SALE AGREEMENT IS INTENDED TO, NOR SHALL IT
BE DEEMED TO, CONSTITUTE A COMMITMENT ON THE PART OF THE SELLER OR ON THE PART
OF THE BUYER TO CONSUMMATE ANY PURCHASE HEREUNDER, IT BEING UNDERSTOOD THAT ALL
SUCH PURCHASES SHALL BE MADE AT THE DISCRETION OF EACH SUCH PARTY BUT OTHERWISE
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN.
NOTWITHSTANDING THE
FOREGOING, THE BUYER AGREES, SUBJECT TO THE SATISFACTION OF THE CONDITIONS SET
FORTH IN SECTION 3.02, TO CONSUMMATE ANY PURCHASE REQUESTED BY THE SELLER
PURSUANT TO SECTION 2.02(B) FOR WHICH THE NOTICE OF PURCHASE SPECIFIES THAT THE
ENTIRE PURCHASE PRICE SHALL BE PAID AS A CONTRIBUTION TO THE BUYER'S CAPITAL AND
NOT IN CASH.
NOTHING CONTAINED IN THIS SALE AGREEMENT IS INTENDED TO, NOR SHALL
IT BE DEEMED TO, CONSTITUTE AN ASSUMPTION BY THE BUYER OF ANY OBLIGATION UNDER
ANY CONTRACT.
(B)
IT IS THE INTENT OF THE SELLER AND THE BUYER THAT THE TRANSFER BY THE
SELLER TO THE BUYER OF THE TRANSFERRED ASSETS CONSTITUTE A SALE, IN PART, AND A
CONTRIBUTION TO CAPITAL, IN PART, WHICH SALES AND CONTRIBUTIONS ARE ABSOLUTE AND
IRREVOCABLE, WITHOUT RECOURSE EXCEPT AS OTHERWISE PROVIDED IN THIS SALE
AGREEMENT, AND WILL PROVIDE THE BUYER WITH FULL OWNERSHIP OF THE TRANSFERRED
ASSETS.
THE PARTIES FURTHER INTEND THAT EACH SUCH SALE AND CONTRIBUTION
CONSTITUTES A SALE OF ACCOUNTS, PAYMENT INTANGIBLES, PROMISSORY NOTES OR CHATTEL
PAPER, AS THE CASE MAY BE, AS SUCH TERMS ARE USED IN ARTICLE 9 OF THE UCC, AND
THAT THIS SALE AGREEMENT CONSTITUTES A SECURITY AGREEMENT WITHIN THE MEANING OF
ARTICLE 9 OF THE UCC.
EACH OF THE SELLER AND THE BUYER HEREBY AGREES TO TREAT
SUCH TRANSFER AS A SALE AND A CONTRIBUTION FOR TAX, REPORTING AND ACCOUNTING
PURPOSES (EXCEPT TO THE EXTENT THAT SUCH TRANSFER IS NOT RECOGNIZED DUE TO THE
REPORTING OF TAXES ON A CONSOLIDATED BASIS WHERE APPLICABLE AND THE APPLICATION
OF CONSOLIDATED FINANCIAL REPORTING PRINCIPLES UNDER GAAP).
THE SELLER AGREES
TO RESPOND TO ANY INQUIRIES WITH RESPECT TO THE TRANSFER HEREUNDER BY CONFIRMING
THE SALE AND CONTRIBUTION OF THE RECEIVABLES, THE CONTRACTS AND THE EQUIPMENT TO
THE BUYER, AND TO NOTE ON ITS FINANCIAL STATEMENTS THAT SUCH RECEIVABLES,
CONTRACTS AND EQUIPMENT HAVE BEEN SOLD AND/OR CONTRIBUTED TO THE BUYER.
2
SECTION 2.02.
PURCHASES FROM THE SELLER.
(A)
UNDER THE ORIGINAL PCA AND THE
PRIOR PCA, THE SELLER HAS SOLD TO THE BUYER, AND THE BUYER HAS PURCHASED FROM
THE SELLER, ALL OF THE TRANSFERRED ASSETS ARISING UNDER OR IN CONNECTION WITH
VARIOUS CONTRACTS IDENTIFIED BY NOTICES OF SALE THEREUNDER.
THE OUTSTANDING
CONTRACTS SO PURCHASED AND NOT RESOLD BY THE BUYER ARE IDENTIFIED AS EXHIBIT A
HERETO.
(B)
EACH PURCHASE SHALL BE MADE ON A SETTLEMENT DATE UPON NOT LESS THAN ONE
BUSINESS DAY'S PRIOR WRITTEN NOTICE TO THE BUYER REQUESTING SUCH PURCHASE, WHICH
NOTICE SHALL CONTAIN A SUPPLEMENTAL EXHIBIT A HERETO SETTING FORTH A LIST OF THE
CONTRACTS TO BE TRANSFERRED TO THE BUYER ON SUCH SETTLEMENT DATE.
EACH SUCH
NOTICE OF A PROPOSED