed by the Originator,
and the fulfillment by the Originator of the terms hereof or thereof, will not (a) conflict with,
result in any breach of any of the terms and provisions of, or constitute (with or without notice
or lapse of time) a default under (i) the Originator’s certificate or articles of
incorporation or bylaws, limited partnership agreements, articles of organization or limited
liability company agreements, as applicable or (ii) any indenture, loan agreement, mortgage, deed
of trust, or other similar agreement or instrument to which it is a party or by which it is bound,
(b) result in the creation or imposition of any Adverse Claim upon any of its properties pursuant
to the terms of any such indenture, loan agreement, mortgage, deed of trust, or other similar
agreement or instrument, other than the Transaction Documents, or (c) violate any law or any order,
rule or regulation applicable to it of any court or of any state or foreign regulatory body,
administrative agency, or other governmental instrumentality having jurisdiction over it or any of
its properties.



SECTION 5.6 Proceedings. Except as set forth in Schedule 5.6, there is no
action, suit, proceeding or investigation pending before any court, regulatory body, arbitrator,
administrative agency, or other tribunal or governmental instrumentality (a) asserting the
invalidity of any Transaction Document, (b) seeking to prevent the Originator from transferring any
Receivable hereunder (or in the case such transfer does not constitute a sale or an absolute
conveyance under any applicable law, from granting or maintaining the security interest in any
Receivable) to the Company or the consummation of any of the transactions contemplated by any
Transaction Document or (c) seeking any determination or ruling that is reasonably likely to have a
Material Adverse Effect.



SECTION 5.7 Bulk Sales Acts. No transaction contemplated hereby requires compliance
with, or will be subject to avoidance under, any bulk sales act or similar law.



SECTION 5.8 Government Approvals. Except for the filing of the UCC financing
statements referred to in Article IV, all of which, at the time required in Article
IV, shall have been duly made and shall be in full force and effect, no authorization or
approval or other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the Originator’s due execution, delivery and performance of any
Transaction Document to which it is a party.




SECTION 5.9 Financial Condition.



(a) Material Adverse Effect. Since September 30, 2001, no event has occurred that has
had, or is reasonably likely to have, a Material Adverse Effect.



(b) Solvent. On the date hereof, and on the date of each purchase hereunder (both
before and after giving effect to such purchase), the Originator shall be Solvent.




SECTION 5.10 Licenses, Contingent Liabilities, and Labor Controversies.



(a) The Originator has not failed to obtain any licenses, permits, franchises or other
governmental authorizations necessary to the ownership of its properties or to the conduct of its
business, which violation or failure to obtain would be reasonably likely to have a Material
Adverse Effect.



(b) There are no labor controversies pending against the Originator that have had (or are
reasonably likely to have) a Material Adverse Effect.


 


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SECTION 5.11 Margin Regulations. No use of any funds acquired by the Originator under
this Agreement will conflict with or contravene any of Regulations, T, U and X promulgated by the
Federal Reserve Board from time to time.




SECTION 5.12 Quality of Title.



(a) Each Receivable of the Originator (together with the Related Rights with respect to such
Receivable) which is to be sold to the Company hereunder is or shall be owned by the Originator,
free and clear of any Adverse Claim, except as provided herein and in the Receivables Purchase
Agreement. Whenever the Company makes a purchase or accepts a contribution hereunder, it shall
have acquired and shall continue to have maintained a valid and perfected ownership interest (free
and clear of any Adverse Claim) in all Receivables (except for those Receivables reconveyed to the
Originator pursuant to Section 3.4) generated by the Originator and all Collections related
thereto, and in the Originator’s entire right, title and interest in and to the Related Rights with
respect thereto.



(b) No effective financing statement or other instrument similar in effect covering any
Receivable generated by the Originator or any Related Rights is on file in any recording office
except such as may be filed in favor of the Company or the Originator, as the case may be, in
accordance with this Agreement or in favor of the Issuer in accordance with the Receivables
Purchase Agreement.



(c) Unless otherwise identified to the Company on the date of the purchase or contribution
hereunder, each Receivable purchased hereunder is on the date of purchase or contribution an
Eligible Receivable.



SECTION 5.13 Accuracy of Information. All factual written information heretofore or
contemporaneously furnished (and prepared) by the Originator to the Company or the Administrator
for purposes of or in connection with any Transaction Document or any transaction contemplated
hereby or thereby is, and all other such factual written information hereafter furnished (and
prepared) by the Originator to the Company or the Administrator pursuant to or in connection with
any Transaction Document will be, true and accurate in all material respects on the date as of
which such information is dated or certified.



SECTION 5.14 Offices. The Originator’s principal place of business and chief
executive office is located at the address set forth in Schedule 5.14A and the offices
where the Originator keeps all its books, records and documents evidencing its Receivables, the
related Contracts and all other agreements related to such Receivables are located at the addresses
specified in Schedule 5.14B (or at such other locations, notified to the Servicer and the
Administrator in accordance with Section 6.1(f)), in jurisdictions where all action
required by Section 7.3 has been taken and completed. The Originator’s organization type,
jurisdiction of organization and organizational identification number are set forth on Schedule
5.14A.



SECTION 5.15 Trade Names. The Originator does not use any trade name other than its
actual corporate name and the trade names set forth in Schedule 5.15. From and after the
date that fell five (5) years before the date hereof, except as set forth in Schedule 5.15,
the Originator has not been known by any legal name other than its corporate name as of the
date hereof, nor has the Originator been the subject of any merger or other corporate
reorganization.


 


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SECTION 5.16 Taxes. The Originator has filed all tax returns and reports required by
law to have been filed by it and has paid all taxes and governmental charges thereby shown to be
owing, except any such taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set
aside on its books.



SECTION 5.17 Compliance with Applicable Laws. The Originator is in compliance with the
requirements of all applicable laws, rules, regulations and orders of all Governmental Authorities,
a breach of any of which, individually or in the aggregate, would be reasonably likely to have a
Material Adverse Effect.



SECTION 5.18 Reliance on Separate Legal Identity. The Originator acknowledges that
the Issuer and the Administrator are entering into the Receivables Purchase Agreement in reliance
upon the Company’s identity as a legal entity separate from the Originator.



SECTION 5.19 Investment Company. The Originator is not an “investment company,” or a
company “controlled” by an “investment company” within the meaning of the Investment Company Act of
1940 as amended. In addition, the Originator is not a “holding company,” a “subsidiary company” of
a “holding company” or an “affiliate” of a “holding company” or of a “subsidiary company” of a
“holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended.



SECTION 5.20 Valid Contracts. Each Contract with respect to each Receivable is
effective to create, and has created, a legal, valid and binding obligation of the related Obligor
to pay the Outstanding Balance of the Receivable created thereunder and any accrued interest
thereon, enforceable against the Obligor in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating
to or limiting creditors’ rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).



ARTICLE VI

COVENANTS OF THE ORIGINATOR




SECTION 6.1 Affirmative Covenants. Until the latest of the Facility Termination Date,
the date on which no Capital of or Discount in respect of the Purchased Interest shall be
outstanding or the date on which all other amounts owed by the Originator under this Agreement or
the Receivables Purchase Agreement to the Seller, the Issuer, the Administrator and any other
Indemnified Party or Affected Person shall be paid in full, the Originator will, unless the
Administrator and the Company shall otherwise consent in writing:



(a) Compliance with Laws, Etc. Comply in all material respects with all applicable
laws, rules, regulations and orders with respect to the Receivables generated by it and the
Contracts and other agreements related thereto except where the failure to so comply would
not materially and adversely affect the collectibility of such Receivables or the rights of
the Company hereunder.


 


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(b) Preservation of Corporate Existence. Except as otherwise permitted in Section
6.3(e), preserve and maintain its existence as a corporation, partnership or limited liability
company, as applicable, and all rights, franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified in good standing as a foreign corporation,
partnership or limited liability company, as applicable, in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises, privileges and qualification would be
reasonably likely to have a Material Adverse Effect.



(c) Receivables Reviews. (i) From time to time during regular business hours as
reasonably requested in advance by the Company or the Administrator (unless a Termination Event or
an Unmatured Termination Event exists or there shall be a material variance in the performance of
the Receivables), permit the Company or the Administrator, or their respective agents or
representatives, (A) to examine and make copies of and abstracts from all books, records and
documents (including, without limitation, computer tapes and disks) in possession or under the
control of the Originator relating to Receivables, including, without limitation, the related
Contracts and purchase orders and other agreements related thereto, and (B) to visit the offices
and properties of the Originator for the purpose of examining such materials described in
clause (A) above and to discuss matters relating to Receivables originated by it or the performance
hereunder with any of the officers or employees of the Originator having knowledge of such matters,
and (ii) without limiting the foregoing clause (i) above, permit certified public
accountants or other auditors acceptable to the Company and Administrator to conduct, at the
Company’s expense, a review of the Originator’s books and records with respect to such Receivables,
provided that the Company shall not pay for more than one audit per year unless a Termination Event
has occurred and is continuing.



(d) Keeping of Records and Books of Account. Maintain and implement administrative
and operating procedures (including, without limitation, an ability to re-create records evidencing
Receivables it generates in the event of the destruction of the originals thereof), and keep and
maintain all documents, books, records and other information reasonably necessary or advisable for
the collection of such Receivables (including, without limitation, records adequate to permit the
daily identification of each new Receivable and all Collections of and adjustments to each existing
Receivable).



(e) Performance and Compliance with Receivables and Contracts. Timely and fully
perform and comply, in all material respects, with all provisions, covenants and other promises
required to be observed by it under the Contracts and all other agreements related to the
Receivables that it generates.



(f) Location of Records. Keep its principal place of business and chief executive
office, and the offices where it keeps its records concerning or related to Receivables, at the
address(es) referred to in Schedule 5.14 or, upon 15 days’ prior written notice to the
Company and the Administrator, at such other locations in jurisdictions where all action required
by Section 7.3 shall have been taken and completed.



(g) Credit and Collection Policies. Comply in all material respects with its Credit
and Collection Policy in connection with the Receivables that it generates and all Contracts and
other agreements related thereto.


 


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(h) Post Office Boxes. Within 30 days of the Closing Date, the only post office boxes
into which Obligors will have been directed to send payments are post office boxes in the name of
the relevant Lock-Box Banks.



(i) Transaction Documents. Comply in all material respects with the Transaction
Documents to which it is a party.



(j) Change Affecting UCC. At least 30 days before any change in the Originator’s name
or any other change requiring the amendment of UCC financing statements, provide to the Company and
the Servicer notice setting forth such changes and the effective date thereof and, prior to the
effectiveness of such change, take all steps necessary to amend such financing statements to
reflect such change.



SECTION 6.2 Reporting Requirements. Until the latest of the Facility Termination
Date, the date on which no Capital of or Discount in respect of the Purchased Interest shall be
outstanding or the date on which all other amounts owed by the Originator under this Agreement or
the Receivables Purchase Agreement to the Seller, the Issuer, the Administrator and any other
Indemnified Party or Affected Person shall be paid in full, the Originator will, unless the
Servicer (on behalf of the Company) shall otherwise consent in writing, furnish to the Company and
the Administrator:



(a) Purchase and Sale Termination Events. As soon as possible after the Originator
has knowledge of the occurrence of, and in any event within three Business Days after the
Originator has knowledge of the occurrence of each Purchase and Sale Termination Event or each
Unmatured Purchase and Sale Termination Event in respect of the Originator, the statement of the
chief financial officer or chief accounting officer of the Originator describing such Purchase and
Sale Termination Event or Unmatured Purchase and Sale Termination Event and the action that the
Originator proposes to take with respect thereto, in each case in reasonable detail;



(b) Proceedings. As soon as possible and in any event within three Business Days
after the Originator otherwise has knowledge thereof, written notice of (i) material litigation,
investigation or proceeding of the type described in Section 5.6 not previously disclosed
to the Company and (ii) all materially adverse developments that have occurred with respect to any
previously disclosed litigation, proceedings and investigations; and



(c) Other. Promptly, from time to time, such other information, documents, records or
reports respecting the Receivables or the conditions or operations, financial or otherwise, of the
Originator as the Company, the Issuer or the Administrator may from time to time reasonably request
in order to protect the interests of the Company, the Issuer or the Administrator under or as
contemplated by the Transaction Documents.


 


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SECTION 6.3 Negative Covenants. Until the latest of the Facility Termination Date,
the date on which no Capital of or Discount in respect of the Purchased Interest shall be
outstanding or the date on which all other amounts owed by the Originator under this Agreement
or the Receivables Purchase Agreement to the Seller, the Issuer, the Administrator and any other
Indemnified Party or Affected Person shall be paid in full, the Originator agrees that, unless the
Servicer (on behalf of the Company) and the Administrator shall otherwise consent in writing, it
shall not:



(a) Sales, Liens, Etc. Except as otherwise provided herein or in any other
Transaction Document, sell, assign (by operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Adverse Claim upon or with respect to, any Receivable or related
Contract or Related Security, or any interest therein, or any Collections thereon, or assign any
right to receive income in respect thereof.



(b) Extension or Amendment of Receivables. Except as otherwise permitted in
Section 4.2(a) of the Receivables Purchase Agreement, extend, amend or otherwise modify the
terms of any Receivable in any material respect generated by it, or amend, modify or waive, in any
material respect, any Contract related thereto (which term or condition relates to payments under,
or the enforcement of, such Contract).



(c) Change in Business or Credit and Collection Policy. Make any change in the
character of its business or materially alter its Credit and Collection Policy (other than a change
to the insurance provisions of any such policy), which change or alteration would, in either case,
materially adversely change the credit standing required of particular Obligors or potential
Obligors or impair the collectibility of a material portion of Receivables generated by it.



(d) Receivables Not to be Evidenced by Promissory Notes or Chattel Paper. Take any
action to cause or permit any Receivable generated by it to become evidenced by any “instrument” or
“chattel paper” (as defined in the applicable UCC).



(e) Mergers, Acquisitions, Sales, etc. (i) Be a party to any merger or consolidation,
except a merger or consolidation where the Originator is the surviving entity, or (ii) directly or
indirectly sell, transfer, assign, convey or lease (A) whether in one or a series of transactions,
all or substantially all of its assets or (B) any Receivables or any interest therein (other than
pursuant to this Agreement).



(f) Lock-Box Banks. Make any changes in its instructions to Obligors regarding
Collections or add or terminate any bank as a Lock-Box Bank unless the requirements of
paragraph 2(g) of Exhibit IV to the Receivables Purchase Agreement have been met.



(g) Accounting for Purchases. Account for or treat (whether in financial statements
or otherwise) the transactions contemplated hereby in any manner other than as sales or
contributions to capital of the Receivables and Related Rights by the Originator to the Company.



(h) Transaction Documents. Enter into, execute, deliver or otherwise become bound by
any agreement, instrument, document or other arrangement that restricts the right of the Originator
to amend, supplement, amend and restate or otherwise modify, or to extend or renew, or to waive any
right under, this Agreement or any other Transaction Document;
provided, however, that the Originator may enter into the Credit Agreement as
in effect as of August 26, 2010 (without giving effect to any future amendments, amendments and
restatements, supplements or other modifications thereto).


 


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SECTION 6.4 Substantive Consolidation. The Originator hereby acknowledges that this
Agreement and the other Transaction Documents are being entered into in reliance upon the Company’s
identity as a legal entity separate from the Originator and its Affiliates. Therefore, from and
after the date hereof, the Originator shall take all reasonable steps necessary to make it apparent
to third Persons that the Company is an entity with assets and liabilities distinct from those of
the Originator and any other Person, and is not a division of the Originator, its Affiliates or any
other Person. Without limiting the generality of the foregoing and in addition to and consistent
with the other covenants set forth herein, the Originator shall take such actions as shall be
required in order that:



(a) except as provided for in Section 10.6, the Originator shall not be involved in
the day to day management of the Company;



(b) the Originator shall maintain separate corporate records and books of account from the
Company and otherwise will observe corporate formalities and have a separate area from the Company
for its business;



(c) the financial statements and books and records of the Originator shall be prepared after
the date of creation of the Company to reflect and shall reflect the separate existence of the
Company; provided, that the Company’s assets and liabilities may be included in a
consolidated financial statement issued by an Affiliate of the Company; provided,
however, all financial statements of UGI or any Affiliate thereof that are consolidated to
include the Company will contain detailed notes clearly stating that (i) a special purpose
corporation exists as a Subsidiary of UGI, (ii) the Originator has sold receivables and other
related assets to such special purpose Subsidiary that, in turn, has sold undivided interests
therein to certain financial institutions and other entities and (iii) that the special purpose
Subsidiary’s assets are not available to satisfy the obligations of UGI or any Affiliate;



(d) except as permitted by the Receivables Purchase Agreement or this Agreement, (i) the
Originator shall maintain its assets separately from the assets of the Company, and (ii) the
Company’s assets, and records relating thereto, have not been, are not, and shall not be,
commingled with those of the Originator;



(e) all of the Company’s business correspondence and other communications shall be conducted
in the Company’s own name and on its own stationery;



(f) the Originator shall not act as an agent for the Company, other than UGI in its capacity
as the Servicer, and in connection therewith, shall present itself to the public as an agent for
the Company and a legal entity separate from the Company;



(g) the Originator shall not conduct any of the business of the Company in its own name;



(h) except as provided in Section 10.6, the Originator shall not pay any liabilities
of the Company out of its own funds or assets;




(i) the Originator shall maintain an arm’s-length relationship with the Company;


 


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(j) the Originator shall not assume or guarantee or become obligated for the debts of the
Company or hold out its credit as being available to satisfy the obligations of the Company;




(k) the Originator shall not acquire obligations of the Company;



(l) the Originator shall allocate fairly and reasonably overhead or other expenses that are
properly shared with the Company, including, without limitation, shared office space;



(m) the Originator shall identify and hold itself out as a separate and distinct entity from
the Company;



(n) the Originator shall correct any known misunderstanding respecting its separate identity
from the Company;



(o) the Originator shall not enter into, or be a party to, any transaction with the Company,
except in the ordinary course of its business and on terms which are intrinsically fair and not
less favorable to it than would be obtained in a comparable arm’s-length transaction with an
unrelated third party; and




(p) the Originator shall not pay the salaries of the Company’s employees, if any.



The provisions of this Section 6.4 shall survive any termination of this Agreement for one
year and one day after the latest of the Facility Termination Date, the date on which no Capital of
or Discount in respect of the Purchased Interest shall be outstanding or the date on which all
other amounts owed by the Originator under this Agreement or the Receivables Purchase Agreement to
the Seller, the Issuer, the Administrator and any other Indemnified Party or Affected Person shall
be paid in full.



ARTICLE VII

ADDITIONAL RIGHTS AND OBLIGATIONS IN

RESPECT OF RECEIVABLES




SECTION 7.1 Rights of the Company. The Originator hereby authorizes the Company, the
Servicer or their respective designees to take any and all steps in the Originator’s name necessary
or desirable, in their respective determination, to collect on behalf of the Company all amounts
due under any and all Receivables, including, without limitation, indorsing the name of the
Originator on checks and other instruments representing Collections and enforcing such Receivables
and the provisions of the related Contracts that concern payment and/or enforcement of rights to
payment.


 


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SECTION 7.2 Responsibilities of the Originator. Anything herein to the contrary
notwithstanding:



(a) Collection Procedures. Within 30 days of the Closing Date, the Originator agrees
to direct its respective Obligors to make payments of Receivables directly to a post office box
related to the relevant Lock-Box Account at a Lock-Box Bank. The Originator further agrees to
transfer any Collections that it receives directly to the Servicer (for the Company’s account)
within two (2) Business Days of receipt thereof, and agrees that all such Collections shall be
deemed to be received in trust for the Company.



(b) The Originator shall perform its obligations hereunder, and the exercise by the Company or
its designee of its rights hereunder shall not relieve the Originator from such obligations.



(c) None of the Company, the Servicer or the Administrator shall have any obligation or
liability to any Obligor or any other third Person with respect to any Receivables, Contracts
related thereto or any other related agreements, nor shall the Company, the Servicer, the Issuer or
the Administrator be obligated to perform any of the obligations of the Originator thereunder.



(d) The Originator hereby grants to the Servicer an irrevocable power of attorney, with full
power of substitution, coupled with an interest, to take, upon the occurrence and continuation of a
Purchase and Sale Termination Event, in the name of the Originator and on behalf of the Company all
steps necessary or advisable to endorse, negotiate or otherwise realize on any writing or other
right of any kind held or transmitted by the Originator or transmitted or received by the Company
(whether or not from the Originator) in connection with any Receivable and to take all other steps
necessary to comply with its obligations as Servicer set forth in Article IV of the
Receivables Purchase Agreement.



SECTION 7.3 Further Action Evidencing Purchases. The Originator agrees that from time
to time, at its expense, it will promptly execute and deliver all further instruments and
documents, and take all further action that the Servicer may reasonably request in order to
perfect, protect or more fully evidence the Receivables and Related Rights purchased by or
contributed to the Company hereunder, or to enable the Company to exercise or enforce any of its
rights hereunder or under any other Transaction Document. Without limiting the generality of the
foregoing, upon the request of the Servicer, the Originator will:



(a) execute and file such financing or continuation statements, or amendments thereto or
assignments thereof, and such other instruments or notices, as may be necessary or appropriate; and



(b) mark the master data processing records that evidence or list (i) such Receivables and
(ii) related Contracts with the legend set forth in Section 4.1(j).



The Originator hereby authorizes the Company or its designee to file one or more financing or
continuation statements, and amendments thereto and assignments thereof, relative to all or any of
the Receivables and Related Rights now existing or hereafter generated by the Originator. If the
Originator fails to perform any of its agreements or obligations under this Agreement, the
Company or its designee may (but shall not be required to) itself perform, or cause the performance
of, such agreement or obligation, and the expenses of the Company or its designee incurred in
connection therewith shall be payable by the Originator as provided in Section 9.1.


 


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SECTION 7.4 Application of Collections. Any payment by an Obligor in respect of any
amount owed by it to the Originator shall, except as otherwise specified by such Obligor or
required by applicable law and unless otherwise instructed by the Servicer (with the prior written
consent of the Administrator) or the Administrator, be applied as a Collection of any Receivable or
Receivables of such Obligor to the extent of any amounts then due and payable thereunder (such
application to be made starting with the oldest outstanding Receivable or Receivables) before being
applied to any other indebtedness of such Obligor.



ARTICLE VIII

PURCHASE AND SALE TERMINATION EVENTS




SECTION 8.1 Purchase and Sale Termination Events. Each of the following events or
occurrences described in this Section 8.1 shall constitute a “Purchase and Sale
Termination Event”:



(a) A Termination Event (as defined in the Receivables Purchase Agreement) shall have occurred
and, in the case of a Termination Event (other than one described in paragraph (f) of
Exhibit V of the Receivables Purchase Agreement), the Administrator, shall have declared
the Facility Termination Date to have occurred; or



(b) The Originator shall fail to make any payment or deposit to be made by it hereunder when
due and such failure shall remain unremedied for two (2) Business Days; or



(c) Any representation or warranty made or deemed to be made (pursuant to Section 4.2)
by the Originator (or any of its officers) under or in connection with this Agreement, any other
Transaction Documents, or any other written information or report delivered pursuant hereto or
thereto shall prove to have been false or incorrect in any material respect when made or deemed
made; provided, however, that if the violation of this paragraph (c) by the
Originator may be cured without any potential or actual detriment to the Purchaser, the
Administrator or any Program Support Provider, the Originator shall have 30 days from the earlier
of (i) such Person’s knowledge of such failure and (ii) notice to such Person of such failure to
cure any such violation, before a Purchase and Sale Termination Event shall occur so long as such
Person is diligently attempting to effect such cure; or



(d) The Originator shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed and such failure shall remain
unremedied for 30 days after written notice thereof shall have been given by the Servicer to the
Originator.




SECTION 8.2 Remedies.



(a) Optional Termination. Upon the occurrence of a Purchase and Sale Termination
Event, the Company (and not the Servicer) shall have the option, by notice to the Originator (with
a copy to the Administrator), to declare the Purchase Facility as terminated.



(b) Remedies Cumulative. Upon any termination of the Purchase Facility pursuant to
Section 8.2(a), the Company shall have, in addition to all other rights and remedies under
this Agreement, all other rights and remedies provided under the UCC of each applicable
jurisdiction and other applicable laws, which rights shall be cumulative.


 


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ARTICLE IX

INDEMNIFICATION




SECTION 9.1 Indemnities by the Originator. Without limiting any other rights which
the Company may have hereunder or under applicable law, the Originator hereby agrees to indemnify
the Company and each of its officers, directors, employees and agents (each of the foregoing
Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on
demand, from and against any and all damages, losses, claims, judgments, liabilities and related
costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing
being collectively called “Purchase and Sale Indemnified Amounts”) awarded against or
incurred by any of them arising out of or as a result of the failure of the Originator to perform
its obligations under this Agreement or any other Transaction Document, or arising out of the
claims asserted against a Purchase and Sale Indemnified Party relating to the transactions
contemplated herein or therein or the use of proceeds thereof or therefrom, excluding,
however, (i) Purchase and Sale Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (ii)
recourse with respect to any Receivable to the extent that such Receivable is uncollectible on
account of insolvency, bankruptcy or lack of creditworthiness of the related Obligor (except as
otherwise specifically provided under this Agreement) and (iii) any tax based upon or measured by
net income property, or gross receipts. Without limiting the foregoing, the Originator shall
indemnify each Purchase and Sale Indemnified Party for Purchase and Sale Indemnified Amounts
relating to or resulting from:



(a) the transfer by the Originator of an interest in any Receivable to any Person other than
the Company;



(b) the breach of any representation or warranty made by the Originator (or any of its
officers) under or in connection with this Agreement or any other Transaction Document, or any
written information or report delivered by the Originator pursuant hereto or thereto, which shall
have been false or incorrect in any respect when made or deemed made;



(c) the failure by the Originator to comply with any applicable law, rule or regulation with
respect to any Receivable generated by the Originator or the related Contract, or the nonconformity
of any Receivable generated by the Originator or the related Contract with any such applicable law,
rule or regulation;



(d) the failure to vest and maintain vested in the Company an ownership interest in the
Receivables generated by the Originator free and clear of any Adverse Claim, other than an Adverse
Claim arising solely as a result of an act of the Company, the Issuer or the Administrator whether
existing at the time of the purchase or contribution of such Receivables or at any time thereafter;



(e) the failure to file, or any delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivables or purported Receivables generated by the Originator, whether at the
time of any purchase or contribution or at any subsequent time;


 


20









 





(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of the Obligor
to the payment of any Receivable or purported Receivable generated by the Originator (including,
without limitation, a defense based on such Receivable’s or the related Contract’s 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 services related to any such Receivable or the
furnishing of or failure to furnish such services;



(g) any product liability claim arising out of or in connection with services that are the
subject of any Receivable generated by the Originator; and



(h) any tax or governmental fee or charge (other than any tax excluded pursuant to clause
(iii) in the proviso to the preceding sentence), all interest and penalties thereon or with
respect thereto, and all out-of-pocket costs and expenses, including the reasonable fees and
expenses of counsel in defending against the same, which may arise by reason of the purchase or
ownership of the Receivables generated by the Originator or any Related Security connected with any
such Receivables.



If for any reason the indemnification provided above in this Section 9.1 is unavailable to
a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified
Party harmless, then the Originator, severally and for itself, shall contribute to the amount paid
or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under
applicable law.



ARTICLE X

MISCELLANEOUS





SECTION 10.1 Amendments, etc.



(a) The provisions of this Agreement may from time to time be amended, modified or waived, if
such amendment, modification or waiver is in writing and executed by the Company and the Originator
(with the prior written consent of the Administrator).



(b) No failure or delay on the part of the Company, the Servicer, the Originator or any third
party beneficiary in exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or demand on the
Company, the Servicer or the Originator in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by the Company or the Servicer under this
Agreement shall, except as may otherwise be stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval under this Agreement shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.


 


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(c) The Transaction Documents contain a final and complete integration of all prior
expressions by the parties hereto with respect to the subject matter thereof and shall constitute
the entire agreement among the parties hereto with respect to the subject matter thereof,
superseding all prior oral or written understandings.



SECTION 10.2 Notices, etc. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including facsimile communication)
and shall be personally delivered or sent by certified mail, postage prepaid, via nationally
recognized courier, or by facsimile, to the intended party at the mailing address or facsimile
number of such party set forth under its name on the signature pages hereof or at such other
address or facsimile number as shall be designated by such party in a written notice to the other
parties hereto. All such notices and communications shall be effective (i) if personally
delivered, when received, (ii) if sent by certified mail three (3) Business Days after having been
deposited in the mail, postage prepaid, (iii) if transmitted by facsimile, when sent, receipt
confirmed by telephone or electronic means (and shall be followed by a hard copy sent by first
class mail), and (iv) if by nationally recognized overnight courier, the next Business Day.



SECTION 10.3 No Waiver; Cumulative Remedies. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. Without limiting the foregoing, the
Originator hereby authorizes the Company, at any time and from time to time, to the fullest extent
permitted by law, to set off, against any obligations of the Originator to the Company arising in
connection with the Transaction Documents (including, without limitation, amounts payable pursuant
to Section 9.1) that are then due and payable or that are not then due and payable but are
accruing in respect of the then current Settlement Period, any and all indebtedness at any time
owing by the Company to or for the credit or the account of the Originator.



SECTION 10.4 Binding Effect; Assignability. This Agreement shall be binding upon and
inure to the benefit of the Company and the Originator and their respective successors and
permitted assigns. The Originator may not assign any of its rights hereunder or any interest
herein without the prior written consent of the Company, except as otherwise herein specifically
provided. 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 such time as
the parties hereto shall agree in writing. The rights and remedies with respect to any breach of
any representation and warranty made by the Originator pursuant to Article V and the
indemnification and payment provisions of Article IX and Section 10.6 shall be
continuing and shall survive any termination of this Agreement.



SECTION 10.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



SECTION 10.6 Costs, Expenses and Taxes. In addition to the obligations of the
Originator under Article IX, the Originator, agrees to pay on demand:



(a) to the Company (and any successor and permitted assigns thereof) all reasonable costs and
expenses incurred by such Person in connection with the enforcement of this Agreement and the other
Transaction Documents; and


 


22









 





(b) all stamp and other taxes and fees payable or determined to be payable in connection with
the execution, delivery, filing and recording of this Agreement or the other Transaction Documents
to be delivered hereunder, and agrees to indemnify each Purchase and Sale Indemnified Party against
any liabilities with respect to or resulting from any delay in paying or omission to pay such taxes
and fees.



SECTION 10.7 SUBMISSION TO JURISDICTION. EACH PARTY HERETO HEREBY IRREVOCABLY (a)
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE OF NEW YORK OR THE FEDERAL COURT OF THE
UNITED STATES FOR SOUTHERN DISTRICT OF NEW YORK, NEW YORK OVER ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c) WAIVES, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d) IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL
PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO SUCH PERSON AT
ITS ADDRESS SPECIFIED IN SECTION 10.2; AND (e) AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS SECTION 10.7 SHALL AFFECT
THE COMPANY’S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY
ACTION OR PROCEEDING AGAINST THE ORIGINATOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTIONS.



SECTION 10.8 WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR RELATING TO THIS
AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND
AGREES THAT (a) ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY
AND (b) ANY PARTY HERETO (OR ANY ASSIGNEE OR THIRD PARTY BENEFICIARY OF THIS AGREEMENT) MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF ANY OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.



SECTION 10.9 Captions and Cross References; Incorporation by Reference. The various
captions (including, without limitation, the table of contents) in this Agreement are
included for convenience only and shall not affect the meaning or interpretation of any
provision of this Agreement. References in this Agreement to any underscored Section or Exhibit
are to such Section or Exhibit of this Agreement, as the case may be. The Exhibits hereto are
hereby incorporated by reference into and made a part of this Agreement.


 


23









 





SECTION 10.10 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together shall constitute
one and the same Agreement.



SECTION 10.11 Acknowledgment and Agreement. By execution below, the Originator
expressly acknowledges and agrees that all of the Company’s rights, title, and interests in, to,
and under this Agreement (but not its obligations), shall be assigned by the Company pursuant to
the Receivables Purchase Agreement, and the Originator consents to such assignment. Each of the
parties hereto acknowledges and agrees that the Administrator, and the Issuer are third party
beneficiaries of the rights of the Company arising hereunder and under the other Transaction
Documents to which the Originator is a party.



SECTION 10.12 No Proceeding. The Originator hereby agrees that it will not institute
against, or cause to be instituted against, the Issuer, or join any other Person in instituting
against the Issuer, any insolvency proceeding (namely, any proceeding of the type referred to in
the definition of Insolvency Proceeding) so long as any Notes shall be outstanding or there shall
have elapsed less than one year plus two days since the last day on which any such Notes shall have
been outstanding.



SECTION 10.13 Limited Recourse. Except as explicitly set forth herein, the
obligations of the Company and the Originator under this Agreement or any other Transaction
Documents to which each is a party are solely the obligations of the Company and each Originator.
No recourse under any Transaction Document shall be had against, and no liability shall attach to,
any officer, employee, director, or beneficiary, whether directly or indirectly, of the Company or
the Originator; provided, however, that this Section shall not relieve any such
Person of any liability it might otherwise have for its own gross negligence or willful misconduct.



[Signature Page Follows]



 


24









 





IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective
officers thereunto duly authorized as of the date first above written.



	 	 	 	 	 
	 	ENERGY SERVICES FUNDING CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 
	Address:

	 	Energy Services Funding Corporation
	 

	 	460 North Gulph Road, Suite 200
	 

	 	King of Prussia, PA 19406-2815
	 
	 	 
	Attention: Robert W. Krick
	Telephone: (610) 337-1000 ext. 3141
	Facsimile: (610) 992-3259






	 	 	 	 	 
	 	UGI ENERGY SERVICES, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 
	Address:

	 	UGI Energy Services, Inc.
	 

	 	1100 Berkshire Boulevard, Suite 305
	 

	 	Wyomissing, PA 19610
	 
	 	 
	Attention: Joseph L. Hartz
	Telephone: (610) 373-7999 ext. 106
	Facsimile: (610) 374-4288






Purchase and Sale Agreement

(UGI)





 


S-1









 







Schedule 5.6




PROCEEDINGS




Complaint of GASMARK against Columbia Gas of Pennsylvania, Inc. (“Columbia”), filed with the
Public Utility Commission on July 19, 2001, regarding (i) the imposition of Operational Flow Orders
and Operational Matching Orders, (ii) the imposition of penalties for the failure to deliver gas to
Columbia’s local market areas, and (iii) certain of Columbia’s tariff provisions and business
practices; Answer and new matter of Columbia filed on August 13, 2001, seeking unspecified
sanctions against GASMARK for failure to honor its delivery obligations as a licensed supplier on
the Columbia system.





 


Schedule 5.6-2









 







Schedule 5.14A




CHIEF EXECUTIVE OFFICE OF THE ORIGINATOR




	 	 	 	 	 	 	 	 	 
	 	 	Jurisdiction of	 	 	 	 
	 	 	Organization and	 	 	 	Organizational
	 	 	Type of	 	Chief Executive	 	Identification
	Originator	 	Organization	 	Office	 	Number
	 
	 	 
	UGI Energy Services, Inc.

	 	Pennsylvania
corporation
	 	1100 Berkshire Blvd 

Suite 305

Wyomissing, PA 19610
	 	 	2627451	 







 


Schedule 5.14A-1









 







Schedule 5.14B




LOCATION OF BOOKS AND RECORDS OF THE ORIGINATOR




	 	 	 
	Originator	 	Location of Books and Records
	 
	 	 
	UGI Energy Services, Inc.

	 	460 North Gulph Road

King of Prussia, Pennsylvania 19406-2815
	 
	 	 
	 

	 	100 Kachel Boulevard

Suite 400

Reading, Pennsylvania 19607
	 
	 	 
	 

	 	1100 Berkshire Boulevard

Suite 305

Wyomissing, Pennsylvania 19610







 


Schedule 5.14B-1









 







Schedule 5.15




TRADE NAMES




	 	 	 
	Legal Name	 	Trade Names
	 
	 	 
	UGI Energy Services, Inc.

	 	GASMARK

POWERMARK







 


Schedule 5.15-1









 







Exhibit A




FORM OF PURCHASE REPORT




	 	 	 
	Originator:
	 	 
	 
	 	 
	Purchaser:

	 	Energy Services Funding Corporation
	 
	 	 
	Payment Date:
	 	 







	1.	 	Outstanding Balance of Receivables Purchased:
	 
	2.	 	Fair Market Value Discount:
	 
		 	1 / {1+ [(0.06%) / 12]}
	 
	3.	 	Purchase Price (1 x 2) = $________








 


Exhibit A-1









 







Exhibit B




FORM OF SUBORDINATED COMPANY NOTE




                    

                    , 200__




FOR VALUE RECEIVED, the undersigned, Energy Services Funding Corporation, a Delaware
corporation (“Company”), promises to pay to UGI Energy Services Inc., a Pennsylvania
corporation (the “Originator”), on the terms and subject to the conditions set forth herein
and in the Purchase and Sale Agreement referred to below, the aggregate unpaid Purchase Price of
all Receivables purchased by the Company from the Originator pursuant to such Purchase and Sale
Agreement, as such unpaid Purchase Price is shown in the records of the Servicer.



1. Purchase and Sale Agreement. This Company Note is one of the Company Notes
described in, and is subject to the terms and conditions set forth in, that certain Purchase and
Sale Agreement of even date herewith (as the same may be amended, supplemented, amended and
restated or otherwise modified in accordance with its terms, the “Purchase and Sale
Agreement”), between the Company and the Originator. Reference is hereby made to the Purchase
and Sale Agreement for a statement of certain other rights and obligations of the Company and the
Originator.



2. Definitions. Capitalized terms used (but not defined) herein have the meanings
assigned thereto in Exhibit I to the Receivables Purchase Agreement (as defined in the Purchase and
Sale Agreement). In addition, as used herein, the following terms have the following meanings:



“Bankruptcy Proceedings” has the meaning set forth in clause (b) of
paragraph 9 hereof.



“Final Maturity Date” means the Payment Date immediately following the date that
falls one hundred twenty one (121) days after the Purchase and Sale Termination Date.




“Interest Period” means the period from and including a Settlement Date (or, in

the case of the first Interest Period, the date hereof) to but excluding the next Settlement Date.




“Prime Rate” has the meaning assigned thereto in the Purchase and Sale Agreement.



“Receivables Purchase Agreement” means the Receivables Purchase Agreement, dated as
of November 30, 2001, entered into among Energy Services Funding Corporation, UGI Energy Services,
Inc., Market Street Funding Corporation and PNC Bank, National Association, as may be amended,
amended and restated, supplemented or otherwise modified from time to time.



“Senior Interests” means, collectively, (i) all accrued and unpaid Discount, (ii) all
fees payable by the Company to the Senior Interest Holders pursuant to the Receivables Purchase
Agreement, (iii) all amounts payable pursuant to Section 1.7 and 1.8 of the
Receivables Purchase Agreement, (iv) the aggregate Capital and (v) all other obligations owed by
the Company to the
Senior Interest Holders under the Receivables Purchase Agreement and other Transaction
Documents that are due and payable, together with any and all interest and Discount accruing on any
such amount after the commencement of any Bankruptcy Proceedings, notwithstanding any provision or
rule of law that might restrict the rights of any Senior Interest Holder, as against the Company or
anyone else, to collect such interest.


 


Exhibit B-1









 





“Senior Interest Holders” means, collectively, the Issuer, the Administrator and the
Indemnified Parties.



“Subordination Provisions” means, collectively, clauses (a) through
(l) of paragraph 9 hereof.



“One-Month LIBOR Rate” means, for any Interest Period, the rate set forth for “one
month” under “London Interbank Offered Rates (Libor):” as published in the Wall Street Journal on
the first day of such Interest Period.



3. Interest. Subject to the Subordination Provisions set forth below, the Company
promises to pay interest on this Company Note as follows:



(a) Prior to the Final Maturity Date, the aggregate unpaid Purchase Price from time to time
outstanding during any Interest Period shall bear interest at a rate per annum equal to the
One-Month LIBOR Rate for such Interest Period as determined by the Servicer; and



(b) From (and including) the Final Maturity Date to (but excluding) the date on which the
entire aggregate unpaid Purchase Price payable to the Originator is fully paid, such aggregate
unpaid Purchase Price from time to time outstanding shall bear interest at a rate per annum equal
to the Prime Rate.



4. Interest Payment Dates. Subject to the Subordination Provisions set forth below,
the Company shall pay accrued interest on this Company Note on each Settlement Date, and shall pay
accrued interest on the amount of each principal payment made in cash on a date other than a
Settlement Date at the time of such principal payment.



5. Basis of Computation. Interest accrued hereunder that is computed by reference to
the One-Month LIBOR Rate shall be computed for the actual number of days elapsed on the basis of a
360-day year, and interest accrued hereunder that is computed by reference to the rate described in
paragraph 3(b) of this Company Note shall be computed for the actual number of days elapsed
on the basis of a 365- or 366-day year.



6. Principal Payment Dates. Subject to the Subordination Provisions set forth below,
payments of the principal amount of this Company Note shall be made as follows:



(a) The principal amount of this Company Note shall be reduced by an amount equal to each
payment deemed made pursuant to Section 3.3 of the Purchase and Sale Agreement; and


 


Exhibit B-2









 





(b) The entire remaining unpaid Purchase Price of all Receivables purchased by the Company
from the Originator pursuant to the Purchase and Sale Agreement shall be due and payable on the
Final Maturity Date.



Subject to the Subordination Provisions set forth below, the principal amount of and accrued
interest on this Company Note may be prepaid on any Business Day without premium or penalty.



7. Payment Mechanics. All payments of principal and interest hereunder are to be made
in lawful money of the United States of America.



8. Enforcement Expenses. In addition to and not in limitation of the foregoing, but
subject to the Subordination Provisions set forth below and to any limitation imposed by applicable
law, the Company agrees to pay all expenses, including reasonable attorneys’ fees and legal
expenses, incurred by the Originator in seeking to collect any amounts payable hereunder which are
not paid when due.



9. Subordination Provisions. The Company covenants and agrees, and the Originator and
any other holder of this Company Note (collectively, the Originator and any such other holder are
called the “Holder”), by its acceptance of this Company Note, likewise covenants and agrees
on behalf of itself and any holder of this Company Note, that the payment of the principal amount
of and interest on this Company Note is hereby expressly subordinated in right of payment to the
payment and performance of the Senior Interests to the extent and in the manner set forth in the
following clauses of this paragraph 9:



(a) No payment or other distribution of the Company’s assets of any kind or character, whether
in cash, securities, or other rights or property, shall be made on account of this Company Note
except to the extent such payment or other distribution is (i) permitted under paragraph
1(n) of Exhibit IV of the Receivables Purchase Agreement or (ii) made pursuant to
clause (a) or (b) of paragraph 6 of this Company Note;



(b) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or
other similar event relating to the Company, whether voluntary or involuntary, partial or complete,
and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the
benefit of creditors, or any other marshalling of the assets and liabilities of the Company or any
sale of all or substantially all of the assets of the Company other than as permitted by the
Purchase and Sale Agreement (such proceedings being herein collectively called “Bankruptcy
Proceedings”), the Senior Interests shall first be paid and performed in full and in cash
before the Originator shall be entitled to receive and to retain any payment or distribution in
respect of this Company Note. In order to implement the foregoing during any Bankruptcy
Proceeding: (i) all payments and distributions of any kind or character in respect of this Company
Note to which Holder would be entitled except for this clause (b) shall be made directly to
the Administrator (for the benefit of the Senior Interest Holders); (ii) Holder shall promptly file
a claim or claims, in the form required in any Bankruptcy Proceedings, for the full outstanding
amount of this Company Note, and shall use commercially reasonable efforts to cause said claim or
claims to be approved and all payments and other distributions in respect thereof to be made
directly to the Administrator (for the benefit of the Senior Interest Holders)
until the Senior Interests shall have been paid and performed in full and in cash; and (iii)
Holder hereby irrevocably agrees that the Issuer (or the Administrator acting on the Issuer’s
behalf), in the name of Holder or otherwise, may demand, sue for, collect, receive and receipt for
any and all such payments or distributions, and file, prove and vote or consent in any such
Bankruptcy Proceedings with respect to any and all claims of Holder relating to this Company Note,
in each case until the Senior Interests shall have been paid and performed in full and in cash;


 


Exhibit B-3









 





(c) In the event that Holder receives any payment or other distribution of any kind or
character from the Company or from any other source whatsoever, in respect of this Company Note,
other than as expressly permitted by the terms of this Company Note, such payment or other
distribution shall be received in trust for the Senior Interest Holders and shall be turned over by
Holder to the Administrator (for the benefit of the Senior Interest Holders) forthwith. Holder
will mark its books and records so as clearly to indicate that this Company Note is subordinated in
accordance with the terms hereof. All payments and distributions received by the Administrator in
respect of this Company Note, to the extent received in or converted into cash, may be applied by
the Administrator (for the benefit of the Senior Interest Holders) first to the payment of any and
all expenses (including reasonable attorneys’ fees and legal expenses) paid or incurred by the
Senior Interest Holders in enforcing these Subordination Provisions, or in endeavoring to collect
or realize upon this Company Note, and any balance thereof shall, solely as between the Originator
and the Senior Interest Holders, be applied by the Administrator (in the order of application set
forth in Section 1.4(d)(ii) of the Receivables Purchase Agreement) toward the payment of
the Senior Interests; but as between the Company and its creditors, no such payments or
distributions of any kind or character shall be deemed to be payments or distributions in respect
of the Senior Interests;



(d) Notwithstanding any payments or distributions received by the Senior Interest Holders in
respect of this Company Note, while any Bankruptcy Proceedings are pending Holder shall not be
subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior
Interests until the Senior Interests have been paid and performed in full and in cash. If no
Bankruptcy Proceedings are pending, Holder shall only be entitled to exercise any subrogation
rights that it may acquire (by reason of a payment or distribution to the Senior Interest Holders
in respect of this Company Note) to the extent that any payment arising out of the exercise of such
rights would be permitted under paragraph 1(n) of Exhibit IV of the Receivables
Purchase Agreement;



(e) These Subordination Provisions are intended solely for the purpose of defining the
relative rights of Holder, on the one hand, and the Senior Interest Holders on the other hand.
Nothing contained in these Subordination Provisions or elsewhere in this Company Note is intended
to or shall impair, as between the Company, its creditors (other than the Senior Interest Holders)
and Holder, the Company’s obligation, which is unconditional and absolute, to pay Holder the
principal of and interest on this Company Note as and when the same shall become due and payable in
accordance with the terms hereof or to affect the relative rights of Holder and creditors of the
Company (other than the Senior Interest Holders);



(f) Holder shall not, until the Senior Interests have been paid and performed in full and in
cash, (i) cancel, waive, forgive, transfer or assign, or commence legal proceedings to enforce or
collect, or subordinate to any obligation of the Company, howsoever created,
arising or evidenced, whether direct or indirect, absolute or contingent, or now or hereafter
existing, or due or to become due, other than the Senior Interests, this Company Note or any rights
in respect hereof or (ii) convert this Company Note into an equity interest in the Company, unless
Holder shall have received the prior written consent of the Administrator and the Issuer in each
case;


 


Exhibit B-4









 





(g) Holder shall not, without the advance written consent of the Administrator and the Issuer,
commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to
the Company until at least one year and one day shall have passed since the Senior Interests shall
have been paid and performed in full and in cash;



(h) If, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or
must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy
Proceedings or otherwise), these Subordination Provisions shall continue to be effective or shall
be reinstated, as the case may be, as though such payment had not been made;



(i) Each of the Senior Interest Holders may, from time to time, at its sole discretion,
without notice to Holder, and without waiving any of its rights under these Subordination
Provisions, take any or all of the following actions: (i) retain or obtain an interest in any
property to secure any of the Senior Interests; (ii) retain or obtain the primary or secondary
obligations of any other obligor or obligors with respect to any of the Senior Interests; (iii)
extend or renew for one or more periods (whether or not longer than the original period), alter or
exchange any of the Senior Interests, or release or compromise any obligation of any nature with
respect to any of the Senior Interests; (iv) amend, supplement, amend and restate, or otherwise
modify any Transaction Document; and (v) release its security interest in, or surrender, release or
permit any substitution or exchange for all or any part of any rights or property securing any of
the Senior Interests, or extend or renew for one or more periods (whether or not longer than the
original period), or release, compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such rights or property;



(j) Holder hereby waives: (i) notice of acceptance of these Subordination Provisions by any of
the Senior Interest Holders; (ii) notice of the existence, creation, non-payment or non-performance
of all or any of the Senior Interests; and (iii) all diligence in enforcement, collection or
protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor;



(k) Each of the Senior Interest Holders may, from time to time, on the terms and subject to
the conditions set forth in the Transaction Documents to which such Persons are party, but without
notice to Holder, assign or transfer any or all of the Senior Interests, or any interest therein;
and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer
thereof, such Senior Interests shall be and remain Senior Interests for the purposes of these
Subordination Provisions, and every immediate and successive assignee or transferee of any of the
Senior Interests or of any interest of such assignee or transferee in the Senior Interests shall be
entitled to the benefits of these Subordination Provisions to the same extent as if such assignee
or transferee were the assignor or transferor; and


 


Exhibit B-5









 





(l) These Subordination Provisions constitute a continuing offer from the holder of this
Company Note to all Persons who become the holders of, or who continue to hold, Senior Interests;
and these Subordination Provisions are made for the benefit of the Senior Interest Holders, and the
Administrator may proceed to enforce such provisions on behalf of each of such Persons.



10. General. No failure or delay on the part of the Originator in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise thereof or the exercise
of any other power or right. No amendment, modification or waiver of, or consent with respect to,
any provision of this Company Note shall in any event be effective unless (i) the same shall be in
writing and signed and delivered by the Company and Holder and (ii) all consents required for such
actions under the Transaction Documents shall have been received by the appropriate Persons.



11. Maximum Interest. Notwithstanding anything in this Company Note to the contrary,
the Company shall never be required to pay unearned interest on any amount outstanding hereunder
and shall never be required to pay interest on the principal amount outstanding hereunder at a rate
in excess of the maximum interest rate that may be contracted for, charged or received under
applicable federal or state law (such maximum rate being herein called the “Highest Lawful
Rate”). If the effective rate of interest which would otherwise by payable under this Company
Note would exceed the Highest Lawful Rate, or if the holder of this Company Note shall receive any
unearned interest or shall receive monies that are deemed to constitute interest which would
increase the effective rate of interest payable by the Company under this Company Note to a rate in
excess of the Highest Lawful Rate, then (i) the amount of interest which would otherwise by payable
by the Company under this Company Note shall be reduced to the amount allowed by applicable law,
and (ii) any unearned interest paid by the Company or any interest paid by the Company in excess of
the Highest Lawful Rate shall be refunded to the Company. Without limitation of the foregoing, all
calculations of the rate of interest contracted for, charged or received by the Originator under
this Company Note that are made for the purpose of determining whether such rate exceeds the
Highest Lawful Rate applicable to the Originator (such Highest Lawful Rate being herein called the
“Originator’s Maximum Permissible Rate”) shall be made, to the extent permitted by usury
laws applicable to the Originator (now or hereafter enacted), by amortizing, prorating and
spreading in equal parts during the actual period during which any amount has been outstanding
hereunder all interest at any time contracted for, charged or received by the Originator in
connection herewith. If at any time and from time to time (i) the amount of interest payable to
the Originator on any date shall be computed at the Originator’s Maximum Permissible Rate pursuant
to the provisions of the foregoing sentence and (ii) in respect of any subsequent interest
computation period the amount of interest otherwise payable to the Originator would be less than
the amount of interest payable to the Originator computed at the Originator’s Maximum Permissible
Rate, then the amount of interest payable to the Originator in respect of such subsequent interest
computation period shall continue to be computed at the Originator’s Maximum Permissible Rate until
the total amount of interest payable to the Originator shall equal the total amount of interest
which would have been payable to the Originator if the total amount of interest had been computed
without giving effect to the provisions of the foregoing sentence.


 


Exhibit B-6









 





12. No Negotiation. This Company Note is not negotiable except that is may be assigned
to any Affiliate of the Originator.



13. GOVERNING LAW. THIS COMPANY NOTE HAS BEEN DELIVERED IN THE STATE OF NEW YORK,
AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.



14. Captions. Paragraph captions used in this Company Note are for convenience only
and shall not affect the meaning or interpretation of any provision of this Company Note.



[signature page follows]




 


Exhibit B-7









 







	 	 	 	 	 
	 	ENERGY SERVICES FUNDING
CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




 


Exhibit B-8









 







Exhibit C




FORM OF ORIGINATOR ASSIGNMENT CERTIFICATE




ORIGINATOR ASSIGNMENT CERTIFICATE





Reference is made to the Purchase and Sale Agreement of even date herewith (as the same may be
amended, supplemented, amended and restated or otherwise modified from time to time, the
“Purchase and Sale Agreement”) between the undersigned and Energy Services Funding
Corporation (the “Company”). Unless otherwise defined herein, capitalized terms used herein
have the meanings provided in the Purchase and Sale Agreement or in Exhibit I to the
Receivables Purchase Agreement (as defined in the Purchase and Sale Agreement), as applicable.



The undersigned hereby sells, assigns and transfers unto the Company and its successors and
assigns all right, title and interest of the undersigned in and to:




(a) each Receivable of the undersigned that existed and was owing to the undersigned as
of the Cut-off Date other than Receivables contributed pursuant to Section 3.1 of
the Purchase and Sale Agreement;




(b) each Receivable generated by the undersigned from and including the Cut-off Date to
and including the Purchase and Sale Termination Date (other than any Receivable later
contributed pursuant to the second sentence of Section 3.1 of the Purchase and Sale
Agreement);




(c) all rights of the undersigned to, but not the obligations under, all Related
Security;




(d) all monies due or to become due to the undersigned with respect to any of the
foregoing;




(e) all books and records of the undersigned related to any of the foregoing, and all
rights, remedies, powers, privileges, title and interest of the undersigned in each lock-box
and related lock-box address and account to which Collections are sent, all amounts on
deposit therein, all certificates and instruments, if any, from time to time evidencing such
accounts and amounts on deposit therein, and all related agreements between the undersigned
and each Lock-Box Bank; and




(f) all collections and other proceeds and products of any of the foregoing (as defined
in the applicable UCC) that are or were received by the undersigned on or after the Cut-off
Date, including, without limitation, all funds which either are received by the undersigned,
the Company or the Servicer from or on behalf of the Obligors in payment of any amounts owed
(including, without limitation, invoice price, finance charges, interest and all other
charges) in respect of Receivables, or are applied to such amounts owed by the Obligors
(including, without limitation, insurance payments that the undersigned or the Servicer
applies in the ordinary course of its business to amounts
owed in respect of any Receivable, and net proceeds of sale or other disposition of
repossessed goods or other collateral or property of the Obligors in respect of Receivables
or any other parties directly or indirectly liable for payment of such Receivables).


 


Exhibit C-1









 





This Originator Assignment Certificate is made without recourse but on the terms and subject
to the conditions set forth in the Transaction Documents to which the undersigned is a party. The
undersigned acknowledges and agrees that the Company and its successors and assigns are accepting
this Originator Assignment Certificate in reliance on the representations, warranties and covenants
of the undersigned contained in the Transaction Documents to which the undersigned is a party.



THIS ORIGINATOR ASSIGNMENT CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE PURCHASE AND SALE AGREEMENT AND THE INTERNAL LAWS OF THE STATE OF NEW YORK.



[signature page follows]




 


Exhibit C-2









 







IN WITNESS WHEREOF, the undersigned has caused this Originator Assignment Certificate to be
duly executed and delivered by its duly authorized officer this
 _____ 

day of
 _____, 200_____.



	 	 	 	 	 
	 	[ORIGINATOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




 


Exhibit C-3









 







Exhibit D




FORM OF JOINDER AGREEMENT





THIS JOINDER AGREEMENT, dated as of 
 _____, 20_____

(this “Agreement”) is executed
by
 _____, a corporation organized under the laws of
 _____
(the “Additional
Seller”), with its principal place of business located at
 _____.



BACKGROUND:




A. Energy Services Funding Corporation (the “Buyer”) and UGI Energy Services, Inc.
(the “Seller”) have entered into that certain Purchase and Sale Agreement, dated as of
November 30, 2001 (as amended through the date hereof, and as it may be further amended from time
to time, the “Purchase and Sale Agreement”).



B. The Additional Seller desires to become a Seller pursuant to Section 4.3 of the
Purchase and Sale Agreement.



NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Additional Seller hereby agrees
as follows:



SECTION 1. Definitions. Capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings assigned thereto in the Purchase and Sale Agreement or in
the Receivables Purchase Agreement (as defined in the Purchase and Sale Agreement).



SECTION 2. Transaction Documents. The Additional Seller hereby agrees that it shall
be bound by all of the terms, conditions and provisions of, and shall be deemed to be a party to
(as if it were an original signatory to), the Purchase and Sale Agreement and each of the other
relevant Transaction Documents. From and after the later of the date hereof and the date that the
Additional Seller has complied with all of the requirements of Section 4.3 of the Purchase
and Sale Agreement, the Additional Seller shall be a Seller for all purposes of the Purchase and
Sale Agreement and all other Transaction Documents. The Additional Seller hereby acknowledges that
it has received copies of the Purchase and Sale Agreement and the other Transaction Documents.


 


Exhibit D-1









 





SECTION 3. Representations and Warranties. The Additional Seller hereby makes all of
the representations and warranties set forth in Article V (to the extent applicable) of the
Purchase and Sale Agreement as of the date hereof (unless such representations or warranties relate
to an earlier date, in which as of such earlier date), as if such representations and warranties
were fully set forth herein. The Additional Seller hereby represents and warrants that the chief
place of business and chief executive office of the Additional Seller, and the offices where the
Additional Seller keeps all of its Records and Related Security is as follows:




                                                                                

                                                                                

                                                                                




The Additional Seller hereby represents and warrants that it is a [corporation], [limited
liability company] [limited partnership] organized in
 _____ 
and its organizational number is
                    .



SECTION 4. Miscellaneous. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York. This Agreement is executed by the
Additional Seller for the benefit of the Buyer, and its assigns, and each of the foregoing parties
may rely hereon. This Agreement shall be binding upon, and shall inure to the benefit of, the
Additional Seller and its successors and permitted assigns.



[Signature Page Follows]




 


Exhibit D-2









 







IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed by its duly
authorized officer as of the date and year first above written.



	 	 	 	 	 
	 	[NAME OF ADDITIONAL SELLER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Consented to




ENERGY SERVICES FUNDING CORPORATION




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






PNC BANK, NATIONAL ASSOCIATION,

as Administrator



	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 







 


Exhibit D-3









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I

AGREEMENT TO PURCHASE AND SELL

	 
	 	 	 	 
	SECTION 1.1 Agreement To Purchase and Sell
	 	 	1	 
	SECTION 1.2 Timing of Purchases
	 	 	3	 
	SECTION 1.3 Consideration for Purchases
	 	 	3	 
	SECTION 1.4 Purchase and Sale Termination Date
	 	 	3	 
	SECTION 1.5 Intention of the Parties
	 	 	3	 
	 
	 	 	 	 
	ARTICLE II

PURCHASE REPORT; CALCULATION OF PURCHASE PRICE

	 
	 	 	 	 
	SECTION 2.1 Purchase Report
	 	 	4	 
	SECTION 2.2 Calculation of Purchase Price
	 	 	4	 
	 
	 	 	 	 
	ARTICLE III

PAYMENT OF PURCHASE PRICE

	 
	 	 	 	 
	SECTION 3.1 Contribution of Receivables and Initial Purchase Price Payment
	 	 	5	 
	SECTION 3.2 Subsequent Purchase Price Payments
	 	 	5	 
	SECTION 3.3 Settlement as to Specific Receivables and Dilution
	 	 	5	 
	SECTION 3.4 Reconveyance of Receivables
	 	 	6	 
	 
	 	 	 	 
	ARTICLE IV

CONDITIONS OF PURCHASES

	 
	 	 	 	 
	SECTION 4.1 Conditions Precedent to Initial Purchase
	 	 	7	 
	SECTION 4.2 Certification as to Representations and Warranties
	 	 	8	 
	SECTION 4.3 Additional Originators
	 	 	8	 
	 
	 	 	 	 
	ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR

	 
	 	 	 	 
	SECTION 5.1 Organization and Valid Subsistence
	 	 	9	 
	SECTION 5.2 Due Qualification
	 	 	9	 
	SECTION 5.3 Power and Authority; Due Authorization
	 	 	9	 
	SECTION 5.4 Valid Sale; Binding Obligations
	 	 	9	 
	SECTION 5.5 No Violation
	 	 	10	 
	SECTION 5.6 Proceedings
	 	 	10	 
	SECTION 5.7 Bulk Sales Acts
	 	 	10	 






 


-i-









 





TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 5.8 Government Approvals
	 	 	10	 
	SECTION 5.9 Financial Condition
	 	 	10	 
	SECTION 5.10 Licenses, Contingent Liabilities, and Labor Controversies
	 	 	10	 
	SECTION 5.11 Margin Regulations
	 	 	11	 
	SECTION 5.12 Quality of Title
	 	 	11	 
	SECTION 5.13 Accuracy of Information
	 	 	11	 
	SECTION 5.14 Offices
	 	 	11	 
	SECTION 5.15 Trade Names
	 	 	11	 
	SECTION 5.16 Taxes
	 	 	12	 
	SECTION 5.17 Compliance with Applicable Laws
	 	 	12	 
	SECTION 5.18 Reliance on Separate Legal Identity
	 	 	12	 
	SECTION 5.19 Investment Company
	 	 	12	 
	SECTION 5.20 Valid Contracts
	 	 	12	 
	 
	 	 	 	 
	ARTICLE VI

COVENANTS OF THE ORIGINATOR

	 
	 	 	 	 
	SECTION 6.1 Affirmative Covenants
	 	 	12	 
	SECTION 6.2 Reporting Requirements
	 	 	14	 
	SECTION 6.3 Negative Covenants
	 	 	15	 
	SECTION 6.4 Substantive Consolidation
	 	 	16	 
	 
	 	 	 	 
	ARTICLE VII

ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF RECEIVABLES

	 
	 	 	 	 
	SECTION 7.1 Rights of the Company
	 	 	17	 
	SECTION 7.2 Responsibilities of the Originator
	 	 	18	 
	SECTION 7.3 Further Action Evidencing Purchases
	 	 	18	 
	SECTION 7.4 Application of Collections
	 	 	19	 
	 
	 	 	 	 
	ARTICLE VIII

PURCHASE AND SALE TERMINATION EVENTS

	 
	 	 	 	 
	SECTION 8.1 Purchase and Sale Termination Events
	 	 	19	 
	SECTION 8.2 Remedies
	 	 	19	 
	 
	 	 	 	 
	ARTICLE IX

INDEMNIFICATION

	 
	 	 	 	 
	SECTION 9.1 Indemnities by the Originator
	 	 	20	 






 


-ii-









 





TABLE OF CONTENTS
(continued)






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE X

MISCELLANEOUS

	 
	 	 	 	 
	SECTION 10.1
Amendments, etc.
	 	 	21	 
	SECTION 10.2
Notices, etc.
	 	 	22	 
	SECTION 10.3 No Waiver; Cumulative Remedies
	 	 	22	 
	SECTION 10.4 Binding Effect; Assignability
	 	 	22	 
	SECTION 10.5 Governing Law
	 	 	22	 
	SECTION 10.6 Costs, Expenses and Taxes
	 	 	22	 
	SECTION 10.7 SUBMISSION TO JURISDICTION
	 	 	23	 
	SECTION 10.8 WAIVER OF JURY TRIAL
	 	 	23	 
	SECTION 10.9 Captions and Cross References; Incorporation by Reference
	 	 	23	 
	SECTION 10.10 Execution in Counterparts
	 	 	24	 
	SECTION 10.11 Acknowledgment and Agreement
	 	 	24	 
	SECTION 10.12 No Proceeding
	 	 	24	 
	SECTION 10.13 Limited Recourse
	 	 	24	 
	 
	 	 	 	 
	SCHEDULES

	 
	 	 	 	 
	Schedule 5.6 Proceedings
	 	 	 	 
	Schedule 5.14A Chief Executive Office of the Originator
	 	 	 	 
	Schedule 5.14B Location of Books and Records of the Originator
	 	 	 	 
	Schedule 5.15 Trade Names
	 	 	 	 
	 
	 	 	 	 
	EXHIBITS

	 
	 	 	 	 
	Exhibit A Form of Purchase Report
	 	 	 	 
	Exhibit B [Intentionally Omitted]
	 	 	 	 
	Exhibit C Form of Originator Assignment Certificate
	 	 	 	 
	Exhibit D Form of Joinder Agreement
	 	 	 	 






 


-iii-









 





EXHIBITS FROM RECEIVABLES PURCHASE AGREEMENT INCORPORATED BY REFERENCE




EXHIBIT I

DEFINITIONS




As used in the Agreement (including its Exhibits, Schedules and Annexes), the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined). Unless otherwise indicated, all Section, Annex, Exhibit and
Schedule references in this Exhibit are to Sections of and Annexes, Exhibits and Schedules to the
Agreement.



“Administration Account” means the account (account number 1002422076, ABA number 043000096)
of the Issuer maintained at the office of PNC at One PNC Plaza, 249 Fifth Avenue, Pittsburgh,
Pennsylvania 15222-2707, or such other account as may be so designated in writing by the
Administrator to the Servicer.




“Administrator” has the meaning set forth in the preamble to the Agreement.



“Adverse Claim” means a lien, security interest or other charge or encumbrance, or any other
type of preferential arrangement; it being understood that any thereof in favor of, or assigned to,
the Issuer or the Administrator (for the benefit of the Issuer) shall not constitute an Adverse
Claim.




“Affected Person” has the meaning set forth in Section 1.7 of the Agreement.



“Affiliate” means, as to any Person: (a) any Person that, directly or indirectly, is in
control of, is controlled by or is under common control with such Person, or (b) who is a director
or officer: (i) of such Person or (ii) of any Person described in clause (a), except that,
with respect to the Issuer, Affiliate shall mean the holder(s) of its capital stock. For purposes
of this definition, control of a Person shall mean the power, direct or indirect: (x) to vote 51%
or more of the securities having ordinary voting power for the election of directors or managers of
such Person, or (y) to direct or cause the direction of the management and policies of such Person,
in either case whether by ownership of securities, contract, proxy or otherwise.




“Agreement” has the meaning set forth in the preamble to the Agreement.



“Alternate Rate” for any Settlement Period for any Portion of Capital of the Purchased
Interest means an interest rate per annum equal to: (a) 2.00% per annum above the Euro-Rate for
such Settlement Period, or, in the sole discretion of the Administrator, (b) the Base Rate for such
Settlement Period; provided, however, that the “Alternate Rate” for any day while a
Termination Event exists shall be an interest rate equal to 3.00% per annum above the Base Rate in
effect on such day. “Attorney Costs” means and includes all reasonable fees and disbursements of
any law firm or other external counsel, the reasonable allocated cost of internal legal services
and all reasonable disbursements of internal counsel.


 


 









 





“Approved Billing Program” means any consolidated billing or similar agreement between a
Purchasing Utility and the Originator pursuant to which the Originator may from time to time sell
and/or assign receivables, which agreement has been approved in writing by the Administrator;
provided, that if (i) the Originator delivers to the Administrator in writing and in
accordance with Section 5.2 a copy of such an agreement (or a substantially final draft
thereof) with a request that it be approved as an “Approved Billing Program” and (ii) the
Administrator does not, on or prior to the date that is ten (10) Business Days following such
delivery, notify the Originator or the Servicer that the Administrator is withholding such
approval, the Administrator shall be deemed to have approved such agreement as an “Approved Billing
Program” in accordance with this definition. Without limiting the generality of the foregoing,
each of the following agreements shall be an Approved Billing Program: (x) that certain
Consolidated Utility Billing Service and Assignment Agreement, contemplated to be entered into
between Consolidated Edison Company of New York, Inc. and the Originator, containing terms and
conditions in form and substance substantially similar to those set forth in the draft of such
agreement previously delivered by the Originator to the Administrator on April 7, 2009 and (y) that
certain Third Party Supplier Customer Account Services Master Service Agreement, dated November 6,
2008, by and between Public Service Electric and Gas Company and the Originator, a copy of which
was delivered by the Originator to the Administrator on April 20, 2009.



“Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et
seq.), as amended from time to time.



“Base Rate” means, for any day, a fluctuating interest rate per annum as shall be in effect
from time to time, which rate shall be at all times equal to the higher of:




(a) the rate of interest in effect for such day as publicly announced from time to time
by PNC in Pittsburgh, Pennsylvania as its “prime rate.” Such “prime rate” is set by PNC
based upon various factors, including PNC’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which
may be priced at, above or below such announced rate, and




(b) 0.50% per annum above the latest Federal Funds Rate.




“BBA” means the British Bankers’ Association.



“Benefit Plan” means any employee benefit pension plan as defined in Section 3(2) of ERISA in
respect of which the Seller, the Originator, UGI or any ERISA Affiliate is an “employer” as defined
in Section 3(5) of ERISA.



“Billing Program Receivable” means a Receivable described in clause (i) of the
definition of the term “Receivable”, which is sold and/or assigned by the Originator to a
Purchasing Utility from time to time pursuant to an Approved Billing Program.



“Business Day” means any day (other than a Saturday or Sunday) on which: (a) banks are not
authorized or required to close in New York City, New York or Pittsburgh, Pennsylvania, and (b) if
this definition of “Business Day” is utilized in connection with the Euro-Rate, dealings are
carried out in the London interbank market.


 


 









 





“Capital” means the amount paid to the Seller in respect of the Purchased Interest by the
Issuer pursuant to the Agreement, or such amount divided or combined in order to determine the
Discount applicable to any Portion of Capital, in each case reduced from time to time by
Collections distributed and applied on account of such Capital pursuant to Section 1.4(d)
of the Agreement; provided, that if such Capital shall have been reduced by any
distribution, and thereafter all or a portion of such distribution is rescinded or must otherwise
be returned for any reason, such Capital shall be increased by the amount of such rescinded or
returned distribution as though it had not been made.



“Change in Control” means that (a) with respect to the Seller, UGI ceases to own, directly or
indirectly, 100% of the capital stock of the Seller free and clear of all Adverse Claims, (b) with
respect to UGI, UGI Enterprises, Inc. shall cease to own 51% or more of the shares of outstanding
voting stock of UGI on a fully diluted basis.




“Closing Date” means November 30, 2001.



“Collections” means, with respect to any Pool Receivable: (a) all funds that are received by
the Originator, UGI, the Seller or the Servicer in payment of any amounts owed in respect of such
Receivable (including purchase price, finance charges, interest and all other charges), or applied
to amounts owed in respect of such Receivable (including insurance payments and net proceeds of the
sale or other disposition of repossessed goods or other collateral or property of the related
Obligor or any other Person directly or indirectly liable for the payment of such Pool Receivable
and available to be applied thereon), (b) all amounts deemed to have been received pursuant to
Section 1.4(e) of the Agreement and (c) all other proceeds of such Pool Receivable.



“Concentration Percentage” means for any: (a) Group A Obligor, 16.00%, (b) Group B Obligor,
12.00%, (c) Group C Obligor, 8.00% and (d) Group D Obligor, 4.00%.



“Concentration Reserve Percentage” means, at any time, the largest of: (a) the sum of five
largest Group D Obligor Percentages, (b) the sum of the three largest Group C Obligor Percentages,
(c) the sum of two largest Group B Obligor Percentages and (d) the largest Group A Obligor
Percentage.



“Contract” means, with respect to any Receivable, any and all contracts, instruments,
agreements, leases, invoices, notes or other writings pursuant to which such Receivable arises or
that evidence such Receivable or under which an Obligor becomes or is obligated to make payment in
respect of such Receivable.



“Contributed Receivables” has the meaning set forth in Section 2.2 of the Purchase and
Sale Agreement.



“CP Rate” for any Settlement Period for any Portion of Capital means a rate calculated by the
Administrator equal to: (a) the rate (or if more than one rate, the weighted average of the rates)
at which Notes of the Issuer on each day during such period have been outstanding;
provided, that if such rate(s) is a discount rate(s), then the CP Rate shall be the rate
(or if more than one rate, the weighted average of the rates) resulting from converting such
discount rate(s) to an interest-bearing equivalent rate plus (b) the commissions and
charges charged by such placement agent or commercial paper dealer with respect to such Notes,
expressed as a
percentage of the face amount of such Notes and converted to an interest-bearing equivalent
rate per annum. Notwithstanding the foregoing, the “CP Rate” for any day while a Termination Event
exists shall be an interest rate equal to 3.00% above the Base Rate in effect on such day.


 


 









 





“Credit Agreement” means that certain Credit Agreement, dated on or about August 26, 2010,
among UGI, as borrower, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative
agent, PNC Bank, National Association, Wells Fargo Bank, National Association, and certain other
parties, as such agreement may be amended, amended and restated, supplemented or otherwise modified
from time to time.



“Credit and Collection Policy” means, as the context may require, those receivables credit and
collection policies and practices of the Originator in effect on the date of the Agreement and
described in Schedule I to the Agreement, as modified in compliance with the Agreement.




“Cut-off Date” has the meaning set forth in the Purchase and Sale Agreement.



“Days’ Sales Outstanding” means, for any calendar month, an amount (expressed as a number of
days) computed as of the last day of such calendar month equal to: (a) the average of the
Outstanding Balance of all Pool Receivables as of the last day of each of the three most recent
calendar months ended on the last day of such calendar month divided by (b) (i) the aggregate
credit sales made by the Originator during the three calendar months ended on the last day of such
calendar month divided by (ii) 90.



“Debt” means: (a) indebtedness for borrowed money, (b) obligations evidenced by bonds,
debentures, notes or other similar instruments, (c) obligations to pay the deferred purchase price
of property or services, (d) obligations as lessee under leases that shall have been or should be,
in accordance with GAAP, recorded as capital leases, and (e) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations
of others of the kinds referred to in clauses (a) through (d).



“Default Ratio” means the ratio (expressed as a percentage and rounded to the nearest 1/100 of
1%, with 5/1000th of 1% rounded upward) computed as of the last day of each calendar month by
dividing: (a) the aggregate Outstanding Balance of all Pool Receivables that became Defaulted
Receivables during such month, by (b) the aggregate credit sales made by the Originator during the
month that is three calendar months before such month.




“Defaulted Receivable” means a Receivable:



(a) as to which any payment, or part thereof, remains unpaid for more than 60 days from the
original due date for such payment, or



(b) without duplication (i) as to which an Insolvency Proceeding shall have occurred with
respect to the Obligor thereof or any other Person obligated thereon with respect thereto, or (ii)
that has been written off the Seller’s books as uncollectible.


 


 









 





The Outstanding Balance of any Defaulted Receivable shall be determined without regard to any
credit memos or credit balances.



“Delinquency Ratio” means the ratio (expressed as a percentage and rounded to the nearest
1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the last day of each calendar month
by dividing: (a) the aggregate Outstanding Balance of all Pool Receivables that were Delinquent
Receivables on such day by, (b) the aggregate Outstanding Balance of all Pool Receivables
(excluding Delinquent Receivables that have a stated maturity which is more than 60 days after the
original invoice date of such Receivable) on such day.



“Delinquent Receivable” means any portion of a Receivable as to which any payment, or part
thereof, remains unpaid for more than 60 days from the original due date for such payment. The
Outstanding Balance of any Delinquent Receivable shall be determined without regard to any credit
memos or credit balances and shall exclude Delinquent Receivables that have a stated maturity which
is more than 60 days after the original invoice date of such Receivable.



“Dilution Horizon” means, for any calendar month, the ratio (expressed as a percentage and
rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward) computed as of the last
day of such calendar month of: (a) the aggregate credit sales made by the Originator during the
most recent calendar month and 50% of the next most recent calendar month’s credit sales to (b) the
Net Receivables Pool Balance at the last day of the most recent calendar month.



“Dilution Ratio” means the ratio (expressed as a percentage and rounded to the nearest 1/100th
of 1%, with 5/1000th of 1% rounded upward) computed as of the last day of each calendar month by
dividing: (a) the aggregate amount of payments required to be made by the Seller pursuant to
Section 1.4(e)(i) of the Agreement during such calendar month, by (b) the aggregate credit
sales made by the Originator during the month that is one calendar month before such month.



“Dilution Reserve” means, on any date, an amount equal to: (a) the Capital at the close of
business of the Servicer on such date multiplied by (b) (i) the Dilution Reserve Percentage
on such date, divided by (ii) 100% minus the Dilution Reserve Percentage on such date.



“Dilution Reserve Percentage” means any date, the product of (i) the Dilution Horizon
multiplied by (ii) the sum of (x) 2.25 times the average of the Dilution Ratios for the
twelve most recent calendar months and (y) the Spike Factor.




“Discount” means:




(a) for the Portion of Capital for any Settlement Period to the extent the Issuer will
be funding such Portion of Capital during such Settlement Period through the issuance of
Notes:



CPR x C x ED/360





(b) for the Portion of Capital for any Settlement Period to the extent the Issuer will
not be funding such Portion of Capital during such Settlement Period through the issuance of
Notes:



AR x C x ED/Year + TF




 


 









 








where:



	 	 	 	 	 
	AR

	 	=
	 	the Alternate Rate for the Portion of Capital for such
Settlement Period,
	 
	 	 	 	 
	C

	 	=
	 	the Portion of Capital during such Settlement Period,
	 
	 	 	 	 
	CPR

	 	=
	 	the CP Rate for the Portion of Capital for such Settlement
Period,
	 
	 	 	 	 
	ED

	 	=
	 	the actual number of days during such Settlement Period,
	 
	 	 	 	 
	TF

	 	=
	 	the Termination Fee, if any, for the Portion of Capital for
such Settlement Period, and
	 
	 	 	 	 
	Year

	 	=
	 	if such Portion of Capital is funded based upon: (i) the
Euro-Rate, 360 days, and (ii) the Base Rate, 365 or 366 days, as applicable;






provided, that no provision of the Agreement shall require the payment or permit the
collection of Discount in excess of the maximum permitted by applicable law; and provided
further, that Discount for the Portion of Capital shall not be considered paid by any
distribution to the extent that at any time all or a portion of such distribution is rescinded or
must otherwise be returned for any reason.




“Eligible Receivable” means, at any time, a Pool Receivable:




(a) the Obligor of which is (i) a United States resident, (ii) not a government or a
governmental subdivision, affiliate or agency, provided, however, if the
Obligor of such Receivable is a government or a governmental subdivision, affiliate or
agency, such Receivable shall satisfy the requirements of this clause (a)(ii) if the
sum of the Outstanding Balance of such Receivable and the aggregate Outstanding Balance of
all other Eligible Receivables of Obligors who are governments or governmental subdivisions,
affiliates or agencies does not exceed $200,000, (iii) not subject to any action of the type
described in paragraph (f) of Exhibit V to the Agreement, (iv) not an
Affiliate of UGI; provided, however, if the Obligor of such Receivable is
either UGI Utilities, Inc. or UGI Penn Natural Gas, Inc. (provided that UGI Penn Natural
Gas, Inc. is a wholly-owned subsidiary of UGI Utilities, Inc.), such Receivable shall
satisfy the requirements of this clause (a)(iv) if the sum of the Outstanding
Balance of such Receivable and the aggregate Outstanding Balance of all other Eligible
Receivables of the Obligors of which are either UGI Utilities, Inc. or UGI Penn Natural Gas,
Inc. does not exceed $10,000,000, and (v) not a Reseller, provided, however,
if the Obligor of such Receivable is a Reseller, such Receivable shall satisfy the
requirements of this clause (a)(v) if the sum of the Outstanding Balance of such
Receivable and the aggregate Outstanding Balance of all other Eligible Receivables of
Obligors who are Resellers does not exceed $2,000,000,




(b) that is denominated and payable only in U.S. dollars in the United States,


 


 









 






(c) that does not have a stated maturity which is more than 45 days after the original
invoice date of such Receivable; provided, however, that up to 10% of the
aggregate Outstanding Balance of all Receivables may have a stated maturity which is more
than 45 days but not more than 60 days after the original invoice date of such Receivable,




(d) (i) that arises under a duly authorized Contract for the sale and delivery of goods
and services in the ordinary course of the Originator’s business or (ii) in the case of a
Receivable arising in connection with the sale or assignment by the Originator to a
Purchasing Utility of a Billing Program Receivable, such Receivable arises under an Approved
Billing Program; provided, however, that Receivables described in clause
(ii) above shall not constitute Eligible Receivables to the extent that the aggregate
Outstanding Balance of such Receivables exceeds 20% of the aggregate Outstanding Balance of
all Eligible Receivables,




(e) that arises under a duly authorized Contract that is in full force and effect and
that is a legal, valid and binding obligation of the related Obligor, enforceable against
such Obligor in accordance with its terms, subject to applicable bankruptcy, fraudulent
transfer or conveyance, insolvency, reorganization, moratorium and other similar laws
limiting the enforceability of creditors’ rights generally, as from time to time in effect,




(f) that conforms in all material respects with all applicable laws, rulings and
regulations in effect,




(g) that is not the subject of any asserted dispute, offset, hold back defense, Adverse
Claim or other claim,




(h) that satisfies in all material respects all applicable requirements of the
applicable Credit and Collection Policy,




(i) that has not been modified, waived or restructured since its creation, except as
permitted pursuant to Section 4.2 of the Agreement,




(j) in which the Seller owns good and marketable title, free and clear of any Adverse
Claims, and that arise under Contracts, the terms of which do not expressly prohibit the
Seller from assigning its right to receive payment under the Contract or require any consent
of the related Obligor for such assignment,




(k) for which the Issuer shall have a valid and enforceable undivided percentage
ownership or security interest, to the extent of the Purchased Interest, and a valid and
enforceable first priority perfected security interest therein and in the Related Security
and Collections with respect thereto, in each case free and clear of any Adverse Claim,




(l) that constitutes an account as defined in the UCC, and that is not evidenced by
instruments or chattel paper,




(m) that is neither a Defaulted Receivable nor a Delinquent Receivable,


 


 









 






(n) for which neither the Originator thereof, the Seller nor the Servicer has
established any offset arrangements with the related Obligor,




(o) of an Obligor as to which Defaulted Receivables of such Obligor do not exceed 25%
of the Outstanding Balance of all such Obligor’s Receivables; provided,
however, that amounts owing from Cooperative Industries Inc. that are more than 90
days from the original invoice date as of the Closing Date and that are being paid in
accordance with a negotiated payment schedule shall not be considered Defaulted Receivables
for purposes of this clause (o), and




(p) that represents amounts earned and payable by the Obligor that are not subject to
the performance of additional services by the Originator thereof.



“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any successor statute of similar import, together with the regulations thereunder, in
each case as in effect from time to time. References to sections of ERISA also refer to any
successor sections.



“ERISA Affiliate” means: (a) any corporation that is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Internal Revenue Code) as the Seller, the
Originator or UGI, (b) a trade or business (whether or not incorporated) under common control
(within the meaning of Section 414(c) of the Internal Revenue Code) with the Seller, the Originator
or UGI, or (c) a member of the same affiliated service group (within the meaning of Section 414(m)
of the Internal Revenue Code) as the Seller, the Originator, any corporation described in
clause (a) or any trade or business described in clause (b).



“Euro-Rate” means with respect to any Settlement Period the interest rate per annum determined
by the Administrator by dividing (the resulting quotient rounded upwards, if necessary, to the
nearest 1/100th of 1% per annum) (i) the rate of interest determined by the Administrator in
accordance with its usual procedures (which determination shall be conclusive absent manifest
error) to be the average of the London interbank market offered rates for U.S. dollars quoted by
the BBA as set forth on Dow Jones Markets Service (formerly known as Telerate) (or appropriate
successor or, if the BBA or its successor ceases to provide display page 3750 (or such other
display page on the Dow Jones Markets Service system as may replace display page 3750) at or about
11:00 a.m. (London time) on the Business Day which is two (2) Business Days prior to the first day
of such Settlement Period for an amount comparable to the Portion of Capital to be funded at the
Alternate Rate and based upon the Euro-Rate during such Settlement Period by (ii) a number equal to
1.00 minus the Euro-Rate Reserve Percentage. The Euro-Rate may also be expressed by the following
formula:




	 	Euro-Rate =	 	 Average of London interbank offered rates quoted by BBA

as shown on Dow Jones Markets Service display page 3750

or appropriate successor
	 	 	 	 

	 		 	1.00 - Euro-Rate Reserve Percentage





 


 









 










where “Euro-Rate Reserve Percentage” means, the maximum effective percentage in effect on such day
as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including without limitation, supplemental, marginal, and
emergency reserve requirements) with respect to eurocurrency funding (currently referred to as
“Eurocurrency Liabilities”). The Euro-Rate shall be adjusted with respect to any Portion of Capital
funded at the Alternate Rate and based upon the Euro-Rate that is outstanding on the effective date
of any change in the Euro-Rate Reserve Percentage as of such effective date. The Administrator
shall give prompt notice to the Seller of the Euro-Rate as determined or adjusted in accordance
herewith (which determination shall be conclusive absent manifest error).



“Excess Concentration” means the sum of the amounts by which the Outstanding Balance of
Eligible Receivables of each Obligor then in the Receivables Pool exceeds an amount equal to: (a)
the applicable Concentration Percentage for such Obligor multiplied by (b) the Outstanding
Balance of all Eligible Receivables then in the Receivables Pool.



“Facility Termination Date” means the earliest to occur of: (a) April 21, 2011, (b) the date
determined pursuant to Section 2.2 of the Agreement, (c) the date the Purchase Limit
reduces to zero pursuant to Section 1.1(b) of the Agreement, (d) the date, after written
notice from the Purchasers, that the commitments of the Purchasers terminate under the Liquidity
Agreement, but the failure to give or delay in giving such notice shall not prevent or delay such
termination, and (e) the Issuer shall fail to cause the amendment or modification of any
Transaction Document or related opinion as required by Moody’s or Standard and Poor’s, and such
failure shall continue for 30 days after such amendment is initially requested.



“Federal Funds Rate” means, for any day, the per annum rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, “H.15(519)”) for such day opposite the caption
“Federal Funds (Effective).” If on any relevant day such rate is not yet published in H.15(519),
the rate for such day will be the rate set forth in the daily statistical release designated as the
Composite 3:30 p.m. Quotations for U.S. Government Securities, or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor, the “Composite
3:30 p.m. Quotations”) for such day under the caption “Federal Funds Effective Rate.” If on any
relevant day the appropriate rate is not yet published in either H.15(519) or the Composite 3:30
p.m. Quotations, the rate for such day will be the arithmetic mean as determined by the
Administrator of the rates for the last transaction in overnight Federal funds arranged before 9:00
a.m. (New York time) on that day by each of three leading brokers of Federal funds transactions in
New York City selected by the Administrator.



“Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or any
entity succeeding to any of its principal functions.




“Fee Letter” has the meaning set forth in Section 1.5 of the Agreement.



“GAAP” means the generally accepted accounting principles and practices in the United States,
consistently applied.


 


 









 





“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any
body or entity exercising executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, including any court, and any Person owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.



“Group A Obligor” means any Obligor with a short-term rating of at least: (a) “A-1” by
Standard & Poor’s, or if such Obligor does not have a short-term rating from Standard & Poor’s, a
rating of “A+” or better by Standard & Poor’s on its long-term senior unsecured and
uncredit-enhanced debt securities, and (b) “P-1” by Moody’s, or if such Obligor does not
have a short-term rating from Moody’s, “A1” or better by Moody’s on its long-term senior unsecured
and uncredit-enhanced debt securities.



“Group A Obligor Percentage” means, at any time, for each Group A Obligor, the percentage
equivalent of: (a) the aggregate Outstanding Balance of the Eligible Receivables of such Group A
Obligor less any Excess Concentrations of such Obligor, divided by (b) the aggregate
Outstanding Balance of all Eligible Receivables at such time.



“Group B Obligor” means an Obligor, not a Group A Obligor, with a short-term rating of at
least: (a) “A-2” by Standard & Poor’s, or if such Obligor does not have a short-term rating from
Standard & Poor’s, a rating of “BBB+” to “A” by Standard & Poor’s on its long-term senior
unsecured and uncredit-enhanced debt securities, and (b) “P-2” by Moody’s, or if such
Obligor does not have a short-term rating from Moody’s, “Baa1” to “A2” by Moody’s on its long-term
senior unsecured and uncredit-enhanced debt securities.



“Group B Obligor Percentage” means, at any time, for each Group B Obligor, the percentage
equivalent of: (a) the aggregate Outstanding Balance of the Eligible Receivables of such Group B
Obligor less any Excess Concentrations of such Obligor, divided by (b) the aggregate
Outstanding Balance of all Eligible Receivables at such time.



“Group C Obligor” means an Obligor, not a Group A Obligor or a Group B Obligor, with a
short-term rating of at least: (a) “A-3” by Standard & Poor’s, or if such Obligor does not have a
short-term rating from Standard & Poor’s, a rating of “BBB-” to “BBB” by Standard & Poor’s on its
long-term senior unsecured and uncredit-enhanced debt securities, and (b) “P-3” by Moody’s,
or if such Obligor does not have a short-term rating from Moody’s, “Baa3” to “Baa2” by Moody’s on
its long-term senior unsecured and uncredit-enhanced debt securities.



“Group C Obligor Percentage” means, at any time, for each Group C Obligor, the percentage
equivalent of: (a) the aggregate Outstanding Balance of the Eligible Receivables of such Group C
Obligor less any Excess Concentrations of such Obligor, divided by (b) the aggregate
Outstanding Balance of all Eligible Receivables at such time.



“Group D Obligor” means any Obligor that is not a Group A Obligor, Group B Obligor or Group C
Obligor.



“Group D Obligor Percentage” means, at any time, for each Group D Obligor: (a) the aggregate
Outstanding Balance of the Eligible Receivables of such Group D Obligor less any
Excess Concentrations of such Obligor, divided by (b) the aggregate Outstanding
Balance of all Eligible Receivables at such time.


 


 









 






“Indemnified Amounts” has the meaning set forth in Section 3.1 of the Agreement.




“Indemnified Party” has the meaning set forth in Section 3.1 of the Agreement.




“Indemnifying Party” has the meaning set forth in Section 3.3 of the Agreement.



“Independent Director” has the meaning set forth in paragraph 3(c) of Exhibit
IV to the Agreement.



“Information Package” means a report, in substantially the form of either Annex A-1 (in the
case of an Information Package delivered in connection with a Settlement Date) or Annex A-2 (in the
case of an Information Package delivered at any other time) to the Agreement, furnished to the
Administrator pursuant to the Agreement.



“Insolvency Proceeding” means: (a) any case, action or proceeding before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors of a Person, or composition, marshaling of assets for creditors of a Person,
or other, similar arrangement in respect of its creditors generally or any substantial portion of
its creditors, in each of cases (a) and (b) undertaken under U.S. Federal, state or foreign law,
including the Bankruptcy Code.



“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time,
and any successor statute of similar import, together with the regulations thereunder, in each case
as in effect from time to time. References to sections of the Internal Revenue Code also refer to
any successor sections.




“Issuer” has the meaning set forth in the preamble to the Agreement.



“Issuer’s Share” of any amount means such amount multiplied by the Purchased Interest
at the time of determination.



“Liquidity Agent” means PNC in its capacity as the Liquidity Agent pursuant to the Liquidity
Agreement.



“Liquidity Agreement” means the Liquidity Asset Purchase Agreement, dated as of even date
herewith, between the Purchasers from time to time party thereto, the Issuer and PNC, as
Administrator and Liquidity Agent, as the same may be further amended, supplemented or otherwise
modified from time to time.



“Lock-Box Account” means an account in the name of the Seller and maintained by the Seller at
a bank or other financial institution for the purpose of receiving Collections.


 


 









 





“Lock-Box Agreement” means an agreement, in form and substance satisfactory to the
Administrator, among the Seller, the Originator, the Servicer, the Administrator, the Issuer and a
Lock-Box Bank.



“Lock-Box Bank” means any of the banks or other financial institutions holding one or more
Lock-Box Accounts.



“Loss Reserve” means, on any date, an amount equal to: (a) the Capital at the close of
business of the Servicer on such date multiplied by (b)(i) the Loss Reserve Percentage on
such date divided by (ii) 100% minus the Loss Reserve Percentage on such date.



“Loss Reserve Percentage” means, on any date, the product of (i) 2.25 times (ii) the
highest average of the Default Ratios for any three consecutive calendar months during the twelve
most recent calendar months times (iii) (A) the aggregate credit sales made by the
Originator during the four most recent calendar months, divided by (B) the Net Receivables
Pool Balance as of such date.



“Material Adverse Effect” means, relative to any Person with respect to any event or
circumstance, a material adverse effect on:




(a) the assets, operations, business or financial condition of such Person,




(b) the ability of any of such Person to perform its obligations under the Agreement or
any other Transaction Document to which it is a party,




(c) the validity or enforceability of any other Transaction Document, or the validity,
enforceability or collectibility of a material portion of the Pool Receivables, or




(d) the status, perfection, enforceability or priority of the Issuer’s or the Seller’s
interest in the Pool Assets.




“Moody’s” means Moody’s Investors Service, Inc.



“Net Receivables Pool Balance” means, at any time: (a) the Outstanding Balance of Eligible
Receivables then in the Receivables Pool minus (b) the Excess Concentration.



“Notes” means short-term promissory notes issued, or to be issued, by the Issuer to fund its
investments in accounts receivable or other financial assets.



“Obligor” means, with respect to any Receivable, the Person obligated to make payments
pursuant to the Contract relating to such Receivable.




“Originator” has the meaning set forth in the Purchase and Sale Agreement.



“Originator Assignment Certificate” means the assignment, in substantially the form of
Exhibit C to the Purchase and Sale Agreement, evidencing Seller’s ownership of the
Receivables generated by the Originator, as the same may be amended, supplemented, amended and
restated, or otherwise modified from time to time in accordance with the Purchase and Sale
Agreement.


 


 









 





“Outstanding Balance” of any Receivable at any time means the then outstanding principal
balance thereof.



“Payment Date” has the meaning set forth in Section 2.2 of the Purchase and Sale
Agreement.



“Person” means an individual, partnership, corporation (including a business trust), joint
stock company, trust, unincorporated association, joint venture, limited liability company or other
entity, or a government or any political subdivision or agency thereof.




“PNC” has the meaning set forth in the preamble to the Agreement.




“Pool Assets” has the meaning set forth in Section 1.2(d) of the Agreement.




“Pool Receivable” means a Receivable in the Receivables Pool.



“Portion of Capital” means any separate portion of Capital being funded or maintained by the
Issuer (or its successors or permitted assigns) by reference to a particular interest rate basis.
In addition, at any time when the Capital of the Purchased Interest is not divided into two or more
such portions, “Portion of Capital” means 100% of the Capital.



“Program Support Agreement” means and includes the Liquidity Agreement and any other agreement
entered into by any Program Support Provider providing for: (a) the issuance of one or more letters
of credit for the account of the Issuer in connection with the Issuer’s Receivables securitization
program, (b) the issuance of one or more surety bonds in connection with the Issuer’s Receivables
securitization program for which the Issuer is obligated to reimburse the applicable Program
Support Provider for any drawings thereunder, (c) the sale by the Issuer to any Program Support
Provider of the Purchased Interest (or portions thereof) and/or (d) the making of loans and/or
other extensions of credit to the Issuer in connection with the Issuer’s Receivables-securitization
program contemplated in the Agreement, together with any letter of credit, surety bond or other
instrument issued thereunder (but excluding any discretionary advance facility provided by the
Administrator).



“Program Support Provider” means and includes any Purchaser and any other Person (other than
any customer of the Issuer) now or hereafter extending credit or having a commitment to extend
credit to or for the account of, or to make purchases from, the Issuer pursuant to any Program
Support Agreement.



“Purchase and Sale Agreement” means the Purchase and Sale Agreement, dated as of even date
herewith, between the Seller and UGI, as such agreement may be amended, amended and restated,
supplemented or otherwise modified from time to time.



“Purchase and Sale Indemnified Amounts” has the meaning set forth in Section 9.1 of
the Purchase and Sale Agreement.



“Purchase and Sale Indemnified Party” has the meaning set forth in Section 9.1 of the
Purchase and Sale Agreement.


 


 









 





“Purchase and Sale Termination Date” has the meaning set forth in Section 1.4 of the
Purchase and Sale Agreement.



“Purchase and Sale Termination Event” has the meaning set forth in Section 8.1 of the
Purchase and Sale Agreement.



“Purchase Facility” has the meaning set forth in Section 1.1 of the Purchase and Sale
Agreement.



“Purchase Limit” means $200,000,000, as such amount may be subsequently reduced pursuant to
Section 1.1(b) of the Agreement. References to the unused portion of the Purchase Limit
shall mean, at any time, the Purchase Limit minus the then outstanding Capital.




“Purchase Notice” has the meaning set forth in Section 1.2(a) of the Agreement.



“Purchase Price” has the meaning set forth in Section 2.1 of the Purchase and Sale
Agreement.



“Purchase Report” has the meaning set forth in Section 2.1 of the Purchase and Sale
Agreement.



“Purchased Interest” means, at any time, the undivided percentage ownership interest in: (a)
each and every Pool Receivable now existing or hereafter arising, (b) all Related Security with
respect to such Pool Receivables and (c) all Collections with respect to, and other proceeds of,
such Pool Receivables and Related Security. Such undivided percentage interest shall be computed
as:



Capital + Total Reserves    

     Net Receivables Pool Balance     





The Purchased Interest shall be determined from time to time pursuant to Section 1.3 of the
Agreement.




“Purchaser” has the meaning set forth in Section 5.3(b) of the Agreement.



“Purchasing Utility” means a jurisdictional natural gas or electricity distribution
company.



“Receivable” means any indebtedness and other obligations (whether or not earned by
performance) owed to the Seller (as assignee of the Originator) or the Originator by, or any right
of the Seller or the Originator to payment from or on behalf of, an Obligor (including a Purchasing
Utility), whether constituting an account, chattel paper, instrument or general intangible, arising
in connection with (i) property or goods that have been or are to be sold or otherwise disposed of,
or services rendered or to be rendered by the Originator (including, in each case and without
limitation, the sale of electricity or natural gas) or (ii) the sale or assignment by the
Originator to a Purchasing Utility of a Billing Program Receivable, and, in each case, includes the
obligation (if any) to pay any finance charges, fees and other charges with respect thereto;
provided, however, that “Receivable” shall not include any Billing Program
Receivable. Indebtedness and other obligations arising from any one transaction, including
indebtedness and other obligations represented by an individual invoice or agreement, shall
constitute a Receivable separate from a Receivable consisting of the indebtedness and other
obligations arising from any other transaction.


 


 









 





“Receivables Pool” means, at any time, all of the then outstanding Receivables purchased or
otherwise acquired by the Seller pursuant to the Purchase and Sale Agreement prior to the Facility
Termination Date.




“Reference Bank” means PNC.



“Related Rights” has the meaning set forth in Section 1.1 of the Purchase and Sale
Agreement.




“Related Security” means, with respect to any Receivable:




(a) all of the Seller’s and the Originator thereof’s interest in any goods (including
returned goods), and documentation of title evidencing the shipment or storage of any goods
(including returned goods), relating to any sale giving rise to such Receivable,




(b) all instruments and chattel paper that may evidence such Receivable,




(c) all other security interests or liens and property subject thereto from time to
time purporting to secure payment of such Receivable, whether pursuant to the Contract
related to such Receivable or otherwise, together with all UCC financing statements or
similar filings relating thereto, and




(d) all of the Seller’s and the Originator thereof’s rights, interests and claims under
the Contracts and all guaranties, indemnities, insurance, letters of credit and other
agreements (including the related Contract) or arrangements of whatever character from time
to time supporting or securing payment of such Receivable or otherwise relating to such
Receivable, whether pursuant to the Contract related to such Receivable or otherwise.




“Repurchase Price” has the meaning set forth in Section 5.14 of the Agreement.



“Reseller” means an Obligor that purchases product from the Originator and for which the
Originator acts as billing and collection agent with respect to such Obligor’s resale of the
product.



“Reserve Floor” means, at any time: (a) the aggregate Capital at such time multiplied by (b)
(i) the Reserve Floor Percentage, divided by (ii) 100%, minus the Reserve Floor Percentage.



“Reserve Floor Percentage” means, at any time, the sum (expressed as a percentage) of (a)
Concentration Reserve Percentage plus (b) the product of (i) the average Dilution Ratios for the
twelve most recent calendar months and (ii) the Dilution Horizon.


 


 









 





“Restricted Payment” has the meaning set forth in paragraph 1(n) of Exhibit IV
to the Agreement.




“Seller” has the meaning set forth in the preamble to the Agreement.



“Seller’s Share” of any amount means the greater of: (a) $0 and (b) such amount minus the
Issuer’s Share.




“Servicer” has the meaning set forth in the preamble to the Agreement.




“Servicing Fee” shall mean the fee referred to in Section 4.6 of the Agreement.




“Servicing Fee Rate” shall mean the rate referred to in Section 4.6 of the Agreement.



“Settlement Date” means with respect to any Portion of Capital for any Settlement Period, (i)
prior to the Facility Termination Date, the third Wednesday of each calendar month (or the next
succeeding Business Day if such day is not a Business Day) beginning with December 19, 2001 and
(ii) on and after the Facility Termination Date, each day selected from time to time by the
Administrator (it being understood that the Administrator may select such Settlement Date to occur
as frequently as daily), or, in the absence of such selection, the date specified in clause
(i) above.



“Settlement Period” means: (a) before the Facility Termination Date: (i) initially the period
commencing on the date of the initial purchase pursuant to Section 1.2 of the Agreement (or
in the case of any fees payable hereunder, commencing on the Closing Date) and ending on (but not
including) the next Settlement Date, and (ii) thereafter, each period commencing on such Settlement
Date and ending on (but not including) the next Settlement Date, and (b) on and after the Facility
Termination Date: such period (including a period of one day) as shall be selected from time to
time by the Administrator or, in the absence of any such selection, each period of 30 days from the
last day of the preceding Settlement Period.




“Solvent” means, with respect to any Person at any time, a condition under which:




(i) the fair value and present fair saleable value of such Person’s total assets is, on
the date of determination, greater than such Person’s total liabilities (including
contingent and unliquidated liabilities) at such time;




(ii) the fair value and present fair saleable value of such Person’s assets is greater
than the amount that will be required to pay such Person’s probable liability on its
existing debts as they become absolute and matured (“debts,” for this purpose,
includes all legal liabilities, whether matured or unmatured, liquidated or unliquidated,
absolute, fixed, or contingent);




(iii) such Person is and shall continue to be able to pay all of its liabilities as
such liabilities mature; and




(iv) such Person does not have unreasonably small capital with which to engage in its
current and in its anticipated business.


 


 









 






For purposes of this definition:




(A) the amount of a Person’s contingent or unliquidated liabilities at any time shall
be that amount which, in light of all the facts and circumstances then existing, represents
the amount which can reasonably be expected to become an actual or matured liability;




(B) the “fair value” of an asset shall be the amount which may be realized within a
reasonable time either through collection or sale of such asset at its regular market value;




(C) the “regular market value” of an asset shall be the amount which a capable and
diligent business person could obtain for such asset from an interested buyer who is willing
to Purchase such asset under ordinary selling conditions; and




(D) the “present fair saleable value” of an asset means the amount which can be
obtained if such asset is sold with reasonable promptness in an arm’s-length transaction in
an existing and not theoretical market.



“Spike Factor” means, for any calendar month, (a) the positive difference, if any, between:
(i) the highest Dilution Ratio for any calendar month during the twelve most recent calendar months
and (ii) the arithmetic average of the Dilution Ratios for such twelve months times (b) (i)
the highest Dilution Ratio for any calendar month during the twelve most recent calendar months
divided by (ii) the arithmetic average of the Dilution Ratios for such twelve months.




“Standard & Poor’s” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.



“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or
other entity of which shares of stock of each class or other interests having ordinary voting power
(other than stock or other interests having such power only by reason of the happening of a
contingency) to elect a majority of the Board of Directors or other managers of such entity are at
the time owned, or management of which is otherwise controlled: (a) by such Person, (b) by one or
more Subsidiaries of such Person or (c) by such Person and one or more Subsidiaries of such Person.



“Tangible Net Worth” means, with respect to any Person, the tangible net worth of such Person
as adjusted to eliminate the impact of any charges related to SFAS 133 and as determined in
accordance with GAAP.



“Termination Day” means: (a) each day on which the conditions set forth in Section 2
of Exhibit II to the Agreement are not satisfied or (b) each day that occurs on or after
the Facility Termination Date.



“Termination Event” has the meaning specified in Exhibit V to the Agreement.


 


 









 





“Termination Fee” means, for any Settlement Period during which a Termination Day occurs, the
amount, if any, by which: (a) the additional Discount (calculated without taking into account any
Termination Fee or any shortened duration of such Settlement Period pursuant to the definition
thereof) that would have accrued during such Settlement Period on the reductions of Capital
relating to such Settlement Period had such reductions not been made, exceeds (b) the income, if
any, received by the Issuer from investing the proceeds of such reductions of Capital, as
determined by the Administrator, which determination shall be binding and conclusive for all
purposes, absent manifest error.



“Total Reserves” means, at any time the greater of (a) the sum of (i) the Yield Reserve, (ii)
the Loss Reserve, and (iii) the Dilution Reserve and (b) the Reserve Floor.



“Transaction Documents” means the Agreement, the Lock-Box Agreements, the Fee Letter, the
Purchase and Sale Agreement and all other certificates, instruments, UCC financing statements,
reports, notices, agreements and documents executed or delivered under or in connection with any of
the foregoing, in each case as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the Agreement.



“Turnover Rate” means, for any calendar month, an amount computed as of the last day of such
calendar month equal to: (a) the Outstanding Balance of all Pool Receivables as of the last day of
such calendar month divided by (b)(i) the aggregate credit sales made by the Originator
during the three calendar months ended on or before the last day of such calendar month divided
by (ii) 3.



“UCC” means the Uniform Commercial Code as from time to time in effect in the applicable
jurisdiction.




“UGI” has the meaning set forth in the preamble to the Agreement.



“Unmatured Purchase and Sale Termination Event” means any event which, with the giving of
notice or lapse of time, or both, would become a Purchase and Sale Termination Event.



“Unmatured Termination Event” means an event that, with the giving of notice or lapse of time,
or both, would constitute a Termination Event.



“Weekly Settlement Date” means each Wednesday of each week (or the next succeeding Business
Day if such day is not a Business Day), beginning December 5, 2001.



“Yield Reserve” means, on any date, an amount equal to: (a) the Capital at the close of
business of the Servicer on such date multiplied by (b)(i) the Yield Reserve Percentage on
such date divided by (ii) 100% minus the Yield Reserve Percentage on such date.


 


 









 






“Yield Reserve Percentage” means at any time:



	 	 	 
	(PY + SFR)

	 	x 2.0 x TR
	 

12

	 	 






where:



	 	 	 	 	 
	PY

	 	=
	 	the Base Rate as of the last day of the most recent
Settlement Period,
	 
	 	 	 	 
	TR

	 	=
	 	the Turnover Rate, and
	 
	 	 	 	 
	SFR

	 	=
	 	the Servicing Fee Rate






Other Terms. All accounting terms not specifically defined herein shall be construed in
accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such Article 9. Unless the context
otherwise requires, “or” means “and/or,” and “including” (and with correlative meaning “include”
and “includes”) means including without limiting the generality of any description preceding such
term.


 


 









 





EXHIBIT IV

COVENANTS




1. Covenants of the Seller. Until the latest of the Facility Termination Date, the
date on which no Capital of or Discount in respect of the Purchased Interest shall be outstanding
or the date all other amounts owed by the Seller under the Agreement to the Issuer, the
Administrator and any other Indemnified Party or Affected Person shall be paid in full:



(a) Compliance with Laws, Etc. The Seller shall comply in all material respects with
all applicable laws, rules, regulations and orders, and preserve and maintain its corporate
existence, rights, franchises, qualifications and privileges, except to the extent that the failure
so to comply with such laws, rules, regulations or orders or the failure so to preserve and
maintain such rights, franchises, qualifications and privileges would not have a Material Adverse
Effect.



(b) Offices, Records and Books of Account, Etc. The Seller: (i) shall keep its
principal place of business and chief executive office (as such terms or similar terms are used in
the UCC) and the office where it keeps its records concerning the Receivables at the address of the
Seller set forth under its name on the signature page to the Agreement or, pursuant to clause
(l)(v) below, at any other locations in jurisdictions where all actions reasonably requested by
the Administrator to protect and perfect the interest of the Issuer in the Receivables and related
items (including the Pool Assets) have been taken and completed and (ii) shall provide the
Administrator with at least 30 days’ written notice before making any change in the Seller’s name
or making any other change in the Seller’s identity or corporate structure (including a Change in
Control) that could render any UCC financing statement filed in connection with this Agreement
“seriously misleading” as such term (or similar term) is used in the UCC; each notice to the
Administrator pursuant to this sentence shall set forth the applicable change and the effective
date thereof. The Seller also will maintain and implement (or cause the Servicer to maintain and
implement) administrative and operating procedures (including an ability to recreate records
evidencing Receivables and related Contracts in the event of the destruction of the originals
thereof), and keep and maintain (or cause the Servicer to keep and maintain) all documents, books,
records, computer tapes and disks and other information reasonably necessary or advisable for the
collection of all Receivables (including records adequate to permit the daily identification of
each Receivable and all Collections of and adjustments to each existing Receivable).



(c) Performance and Compliance with Contracts and Credit and Collection Policy. The
Seller shall (and shall cause the Servicer to), at its expense, timely and fully perform and comply
with all material provisions, covenants and other promises required to be observed by it under the
Contracts related to the Receivables, and timely and fully comply in all material respects with the
applicable Credit and Collection Policies with regard to each Receivable and the related Contract.



(d) Ownership Interest, Etc. The Seller shall (and shall cause the Servicer to), at
its expense, take all action necessary or desirable to establish and maintain a valid and
enforceable undivided percentage ownership or security interest, to the extent of the Purchased
Interest, in the Pool Receivables, the Related Security and Collections with respect thereto, and a
first
priority perfected security interest in the Pool Assets, in each case free and clear of any
Adverse Claim, in favor of the Issuer, including taking such action to perfect, protect or more
fully evidence the interest of the Issuer as the Issuer, through the Administrator, may reasonably
request.


 


 









 





(e) Sales, Liens, Etc. The Seller shall not sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim upon or with
respect to, any or all of its right, title or interest in, to or under any Pool Assets (including
the Seller’s undivided interest in any Receivable, Related Security or Collections, or upon or with
respect to any account to which any Collections of any Receivables are sent), or assign any right
to receive income in respect of any items contemplated by this paragraph.



(f) Extension or Amendment of Receivables. Except as provided in the Agreement, the
Seller shall not, and shall not permit the Servicer to, extend the maturity or adjust the
Outstanding Balance or otherwise modify the terms of any Pool Receivable in any material respect,
or amend, modify or waive, in any material respect, any term or condition of any related Contract
(which term or condition relates to payments under, or the enforcement of, such Contract).



(g) Change in Business or Credit and Collection Policy. The Seller shall not make (or
permit the Originator to make) any material change in the character of its business or in any
Credit and Collection Policy (other than a change to the insurance provisions of any such policy)
that would have a Material Adverse Effect with respect to the Receivables. The Seller shall not
make (or permit the Originator to make) any other material adverse change in any Credit and
Collection Policy without receiving the prior written consent of the Administrator.



(h) Audits. The Seller shall (and shall cause the Originator to), from time to time
during regular business hours as reasonably requested in advance (unless a Termination Event or an
Unmatured Termination Event exists or there shall be a material adverse variance in the performance
of the Receivables) by the Administrator, permit the Administrator, or its agents or
representatives: (i) to examine and make copies of and abstracts from all books, records and
documents (including computer tapes and disks) in the possession or under the control of the Seller
(or the Originator) relating to Receivables and the Related Security, including the related
Contracts, (ii) to visit the offices and properties of the Seller and the Originator for the
purpose of examining such materials described in clause (i) above, and to discuss matters
relating to Receivables and the Related Security or the Seller’s, UGI’s or the Originator’s
performance under the Transaction Documents or under the Contracts with any of the officers,
employees, agents or contractors of the Seller or the Originator having knowledge of such matters
and (iii) without limiting the clauses (i) and (ii) above, no more than once
annually (unless a Termination Event has occurred and is continuing or there shall be a material
variance in the performance of the Receivables) to engage certified public accountants or other
auditors acceptable to the Seller and the Administrator to conduct, at the Seller’s expense, a
review of the Seller’s books and records with respect to such Receivables.



(i) Change in Lock-Box Banks, Lock-Box Accounts and Payment Instructions to Obligors.
The Seller shall not, and shall not permit the Servicer or the Originator to, add or terminate any
bank as a Lock-Box Bank or any account as a Lock-Box Account (or any related
lock-box) from those listed in Schedule II to the Agreement, or make any change in
its instructions to Obligors regarding payments to be made to the Seller, the Originator, the
Servicer or any Lock-Box Account (or the related lock-box), unless the Administrator shall have
consented thereto in writing and the Administrator shall have received copies of all agreements and
documents (including Lock-Box Agreements) that it may request in connection therewith.


 


 









 





(j) Deposits to Lock-Box Accounts. The Seller shall (or shall cause the Servicer to):
(i) within 30 days of the initial purchase hereunder, instruct all Obligors to make payments of all
Receivables to one or more Lock-Box Accounts or to lock-boxes to which only Lock-Box Banks have
access (and shall instruct the Lock-Box Banks to cause all items and amounts relating to such
Receivables received in such lock-boxes to be removed and deposited into a Lock-Box Account on a
daily basis), and (ii) deposit, or cause to be deposited, any Collections received by it, the
Servicer or the Originator into Lock-Box Accounts not later than two Business Days after receipt
thereof. Each Lock-Box Account shall at all times be subject to a Lock-Box Agreement. The Seller
will not (and will not permit the Servicer to) deposit or otherwise credit, or cause or permit to
be so deposited or credited, to any Lock-Box Account cash or cash proceeds other than (i)
Collections and (ii) on payments received from end-users payable to a Reseller in respect of
product sold by such Reseller to such end-user, provided that such payments do not remain
on deposit in such Lock-Box Account for more than two Business Days after deposit therein.



(k) Marking of Records. At its expense, the Seller shall: (i) mark (or cause the
Servicer to mark) its master data processing records relating to Pool Receivables and related
Contracts with a legend evidencing that the undivided percentage ownership interests with regard to
the Purchased Interest related to such Receivables and related Contracts have been sold in
accordance with the Agreement, and (ii) cause the Originator so to mark its master data processing
records pursuant to the Purchase and Sale Agreement.



(l) Reporting Requirements. The Seller will provide to the Administrator (in multiple
copies, if requested by the Administrator) the following:




(i) as soon as available and in any event within 105 days after the end of each fiscal
year of the Seller, a copy of the annual report for such year for the Seller containing
unaudited financial statements for such year certified as to accuracy by the chief financial
officer or treasurer of the Seller;




(ii) as soon as possible and in any event within five Business Days after becoming
aware of the occurrence of each Termination Event or Unmatured Termination Event, a
statement of the chief financial officer of the Seller setting forth details of such
Termination Event or Unmatured Termination Event and the action that the Seller has taken
and proposes to take with respect thereto;




(iii) promptly after the filing or receiving thereof, copies of all reports and notices
that the Seller or any Affiliate files under ERISA with the Internal Revenue Service, the
Pension Benefit Guaranty Corporation or the U.S. Department of Labor with respect to any
Benefit Plan that is subject to Title IV of ERISA or that the Seller or any Affiliate
receives with respect to any Benefit Plan that is subject to Title IV of ERISA from any of
the foregoing or from any multiemployer plan (within the meaning of Section 4001(a)(3)
of ERISA) to which the Seller or any of its Affiliates is or was, within the preceding
five years, a contributing employer, in each case in respect of the assessment of withdrawal
liability or an event or condition that could, in the aggregate, reasonably result in the
imposition of material liability on the Seller and/or any such Affiliate;


 


 









 






(iv) at least thirty days before any change in the Seller’s name or any other change
requiring the amendment of UCC financing statements, a notice setting forth such changes and
the effective date thereof;




(v) promptly after the Seller obtains knowledge thereof, notice of any: (A) material
litigation, investigation or proceeding that may exist at any time between the Seller and
any Person or (B) material litigation or proceeding relating to any Transaction Document;




(vi) promptly after becoming aware of the occurrence thereof, notice of a material
adverse change in the business, operations, property or financial or other condition of the
Seller, the Servicer or the Originator; and




(vii) such other information respecting the Receivables or the condition or operations,
financial or otherwise, of the Seller or any of its Affiliates as the Administrator may from
time to time reasonably request.



(m) Certain Agreements. Without the prior written consent of the Administrator, the
Seller will not (and will not permit the Originator to) amend, modify, waive, revoke or terminate
any Transaction Document to which it is a party or any provision of Seller’s certificate of
incorporation or by-laws;



(n) Restricted Payments. (i) Except pursuant to clause (ii) below, the Seller
will not: (A) purchase or redeem any shares of its capital stock, (B) declare or pay any dividend
or set aside any funds for any such purpose, (C) prepay, purchase or redeem any Debt, (D) lend or
advance any funds or (E) repay any loans or advances to, for or from any of its Affiliates (the
amounts described in clauses (A) through (E) being referred to as “Restricted
Payments”).




(ii) Subject to the limitations set forth in clause (iii) below, the Seller may
make Restricted Payments only by declaring and paying dividends or making returns of
capital.




(iii) The Seller may make Restricted Payments only out of the funds it receives pursuant
to Sections 1.4(b)(ii) and (iv) of the Agreement. Furthermore, the Seller
shall not pay, make or declare: (A) any dividend if, after giving effect thereto, the
Seller’s Tangible Net Worth would be less than $4,000,000, or (B) any Restricted Payment
(including any dividend) if, after giving effect thereto, any Termination Event or Unmatured
Termination Event shall have occurred and be continuing.



(o) Other Business. The Seller will not: (i) engage in any business other than the
transactions contemplated by the Transaction Documents; (ii) create, incur or permit to exist any
Debt of any kind (or cause or permit to be issued for its account any letters of credit or bankers’
acceptances) other than pursuant to this Agreement; or (iii) form any Subsidiary or make any
investments in any other Person; provided, however, that the Seller shall be
permitted to incur
minimal obligations to the extent necessary for the day-to-day operations of the Seller (such
as expenses for stationery, audits, maintenance of legal status, etc.).


 


 









 





(p) Use of Seller’s Share of Collections. The Seller shall apply the Seller’s Share of
Collections to make payments in the following order of priority: (i) the payment of its expenses
(including all obligations payable to the Issuer and the Administrator under the Agreement and
under the Fee Letter); and (ii) other legal and valid corporate purposes.



(q) Tangible Net Worth. The Seller will not permit its Tangible Net Worth, at any
time, to be less than $6,000,000.



2. Covenants of the Servicer and UGI. Until the latest of the Facility Termination
Date, the date on which no Capital of or Discount in respect of the Purchased Interest shall be
outstanding or the date all other amounts owed by the Seller under the Agreement to the Issuer, the
Administrator and any other Indemnified Party or Affected Person shall be paid in full:



(a) Compliance with Laws, Etc. The Servicer and, to the extent that it ceases to be
the Servicer, UGI shall comply (and shall cause the Originator to comply) in all material respects
with all applicable laws, rules, regulations and orders, and preserve and maintain its corporate
existence, rights, franchises, qualifications and privileges, except to the extent that the failure
so to comply with such laws, rules, regulations or orders or the failure so to preserve and
maintain such existence, rights, franchises, qualifications and privileges would not have a
Material Adverse Effect.



(b) Offices, Records and Books of Account, Etc. The Servicer and, to the extent that
it ceases to be the Servicer, UGI, shall keep (and shall cause the Originator to keep) its
principal place of business and chief executive office (as such terms or similar terms are used in
the applicable UCC) and the office where it keeps its records concerning the Receivables at the
address of the Servicer set forth under its name on the signature page to the Agreement or, upon at
least 30 days’ prior written notice of a proposed change to the Administrator, at any other
locations in jurisdictions where all actions reasonably requested by the Administrator to protect
and perfect the interest of the Issuer in the Receivables and related items (including the Pool
Assets) have been taken and completed. The Servicer and, to the extent that it ceases to be the
Servicer, UGI, also will (and will cause the Originator to) maintain and implement administrative
and operating procedures (including an ability to recreate records evidencing Receivables and
related Contracts in the event of the destruction of the originals thereof), and keep and maintain
all documents, books, records, computer tapes and disks and other information reasonably necessary
or advisable for the collection of all Receivables (including records adequate to permit the daily
identification of each Receivable and all Collections of and adjustments to each existing
Receivable).



(c) Performance and Compliance with Contracts and Credit and Collection Policy. The
Servicer and, to the extent that it ceases to be the Servicer, UGI, shall (and shall cause the
Originator to), at its expense, timely and fully perform and comply with all material provisions,
covenants and other promises required to be observed by it under the Contracts related to the
Receivables, and timely and fully comply in all material respects with the Credit and Collection
Policy with regard to each Receivable and the related Contract.


 


 









 





(d) Extension or Amendment of Receivables. Except as provided in the Agreement, the
Servicer and, to the extent that it ceases to be the Servicer, UGI, shall not extend (and shall not
permit the Originator to extend), the maturity or adjust the Outstanding Balance or otherwise
modify the terms of any Pool Receivable in any material respect, or amend, modify or waive, in any
material respect, any term or condition of any related Contract (which term or condition relates to
payments under, or the enforcement of, such Contract).



(e) Change in Business or Credit and Collection Policy. The Servicer and, to the
extent that it ceases to be the Servicer, UGI, shall not make (and shall not permit the Originator
to make) any material change in the character of its business or in any Credit and Collection
Policy (other than a change to the insurance provisions of any such policy) without the consent of
the Administrator that would be reasonably likely to have a Material Adverse Effect. The Servicer
and, to the extent that it ceases to be the Servicer, UGI, shall not make (and shall not permit the
Originator to make) any other material adverse change in any Credit and Collection Policy without
receiving the prior written consent of the Administrator.



(f) Audits. The Servicer and, to the extent that it ceases to be the Servicer, UGI,
shall (and shall cause the Originator to), from time to time during regular business hours as
reasonably requested in advance (unless a Termination Event or an Unmatured Termination Event
exists or there shall be a material adverse variance in the performance of the Receivables) by the
Administrator, permit the Administrator, or its agents or representatives: (i) to examine and make
copies of and abstracts from all books, records and documents (including computer tapes and disks)
in its possession or under its control relating to Receivables and the Related Security, including
the related Contracts; (ii) to visit its offices and properties for the purpose of examining such
materials described in clause (i) above, and to discuss matters relating to Receivables and
the Related Security or its performance hereunder or under the Contracts with any of its officers,
employees, agents or contractors having knowledge of such matters and (iii), without limiting the
clauses (i) and (ii) above, no more than once annually (unless a Termination Event
has occurred and is continuing or there shall be a material variance in the performance of the
Receivables) to engage certified public accountants or other auditors acceptable to the Servicer
and the Administrator to conduct, at the Servicer’s expense, a review of the Servicer’s books and
records with respect to such Receivables.



(g) Change in Lock-Box Banks, Lock-Box Accounts and Payment Instructions to Obligors.
The Servicer and, to the extent that it ceases to be the Servicer, UGI, shall not (and shall not
permit the Originator to) add or terminate any bank as a Lock-Box Bank or any account as a Lock-Box
Account (or any related lock-box) from those listed in Schedule II to the Agreement, or
make any change in its instructions to Obligors regarding payments to be made to the Servicer or
any Lock-Box Account (or the related lock-box), unless the Administrator shall have consented
thereto in writing and the Administrator shall have received copies of all agreements and documents
(including Lock-Box Agreements) that it may request in connection therewith.


 


 









 





(h) Deposits to Lock-Box Accounts. The Servicer shall: (i) within 30 days of the
initial purchase hereunder, instruct all Obligors to make payments of all Receivables to one or
more Lock-Box Accounts or to the lock-boxes to which only Lock-Box Banks have access (and shall
instruct the Lock-Box Banks to cause all items and amounts relating to such Receivables
received in such lock-boxes to be removed and deposited into a Lock-Box Account on a daily
basis), and (ii) deposit, or cause to be deposited, any Collections received by it into Lock-Box
Accounts not later than one Business Day after receipt thereof. Each Lock-Box Account shall at all
times be subject to a Lock-Box Agreement. The Servicer will not (and will not permit the
Originator to) deposit or otherwise credit, or cause or permit to be so deposited or credited, to
any Lock-Box Account cash or cash proceeds other than (i) Collections and (ii) on payments received
from end-users payable to a Reseller in respect of product sold by such Reseller to such end-user,
provided that such payments do not remain on deposit in such Lock-Box Account for more than
two Business Days after deposit therein.



(i) Marking of Records. At its expense, the Servicer shall mark its master data
processing records relating to Pool Receivables and related Contracts with a legend evidencing that
the undivided percentage ownership interests with regard to the Purchased Interest related to such
Receivables and related Contracts have been sold in accordance with the Agreement.



(j) Reporting Requirements. UGI shall provide to the Administrator (in multiple
copies, if requested by the Administrator) the following:




(i) as soon as available and in any event within 50 days after the end of the first
three quarters of each fiscal year of UGI, balance sheets of UGI and its consolidated
Subsidiaries as of the end of such quarter and statements of income, retained earnings and
cash flow of UGI and its consolidated Subsidiaries for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter, certified by the chief
financial officer of such Person;




(ii) as soon as available and in any event within 105 days after the end of each fiscal
year of such Person, a copy of the annual report for such year for such Person and its
consolidated Subsidiaries, containing financial statements for such year audited by
independent certified public accountants of nationally recognized standing;




(iii) as to the Servicer only, as soon as available and in any event not later than two
Business Days prior to (A) the Settlement Date, an Information Package as of the most
recently completed calendar month, (B) any purchase made pursuant to Section 1.2, an
Information Package as of the most recent purchase, or within six Business Days of a request
by the Administrator, an Information Package for such periods as is specified by the
Administrator (including on a semi-monthly, weekly or daily basis);




(iv) as soon as possible and in any event within five Business Days after becoming
aware of the occurrence of each Termination Event or Unmatured Termination Event, a
statement of the chief financial officer of UGI setting forth details of such Termination
Event or Unmatured Termination Event and the action that such Person has taken and proposes
to take with respect thereto;




(v) promptly after the sending or filing thereof, copies of (or notice thereof if
available on EDGAR) all reports that UGI sends to any of its security holders, and copies of
all reports and registration statements that UGI or any Subsidiary files with the Securities
and Exchange Commission; provided, that any filings with the Securities and
Exchange Commission that have been granted “confidential” treatment shall be provided
promptly after such filings have become publicly available;


 


 









 






(vi) promptly after the filing or receiving thereof, copies of all reports and notices
that UGI or any of its Affiliate files under ERISA with the Internal Revenue Service, the
Pension Benefit Guaranty Corporation or the U.S. Department of Labor with respect to any
Benefit Plan that is subject to Title IV of ERISA or that UGI or any of its Affiliates
receives with respect to any Benefit Plan that is subject to Title IV of ERISA from any of
the foregoing or from any multiemployer plan (within the meaning of Section 4001(a)(3) of
ERISA) to which UGI or any of its Affiliate is or was, within the preceding five years, a
contributing employer, in each case in respect of the assessment of withdrawal liability or
an event or condition that could, in the aggregate, reasonably result in the imposition of
material liability on UGI and/or any such Affiliate;




(vii) at least thirty days before any change in UGI’s or the Originator’s name or any
other change requiring the amendment of UCC financing statements, a notice setting forth
such changes and the effective date thereof;




(viii) promptly after UGI obtains knowledge thereof, notice of any: (A) litigation,
investigation or proceeding that may exist at any time between UGI or any of its
Subsidiaries and any Governmental Authority that, if not cured or if adversely determined,
as the case may be, would have a Material Adverse Effect; (B) litigation or proceeding
adversely affecting UGI or any of its Subsidiaries in which the amount involved is
$1,000,000 or more and not covered by insurance or in which injunctive or similar relief is
sought; or (C) litigation or proceeding relating to any Transaction Document;




(ix) promptly after becoming aware thereof, notice of a material adverse change in the
business, operations, property or financial or other condition of UGI or any of its
Subsidiaries; and




(x) such other information respecting the Receivables or the condition or operations,
financial or otherwise, of UGI or any of its Affiliates as the Administrator may from time
to time reasonably request.



(k) Net Worth. At any time of determination, the net worth (as adjusted to eliminate
the impact of any charges related to SFAS 133) OF THE Servicer shall not be less than the lesser of
(a) $93,000,000 or (b) $93,0000,000 less an amount equal to the sum of all dividends paid by the
Servicer from June 30, 2004 through such time; provided, however, that at no time
shall the net worth (as adjusted above) of the Servicer (as reduced by all such dividends paid
during the period referred to above) be less than $40,000,000.


 


 









 





3. Separate Existence. Each of the Seller and UGI hereby acknowledges that the
Purchasers, the Issuer and the Administrator are entering into the transactions contemplated by
this Agreement and the other Transaction Documents in reliance upon the Seller’s identity as a
legal entity separate from UGI and its Affiliates. Therefore, from and after the date hereof, each
of the Seller and UGI shall take all steps specifically required by the Agreement or reasonably
required by the Administrator to continue the Seller’s identity as a separate legal entity and
to make it apparent to third Persons that the Seller is an entity with assets and liabilities
distinct from those of UGI and any other Person, and is not a division of UGI, its Affiliates or
any other Person. Without limiting the generality of the foregoing and in addition to and
consistent with the other covenants set forth herein, each of the Seller and UGI shall take such
actions as shall be required in order that:




(a) The Seller will be a limited purpose corporation whose primary activities are
restricted in its certificate of incorporation to: (i) purchasing or otherwise acquiring
from the Originator (or its Affiliates), owning, holding, granting security interests or
selling interests in Pool Assets (or other receivables originated by the Originator or its
Affiliates, and certain related assets), (ii) entering into agreements for the selling and
servicing of the Receivables Pool (or other receivables pools originated by the Originator
or its Affiliates), and (iii) conducting such other activities as it deems necessary or
appropriate to carry out its primary activities;




(b) The Seller shall not engage in any business or activity, or incur any indebtedness
or liability, other than as expressly permitted by the Transaction Documents;




(c) Not less than one member of the Seller’s Board of Directors (the “Independent
Director”) shall be an individual who is not a direct, indirect or beneficial
stockholder, officer, director, employee, affiliate, associate or supplier of UGI or any of
its Affiliates. The certificate of incorporation of the Seller shall provide that: (i) the
Seller’s Board of Directors shall not approve, or take any other action to cause the filing
of, a voluntary bankruptcy petition with respect to the Seller unless the Independent
Director shall approve the taking of such action in writing before the taking of such
action, and (ii) such provision cannot be amended without the prior written consent of the
Independent Director;




(d) The Independent Director shall not at any time serve as a trustee in bankruptcy for
the Seller, UGI or any Affiliate thereof;




(e) Any employee, consultant or agent of the Seller will be compensated from the
Seller’s funds for services provided to the Seller. The Seller will not engage any agents
other than its attorneys, auditors and other professionals, and a servicer and any other
agent contemplated by the Transaction Documents for the Receivables Pool, which servicer
will be fully compensated for its services by payment of the Servicing Fee;


 


 









 






(f) The Seller will contract with the Servicer to perform for the Seller all operations
required on a daily basis to service the Receivables Pool. The Seller will pay the Servicer
the Servicing Fee pursuant hereto. The Seller will not incur any material indirect or
overhead expenses for items shared with UGI (or any other Affiliate thereof) that are not
reflected in the Servicing Fee. To the extent, if any, that the Seller (or any Affiliate
thereof) shares items of expenses not reflected in the Servicing Fee or the manager’s fee,
such as legal, auditing and other professional services, such expenses will be allocated to
the extent practical on the basis of actual use or the value of services
rendered, and otherwise on a basis reasonably related to the actual use or the value of
services rendered; it being understood that UGI shall pay all expenses relating to the
preparation, negotiation, execution and delivery of the Transaction Documents, including
legal, agency and other fees;




(g) The Seller’s operating expenses will not be paid by UGI or any other Affiliate
thereof;




(h) All of the Seller’s business correspondence and other communications shall be
conducted in the Seller’s own name and on its own separate stationery;




(i) The Seller’s books and records will be maintained separately from those of UGI and
any other Affiliate thereof;




(j) All financial statements of UGI or any Affiliate thereof that are consolidated to
include Seller will contain detailed notes clearly stating that: (i) a special purpose
corporation exists as a Subsidiary of UGI, (ii) the Originator has sold receivables and
other related assets to such special purpose Subsidiary that, in turn, has sold undivided
interests therein to certain financial institutions and other entities and (iii) that the
special purpose Subsidiary’s assets are not available to satisfy the obligations of UGI, the
Performance Guarantor or any Affiliate;




(k) The Seller’s assets will be maintained in a manner that facilitates their
identification and segregation from those of UGI or any Affiliate thereof;




(l) The Seller will strictly observe corporate formalities in its dealings with UGI or
any Affiliate thereof, and funds or other assets of the Seller will not be commingled with
those of UGI or any Affiliate thereof except as permitted by the Agreement in connection
with servicing the Pool Receivables. The Seller shall not maintain joint bank accounts or
other depository accounts to which UGI or any Affiliate thereof (other than UGI in its
capacity of Servicer) has independent access. The Seller is not named, and has not entered
into any agreement to be named, directly or indirectly, as a direct or contingent
beneficiary or loss payee on any insurance policy (other than directors and officers
liability and credit insurance policies) with respect to any loss relating to the property
of UGI or any Subsidiary or other Affiliate of UGI. The Seller will pay to the appropriate
Affiliate the marginal increase or, in the absence of such increase, the market amount of
its portion of the premium payable with respect to any insurance policy that covers the
Seller and such Affiliate;


 


 









 






(m) The Seller will maintain arm’s-length relationships with UGI (and any Affiliate
thereof). Any Person that renders or otherwise furnishes services to the Seller will be
compensated by the Seller at market rates for such services it renders or otherwise
furnishes to the Seller. Neither the Seller nor UGI will be or will hold itself out to be
responsible for the debts of the other or the decisions or actions respecting the daily
business and affairs of the other. The Seller and UGI will immediately correct any known
misrepresentation with respect to the foregoing, and they will not operate or purport to
operate as an integrated single economic unit with respect to each other or in their
dealing with any other entity; and




(n) Neither UGI nor the Performance Guarantor shall pay the salaries of Seller’s
employees, if any.




 


 









 







EXHIBIT V

TERMINATION EVENTS





Each of the following shall be a “Termination Event”:



(a) (i) the Seller, UGI, the Originator or the Servicer (if UGI or any of its Affiliates)
shall fail to perform or observe in any material respect any term, covenant or agreement under the
Agreement or any other Transaction Document and, except as otherwise provided herein, such failure
shall continue for thirty days after knowledge or notice thereof, (ii) the Seller or the Servicer
shall fail to make when due any payment or deposit to be made by it under the Agreement and such
failure shall continue unremedied for two (2) Business Days or (iii) UGI shall resign as Servicer,
and no successor Servicer reasonably satisfactory to the Administrator shall have been appointed;



(b) UGI (or any Affiliate thereof) shall fail to transfer to any successor Servicer when
required any rights pursuant to the Agreement that UGI (or such Affiliate) then has as Servicer;



(c) any representation or warranty made or deemed made by the Seller, UGI or the Originator
(or any of their respective officers) under or in connection with the Agreement or any other
Transaction Document, or any written information or report delivered by the Seller, UGI or the
Originator or the Servicer pursuant to the Agreement or any other Transaction Document, shall prove
to have been incorrect or untrue in any respect when made or deemed made (pursuant to paragraph
2(b) of Exhibit II hereof or with respect to any Information Package) or delivered;
provided, however, if the violation of this paragraph (c) by the Seller or
the Servicer may be cured without any potential or actual detriment to the Purchaser, the
Administrator, or any Program Support Provider, the Seller or the Servicer as applicable shall have
30 days from the earlier of (i) such Person’s knowledge of such failure and (ii) notice to such
Person of such failure to cure any such violation, before a Termination Event shall occur so long
as such Person is diligently attempting to effect such cure;



(d) the Seller or the Servicer shall fail to deliver the Information Package pursuant to the
Agreement, and such failure shall remain unremedied for two Business Days;



(e) the Agreement or any purchase or reinvestment pursuant to the Agreement shall for any
reason: (i) cease to create, or the Purchased Interest shall for any reason cease to be, a valid
and enforceable perfected undivided percentage ownership or security interest to the extent of the
Purchased Interest in each Pool Receivable, the Related Security and Collections with respect
thereto, free and clear of any Adverse Claim, or (ii) cease to create with respect to the Pool
Assets, or the interest of the Issuer with respect to such Pool Assets shall cease to be, a valid
and enforceable first priority perfected security interest, free and clear of any Adverse Claim;


 


 









 





(f) the Seller, UGI or the Originator shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted by or against the
Seller, UGI, the Performance Guarantor or the Originator seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding instituted against it (but
not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of
60 days, or any of the actions sought in such proceeding (including the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or other similar official for,
it or for any substantial part of its property) shall occur; or the Seller, UGI, the Performance
Guarantor or the Originator shall take any corporate action to authorize any of the actions set
forth above in this paragraph;



(g) (i) the (A) Default Ratio shall exceed 2.25% or (B) Delinquency Ratio shall exceed 10.0%
or (ii) the average for three consecutive calendar months of (A) the Default Ratio shall exceed
1.50%, (B) the Delinquency Ratio shall exceed 9.0%, (C) the Dilution Ratio shall exceed 1.75% or
(iii) Days’ Sales Outstanding exceeds 45 days;




(h) a Change in Control shall occur with respect to the Seller, the Originator or UGI,



(i) at any time (i) the sum of (A) the Capital plus (B) the Total Reserves, exceeds
(ii) the sum of (A) the Net Receivables Pool Balance at such time plus (B) the Issuer’s
Share of the amount of Collections then on deposit in the Lock-Box Accounts (other than amounts set
aside therein representing Discount and fees), and such circumstance shall not have been cured
within five (5) Business Days of becoming aware thereof;



(j) (i) UGI or any of its Subsidiaries shall fail to pay any principal of or premium or
interest on any of its Debt that is outstanding in a principal amount of at least $5,000,000 in the
aggregate when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument
relating to such Debt (and shall have not been waived); or (ii) any other event shall occur or
condition shall exist under any agreement, mortgage, indenture or instrument relating to any such
Debt and shall continue after the applicable grace period, if any, specified in such agreement,
mortgage, indenture or instrument (and shall have not been waived), if, in either case: (a) the
effect of such non-payment, event or condition is to give the applicable debt holders the right
(whether acted upon or not) to accelerate the maturity of such Debt, or (b) any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to repay, redeem, purchase or
defease such Debt shall be required to be made, in each case before the stated maturity thereof;


 


 









 





(k) either: (i) a contribution failure shall occur with respect to any Benefit Plan sufficient
to give rise to a lien under Section 302(f) of ERISA, (ii) the Internal Revenue Service shall file
a notice of lien asserting a claim or claims pursuant to the Internal Revenue Code with regard to
any of the assets of Seller, the Originator or any ERISA Affiliate and such lien shall have been
filed and not released within 10 days, or (iii) the Pension Benefit Guaranty Corporation shall, or
shall indicate its intention in writing to the Seller, the Originator or any ERISA Affiliate
to, either file a notice of lien asserting a claim pursuant to ERISA with regard to any assets of
the Seller, the Originator or any ERISA Affiliate or terminate any Benefit Plan subject to Title IV
of ERISA that has unfunded benefit liabilities, or any steps shall have been taken to terminate any
Benefit Plan subject to Title IV of ERISA that has unfunded benefit liabilities so as to result in
any material liability to the Seller or the Originator and such lien shall have been filed and not
released within 10 days;



(l) (i) one or more final and unappealable judgments for the payment of money shall be entered
against the Seller or (ii) one or more final and unappealable judgments for the payment of money in
an amount in excess of $20,000,000, individually or in the aggregate, shall be entered against the
Servicer or the Originator on claims not covered by insurance or as to which the insurance carrier
has denied its responsibility, and such judgment shall continue unsatisfied and in effect for sixty
(60) consecutive days without a stay of execution;




(m) [RESERVED] or



the “Purchase and Sale Termination Date” under and as defined in the Purchase and Sale Agreement
shall occur under the Purchase and Sale Agreement or the Originator shall for any reason cease to
transfer, or cease to have the legal capacity to transfer, or otherwise be incapable of
transferring Receivables to the Seller under the Purchase and Sale Agreem