OF ALL AMOUNTS PAID
TO SELLER HEREUNDER WITH ACCRUED INTEREST THEREON, AND THIS AGREEMENT IS DEEMED
TO BE A SECURITY AGREEMENT.
WITH RESPECT TO SUCH GRANT OF A SECURITY INTEREST,
BUYER MAY AT ITS OPTION EXERCISE FROM TIME TO TIME ANY AND ALL RIGHTS AND
REMEDIES AVAILABLE TO IT HEREUNDER, UNDER THE UCC OR OTHERWISE.
SELLER AGREES
THAT FIVE BUSINESS DAYS SHALL BE REASONABLE PRIOR NOTICE TO SELLER OF THE DATE
OF ANY PUBLIC OR PRIVATE SALE OR OTHER DISPOSITION OF ALL OR ANY OF THE
RECEIVABLES.
(E)
COMMITMENT FEE.
SELLER AGREES TO PAY TO
BUYER QUARTERLY IN ARREARS ON OR BEFORE THE 10TH DAY FOLLOWING THE END OF EACH
OF SELLER'S FISCAL QUARTER A COMMITMENT FEE OF [CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE SEC] (THE "COMMITMENT FEE") ON THE AVERAGE DAILY
DIFFERENCE BETWEEN THE OUTSTANDING PURCHASE PRICE AND THE PURCHASE COMMITMENT.
(F)
TRUE SALE; NO RECOURSE.
ON AND AT ALL
TIMES FOLLOWING THE TRIGGER DATE, EXCEPT AS OTHERWISE PROVIDED IN SECTION 5,
EACH PURCHASE OF THE PURCHASED RECEIVABLES IS MADE WITHOUT RECOURSE TO SELLER
AND SELLER SHALL HAVE NO LIABILITY TO BUYER FOR ANY ACCOUNT DEBTOR'S FAILURE TO
PAY ANY PURCHASED RECEIVABLE WHEN IT IS DUE AND PAYABLE UNDER THE TERMS
APPLICABLE THERETO.
BUYER AGREES THAT IT SHALL BE RESPONSIBLE FOR THE
NON-PAYMENT OF ANY PURCHASED RECEIVABLE TO THE EXTENT IT IS THE RESULT, WITH
RESPECT TO RECEIVABLES PURCHASED HEREUNDER ON AND FOLLOWING THE TRIGGER DATE, OF
AN INSOLVENCY EVENT OF AN ACCOUNT DEBTOR, SUCH ASSUMPTION OF CREDIT RISK (WITH
RESPECT TO THE OUTSTANDING PURCHASE PRICE RELATING THERETO ONLY) BEING EFFECTIVE
AS OF THE PURCHASE DATE FOR SUCH PURCHASED RECEIVABLES.
BUYER AND SELLER HAVE
STRUCTURED THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AS A SALE AFTER THE
OCCURRENCE OF THE TRIGGER DATE, AND BUYER AND SELLER EACH AGREE TO TREAT EACH
SUCH TRANSACTION AS A SALE FOR ALL PURPOSES, INCLUDING, WITHOUT LIMITATION, IN
THEIR RESPECTIVE BOOKS, RECORDS, COMPUTER FILES, TAX RETURNS (FEDERAL, STATE AND
LOCAL), REGULATORY AND GOVERNMENTAL FILINGS (AND SHALL REFLECT SUCH SALE IN
THEIR RESPECTIVE FINANCIAL STATEMENTS).
SELLER WILL ADVISE ALL PERSONS
INQUIRING ABOUT THE OWNERSHIP OF THE RECEIVABLES THAT ALL SUCH PURCHASED
RECEIVABLES HAVE BEEN SOLD TO BUYER.
IN THE EVENT THAT, CONTRARY TO THE MUTUAL
INTENT OF THE PARTIES, ANY PURCHASE OF SUCH PURCHASED RECEIVABLES FOLLOWING THE
TRIGGER DATE IS
2
NOT CHARACTERIZED AS A SALE, SELLER SHALL, EFFECTIVE AS OF THE TRIGGER DATE, BE
DEEMED TO HAVE GRANTED TO BUYER THE SECURITY INTEREST GRANTED IN
SECTION 1(D) ABOVE.
2.
Seller Representations and Warranties.
Seller represents and warrants to Buyer on each Purchase Date that the
representations and warranties set forth on Exhibit C are true and correct.
3.
Seller Covenants.
Seller agrees to
perform the covenants set forth on Exhibit D.
4.
Collection Activities.
(A)
BUYER APPOINTS SELLER AS ITS SERVICER AND
AGENT FOR THE ADMINISTRATION AND SERVICING OF ALL PURCHASED RECEIVABLES SOLD TO
BUYER HEREUNDER, AND SELLER HEREBY ACCEPTS SUCH APPOINTMENT AND AGREES TO
PERFORM ALL NECESSARY AND APPROPRIATE COMMERCIAL COLLECTION